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Watergate Landmark Condo. Unit Owners’ Asso. v. Wiss, Janey, Elstner Assocs., Inc. - 117 F.R.D. 576 (E.D. Va. 1987)


Rule 14(a), Fed. R. Civ. P., by its terms, and established authority make unmistakably clear that a third party complaint is appropriate only where the third party defendant would be secondarily or derivatively liable to the defendant in the event the defendant is held liable to the plaintiff.


In the spring of 1985, a condominium association, Watergate Landmark Condominium Unit Owner’s Association (Watergate), entered into a contract with Wiss, Janey, under which the latter would prepare specifications for the repair of Watergate members’ balconies. The repairs failed to correct the existing balcony problems and failed to halt further deterioration. Watergate filed a complaint against Wiss, Janey, alleging that the latter’s specifications were defective, in breach of express and implied warranties and negligently prepared. Watergate also instituted a complaint against the real estate management firm, Legum & Norman Realty (Legum & Norman), the manager of the condominiums and Watergate’s agent, alleging that the latter breached the management contract by recommending Wiss, Janey rather than a firm capable of providing proper specifications for the balcony repairs. Additionally, the complaint averred that Legum & Norman failed to call to Watergate's attention two Wiss, Janey letters purporting to limit the efficacy and scope of the specifications. This failure was alleged to constitute a breach of the management agreement and a breach of Legum & Norman's agency duty. In response to the complaint, Legum & Norman filed an answer, a cross-claim against Wiss, Janey and a third party complaint against Brisk Waterproofing Company (Brisk), the company that performed the repairs, and Tadger-Cohen Associates Inspection Company, Ltd., the inspector of the repairs. The amended third party complaint alleged that Brisk negligently performed the repairs and was solely liable to Watergate. Brisk has moved pursuant to Rule 12(b)(6), Fed. R. Civ. P. to dismiss the amended third party complaint.


Was Legum & Norman’s third party claim against Brisk maintainable under Rule 14(a), Fed. R. Civ. P.?




The federal district court held that Legum & Norman’s third party claim against Brisk was not maintainable under Rule 14(a), Fed. R. Civ. P. Legum & Norman did not claim that Brisk was derivatively or secondarily liable to Watergate. The Court noted that a third party claim can be maintained only if the liability it asserted was in some way derivative of the main claim. However, the question of whether Brisk’s work was negligent was not part of the main claim of Watergate against Legum & Norman. Thus, Legum & Norman's claim against Brisk was independent of the outcome of the main claim. Given this, the district court concluded that the third party claim against Brisk was manifestly inappropriate.

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