The opinion of the court was delivered by: DEBEVOISE
Plaintiff, Impex Agricultural Commodities Division of Impex Overseas Corporation ("Impex"), originally instituted this suit against defendants, St. Paul Fire & Marine Insurance Co. ("St. Paul"), Leonard Parness Trucking Corp. ("Parness"), and W.M. Ross & Company, Inc. ("Ross"), to recover damages allegedly resulting from the loss of 640 cartons of meat preserves which Impex had delivered to Parness for carriage to New York City. Parness now moves to amend its answer and to implead its liability insurer, St. Paul, as third-party defendant.
II. FACTUAL AND PROCEDURAL HISTORY
On October 5, 1981, Impex delivered a quantity of meat preserves to Parness for carriage to New York City. These goods were never delivered, resulting in damages to Impex for the amount of $69,686.55. Thereafter, Parness forwarded Impex's claim for this loss to St. Paul, which declined coverage on February 4, 1982. Upon information that Parness lacked sufficient assets to pay the claim Impex commenced suit on May 3, 1983 against Parness, as insured carrier, St. Paul as liability insurer, and Ross as insurance broker.
On December 12, 1983, the direct action brought by Impex against St. Paul was dismissed on grounds that Impex was neither in privity nor an intended beneficiary of the liability insurance policy entered into between St. Paul and Parness. This policy was limited to indemnifying Parness against loss or damage for which the insured became legally liable.
Subsequently, Parness moved to amend its crossclaim against St. Paul to assert a direct claim for indemnification. This motion was opposed by St. Paul on grounds that Parness' claim was time-barred. At the same time, Ross moved to dismiss the complaint against it for failure to state a cause of action. By opinion dated December 29, 1983, Ross' motion was denied. Parness' motion was also denied as "moot" by virtue of the court's prior dismissal of St. Paul as a defendant in this matter. Thereafter, the court entered an order on January 30, 1984 dismissing all crossclaims by defendants Ross and Parness against St. Paul. Impex Agricultural v. Parness Trucking, 576 F. Supp. 587 (1983).
Presently before the court is Parness' motion to implead St. Paul as a third-party defendant. In response, St. Paul reiterates the objection it made to Parness' prior motion to amend the crossclaim; specifically, St. Paul asserts that the claims against it are time-barred.
A. Order Dismissing All Crossclaims Against St. Paul is Vacated
Under Rule 13(g) of the Federal Rules of Civil Procedure a crossclaim may be asserted only by one party against a co-party. Thus, a crossclaim may not be brought against a person who has been eliminated from a suit prior to the time when the crossclaim was filed, since the person is no longer a party. 6 Wright & Miller, Federal Prac. & Pro. § 1431 at 163. When, however, the original claim against a party is dismissed on the merits, crossclaims previously interposed against the same party remain. For example, in Frommeyer v. L. & R. Construction Co., Inc., 139 F. Supp. 579 (D.N.J. 1956), a sub-subcontractor sued the general contractor, the subcontrctor and their respective sureties to recover amounts due under the sub-subcontract. The defendants crossclaimed against the subcontractor's surety, who subsequently moved to dismiss the original complaint as to it for failure to state a cause of action. This motion was granted. The subcontractor's surety then sought to dismiss the crossclaims but the court denied the motion since at the time the crossclaims were asserted the subcontractor's surety was a co-party. Id. at 586. The court in Aetna Insurance Co. v. Newton, 398 F.2d 729, 734 (3d Cir. 1968), citing Frommeyer, supra, similarly concluded that:
A dismissal of the original complaint as to one of the defendants named therein does not operate as a dismissal of a cross-claim filed against such defendant by a co-defendant.
See also Fairview Park Excav. Co., Inc. v. Al Monzo Construction, 560 F.2d 1122, 1126 (3d Cir. 1977) (district court erred in dismissing crossclaim after complaint against crossclaimed defendant was dismissed for failure to state a claim).
Application of these principles to the case at bar indicates that this court's order dated January 30, 1984 dismissing the crossclaims of Ross and Parness was improvidently granted. Both Ross and Parness had asserted their crossclaims against St. Paul prior to the dismissal on the merits of Impex's complaint against St. Paul. Accordingly, the order entered on January 30, 1984 will be vacated ...