Timely Asserting a Cross-Claim in Alabama
When determining whether a cross-claim can be asserted after the time of the running of the statute of limitations for the underlying matter, it is likely that such a cross claim can be made, so long as the cross claim did not arise after the filing of the original pleading in the matter and it relates back to the time the Plaintiff’s claim arose.
Alabama Rule of Civil Procedure 13(c) allows that “all counterclaims other than those maturing or acquired after pleading shall relate back to the time the original plaintiff’s claim arose.” This premise is also found in Alabama Code § 6-8-84, pertaining to the effect of the Statute of Limitations: “When the defendant pleads a counterclaim to the plaintiff’s demand, to which the plaintiff replies the statute of limitations, the defendant is nevertheless entitled to his counterclaim, where it was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in the action.”
Subsequently, in the Committee Comments to the adoption of Rule 13, the committee stated: “The usual rules about counterclaims apply [to cross claims].” Additionally, where compulsive counterclaims are barred if not brought within the statute of limitations under Rule 13(a), this bar does not apply to cross-claims, per Rule 13(g). AAA Equipment & Rental, Inc. v. Bailey, 384 So.2d 107 (Ala. 1980). Alabama Rule of Civil Procedure 13(g) states:
A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
However, the waters begin to be a bit muddled by the language of Dumas v. Southern Guaranty Ins. Co. wherein the Alabama Supreme Court held:
[T]he insured argues that his cross-claim should relate back to the date the original complaint was filed, thus rendering it timely within the one-year statute of limitations. This is not the law. A cross-claim permitted under ARCP 13(g) must, like any other pleading, state a claim upon which relief may be granted, and ‘(i)n the absence of a statute to the contrary, a demand pleaded by way of a setoff, counterclaim, or cross claim is regarded as an affirmative action in most jurisdictions and therefore, unlike a matter of pure defense, is subject to the operation of the statute of limitations, and is unavailable if barred.’
408 So.2d 86 (Ala. 1981) (quoting 51 Am. Jur. 2d Limitations of Actions, § 78 (1970)). It can be argued that the above only applies in a setting in which a cross-claim has been raised as an attempt at an affirmative defense and has not, as is proper, stated its own cause of action.
Therefore, because under ARCP 13(c) all counterclaims relate back so long as they did not arise after the time which gave rise to the Plaintiff’s original complaint, and because the usual rules that apply to counterclaims also apply to cross-claims, such a cross-claim will likely not be barred by the applicable statute of limitations.