Friday, December 27, 2013

Dindo v. Whitney case brief

Dindo v. Whitney case brief summary
451 F.2d 1 (1st Cir. 1971)

Plaintiff appealed an order of the United States District Court for the District of New Hampshire granting defendant's motion to dismiss an action involving a counterclaim.

Plaintiff was driving defendant, a passenger in his own car, when the car went off the road, injuring plaintiff. Defendant sued plaintiff and defendant's own insurer paid defendant a sum within policy limits. Two years later, plaintiff sued defendant alleging that the accident was caused by defendant putting his hand through the steering wheel in reaching for a flashlight. Plaintiff alleged he didn't realize he had a claim against defendant until he spoke with new counsel. The trial court granted defendant's motion to dismiss.


  • On appeal, defendant argued that plaintiff's action was barred by reason of plaintiff having failed to assert it as a compulsory counterclaim in the prior action. 
  • Plaintiff argued that the compulsory counterclaim rule was inapplicable to him since the original action was settled, rather than pursued to judgment. 
  • The court ordered a hearing on the merits, with the facts to be found by a jury.
Order granting defendant's motion to dismiss vacated and remanded for a hearing on the merits because the court may have wanted to consider the effect of the cooperation clause in defendant's insurance policy.

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