The Edmond Sun

Local News

August 24, 2012

Attorney explains counterclaims through personal experience

EDMOND — EDITOR’S NOTE: This is a weekly series of columns written by attorneys at Lester, Loving & Davies law firm in Edmond.

Q: What is a counterclaim?

A: When a plaintiff files a lawsuit, he states his claim against the defendant. If the defendant believes the plaintiff is somehow indebted to her, she files a counterclaim against the plaintiff. This process allows courts to handle all disputes between the two parties in one lawsuit. Some counterclaims are compulsory — unless they are filed in the existing suit, they forever disappear. Other counterclaims are permissive — while they may be included in the lawsuit, failing to assert them will not bar them forever.

Two summers ago, I was hauling furniture in a box van. Because the van had no air conditioning, I quickly became very hot and eventually very tired, and ultimately gave in to the urge for a cold beverage. I stopped at my favorite drive-in restaurant. The establishment had wisely and very clearly posted that its awning is exactly 10 feet off the ground. As it turns out, the manufacturer of the moving van failed to take this fact into consideration, and made the van 10 feet 1 inch off the ground. So yes, in my dehydrated stupor I managed to wedge my vehicle under the awning, causing a 6-inch rip in the sheet metal. The restaurant had a tort claim against me that it could pursue in court.

I gave my name and number to a nice carhop, waited 10 minutes for my beverage, and left feeling stupid but glad to have a drink. Twenty minutes later, my moving van was surrounded by police cars. An employee at the restaurant, concerned that she had not done everything her boss would want, called the police and reported my collision with the awning as a hit-and-run. Now, I knew I had not committed a hit-and-run. I had given my name and number and waited 10 minutes for a drink. That’s a pretty slow hit-and-run. But the police were unconvinced until the carhop finally admitted that I had given my information before leaving.

The restaurant could have sued me for negligence because I carelessly damaged its property. I could have, theoretically, stated a counterclaim against it for defamation (falsely claiming I had committed a crime), and perhaps wrongful imprisonment (causing me to be detained without cause). Fortunately, we worked it out without considering a lawsuit. And I continue to enjoy the establishment’s excellent beverages. Just in a shorter car.

MATT HOPKINS is an attorney for Lester, Loving & Davies P.C. More information is available at lldlaw.com. Send questions to questions@lldlaw.com.

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