The Maturity Exception
Im Steinberg v. St. Paul Mercury Insurance, 108 F.R.D. 355, 358 (S.D. Ga. 1985) a counterclaim acquired by a defendant after he or she has answered will not be considered compulsory, even if it arises out of the same transaction; similarly, a counterclaim which is likely to arise or is contingent when defendant files the answer has not matured for the purposes of Rule 13(a)); Blaser v. Cameron, 116 Idaho 453, 776 P.2d 462 (1989).
In Steinberg v. St. Paul Mercury Insurance, an insured sued his insurer for liquidated damages plus attorney fees and costs.
When the insurer counterclaimed based on a promissory note and security deed, the insured contended the counterclaim was barred because it was a compulsory counterclaim in an earlier action.
The court disagreed, observing that the insurer's answer in the previous case was filed at least three months before the security deed and promissory note had even been assigned to the insurer.
The court held that the insurer's claim may have been anticipated, but it had not matured. See also Blaser v. Cameron, supra (contractor's claim was not barred as a compulsory counterclaim in an earlier action because contractor did not have a legal basis for his claim until he had completed his promised performance under the contract).
Actions of replevin or for taking, detaining, or converting goods or chattels must be commenced within three years after the cause of action accrues. Section 13-80-101(1)(h), C.R.S. 1999.
A cause of action for wrongful possession of personal property, goods, or chattels accrues at the time the wrongful possession is discovered or should have been discovered through reasonable diligence. Section 13-80-108(7), C.R.S. 1999.