Warner Robins, GA
File a lawsuit after a crash and the other driver may sue you back in the same case. In North Carolina, some of those claims must be raised right away or they are lost.
Also called: counter claim, compulsory counterclaim, permissive counterclaim
A lawsuit is not always one-directional. When two drivers collide, each may believe the other caused the crash, and each may have injuries and a damaged car. If one files suit first, the other usually answers by denying fault and then filing a counterclaim for his or her own losses.
North Carolina’s rules push both sides’ claims into one case. Joshua E. Palmer, Attorney at Law looks at counterclaim risk before filing, because a counterclaim changes who is accusing whom, which insurer is involved, and how contributory negligence plays out. This page covers compulsory and permissive counterclaims under Rule 13, how a counterclaim differs from a crossclaim, and what it means in a North Carolina crash case.
A counterclaim turns the defendant into a claimant. It is included in the defendant’s answer, or filed with it, and asks the court for relief against the person who started the case. The original plaintiff then has to respond to it, just as a defendant responds to a complaint.
Under N.C. R. Civ. P. 13(c), a counterclaim may reduce or defeat what the plaintiff recovers, and it may also ask for more money than the plaintiff sought or for a different kind of relief. The jury can find for one side, for the other side, or for neither.
Rule 13(a) requires a defendant to state as a counterclaim any claim against the opposing party that arises out of the transaction or occurrence that is the subject of the plaintiff’s claim. Two limited exceptions apply: the claim was already the subject of another pending action, or the court lacks jurisdiction to enter a personal judgment on it. Rule 13(b) allows, but does not require, counterclaims that do not arise out of the same occurrence.
The practical difference is what happens if the claim is left out. North Carolina courts generally treat an omitted compulsory counterclaim as lost once the case ends. Rule 13(f) gives some relief: when a counterclaim is left out through oversight, inadvertence, or excusable neglect, or when justice requires, the court may allow it to be added by amendment.
| Type | Who it is against | Must it be filed? | Crash example |
|---|---|---|---|
| Compulsory counterclaim, Rule 13(a) | The opposing party | Yes, if it arises from the same occurrence | Driver B’s injury claim against Driver A from the same collision |
| Permissive counterclaim, Rule 13(b) | The opposing party | No | An unrelated unpaid loan between the drivers |
| Crossclaim, Rule 13(g) | A co-party on the same side | No | One defendant driver claiming the other defendant driver is responsible |
Answers, and any counterclaim in them, are generally due 30 days after service under N.C. R. Civ. P. 12, subject to extensions.
The typical pattern is two drivers, two insurers, one trial. The plaintiff driver sues. The defendant driver’s liability insurer usually hires a lawyer to defend, and the defendant may hire separate counsel, or use counsel arranged through the defendant’s own coverage, to pursue a counterclaim for his or her injuries. Both claims are tried together because they turn on the same facts.
Deadlines still matter. A personal injury claim in North Carolina is generally subject to a three-year limitation period under N.C. Gen. Stat. § 1-52(16). A driver who plans to bring a claim should not count on waiting for the other side to sue first. Talk to a lawyer about filing your own claim within the deadline.
North Carolina applies pure contributory negligence: a person whose own negligence was a proximate cause of the injury recovers nothing. In a claim and counterclaim, that rule cuts both ways. Each driver who asserts contributory negligence against the other has the burden of proving it under N.C. Gen. Stat. § 1-139. If the jury finds that both drivers were negligent, neither one recovers from the other.
A worked example: two cars collide at a Raleigh intersection. Driver A sues Driver B, saying B ran a red light. B counterclaims, saying A was speeding. The jury may find B negligent and A not negligent, so A recovers and B’s counterclaim fails. Or it may find both negligent, so both claims fail. That all-or-nothing risk is why preparing a contributory negligence defense, and answering the counterclaim carefully, is as important as proving the original claim.
A counterclaim goes against an opposing party. A crossclaim goes against a co-party on the same side of the case. Under N.C. R. Civ. P. 13(g), a defendant can file a crossclaim against another defendant arising out of the same occurrence, including a claim that the co-defendant is or may be liable to the crossclaimant for all or part of what the plaintiff is seeking.
Crossclaims are common in multi-vehicle crashes and in cases with a driver and an employer, or a property owner and a contractor. Rule 13(h) lets the court bring in additional parties when they are needed for complete relief on a counterclaim or crossclaim.
Joshua E. Palmer
Managing Partner · Joshua E. Palmer, Attorney at Law
Attorney Palmer concentrates in personal injury law and trained in North Carolina law at North Carolina Central University School of Law in Durham. This glossary explains the terms he uses with clients every day, in plain English and with the North Carolina rule that applies.
Sued after a crash, or facing a counterclaim? Call for a free North Carolina case review before your answer deadline.
Responsible attorney: Joshua E. Palmer, Managing Partner · 106 Moran Dr #5106, Bonaire, GA 31005 · (478) 887-3734. Attorney advertising. This page is general legal information about North Carolina law, not legal advice for your situation; contacting the firm does not create an attorney-client relationship.
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Each case is different. Any results, settlement figures, or benefit amounts described on this page depend on the specific facts of that case and do not guarantee or predict a similar outcome in yours. Statutes and benefit rates cited are current as of November 2026; confirm current law with an attorney before relying on it.
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