DocketNumber: 83-187
Judges: Beatty, Faulkner
Filed Date: 2/10/1984
Status: Precedential
Modified Date: 2/9/2024
Petition for writ of mandamus to issue to the Honorable Rudolph W. Slate, Judge of the Circuit Court of Morgan County. The writ is granted.
The petitioner, Bobby J. Howell, sustained personal injuries in an accident while employed as a construction worker for Henry M. Leiman, Inc., a corporation. Howell was paid workmen's compensation benefits of approximately $21,584 by the Aetna Casualty Surety Company (Aetna), the workmen's compensation carrier for Howell's employer.
Subsequently, Howell filed an action in the Circuit Court of Morgan County against Henry M. Leiman, individually, Bill Wood, and certain fictitious parties to recover damages on account of those injuries. This was a third-party action brought under Code of 1975, §
After Howell filed this third-party lawsuit, defendant Henry M. Leiman moved that the circuit court order Howell to name Aetna as a party plaintiff. The grounds asserted in support of this motion were:
(1) That Aetna was subrogated to any and all claims for workmen's compensation benefits paid to Howell;
(2) That Aetna has a subrogation interest in the case and that the action should be brought and prosecuted in the name of Howell and Aetna; and
(3) That Aetna is a necessary party to the adjudication of the case in accord with Rules 17 (a) and 19 (a), A.R.Civ.P.
Judge Slate, in due course, entered the order prayed for. Howell then filed this petition to obtain a rescission of that order.
The basic legal question presented is whether Aetna, the compensation carrier, must be joined in the third-party action as a party plaintiff under Rules 17 (a) and 19 (a), A.R.Civ.P., in view of Code of 1975, §
Rule 17 (a) provides that:
*Page 663"Every action shall be prosecuted in the name of the real party in interest. . . .
"In subrogation cases, regardless of whether subrogation has occurred by operation of law, assignment, loan receipt, or otherwise, if the subrogor no longer has a pecuniary interest in the claim, the action shall be brought in the name of the subrogee. If the subrogor still has a pecuniary interest in the claim, the action shall be brought in the names of the subrogor and the subrogee."
Rule 19 (a) recites that:
"A person who is subject to jurisdiction of the court shall be joined as a party in the action if . . . (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party."
Respondents contend that Aetna has a pecuniary interest in Howell's claim against Leiman and Wood which derives from the language of Code of 1975, §
"If the injured employee . . . recover[s] damages against such other party, the amount of such damages so recovered and collected shall be credited upon the liability of the employer for compensation, and if such damages so recovered and collected should be in excess of the compensation payable under this chapter, there shall be no further liability on the employer to pay compensation on account of such injury . . . and the employer shall be entitled to reimbursement for the amount of compensation theretofore paid on account of such injury or death." (Emphasis added.)
According to the respondents, the case of Roberts v. Hughes,
"It [A.R.Civ.P. 17 (a)] states that the action shall be brought in the name of the subrogee, regardless of whether its subrogation rights arose by virtue of operation of law, assignment, loan receipt, or otherwise. In other words, the acts giving rise to the rights of subrogation, not the form of any agreement between insured and insurer, are determinative of who shall be made a party." 432 So.2d at 1234.
The petitioner, Howell, on the other hand, contends that the earlier decision of this Court in Hughes v. Newton,
"the discretionary allowance of intervention where the insurance company . . . represents the third party defendant and is also seeking, through intervention, status as a party plaintiff. Such a patent conflict of interest exists as to bar the right of unencumbered intervention. The potential for collusion is so inherent as to preclude a showing to the contrary within the spirit of Rule 24."
295 Ala. at 120 ,324 So.2d at 272.
See also Southern v. Plumb Tools, A Div. of O'Ames Corp.,
Having disposed of the case on that narrow ground, this Court, by way of obiter dictum, proceeded to set guidelines for the allowance of intervention in the ordinary workmen's compensation case brought under Title 26, § 312 (Alabama Code of 1940, Recomp. 1958), now §
"Rule 24 anticipates potential future litigation brought by or involving the intervenor. The purpose of allowing intervention in such cases is to discourgage multiplicity of litigation and to relieve the intervenor from the possible prejudice of ``stare decisis in later litigation involving the same questions of law and fact to which the unsuccessful applicant for intervention is finally a party.'
. . .
"In the § 312 [now §
25-5-11 ] situation, however, no future litigation is contemplated. [Citing Liberty Mutual Ins. Co. v. Lockwood Greene Engineering, Inc.,273 Ala. 403 ,140 So.2d 821 (1962).] The compensation carrier will be reimbursed from the employee's judgment, if any, whether or not it intervenes. Since the employee is seeking exactly the same recovery as the insurer, the usual case will be resolved by the final clause of Rule 24 (a)(2), ``. . . the applicant's interest is adequately represented by existing parties.'"Thus, in the [§
25-5-11 ] case, the motives for liberally allowing intervention are absent and the right to intervene by the compensation carrier should be more restricted than in other Rule 24 cases. Before intervention should be allowed over the objection of the plaintiff in a [§25-5-11 ] third party action, the applicant must meet a burden of showing to the satisfaction of the trial court that he can make a substantial contribution toward a favorable outcome of the plaintiff-employee's case."A mere showing that the applicant is the employer or his compensation carrier and the extent of its right of reimbursement is insufficient to meet this burden. If, on the other hand, the applicant can demonstrate active participation in the preparation of the third party action; that it has in its possession significant information or data essential to the prosecution of the third party suit; or that the employee-plaintiff is inadequately represented or otherwise less likely to succeed in his effort to effect recovery without the intervenor's active participation; then, in such event unencumbered intervention (i.e., full participation in the litigation) should be allowed."
295 Ala. at 120-121 ,324 So.2d at 273.
Of course, it will not have escaped notice that these conditions were considered to apply to a Rule 24 situation, that is, to intervention. Intervention is a method by which "an outsider with an interest in a lawsuit may come in as a party" on his own application. Wright Miller, Federal Practice andProcedure, § 1901 (1st ed. 1972) at 464. Intervention must be distinguished from joinder, which is a method by which one may be compelled to become a party. Rule 19, A.R.Civ.P.; Wright Miller, supra, § 1602 at 17; § 1901 at 464. The rules governing intervention and joinder, *Page 665 however, do not provide automatic participation in the lawsuit in all instances. Quite the contrary, Rules 19 and 24 both provide certain conditions for joinder and intervention. Rule 19 (a) requires joinder only if (1) complete relief cannot otherwise be given to those already parties; and (2) the person to be joined:
"claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest."
In the situation before us, we are not concerned with Rule 24. Thus, we do not consider whether Aetna should or should not be made a party either through permissive intervention or by right. Rather, the question before us is whether Aetna, as a workmen's compensation carrier, which has paid benefits to the workman, is a "real party in interest" under Rule 17 (a) and, accordingly, may be joined in the action under Rule 19. Consideration of pertinent federal decisions, together with perusal of §
Who is a real party in interest under Rule 17 (a)? Professor Moore's definition is this:
"The meaning and object of the real party in interest provision [of Rule 17] would be more accurately expressed if it read:"An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced." (Emphasis in original.)
3A J. Moore, Federal Practice, § 17.02 at 53 (2d ed. 1953).
A leading case applying this principle is United States v.Aetna Cas. Surety Co.,
Another significant decision applying the "substantive rights against the tortfeasor" principle is Joyner v. F BEnterprises, Inc.,
The court found particular guidance in section 33 (b) of the Longshoremen's Act,
"Acceptance of [workmen's] compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all rights of the person entitled to compensation to recover damages against such third person unless such *Page 666 person shall commence an action against such third person within six months after such award."
In discussing the consequences of the employee's bringing the third-party action, the Court of Appeals stressed the importance of the following questions:
"Where compensation benefits are paid without an award, and the employee commences a third-party action, what substantive right does the employer-assignee then enjoy? Does the employer-assignee retain a substantive right as against the third party? Or, is there merely a right as against the employee if the employee succeeds in his third-party action?" (Emphasis in original.) 448 F.2d at 1187.
The court recognized that the compensation carrier did receive subrogation benefits when it made payments to the injured employee. However, it found that when those payments were made without an award under § 933 (b) of the Act the onlyright the insurance carrier possessed was an interest in anyproceeds recovered in Joyner's action against his allegedtortfeasor. The court stated, at 1188:
"Only if [the insurance carrier] had obtained a formal award of benefits, and Joyner had not commenced a third-party action within six months of the entry of the award [under § 33 (b)], would [the carrier] have a substantive right directly against the third-party tortfeasor. This being the case, [the carrier] is not a ``real party in interest' in Joyner's suit against the third-party tortfeasor." (Emphasis added.)Cf. Travelers Ins. Co. v. District of Columbia,
That the "real party in interest" is the one owning the substantive right to be enforced is a principle also followed in other decisions. See, for example, Doyle v. Colborne Mfg.Co.,
It is, of course, true that our Rule 17 referring to subrogation cases states that, "regardless of whether subrogation has occurred by operation of law, assignment, loan receipt, or otherwise, if the subrogor no longer has a pecuniary interest in the claim, the action shall be brought in the name of the subrogee." The question to be resolved, however, is whether the nature of the interest of the insurer-subrogee is such that he may be joined under Rule 19. The answer to that question, like that in the federal cases cited above, depends upon the statutory rights of the insurer.
An early Alabama case, Metropolitan Cas. Ins. Co. of New Yorkv. Sloss-Sheffield Steel Iron Co.,
That section exists in essentially the same form presently as §
Thus, it can be seen that when the injured employee exercises his statutory right to initiate his exclusive action against the alleged third-party tortfeasor, the insurance carrier is not a "real party in interest" under Rule 17 (a). The interest to which it is "subrogated" is in whatever recovery is obtained by the employee against the tortfeasor. The statute, §
"The compensation carrier will be reimbursed from the employee's judgment, if any, whether or not it intervenes [and even when it is not joined]. Since the employee is seeking exactly the same recovery as the insurer, the usual case will be resolved by the final clause of Rule 24 (a)(2), ``. . . the applicant's interest is adequately represented by existing parties.'"295 Ala. at 121 ,324 So.2d at 273.
Not being a "real party in interest," therefore, the insurance carrier here, Aetna, is not required to be joined under Rule 19 (a). To the extent that the case of Roberts v.Hughes, supra, is contrary to the views expressed herein, it must be considered modified.
The writ of mandamus is granted. The Honorable trial court is directed to rescind the order naming Aetna as a party plaintiff in the case of Bobby J. Howell against Henry M. Leiman, Bill Wood, et al.
WRIT GRANTED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES and ADAMS, JJ., concur.
FAULKNER and EMBRY, JJ., concur specially.