Arcon Corp. v. Liberty Mutual Insurance

591 F. Supp. 15, 1983 U.S. Dist. LEXIS 10790

• Court: District Court, M.D. Tennessee
• Decided: December 15, 1983
• Docket: Civ. A. 3:83-0003
• Status: Published

Opinions

NEESE, District Judge, Sitting by Designation.

This is an action predicated on diverse citizenship and the matter in controversy, 28 U.S.C. § 1332(a)(1), (c), in which the plaintiff seeks to recover from the defendants under several theories of recovery: including negligence, breach of contract, misrepresentation and fraud, estoppel, and breach of a policy of insurance. The defendants moved the Court “ * * * to dismiss this action for failure [of the plaintiff] to join indispensable parties.” Rule 12(b)(7), F.R.Civ.P. Such motion lacks merit.

The defendants argue that certain other entities should be party-defendants herein because it was the negligence of those non-parties that caused the loss for which the plaintiff seeks recovery. The plaintiff elected not to pursue whatever claims it might have against such alleged wrongdoers, having chosen instead to go against its insurers.

It is elementary that, where one or more persons may be liable to the plaintiff (whether jointly, severally or alternatively), the plaintiff may sue one or more of them without joining the others. Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 330, 75 S.Ct. 865, 869 [10], 99 L.Ed. 1122 (1955); Lumbermen’s Mut. Cas. Co. v. Elbert, 348 U.S. 48, 52, 75 S.Ct. 151, 154 [6, 7], 99 L.Ed. 59 (1954); McPherson v. Hoffman, 275 F.2d 466, 470 [3] (6th Cir.1960); Stiles v. Porter Paint Co., 75 F.R.D. 617, 618 [4] (D.C.Tenn.1976). The plaintiff had a right to determine for itself whom it would sue herein; after it chose, neither the Court nor the defendants can add another party defendant for it. McPherson v. Hoffman, supra.

The defendants appear to confuse Rule 19, F.R.Civ.P. with Rule 14(a), F.R. Civ.P. See 3 Moore’s Federal Practice (2d ed.) 14-29, ¶ 14.04 (Rule 19, allowing defendant to demand joinder of additional necessary or indispensible parties should be distinguished from the theory and procedure under Rule 14(a)). Assertion of a third-party claim under Rule 14(a) is the proper procedure “ * * * if there is a dispute over which of several parties caused damage, and multiple litigation may arise with inconsistent results on the issue of causation. * * *” Federal Procedure, L.Ed. 118, § 59:135; see Rogers v. Aetna Cas. and Sur. Co., 601 F.2d 840 (5th Cir.1979). Such procedure is also the proper method of asserting a claim for subrogation. 76., at 169, § 59:213.

Obviously, the plaintiff’s dispute herein is with its insurers, not with other parties against whom the defendants might have a right of subrogation. The Court sees no reason why this action cannot proceed in the absence of the non-joined entities.

If the defendants are concerned genuinely about not having these additional parties before the Court, they have at their disposal the impleader procedures of Rule 14(a),¹ supra. See Brown v. Chaffee, 612 F.2d 497, 503 (10th Cir.1979) and Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1246 (E.D.Va.1977). The motion hereby is

DENIED.²

ON MOTION FOR SUMMARY JUDGMENT

This is a civil action in which the plaintiff seeks to recover from its insurers for property damage sustained as a result of flooding. 28 U.S.C. § 1332(a)(1),(c). The plaintiff asserts claims under a policy of insuranee issued by the defendants¹ as well as on the ground that the defendants failed to issue a policy providing coverage for the type of loss the plaintiff incurred.² The insurance companies, in turn, impleaded third parties, Rule 14(a), F.R.Civ.P., claiming those parties were responsible for the flooding and resulting damage to the plaintiffs property.

I

The defendants moved for a summary judgment, Rule 56(b), F.R.Civ.P., “ * * * as to all claims asserted by the plaintiff under the insurance contract in controversy * *,” on the ground that the plaintiff did not commence this action within the time prescribed in the policy for so doing. The policy provided in clear, unambiguous language that

[n]o suit shall be brought on the policy unless the insured * * * has commenced the suit within one year after the loss occurs.

In the absence of a statutory provision to the contrary, the validity of a provision in a policy of insurance requiring suit under the policy to be brought within a prescribed period of time “ * * * cannot be disputed. * * * ” Thompson v. Phenix Ins. Co., 136 U.S. 287, 298, 10 S.Ct. 1019, 1023, 34 L.Ed. 408, 413 (1890); accord Riddlesbarger v. Hartford Ins. Co., 74 U.S. (7 Wall.) 386, 392, 19 L.Ed. 257, 260 (1869) (“We have no doubt of its validity.”) In Tennessee, such contractual periods of limitation have consistently been upheld and enforced. Interstate Life & Accident Co. v. Hunt, 171 Tenn. 119, 100 S.W.2d 987, 989[3] (1937); Johnson v. Life & Casualty Ins. Co., 168 Tenn. 358, 79 S.W.2d 39, 40 (1935); Guthrie v. Connecticut Indemnity Ass’n., 101 Tenn. 643, 49 S.W. 829, 830 (1898); Holland v. Fuller, 14 F.Supp. 688, 692[4] (E.D.Tenn.1936).

In such situations, Tennessee’s so-called savings’ statute, T.C.A. § 28-1-105, “* * * is wholly inapplicable * * *.” Guthrie v. Connecticut Indemnity Ass’n., supra, 49 S.W. at 830. “ * * * This must be true, for, if the contractual-limitation is valid, the parties are not bound by the general limitation of the statute; and for a reason they are not bound by the savings of the statute. This question is purely one of contract, and is not regulated by the terms of the statute. * * * ” Id.

The complaint alleges that the loss sustained by the plaintiff occurred “on or about May 4, 1979.” The plaintiff did not, however, commence this action until January 3, 1983, well outside the one-year period prescribed by the policy. The plaintiff’s action “on the policy” is thus time-barred.

The motion of the defendants for a summary judgment, as to all claims asserted by the plaintiff on the insurance policy itself, hereby is GRANTED, Rule 56(c), F.R. Civ.P., and the plaintiff hereby is

DENIED all relief on the claims set forth in counts VI and VII of its complaint.

II

The third-party claims asserted by the insurance companies are premised upon a finding in favor of the plaintiff, and against the former, “ * * * under the insurance contract * * In such event, the third-party plaintiffs aver they would be “ * * * subrogated to the rights of the [plaintiff] and entitled to be indemnified by the third-party defendants for all amounts paid for the May 4, 1979 flood loss under the insurance contract to the [plaintiff].”³

The Court ruled, supra, that the claims of the plaintiff on the policy of insurance are barred by the one-year contractual period of limitations, and the plaintiff has been denied all relief on such claims. Obviously then, the insurance companies could not be found liable to the plaintiff “ * * * under the insurance contract * *.” Accordingly, the third-party claims — which are based on a recovery by the plaintiff against the insurance companies under the policy — have become moot and are without the jurisdiction of the Court. Faser v. Sears, Roebuck & Co., 674 F.2d 856, 860[6] (11th Cir.1982).

It results, that the third-party claims herein hereby are

DISMISSED sua sponte for lack of the Court’s jurisdiction of the subject matter.⁴ Rule 12(h)(3), F.R.Civ.P.

The clerk will assign this action for a pre-trial conference on the remaining (separate) issues, supra, at a convenient time.

MEMORANDUM OPINION, FINDINGS, CONCLUSIONS AND DECISION

1 . A central purpose of Rule 14 is to avoid circuity of action and to dispose of the entire subject-matter arising from one set of facts in one action, thus administering complete and evenhanded justice expediously and economically. Lasa Per L'Industria Del Marmo Soc. Per Azioni v. Alexander, 414 F.2d 143, 146[1, 2] (6th Cir.1969).

2 . The request of the plaintiff for oral argument is DENIED as unnecessary. Local Rule 8(b)(1).

1 . It is not entirely clear whether the policy was issued by one or both defendants; in any event, the plaintiff seeks recovery against both.

2 . In its brief, the plaintiff argues that it is not seeking to recover under the policy issued but under a policy that was not issued. Exactly how one could recover under a nonexistent contract is not made to appear. In any event, the Court is satisfied that, according to the allegations of counts VI and VII of the complaint, the plaintiff is seeking to recover under the policy actually issued, although, in the former such count, the plaintiff seeks to incorporate additional terms into such policy, none of which would affect the one-year period of limitation contained therein; whether the defendants can be held liable for failing to issue to the plaintiff a policy covering the type of loss sustained is an entirely separate matter.

3 . ¶ 9 of the third-party complaint herein reads as follows:

“If the Arcon Corporation is permitted to recover under the insurance contract under the theory that its May 4, 1979, flood loss was proximately caused by the negligence of the third-party defendants and/or the third-party defendant’s creation of a nuisance, then the third-party plaintiffs are subrogated to the rights of the Arcon Corporation and entitled to be indemnified by the third-party defendants for all amounts paid for the May 4, 1979 flood loss under the insurance contract to the Arcon Corporation.”

4 . Mootness is a jurisdictional question under the Constitution, Art. Ill, which may be raised by the Court on its own initiative. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404[3], 30 L.Ed.2d 413 (1971); International Union, Etc. v. Dana Corp., 697 F.2d 718, 720[2] (6th Cir. en banc 1983).