Trombino v. Transit Casualty Co.

110 F.R.D. 139, 1986 U.S. Dist. LEXIS 26306
CourtDistrict Court, D. Rhode Island
DecidedApril 25, 1986
DocketCiv. A. No. 84-0694-S
StatusPublished
Cited by21 cases

This text of 110 F.R.D. 139 (Trombino v. Transit Casualty Co.) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trombino v. Transit Casualty Co., 110 F.R.D. 139, 1986 U.S. Dist. LEXIS 26306 (D.R.I. 1986).

Opinion

MEMORANDUM AND ORDER'

SELYA, District Judge.

It was the Scottish poet, Robert Burns, who wrote that:

The best laid schemes o’ mice and men Gang aft agley.1

This case, in all its permutations, is but one further illustration of that truth. And, the latest turn of events confronts the parties and the court with an exotic question as to the availability of remand in a removed action which has lately run afoul of the imperatives of Fed.R.Civ.P. 19(b).

I. BACKGROUND

The plaintiffs, Italo Trombino and Anna Trombino, husband and wife, operated a restaurant and lounge in Westerly, Rhode Island under the name and style “Villa Trombino.” They are citizens and residents of Rhode Island. Desirous of protecting their business assets from a variety of perils, the plaintiffs secured a broad-form policy of risk insurance from the defendant, Transit Casualty Company, a Missouri corporation. On November 21, 1983, while the policy was in force and effect, the Villa Trombino was ravaged by fire.

What next ensued remains blurred by heat and smoke: the plaintiffs claim that they fulfilled the conditions of the policy to no avail; the defendant asserts that they disregarded all semblance of proper protocol vis-a-vis their contractual obligations. Be that as it may, the insureds were admittedly not compensated for the covered losses. They brought suit in the Rhode Island superior court (Washington County) on November 26, 1984, charging Transit with breach of the policy covenants and with bad faith dealings in connection with the claim. See R.I.Gen.Laws § 9-1-33. The insurer, spying the presence of diversity of citizenship and the requisite amount in controversy, 28 U.S.C. § 1332(a), seasonably removed the suit to this court. 28 U.S.C. § 1441.

There followed a prolonged period of discovery as the adversaries girded for battle. But, as the trial date drew near, the proceedings were brought to a screeching halt: Transit was petitioned into an insolvency liquidation in a Missouri circuit court and a permanent receiver was appointed. On December 23,1985, this court vacated the trial assignment. Transit’s fiscal woes not only impeded the progress of the Trombino claim, but also triggered the provisions of the so-called Rhode Island Insurers’ Insolvency Fund Act (Act), R.I.Gen.Laws §§ 27-34-1 — 27-34-18.

A brief digression is in order. First enacted in 1970, the Act was designed to [141]*141fashion a mechanism whereby, in the event of an insurer’s insolvency, some redress would be afforded to certain insureds. The Act created a pooled fund (Fund), R.I.Gen. Laws § 27-34-7, to be used to defray certain claims against some classes of licensed insurance companies doing business in Rhode Island after May 7, 1970. Generally speaking, the benefices of the Act extend to situations wherein “[t]he claimant or insured is a resident of [Rhode Island] at the time of the insured event,” R.I.Gen. Laws § 27-34-3(h)(l)(a), or “[t]he property from which the claim arises is permanently located” in Rhode Island. Id. at § 27-34-3(h)(1)(b). Though certain types of insurance are beyond the reach of the legislation, e.g., id. at § 27-34-3(d)(l)-(7) (life, accident and sickness, credit, title, surety, mortgage guarantee, and ocean marine policies excluded), most property and casualty claims fall within the statutory embrace. In the event of an insurer’s insolvency, the Fund steps into the shoes of the bankrupt vis-a-vis covered claims. R.I.Gen.Laws § 27-34-6. (There are, of course, numerous exceptions and caveats, but none are applicable here.)

The parties to this case do not dispute that the plaintiffs’ claim for property loss has become a “covered” one within the contemplation of the Act, R.I.Gen.Laws § 27-34-3(h)(l),2 that the claim is for less than the $1,000,000 statutory cap, id. at § 27-34-6, and that Transit is now an “insolvent insurer.” Id. at §§ 27-34-3(b), 27-34-4.’ The plaintiffs, having elected to train their guns on the Fund rather than to struggle within the spartan confines of the receivership, have moved to add the Fund as a party defendant. Transit’s counsel have objected.3 And, pursuant to an order entered by this court on February 21, 1986, the parties have briefed their views as to the effect of the Fund’s emergence on the posture of the case, on this court’s jurisdiction, and on the necessity for abstention, dismissal, and/or remand. Oral arguments were entertained on April 10, 1986 relative to both the motion to amend and the show-cause order. The court thereupon took the questions under advisement.

II. THE APPLICABLE STANDARD

In their memoranda and at oral argument, none of the parties adequately addressed the correct legal criteria implicated by the motion to amend. The plaintiffs maintain that their initiative is governed by Fed.R.Civ.P. 15(a) and by that rule’s admonition that “leave [to amend] shall be freely given when justice so requires.” They conveniently overlook the incontrovertible fact that the only change which their motion seeks to wreak is the addition of a new party defendant. Motions to amend for the sole purpose of adding new parties are rightfully to be scanned not under the general guidelines of Rule 15, but under the case-specific joinder provisions of Fed.R. Civ.P. 19. Thorp v. Petrola, 81 F.R.D. 513, 515 (D.W.Va.1979) (whenever addition of party through Rule 15 will offset subject matter jurisdiction, then Rules 19-21 control); Gordon v. Lipoff, 320 F.Supp. 905, 922-23 (W.D.Mo.1970) (parties may not be added merely by compliance with Rule 15(a); strictures of specific joinder rules must be observed); Pacific Gas & Electric Co. v. Fibreboard Products, Inc., 116 [142]*142F.Supp. 377, 382-83 (N.D.Cal.1953) (Rule 21, rather than Rule 15, controls where a party is to be added; conflicts or ambiguities in the Federal Rules “must be resolved in favor of the specific and against the general”). Cf. Montgomery v. Rumsfeld, 572 F.2d 250, 255 (9th Cir.1978) (joinder of additional plaintiffs, though cast in the garb of a motion to amend the complaint, was tantamount to intervention on the facts of the case, and was therefore governed by specific “standards of review corresponding to Rule 24”).4

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Cite This Page — Counsel Stack

Bluebook (online)
110 F.R.D. 139, 1986 U.S. Dist. LEXIS 26306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trombino-v-transit-casualty-co-rid-1986.