Tucson Electric Power Co. v. Bailey Controls Co.

145 F.R.D. 102, 24 Fed. R. Serv. 3d 1302, 1992 U.S. Dist. LEXIS 22458, 1992 WL 385169
District Court, D. Arizona·Decided November 25, 1992·No. No. Civ. 92-185 TUC RMB·Published·Cited by 1 cases

Opinion

ORDER

BILBY, District Judge.

This suit for damages arises out of a boiler explosion at an electric power generating facility operated by plaintiff Tucson Electric Power Company (“TEP”). Defendant Bailey Controls Company (“Bailey”) now moves to compel the joinder of TEP’s insurer, Arkwright Mutual Insurance Company (“Arkwright”); on the ground that Arkwright is both a real party in interest within the meaning of Fed.R.Civ.P. 17(a) and a party to be joined if feasible as defined by Fed.R.Civ.P. 19(a).

BACKGROUND

TEP and Bailey entered into an agreement in 1990, under which Bailey was to provide technical services for TEP on an as-needed basis. On February 19, 1991, a boiler exploded at TEP’s generating plant. At the time, one of Bailey’s technicians was testing or working on the ill-fated boiler. On February 13, 1992, TEP brought suit against Bailey in Pima County Superior Court, asserting causes of action sounding in both contract and tort, and alleging damages of “not less than $2,222,545.” 1 2Bailey subsequently removed to this Court, jurisdiction premised on diversity of parties.

The instant motion relates to Arkwright’s payment of the sum of $2,222,545 [103] to TEP pursuant to a so-called “loan receipt” agreement. Under the terms of the agreement, the sum is repayable “only in the event and to the extent that” TEP recovers damages from any third party in connection with the boiler explosion. The agreement further provides that TEP is obligated, if appropriate, to bring suit in its own name against any party who may be liable for damages. Though any such litigation is to be brought in TEP’s name, the agreement provides that it will be maintained “at the expense of and under the exclusive direction and control of the said Insurance Company.” As contemplated by the agreement, Arkwright both pays for and controls this litigation, though TEP is the named plaintiff.

DISCUSSION

Defendant Bailey asserts that because Arkwright has advanced payment to TEP for the loss suffered, Arkwright is a “real party in interest” within the meaning of Fed.R.Civ.P. 17(a). Therefore, Bailey contends, Arkwright is a party to be joined if feasible under Fed.R.Civ.P. 19(a). In response, TEP argues that Arkwright is neither a real party in interest nor a party necessary to the action.

I. REAL PARTY IN INTEREST

Rule 17(a) provides that “[ejvery action shall be prosecuted in the name of the real party in interest.” Though the language at first glance seems straightforward, in fact there is no consensus among federal courts whether the rule prevents an insurer from bringing suit in the name of the insured pursuant to a loan receipt agreement. See generally E. Michael Johnson, Note, The Real Party Under Rule 17(a): The Loan Receipt and Insurers’ Subrogation Revisited, 74 Minn.L.Rev. 1107 (1990) (noting conflicting and confusing state of the caselaw). In general, courts tend to follow one of three broad approaches when confronted with this question.

The first approach flows from the Supreme Court’s decision in Luckenbach v. W.J. McCahan Sugar Refining Co., 248 U.S. 139, 39 S.Ct. 53, 63 L.Ed. 170 (1918), which held that payments made pursuant to a loan receipt agreement are in fact loans, and not payments of insurance. Writing for the Court, Justice Brandéis praised the loan receipt as “consonant both with the needs of commerce and the demands of justice.” Id. at 149-51, 39 S.Ct. at 55-56. In the wake of Luckenbach, the majority of federal courts to have addressed the issue have held that Rule 17(a) does not prevent an insurance company from bringing suit in the name of the insured pursuant to a loan receipt agreement. E.g., Celanese Corp. v. John Clark Indus., 214 F.2d 551, 556 (5th Cir.1954); Acro Automation Systems v. Iscont Shipping Ltd., 706 F.Supp. 413, 422 (D.Md. 1989); see Note, supra, 74 Minn.L.Rev. at n. 60 (collecting cases). In contrast, a minority of courts, led by the D.C. Circuit, have held that allowing an insurer to sue in the name of the insured violates the express language of Rule 17(a).2 E.g., City Stores Co. v. Lerner Shops of Distnct of Columbia, Inc., 410 F.2d 1010, 1015 (D.C.Cir.1969); see Note, supra, 74 Minn. L.Rev. at n. 60 (collecting cases). Finally, courts following the third approach look to the applicable state law in a diversity action in order to determine whether to give effect to a loan receipt agreement. See Note, supra, 74 Minn.L.Rev. at n. 22 (collecting cases).

It is somewhat unclear which approach has been adopted in this Circuit. In McNeil Construction Co. v. Livingston State Bank, 300 F.2d 88, 90-91 (9th Cir. 1962), the Ninth Circuit followed the Erie-driven third approach, upholding the district court’s grant of summary judgment [104] under Rule 17(a), on the ground that under Montana law, the insurer, not the insured, was the real party in interest. But more recently, in Glacier General Assurance Co. v. G. Gordon Symons Co., 631 F.2d 131, 134 (9th Cir.1980), the Ninth Circuit, without discussing McNeil, implicitly questioned whether state law is of any practical significance in this context, stating that “determination of the real party in interest from the underlying legal relationships is a matter of federal law.” Id. at 134; cf. Hamman-McFarland Lumber Co. v. Arizona Equipment Rental Co., 16 Ariz.App. 188, 190, 492 P.2d 437 (1972) (treating issue as procedural and not substantive in nature).

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Tucson Electric Power Co. v. Bailey Controls Co., 145 F.R.D. 102, 24 Fed. R. Serv. 3d 1302, 1992 U.S. Dist. LEXIS 22458, 1992 WL 385169 (D. Ariz. 1992).

145 F.R.D. 102 (Tucson Electric Power Co. v. Bailey Controls Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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