*2 BALDOCK, Corp., Before HOLLOWAY and & n. 1 SCM KELLY, (3rd Cir.1978); Judges. Corp. Circuit Republic Health instead, that, Fla., Inc., Hospitals of Lifemark required Cir.1985). “real interest” itself is the 17(a). at 20. This under Fed.R.Civ.P. applying prosecuted “every shall be rule states *3 law to address to state look
jurisdiction, we party in interest.” of the real in the name involving the na questions the substantive pay- full Thus, argues upon its Avemco rela scope the insurer-insured ture and the claim is Kasamis settlement of the ment Tompkins, 304 R.R. v. tionship. Erie See Goodfellow; rather, it is way to in no related 817, 822, L.Ed. 1188 64, 78, 82 58 S.Ct. U.S. alone. Avemco’s Co., 827 (1938); Prudential Pochiro Cir.1987). apply 1246, We 1249 contrary, To the Californialaw states that law. California paid an insurer who has a claim an required by 13(a) provides that insured whom it is contract to Fed.R.Civ.P. indemnify subrogated is to its insured's a counterclaim shall state as [a] to from a third who serving the at the time any claim which has contributed to the loss suffered any op- pleader has pleading the subrogated right insured. An insurer's is the transac- if it arises out of posing party, put position to be the loss which the insurer has both insured of its insured for subject mat- that is the tion or occurrence claim and opposing party’s does ter paid. words, and subrogee In other the insurer as adjudication pres- require for its not position stands in the same the court of whom ence of third assignee-in does an the shoes of the sub- jurisdiction. acquire rogor assignor. rule, compulsory if a counter- light this 872, Manor, Cal.App.3d 197 v. Parks Smith claim is later brought, (citations (1987) 256, Cal.Rptr. 243 Liquors, 417 Seal See Baker Gold barred. omitted). quotations California Under 1, 2506 n. 41 n. 94 S.Ct. 469 U.S. therefore, is derived Avemco's claim (1974); v. Beech Sams L.Ed.2d Aircraft Goodfellow, despite payment. Cir.1980). n. Corp., 625 F.2d argument respect is simi this Avemco’s that, argues as the insurer Avemco § 875 larly at with Cal.Civ.Proc.Code odds “opposing it is neither liability “a insurer who provides that therefore, and, al- “pleader” party” nor a liability of a discharged the by payment has accident, its though arising out of same judgment shall subro- debtor tortfeasor Aplt. compulsory. pay If right of gated to his contribution.” does, however, 11, 14. Avemco Brief at all removed ment of the whole insured, subrogee of its agree that it is the transfer rights which could the insured’s Brief, (undisput- Aplt. ex. atA Goodfellow. this and Parks subrogation, then both statute dismissal). court ed fact district order on the nothing confer Manor would “[ujnder such, principles, an insur- settled As However, step if the insurer is insurer. greater no than er as as if the insured of the insured into the shoes insured, its by its claims possessed those claim, Underwriters had see himself Liberty subject to the same are defenses.” Policy LHO Lloyd’s No. at Under Fales, Cal.3d Mut. Ins. Co. Storage Peerless (1973). 21, 24, P.2d Cal.Rptr. Cir.1977), laws then have California these opposing party in was an Since Goodfellow Thus, might have sue Avemco substance. litigation and the Barker answered 17(a), under in its name own 13(a) applies complaint, Rule third-party scope claim would doing but so and, by subrogation, to Avemco. him rights derived indemnification be limited to subrogation rela- that the argues paid the had the insured from the upon tionship ends settlement. Aplt. Brief settlement amount. disposes similarly of Avem- California does not insured Avemco contends pos- “never” argument that Goodfellow co’s asserting possess the claim which upon sessed the claim which Avemco sues. tion this, such as where the insurer has Aplt. Brief at 17. authority Cessna cites controlled the actions, defense both there applies counterclaim rule is little to commend allowing the insurer to pay insurers who the entire claim amount. idly by sit during subsequent litigation, that since the settlement was only bring separate paid directly by Avemco, and Avemco’s inter- very same defendant at a later date. ests protected, were therein these cases are Avemco also claims that applica this inapposite. argument, however, Avemco’s tion of Rule process. violates due It directly odds with Parks Manor. argues lack of notice. Avemco not had *4 approached Avemco has this issue as notice of the proceedings, however, but also though it has an independent right to indem was extensively involved in them. Avemco’s nification pure rather than a subrogation counsel the handled Kasamis settlement on right. This appears also to be approach the behalf of Goodfellow. Avemco was aware of of the dissent. The Second Circuit distin the later litigation supplied also guished types these two rights, however, of the same counsel. Under California law States, Great Am. Ins. Co. v. United Avemco’s claim is merely derivative of Good- (2d Cir.1978). F.2d 1031 The court held that fellow’s. already Goodfellow “day had his while indemnification sometimes arises from court.” Because the claim is derived independent contract with the third per though Goodfellowas he himself had son, an right insurer’s claim, and Avemco was involved in both ac subrogation entirely dependent on the tions, we find process no due violation. insurance contract. Great Am. Ins. Plaintiff further F.2d at 1034. that injection The situation this case is of of the existence of type. the latter Avemco insurance lacks an into an indepen insured’s tort prejudicial. case is dent While indemnification based on full this concern understandable, payment; instead, is easily remed- has succeeded to ied. right arising a solely from the insurance
policy. For the foregoing reasons the of result, As a we find no merit in Avemco’s the district court is argument that it had an independent rela- AFFIRMED. tionship with Kasamis. The Kasamis settle- ment arose directly out anof accident involv- HOLLOWAY, Judge, Circuit dissenting: ing the insured. Avemco’s involvement can I respectfully only have dissent. been on Goodfellow’s behalf. Therefore, California recognizes law majority The opinion correctly *5 proce Cessna,1 in federal partly proper vis-a-vis us into the issue before bring 17(a), Rule which deter applying in- dural law First, personal informal perspective. may in rights be asserted those against mines how passenger Kasamis
jury claim
Brocklesby Transport v. East
federal court.
by
settled
was
pilot Goodfellow
(2d
131,
Escort,
F.2d
133
insurer,
ern States
release obtained
awith
Goodfellow’s
Cir.1990) (“in
gov
cases federal
Goodfellow,
27,1986,
May
for
on
name a lawsuit
of in whose
erns the issue
Exh.
at 14-18
App.,
C
Appellant’s
others.
though
law con
brought,
state
even
must
settlement
(hereafter App.). Avemeo’s
right of an
underlying substantive
$102,500
trols the
were dated
Kasamis for
checks
Hall,
recovery”);
Garcia
insured to
The federal court
10,
at 12.
1986. Id.
June
Cir.1980) (same).
(10th
150, 152 n. 4
passenger
other
complaint of the
6,
filed June
was
against
others
Cessna
triggered
subrogation had been
Once
(Barker’s
against Good-
separate suit
1986.
Kasamis,
Avemco’s settlement
party was filed November
and another
fellow
only Avemeo to assert
permitted
1986.)
A. Cessna’s
21,
D and
Id.
Exhs.
indemnity against
“If
Cessna.
any claim for
complaint against Goodfellowand
party
third
loss
an entire
suffered
indemnity
Corp.
was
for
Goodfellow
party
real
it is the
by the
24,
August
on
1986.
Barker case
first
in its own name.”
sue
interest and must
answer
Exh. E. Then
Goodfellow’s
Casualty
Surety
&
v. Aetna
United States
Sep-
complaint was filed
party
third
207, 215,
366, 380-81,
Co.,
70 S.Ct.
338 U.S.
23,
Exh. F.
Id. at
1987.
tember
(1949);
Electric Power
Kansas
94 L.Ed.
942,
Janis,
Cir.
194 F.2d
Co. v.
it clear that
chronology makes
This
before
1952) (“And
pay the
...
the insurers
where
against
any claim was asserted
in full
loss and become subro-
for the
was called owners
Goodfellow
Goodfellow
before
rights
thereto,
owners
to all of the
gated
responsive pleading
to file a
wrongdoer,
alleged
against
any rights of Goodfellow
subrogation of
wrongdoer to recover
alleged
against the
indemnity or otherwise
in the name of
must be
tort
maintained
by operation of law. Thereaf-
occurred
had
insurers”).2 Accordingly, at the time that
only by
possessed
rights
those
were
ter
tortious
appears
against
whose
conduct
subrogation
third
equitable
The doctrine
1.
loss”).
See,
caused the
e.g.,
recognized.
generally
American
Co.,
Fidelity Casualty
F.2d at
9-10 and
Hunt,
cases
(citing
and federal
183 F.2d
numerous state
n. 1
2. See also Gas Service
Cir.1950) (same);
public liability
Fidelity
‘‘[o]rdinarily
showing
when a
American
(same);
Co.,
Krueger v.
fully
Casualty
at 10
company
reimburses its insured
179 F.2d
insurance
coverage
policy,
Cartwright,
losses within the
(same); Brocklesby Transport
Eastern States
subrogated to the
of the insured
becomes
Goodfellow’s answer to
Cessna s third
Goodfellow with a defense to claims made
filed,
complaint was
Goodfellow did not have
against him, pursuant
to its insurance con-
against
claim
Cessna. Avem-
tract.
possessed
eo fully
subrogee.
it as
Moreover, because Cessna’s
third
Thus there was no
failure
against
Goodfellow and not Avem-
any
state
claim for
violation of
co, Cessna cannot be characterized as Avem-
13(a).
requirement
of Rule
After subro-
co’s “opposing party” in Barker within the
gation
operation
occurred by
Goodfel-
13(a).
meaning of Rule
This court has held
low was not entitled to assert
the counter-
that “an ‘opposing party’ must be one who
claim in his own name. American Fidelity
asserts a claim
the prospective coun
Co.,
& Casualty
(After
er case. Cf. 104 L.Ed.2d
763, 109 S.Ct. binding (“a
(1989) seeking a person to obligate that another Albany,
intervene....”); City Mann Cir.1989) (“The 999, 1005 2n. expressly in Martin opinion Supreme Court’s Bloom; GOTTLIEB; R. Thomas Feivel mandatory intervent regime of eschews Mott; Leroy Mott; Kim B. Marialice ion.”).3 joined had in fact Only if Avemco Martin; Rosemary Coles; Kirk Mar T. Barker suit joined as a been Cucarola, tin; on behalf Mark G. subject to conceivably have become would similarly situ and all others themselves 13(a). Montgomery of Rule the mandate Schonbrunn, ated; D. Plain and Albert Juster, Corp. v. Dev. Ward tiffs-Appellees, Cir.1991) (“Weigel potential awas joined prior who was defendant Dorothy Timothy L. Welch pleader qualify as a thus does Welch, Appellants, A. compulsory counterclaim purposes of the Bjordahl, 787 bar”); Corp. v. Dev. Ponderosa (“Although Goodman; Q.T. WILES; Gerald join present] defen Koenig; [the plaintiffs Hambrecht; Gary moved to Russell E. R. present] Risinger; pursue Planitzer; [the dants and to N. Patrick Paul E. Parker; suit, Schleibaum; motion was denied. Wil their C. the foreclosure Jesse J. Taranta; Lorea; Kenneth parties is attempt implead additional P. Owen An liam Perry; Huff; Hambrecht & a claim A. Warren materially different Quist 13(a).... Quist Group; Ven Hambrecht already existing party under *7 Lybrand; Partners; Coopers J.H. & ture plaintiffs’ claim defendants Because Whitney Co.; Whitney Associ J.H. & opposing party against an was not (Singapore); Lybrand ates; Coopers & compul not barred earlier is (Hong Kong); Lybrand Coopers Phoe & doctrine.”); Bir see sory counterclaim also (BVI) Q Limited; H & Ven nix Venture Winegardner mingham Fire Q C.V.; H & Ven International tures Inc., Hammons, Hambrecht, IV; William R. tures against parties (proposed claim the Hambrecht Revoca Trustees of impleaded did constitute Hambrecht, Trust; as Trust Sarah ble already opposing against an counterclaim Revocable the Hambrecht 1980 ees of party).4 Trust; Q.T. Joint Ven Wiles Investment stands, made a Inc.; was never I; As it R. ture J.F. Shea Q Rock; Timken; Its H Alliance Arthur Partners; Fund; Hamquist; therefore neither could Banner Crisp; Investments; Bryco H Peter O. of a com- should have nor been Corpora- Q Investors; Crisp Computer is pulsory therein general regard, follows the sup- policy In this majority opinion 3. The designed deprived person position; principle “a ports that Rule joinder proceeding in the same promote legal rights related claims in a his her designed litigation; to reduce and Rule party nor summoned to person neither a multiple litigation. dis- I threat of do proceeding.” City legal Jansen appear way they agree propositions, but in no these Cincinnati, Supreme ex- overcome fact mandatory regime inter- pressly “a eschewed vention” in Martin. notes subrogation relationship beyond the insurer’s governs state the substantive rights of payment of the claim. See Cal.Civ.Proc.Code the parties in this Spe- 875; § Manor, Parks Cal.Rptr. at 258- cifically, opinion properly relates the ba- 59. Other courts presented with similar situ- sic principle state-law subrogee a stands ations also have followed approach. this See position the same assignee as an the—“in Employers Casualty Mut. Hanshaw, v.Co. subrogor shoes assignor.” Slip op. (Iowa 1970); N.W.2d Firemen’s opinion at 4. The essentially adopts Cessna’s Bro., Co. v. L.P. Steuart 158 A.2d conclusion that since insurer as (D.C.1960); Casualty General Co. v. greater has no rights than subrogor Fedoff, 11 F.R.D. (S.D.N.Y.1951). because Goodfellowfailed to assert as coun- Policy supports also this application of the terclaim the claim for or contribu- 13(a) rules. Rule designed promote (now tion asserted Avem- joinder of co) related claims in litiga- the same response to Cessna’s third party com- 17(a) tion. Rule is similarly designed plaint, is now barred Federal reduce the of multiple threat litigation Rule Civil Procedure from asserting single defendant based on the same that same claim indemnity or contribution occurrence parties. between the In a situa- Cessna. Brief Appellee at 13-15. in the Barker not a The conclusion. the latter disagree I 13(a) only re- suit Cessna. conse ignores syllogism majority’s any claim quired assertion subrogation to earlier quences Cess- he answered when that Goodfellowhad indemnity claim of Goodfellow’s “A complaint. shall third na’s Kasamis. The upon Avemco’s any claim which a counterclaim on state state premised are rights here substantive pleader pleading the serving the the time rules procedural dispositive But law. party-” any opposing .against has ... solely from federal are derived here added). 13(a) (emphasis Rules impact of specifically Procedure. of Civil Federal Rules turns on identification question Our first Casualty Co. v. All Fidelity & American See assert who could party in interest: the real Lines, Bus American against Cessna when indemnity claim . Cir.1950) third answered bemay answer The complaint him? accurately outlines majority opinion subrogation which partly in the law help- found It is underlying appeal. this facts relevant substantive points determines however, basic ful, to focus on these