This case arises from Capital Mortgage Corporation’s (CMC) retaining Coopers & Lybrand (C&L), an accounting firm, to conduct a routine audit. During the course of the audit C&L failed to detect $1.5 million of embezzlement perpetrated by the third-party defendants, Nott, Kline and DeWitt. A major portion of the embezzlеment loss, $850,000, was paid by Security Insurance Company of Hartford (SIC), which insured CMC against employee dishonesty. CMC asserts that the failure of C&L to promptly detеct and disclose the embezzlement caused additional losses to occur. SIC was joined as a party plaintiff in 1978.
Following an eight-week jury trial, a vеrdict in favor of CMC for more than $1.5 million was found. However the jury found CMC to be 68.33 percent negligent and reduced the award accordingly under the princiрles of comparative negligence.
Originally CMC had sued SIC in a separate lawsuit. That action was settled by SIC’s paying $850,000 and an agreement that SIC would be subrogated to two-thirds of the first $1.25 million recovered by CMC against C&L. As there were no outstanding issues involving CMC, CMC then asked for judgment to be entered for the portion of the award to which it is entitled, approximately one-third. The trial judge found no compelling reason to do so and refused. From that denial, *534 CMC is appealing by leave granted. In the meantime C&L asserted that it is entitled to arbitrate its liability to SIC and the trial court agreed. It is from that order that SIC appeals by leave granted. The two appeals have been consolidated.
On appeal, CMC claims error in the refusal to enter judgment, while SIC maintains, inter alia, that it should not be required to arbitrate and that thе issue of comparative negligence should not have been placed before the jury.
CMC asserts that the trial court erred in its refusal to enter final judgment on its behalf. We agree. The trial judge searched for reasons that would require immediate final judgment when he should have searched for аny reasons to delay. GCR 1963, 518.2. CMC’s portion of the award will not be affected regardless of the outcome of the dispute between SIC and C&L. See also 2 Honigman & Hawkins, Michigan Cоurt Rules Annotated (2d ed), p 629. In the instant case, C&L has not even asserted that it was denied the right to raise all of its defenses against CMC. As C&L has certainly had its day in court against CMC, there is no justifiable reason to delay entry of judgment in CMC’s favor. Accordingly, we reverse the trial court’s decision.
SIC contends that the trial court erred in permitting the claims C&L has against it to be sent to arbitration. C&L’s alleged right to arbitration stems from a letter agreement written in 1945. That letter was written to the American Institute of Accountants, a national organization. It was written by the New Amsterdam Casualty Company, which has been merged with SIC. The agreement provided, inter alia:
"1. That no claim for failure to discover whether any loss, such as is insured against under fidelity bonds, has *535 occurred shall be asserted by or through us against accountants in any cases not involving affirmatively dishonest or criminal acts or gross negligence on the part of accountants.” (Emphasis added.)
Additionally, the letter provided that the insurance company would submit аny cases it suspected of involving gross negligence, dishonesty or criminal acts to a three-man panel for a determination of the abovе.
SIC would be liable under this agreement as it assumed New Amsterdam’s obligations when it merged.
Turner v Bituminous Casualty Co,
We now must determine if the agreement to arbitrate was waived or if it was applicable in the instant case. A party may waive any of its сontractual rights, including the right to arbitrate. A waiver may be express or it may be implied when a party actively participates in a litigation or аcts in a manner inconsistent with its right to proceed to arbitration.
Bielski v Wolverine Ins Co,
In the instant case SIC was added as a party plaintiff due to C&L’s motion. As the stated purрose of the arbitration clause was to avoid insurer-accountant lawsuits, C&L disavowed that purpose by bringing SIC in. SIC now found itself in a lawsuit that it had agreed not to bring. We do not even agree that SIC was a proper party to be brought in. When the amount of loss exceeds the payment made by the insurer and the insurer has a mere beneficial interest in the insured’s legal claim against the wrongdoer, the action not only *536 must be brought in the name of the insured, but the insurеr is not a necessary or proper party to the action. See 44 Am Jur 2d, Insurance, § 1823, pp 810-812. That is the situation in the instant case, as CMC suffered losses оf $1.5 million and SIC paid $850,000. SIC never asserted any more than an entitlement to a portion of any judgment CMC might receive. Any compensation flowing to SIC is a result оf its agreement with CMC and not from any wrong committed against it by C&L.
Additionally we believe that C&L waived its right to arbitration when it filed its motion for summary judgment. A motion for summary judgment indicates an electiоn to proceed other than by arbitration.
Board of Education of Central School Dist No 1 of the Towns of Lennox, Lincoln, Fenner, Sullivan, Smithfield, and Oneida v Mancuso Brothers, Inc, 25
Misc 2d 122;
CMC argues that it should have been awarded precomplaint interest. Interest from the datе of injury to the date of filing the complaint is an award that is within the purview of the jury.
Vannoy v City of Warren,
CMC contends that the issue of comparative negligence should not have been placed before the jury as C&L did not estаblish causation between CMC’s allegedly poor practices and C&L’s negligence. This is an issue of first impression in Michigan. Most cases that dealt with the accountant’s liability and the client’s negligence involved contributory negligence, which would preclude any recovery on the part of the client.
Lincoln Grain, Inc v Coopers & Lybrand,
216 Neb 433, 441-442;
CMC’s final complaint about the limitation of SIC’s right to discovery is moot in light of our disposition of the arbitration agreement and SIC’s role in this case.
Accordingly, we reverse the lower court’s decision as to compelling arbitration and its decision not to enter judgment in favor of CMC. The rulings as to comparative negligence and interest are affirmed.
Affirmed in part and reversed in part.