99 F. Supp. 88 | D. Kan. | 1951
The issue, raised by a motion to dismiss, is whether insurance companies, which collectively have paid the whole loss sustained by the original plaintiffs herein as the result of a fire allegedly caused by the negligent act of the defendant, may, after the statute of limitations has run, be joined with the plaintiffs or be substituted for them in this action, to the end that the issue of liability for the fire may be determined.
Summarizing the pleadings, complaint was filed June 23, 1949 by two property owners to recover $10,012.66 as damages alleged to have been sustained as a result of the negligence of the defendant in causing a fire on December 2, 1947. Both plaintiffs being residents of Missouri and the defendant being a Kansas Corporation, diversity of citizenship exists and this court has jurisdiction.
“9. That this action is brought in the name of the plaintiffs who were the assured under certain policies of fire insurance; for the benefit of the companies who were insurers under said policies; that the names of said insurers and amounts of their liability under their policies and the amounts paid by said insurers were as follows:
Amount Paid
Policy No. Company Amt. of Pol. (Bldgs.) (Rent)
10996 National Liberty Ins. Co. $24,000.00 ■ $4,867.58
C-5623 North River Ins. Co. 29,025.00 4,563.36 $277.50
2397 Northwestern Under-1,500.00 304.22
writers Agency $9,735.16 $277.50 9735.16
Total $10,012.66”
On December 29, 1949 defendant moved to make the three insurance companies “additional parties plaintiffs” “for the reason * * * [they are] the real parties in interest” and that the owners of the property “be withdrawn as parties plaintiffs for the reason * * * [they] are not the real parties in interest.” Before the motion was ruled upon and on January 12, 1950, it was withdrawn by the defendant, which then moved to dismiss “for the reason * * * [the complaint] fails to state a claim upon which relief can be granted.” The motion was overruled and defendant answered on May 3, 1950.
On December 12, 1949 the Supreme Court decided United States v. Aetna Cas. & Surety Co.
On December 4, 1950 the court granted an oral motion, made on behalf of the three insurance companies, that they be made parties plaintiff and they were given 15 days from that date in which to plead. No additional pleadings were filed in their behalf. They, however, had been joined as plaintiffs in the Second Amended Complaint filed on November 25, 1950.
On December 13, 1950- the defendant moved to dismiss as to the insurance companies “for the reason that the Second Amended Complaint fails to state a claim upon which relief can be granted.” Following argument on this motion, the parties were given leave to file briefs and have done so.
Defendant -places its chief reliance upon Gas Service Co. v. Hunt, supra. That case recognizes that in the State courts of Kansas an insured, even though the loss of insured property by fire may have been wholly covered by insurance or partly by insurance and partly otherwise,
The Amended Complaint, in which it is stated recovery is sought by the insured for the benefit of the insurers, was filed within the two year period prescribed by the Kansas statute of limitations.
Since the briefs were filed, the Court of Appeals for this (the Tenth) Circuit seems to have settled the questions just alluded
It is difficult to distinguish the cited case and the case at bar upon their' facts. In each an action had been instituted by an insured who had been paid in full by his insurer and hence was no longer the real party in interest; in each the claim asserted arose out of the conduct, transaction, or occurrence set forth in the complaint timely filed; and in each the insurer, which had paid, was the real party in interest for whose benefit the action had been brought. Moreover, the rule in the State courts of Oklahoma (discussed in the ■cited case) and in the State courts of Kansas seems to be the same — i. e., that the insured may sue for the use and benefit of the insurer,
At the risk of unduly extending this discussion, the court adverts to pronouncements by the Supreme Court and the Court of Appeals for this circuit in cases which, at least obliquely, impinge upon the basic questions lurking here. In Guaranty Trust Co. v. York
Plaintiffs’ right of action in the case at bar is substantive.
. Title 28 U.S.C.A. § 1332.
. 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, 12 A.L.R.2d 444.
. 183 F.2d 417.
. Hume v. McGinnis, 156 Kan. 300, 133 P.2d 162, 164; City of New York Ins. Co. v. Tice, 159 Kan. 176, 152 P.2d 836, 842; 157 A.L.R. 1233.
. The quotation is from the Gas Service Co. case, supra, 183 F.2d loc. cit. 419.
. 60-303 and 306, G.S.1935, Id. G.S. 1949.
. Cf. Porter v. Theo. J. Ely Mfg. Co., D. C., 5 F.R.D. 317.
. 10 Cir., 190 F.2d 234. See also Id., 10 Cir., 179 F.2d 7.
. See cases cited in Footnote 1 to American Fidelity & Casualty Co. v. All American Bus Lines, 10 Cir., 179 F.2d 7, 10, especially Harrington v. Central States Fire Ins. Co., 160 Okl. 255, 36 P.2d 738, 96 A.L.R. 859. Cf. Cases cited in Footnote 4 supra.
. Ragan v. Merchants Transfer Co., cited in Footnote 10 supra, 337 U.S. loc. cit. 533, 69 S.Ct. loc. cit. 1235.
. 326 U.S. 99, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079; 160 A.L.R. 1231. Cf. Merchants Transfer & Warehouse Co. v. Ragan, 10 Cir., 170 F.2d 987, affirmed Ragan v. Merchants Transfer Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520.
. 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; 114 A.L.R. 1487.
. Gas Service Co. v. Hunt, cited in Footnote 3 supra.