Coffey v. Whirlpool Corp., No. 78-1822

• Decision Date: 12 February 1979
• Docket Number: No. 78-1822
• Citation: 591 F.2d 618
• Parties: Truman COFFEY and Patricia Coffey, Plaintiffs, Hanover Insurance Company, Appellant, v. WHIRLPOOL CORPORATION, a Foreign Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 618

591 F.2d 618

Truman COFFEY and Patricia Coffey, Plaintiffs, Hanover Insurance Company, Appellant, v. WHIRLPOOL CORPORATION, a Foreign Corporation, Defendant-Appellee.

No. 78-1822.

United States Court of Appeals, Tenth Circuit.

Submitted Nov. 30, 1978.

Decided Feb. 12, 1979.

Ronald R. Hudson of Rhodes, Hieronymus, Holloway & Wilson, Oklahoma City, Okl., filed a memorandum brief for appellant Hanover Ins. Co.

Terry W. Tippens of Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, Okl., filed a memorandum brief for defendant-appellee.

Before SETH, Chief Judge, and BARRETT and LOGAN, Circuit Judges.

PER CURIAM.

This appeal arises out of a diversity case filed by Truman and Patricia Coffey against the Whirlpool Corporation for fire damage to their residence caused by an allegedly defective cooktop manufactured by Whirlpool. Damages were claimed to be $44,500. After preliminary skirmishes, on December 8, 1977, a pretrial conference was held and an order entered granting plaintiff leave to file an amended petition joining Hanover Insurance Company as a party plaintiff on or before a supplemental pretrial to be held in March or April, 1978.

On June 8, 1978, Whirlpool filed a motion under Fed.R.Civ.P. 37(b), (d) and 41(b) to dismiss the Coffeys' complaint with prejudice for having failed to diligently prosecute the case, to comply with an order of the court, to respond to a request for production and to appear when noticed for disposition. The order entered by the court on that day indicates that the plaintiffs filed a counterapplication for order of dismissal without prejudice. The court overruled the defense motion and declared that the plaintiffs' application for dismissal without prejudice should be sustained "subject to certain conditions which should be imposed upon the plaintiffs Truman Coffey and Patricia Coffey and the plaintiffs' insurance carrier, Hanover Insurance Company, which is bringing this action as a subrogation action through the plaintiffs Coffey and which insurer was previously ordered through its attorney herein to be added as a proper party plaintiff."

The condition was that if the Coffeys or their insurance carrier should refile the action in either name, that as a condition to the maintenance of the action by whichever plaintiff there must be paid $1,400 of attorney's fees to Whirlpool, the amount of attorney's fees which could reasonably be expected to be incurred by Whirlpool in duplicating efforts already made in the litigation. The order includes an approval signed by a lawyer purporting to act for Hanover Insurance Company and the Coffeys.

Thereafter a pleading was filed in the name of the Coffeys to vacate the order of dismissal, in which it was stated that Hanover Insurance Company desired to be substituted as the real party in interest pursuant to Fed.R.Civ.P. 17. Its accompanying brief declared that Hanover Insurance Company was in essence the real party in interest. A proposed amendment to the complaint was attached, substituting Hanover Insurance Company as sole plaintiff and asking for damages in the amount of $39,946.66 which it claimed as subrogee by reason of having paid the Coffeys for fire damage. The court refused to vacate the order of dismissal. It is from that order Hanover Insurance Company filed a notice of appeal to this court.

The questions here are whether Hanover Insurance...