Transport Trailer Service, Inc. v. Upjohn Co.

• Decision Date: 12 January 1981
• Docket Number: Civ. A. No. 77-4303.
• Citation: 506 F. Supp. 442
• Parties: TRANSPORT TRAILER SERVICE, INC. v. The UPJOHN COMPANY.
• Court: U.S. District Court — Eastern District of Pennsylvania

506 F. Supp. 442

TRANSPORT TRAILER SERVICE, INC. v. The UPJOHN COMPANY.

Civ. A. No. 77-4303.

United States District Court, E. D. Pennsylvania.

January 12, 1981.

Sol Weiss, Philadelphia, Pa., for plaintiff.

Thomas Kittredge, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

SHAPIRO, District Judge.

This products liability action was brought by Transport Trailer Service, Inc. ("Transport") to recover property damage in the amount of $216,118.03 which was allegedly sustained when polyurethane foam manufactured and sold by The Upjohn Company ("Upjohn") caught fire at the Transport facility near Harrisburg, Pennsylvania on November 13, 1974. At the time of this fire Transport was insured by The Aetna Casualty and Surety Company ("Aetna"). Aetna subsequently paid Transport $191,040.49 for fire loss and property damage and to that extent is subrogated to plaintiff Transport's claim. At the time of the fire Aetna also insured defendant Upjohn under a Products Bodily Injury and Property Damage Liability policy. This policy had a $5,000,000 deductible; to date the losses incurred by Upjohn for the relevant policy year have been $3,010,161 (Affidavit of Robert J. Clarke).

Upjohn, claiming that its products liability insurer, Aetna, cannot subrogate itself against its own insured to recover damages for an occurrence falling within the insured's policy coverage, moves for partial summary judgment in the amount of $191,040.49. For the reasons set forth herein, the motion is denied, but defendant is granted leave to implead Aetna as a third party in this action.

The motion for partial summary judgment is made with regard to a defense first asserted by the motion. The complaint in this case was filed December 19, 1977. Defendant's answer and counterclaim raised eleven affirmative defenses but failed to assert the instant defense; at no time has defendant sought leave to amend its answer to assert it. Federal Rule of Civil Procedure 8(c) requires a party to set forth any matter constituting an avoidance or an affirmative defense. Failure to raise an affirmative defense in an answer does not forever bar a party from raising it, but the proper remedy for such failure would have been a motion for leave to amend under Fed.R.Civ.P. 15. Albee Homes, Inc. v. Lutman, 406 F.2d 11 (3d Cir. 1969).

Whatever the motion is denominated, it is untimely. It is not clear when defendant learned of Aetna's status as Transport's subrogee, but the answer to the complaint included an affirmative defense that Transport violated Fed.R.Civ.P. 17(a) with regard to the real party in interest. Thus, it is plausible that Upjohn knew of Aetna's dual role as insurer of each party to this controversy at the time that its answer was filed. Aetna later acknowledged its subrogated interest in writing (Exhibit A, defendant's brief), and Upjohn did not deny at oral argument that it had received this document at least six months after its answer was filed on February 10, 1978.

Since this case has been transferred to the docket of this court in October, 1978, counsel for Upjohn has attended two pretrial conferences and filed a pretrial memorandum stating the legal issues involved without ever asserting this defense. The allegation of Aetna's conflict of interest was not made until after the case was placed in the trial pool in February, 1980. In these circumstances the court is compelled to deny the motion as untimely. A contrary result would result in prejudice to the plaintiff who was unaware that this defense would be asserted until all trial preparation had been completed. See, Albee Homes, supra.

Aside from this procedural problem, the plaintiff, Transport, has a...