Tucson Gas, Elec. Light & Power Co. v. Board of Sup'rs of Pima County

• Decision Date: 31 January 1968
• Docket Number: No. 2,CA-CIV,2
• Citation: 436 P.2d 942,7 Ariz.App. 164
• Parties: The TUCSON GAS, ELECTRIC LIGHT & POWER COMPANY, a corporation, Appellant, v. The BOARD OF SUPERVISORS OF PIMA COUNTY, Arizona, a body politic, Appellee. 199.
• Court: Arizona Court of Appeals

Page 942

436 P.2d 942

7 Ariz.App. 164

The TUCSON GAS, ELECTRIC LIGHT & POWER COMPANY, a corporation, Appellant, v. The BOARD OF SUPERVISORS OF PIMA COUNTY, Arizona, a body politic, Appellee.

No. 2 CA-CIV 199.

Court of Appeals of Arizona.

Jan. 31, 1968.

Lesher, Scruggs, Rucker, Kimble & Lindamood, by Robert O. Lesher, Tucson, for appellant.

Rees, Estes & Browning, by Paul G. Rees, J., Tucson, for appellee.

KRUCKER, Judge.

Appellant, defendant below, appeals from a jury verdict and judgment against it in the amount of $68,591.90 awarded to the plaintiff County because of defendant's negligent construction and maintenance of a gas line. This gas line was carried under a bridge owned by the plaintiff and it allegedly leaked gas which ignited and caused the bridge to be destroyed by fire.

The record on appeal reveals that the plaintiff was paid $13,718.38 by each of five of its insurance companies to cover the loss of the bridge. A short mathematical exercise shows that it thus received $68,591.90, or exactly the amount of the judgment. The record further shows that on the day of trial, plaintiff and defendant stipulated to the amount of damages, and that the amount would be $68,591.90.

On appeal, defendant contends that there was a misjoinder of parties. The contention is that since the claim of plaintiff-appellee had been satisfied in full by payment of its insurance companies, they were the real parties in interest against the tort-feasor under Rule 17(a), Ariz.Rules Civ.Proc., 16 A.R.S. The Arizona Rules were adopted from the Federal Rules of Civil Procedure and Arizona Courts give great weight to interpretations given to similar federal rules. Jenny v. Arizona Express, Inc., 89 Ariz. 343, 362 P.2d 664 (1961). Defendant raised this objection in its answer, Memorandum in Opposition to Plaintiff's Objection to Interrogatories, in its pre-trial memorandum, orally in the judge's chambers before trial, in its motions to dismiss, for new trial or for judgment N.O.V., and finally in its appeal brief. There is no question but that the objection was timely.

Rule 17(a), Ariz.Rules Civ.Proc., 16 A.R.S., provides in part:

'Every action shall be prosecuted in the name of the real party in interest * * *.'

The United States Supreme Court, interpreting this rule in United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949) said:

'* * * and of course an insurer-subrogee, who has substantial equitable rights, qualifies as (a real party in interest). If the subrogee has Paid an entire loss suffered by the insured, It is the only real party in interest and must sue in its own name. 3 Moore, Federal Practice (2d Ed.) p. 1339.' (Emphasis supplied.)

This rule was followed in American Fidelity & Casualty Co. v. All American Bus Lines, 179 F.2d 7 (10th Cir. 1949), where the court said:

'An insured who had been Paid in full by his insurer is not the real party in interest, and Is not entitled to bring action in his own name against the third party tort-feasor. Instead the action must be brought by the insurer who by virtue of the subrogation becomes the only real party in interest.' (Emphasis supplied.)

In Link Aviation, Inc. v. Downs, 117 U.S.App.D.C. 40, 325 F.2d 613 (1963), citing Aetna, supra, the court reiterated:

'It is undisputed that when an insurer has Paid the full amount of a loss suffered by the insured, the insurer becomes subrogated to the full extent of the insured's claim against the one primarily liable for...