White v. Metzer

• Decision Date: 12 April 1960
• Citation: 159 A.2d 788,2 Storey 449,52 Del. 449
• Parties: , 52 Del. 449 Ida WHITE, et al., Plaintiffs, v. Russell Selin METZER et al., Defendants.
• Court: Delaware Superior Court

Page 788

159 A.2d 788

2 Storey 449, 52 Del. 449

Ida WHITE, et al., Plaintiffs, v. Russell Selin METZER et al., Defendants.

Superior Court of Delaware, New Castle County.

April 12, 1960.

Louis J. Finger, Wilmington (of Richards, Layton & Finger, Wilmington), for plaintiffs.

William Prickett and F. Alton Tybout, Wilmington (of Prickett & Prickett, Wilmington), for defendants.

TERRY, President Judge.

This action is one of several to have arisen as the result of a seven car collision which occurred in this State in November, 1956.

Ida White, one of the plaintiffs, is the widow of Ellsworth White, who was the operator of one of the seven vehicles involved in the collision. Ellsworth White died as a result of the injuries therein received. At the time of his injuries he was employed by, and acting in the course of his employment for, Lunds Fisheries Inc., a New Jersey corporation. The employment was covered by the Workmen's Compensation Law of the State of New Jersey, Rev.St.1937, Tit. 34, Ch. 15, N.J.S.A.

The Aetna Casualty and Surety Company, co-plaintiff with Ida White, was the compensation insurance carrier for Lunds Fisheries, Inc., and, pursuant to its obligation under the New Jersey Workmen's Compensation Law, it became liable to Ida White for $11,767.35. Under the provisions of Section 34:15-40 of the Law, as amended, Aetna has become a partial subrogee for the amount of its obligation to Ida White in any action which she may take against a third party tort-feasor, such as the one she is pursuing in the case at bar. By virtue of its status as partial subrogee, Aetna has joined with Ida White in this action as a party plaintiff.

Of the seven defendants in this particular action, only two concern the Court in the issue currently at bar. One of the seven cars involved in the collision was owned by Helen Collins, one defendant, and driven by Welton Harmon, deceased. The other defendant, for the purposes of the limited issue now before me, is James R. Drummond the administrator of Harmon's estate.

Pursuant to Rule 12(c) of the Rules of Civil Procedure of this Court, Del.C.Ann., these two defendants have moved for a judgment on the pleadings against Aetna Casualty and Surety Company. They ground their motion upon two of their affirmative defenses, wherein they allege that the subrogation clause of the New Jersey Workmen's Compensation Statute, 34:15-40 has no extraterritorial effect, and, further, that the complaint does not state a cause of action upon which relief can be granted to Aetna. It is only within the limited confines of this motion that I am at present concerned.

Both plaintiffs have based their claim upon Delaware's Wrongful Death Act, which is set forth as Title 10 Delaware Code, Sec. 3704(b) and reads as follows:

'Whenever death is occasioned by unlawful violence or negligence, and no suit is brought by the party injured to recover damages during his or her life, the widow or widower of any such deceased person, or, if there is no widow or widower, the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned.'

From the terminology of this statute defendants base their motion. They argue that prior to the enactment of the statute 'the death of a human being could not be complained of as an injury' in a civil action, citing Perry v. Philadelphia, B. & W. Ry. Co., 1 Boyce 399, 77 A. 725. They then develop their point by urging that 'except as provided in the statute, there is no provision for any other person to bring an action under 10 Del.Code, § 3704(b) except that 19 Del.Code, § 2363(a) provides that under certain circumstances, an employer or insurer who pays workmen's compensation under the Delaware law, may bring an action to collect the amount of its payments.' Their conclusion is that 'the Delaware Death Statute is clear and unquivocal. Under 10 Del.Code, § 3704(b), only the named person may maintain the action. Aetna does not qualify under the statute as a person entitled to the cause of action for death and, therefore, it has not stated a claim upon which relief may be granted.' Thus, though Aetna may be subrogated to Ida White's claim by virtue of the provisions of the New Jersey Workmen's Compensation Law, 34:15-40, this subrogation can have no extraterritorial effect and, therefore, only Ida White can maintain the action.

It is not disputed in this case that Aetna is a proper partial subrogee to Ida White's claim, pursuant to the provisions of the New Jersey Workmen's Compensation Law. The only question is whether or not such a partial subrogee under the New Jersey Law is a proper party to be joined in an action such as Ida White's when that action is brought under the Wrongful Death Act.

Rule 17(a) of this Court's Rules of Civil Procedure provides as follows:

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

This rule was taken verbatim from the Federal Rules of Civil Procedure, 28 U.S.C.A., and the Federal Courts have on various occasions construed it in actions similar to the case at bar. Barron and Holtzoff say in 2 Federal Practice and Procedure (Rules Ed.) Sec. 482 pp. 9-11 that, 'In the case of a partial assignment, both assignor and assignee are real parties in interest. * * * Cases involving subrogation constitute another field in which the real party in interest provision is applied, giving the subrogee a right to sue in his own name. * * * If, however, the insurer has paid part of the loss both insured and insurer are real parties in interest * * *.'

An issue very similar to the one at bar was considered by Rodney, District Judge in the case of State of Maryland, to Use of Carson v. Acme Poultry Corp., D.C.Del.1949, 9 F.R.D. 687. That case also involved an action to recover damages for a death resulting from an automobile collision. The action had been brought in Delaware because the defendant was a resident of this State. The accident, however, occurred in Maryland and hence the laws of Maryland governed the case.

The deceased was a resident of Pennsylvania, and, as such, was subject to the Workmen's Compensation Law of that State, 77 P.S. § 1, and deceased's widow and dependents had received compensation from his employer's insurance carrier under the Pennsylvania law, and as a result thereof the insurance carrier became subrogated to certain rights of defendants against third party tort-feasors, in a manner similar to the case at bar.

The suit was brought under the Maryland Wrongful Death Act, which provided that such an action should be brought for the benefit of the wife, husband, parent and child of deceased, and that it should be brought by and in the name of the State of Maryland, for the use of the person entitled to damages. Annotated Code of Maryland, 1939, Art. 67, Sec. 3.

This was done and defendant moved for summary judgment in its favor for want of deceased's employer or employer's insurance carrier as a party to the suit. Thus, defendant was complaining because the insurance carrier was not made a party to the suit. This is the direct opposite of the situation in the present case, but Judge Rodney in his opinion has resolved both issues, as he carefully analyzes the situation in such a way as to make his rationale applicable to the facts in the case at bar. The learned Judge did not confine his analysis to the sole question presented, but rather broadened his view to include all of the rights of such partial subrogees as would be created by the Pennsylvania Workmen's Compensation Law. He said at page 689 of 9 F.R.D.:

'Defendant argues * * * that the insurance carrier, being partially subrogated to the rights of the use plaintiffs, is an additional real party in interest under Rule 17(a), and should accordingly be joined as a party to the action. A number of cases holding that a partial subrogee is a real party in interest within the meaning of the term as it is used in Rule 17(a) are cited in support of this contention. Conceding the correctness of this proposition it seems quite clear that the partial subrogee would not in any event be an indispensable party. The Supreme Court of the United States has stated that a partial subrogee, while a necessary party, is clearly not an indispensable party.' United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, affirming, inter alia, Yorkshire Ins. Co. v. United States, 3 Cir., 1948, 171 F.2d 374. See footnote 19, 70 S.Ct. 216.

This being established the Judge denied defendants' motion to dismiss for want of insurance carrier's joinder. Be that as it may, he established that such a partial subrogee, as Aetna in the present case, is a real party in interest under Rule 17(a), a necessary, although not indispensable, party.

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