NO. 13563 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

STATE OF MONTANA, on the relation 

of SEYMOUR M. BOHRER, MILLER MUTUAL 

FIRE INSURANCE COMPANY, a corporation; 

and HOME INSURANCE COMPANY, a corporation, 

Relators, 

THE DISTRICT COURT OF THE SECOND JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND 

FOR THE COUNTY OF SILVER BOW; and THE HON. 

ARNOLD OLSEN, Judge thereof, 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relators: 

Poore, McKenzie, Roth, Robischon & Robinson, 

Butte, Montana 

Urban L. Roth argued, Butte, Montana 

For Respondents: 

Garlington, Lohn and Robinson, Missoula, Montana 

Gary L. Graham argued, Missoula, Montana 

Henningsen, Purcell and Genzberger, Butte, 

Montana 

James E. Purcell argued, Butte, Montana 

Corette, Smith and Dean, Butte, Montana 

Schulz, David and Warren, Dillon, Montana 

Swanberg, Koby, Swanberg and Matteucci, 

Great Falls, Montana 

Raymond F. Koby Jr. argued, Great Falls, Montana 

Submitted: October 27, 1976 

Decided: NOV 1.7 1976 

Filed: ii"\i I , ,Yib 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an original proceeding wherein relators seek 

an appropriate writ to overturn the respondent court's order 

denying their motion to withdraw as parties plaintiff in an 

action filed in respondent court entitled: "Seymour M. Bohrer; 

Miller Mutual Fire Insurance Company, a corporation; and Home 

Insurance Company, a corporation, Plaintiffs, vs. Steve Clark, 

d/b/a Steve Clark Construction; Shaefer Plumbing & Sheet Metal, 

Inc.; Levitt Construction Systems, Inc., a corporation; The 

Majestic Company, a corporation, and Morgan Drive Away, a corporation, Defendants." Counsel was heard ex parte and the matter 

taken under advisement. Thereafter an order for an adversary 

hearing was issued. Such hearing was held, briefs in opposition 

filed, all counsel heard in oral argument, and the matter submitted for decision. 

It appears that Bohrer filed the above mentioned action 

in his own name for loss sustained in the amount of $61,639.67 

against the defendants. On July 23, 1975, The Majestic Company 

moved to compel Bohrer to join as necessary parties any insurance company who was partially or entirely subrogated to @is 

loss. Miller Mutual Fire Insurance Company and Home Insurance 

Company had paid $51,693 of this loss, and pursuant to the motion 

a second amended complaint was filed including these insurers 

as plaintiffs. Thereafter these plaintiff insurers, relators 

here, moved to withdraw as parties plaintiff, at which time the 

case had not been set for a pretrial hearing nor jury trial. On 

September 23, 1976, the respondent district judge issued an 

order denying the motion to withdraw. Affidavits had been filed 

along with this motion and in which the insurers had ratified the 

action of Bohrer and agreed to be bound by the outcome of such 

litigation. 
The parties to this original proceeding all agree 

that the language of State ex rel. Nawd's T.V. and Appliance, 

Inc. v. District Court, Mont. , 543 P.2d 1336, 32 St. 

Rep. 1222 (1975), is determinative that a partially subrogated 

insurer can elect to be bound by ratification, joinder, or substitution. Furthermore, the election is his alone to make and 

the district court is given no discretion in deciding whether 

compliance with Rule 17, M.R.Civ.P., will be by joinder or 

ratification. 

The defendants in the action in the district court argue 

that relators should not prevail here for two reasons: 

(1) The motion to withdraw came too late since the 

insurers elected to become parties plaintiff in the second amended 

complaint, and they are bound by that election. 

(2) Retroactive effect should not be given to the Nawd's 

T.V. ruling. 

The crucial language of Rule 17, M.R.Civ.P. states: 

" * * * No action shall be dismissed on the ground 

that it is not prosecuted in the name of the real 

party in interest until a reasonable time has been 

allowed after objection for ratification of commencement of the action by, or joinder or substitution of, 

the real party in interest; and such ratification, 

joinder, or substitution shall have the same effect 

as if theaction had been commenced in the name of 

the real party in interest." (Emphasis supplied.) 

As can easily be seen, the plain import of this language 

gives the real party in interest the option of binding himself 

by ratification, joinder, - or substitution. This option was 

not granted by the Nawd's T.V. decision but by Rule 17, M.R. 

Civ.P., when it was amended in 1968. 

This rule does not provide any language stating that 

once a real party in interest has chosen one of the three possible 

means of binding himself to the action, he is barred from changing his mind and proceeding in another manner. As pointed out 
in Nawd's T.V. this election belongs to the real party in 

interest, and the only authority in the district court is to 

make sure one of the three, ratification, joinder, or substitution, is adhered to after objection has been made under 

Rule 17. 

This option as to which means the real party in interest 

wishes to proceed belongs solely to him. We hold that ordinarily 

he is entitled to change his mind and proceed under any of the 

three means, even though he has made a previous election, as 

long as such action on his part is prompt and has no prejudicial 

effect on any party to the action. 

In this case the partially subrogated insurers had joined 

as parties plaintiff in the second amended complaint, but prior 

to the scheduling of a pretrial hearing or trial. They filed 

affidavits of ratification and moved to withdraw as parties plaintiff. Through such ratification these insurers were bound to 

the action under Rule 17, M.R.Civ.P. The defendants are not 

subjected to possible double jeopardy, and we perceive no prejudice to defendants due to relators' action. 

Therefore the order of the district court is vacated. 

A new order shall issue granting the motion of relators. This 

opinion shall constitute a writ of supervisory contr 1 for the P 

guidance of the district co 

We concur: /