### NO. 

### 13563 INTHE 

### 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, 

### INAND 

### 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

## 1.71976 Filed: 

## ii"\i I



## ,,YibMr. Chief JusticeJames T. Harrison delivered the Opinion of the Court. This 

### isan original proceeding wherein relators seek
an appropriate 

### writtooverturn the respondent court's order denying their motion towithdraw asparties 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 inopposition filed, allcounsel heard inoral argument, and thematter submitted for decision. It appears that Bohrer filed the above mentioned action inhis own name for loss sustained in the amount of $61,639.67 against the defendants. On July 23, 1975, The Majestic Company moved tocompel Bohrer tojoin 

### 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 tothemotion


### a second amended complaint was filed including these insurers


### as plaintiffs. Thereafter these plaintiff insurers, relators here, moved towithdraw asparties plaintiff, atwhich 

### time the
case had not been 

### set for a pretrial hearing nor jury trial. On September 23, 1976, the respondent districtjudge issued an order denying themotion towithdraw. Affidavits had been filed along with thismotion and inwhich the insurers had ratified the action of Bohrer and agreed 

### to be bound by the outcome of such litigation.

### The parties tothis original proceeding allagree that the language of Stateex 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 tobe bound by ratification, joinder, or substitution. Furthermore, the election is 

### his alone tomake and the districtcourt is

### given no discretion indeciding whether compliance with Rule 17, M.R.Civ.P., 

### willbe by joinder or ratification. The defendants inthe action in the districtcourt argue that relators should not prevail here for two reasons: (1)

### The motion towithdraw came too late since the insurers elected tobecome parties plaintiff in the second amended complaint, and they arebound 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 inthe name of the real party in interest until a 

### reasonable 

### timehas been allowed afterobjection forratification of commencement of the action by, orjoinder or substitutionof, the real party in interest; and suchratification, joinder, or substitution shall have the same 

### effect as if theactionhad been commenced inthe 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 interesthas chosen one of the three possible
means of binding himself tothe action, he is

### barred from changing hismind and proceeding in another manner. As 

### pointed outinNawd's T.V. this election belongs tothe 

### real party in interest, and the only authority in the districtcourt 

### 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 astowhich means the real party in interest wishes toproceed belongs solely tohim. We hold that ordinarily he 

### is entitled tochange hismind and proceed under any of the threemeans, even though he has made 

### a previous election, 

### as long as such action on his part isprompt and has no prejudicial effect on any party tothe action. In this case the partially subrogated insurers had joined
asparties plaintiff in the second amended complaint, but prior tothe scheduling of a pretrial hearing or 

### trial. They filed affidavits of ratification and moved towithdraw as parties plaintiff. Through such ratification these insurers 

### were bound to the action under Rule 17, M.R.Civ.P. The defendants arenot subjected topossible double jeopardy, and 

### we perceive no prejudice todefendants due torelators' action. Therefore the order of the district court 

### is vacated. A new order shall issue granting themotion of relators. This opinion shall constitute

### a 

### writof supervisory contr 

### 1for the 

# P guidance of the districtco

We concur: 

## /