[J-92-2014] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

**LIBERTY MUTUAL INSURANCE COMPANY, AS SUBROGEE OF**  **GEORGE LAWRENCE,**

**Appellant**

**v. DOMTAR PAPER CO.,** 

**Appellee**

**COMMERCIAL NET LEASE REALTY SERVICES, INC., AND COMMERCIAL**  **NET LEASE REALTY TRUST, AND COMMERCIAL NET LEASE REALTY,**  **INC., AND NATIONAL RETAIL PROPERTIES, INC., AND NATIONAL**  **RETAIL PROPERTIES TRUST,**

**Appellees :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **No. 19 WAP 2014 Appeal from the Order of the Superior**  **Court entered September 27, 2013 at No. 1052 WDA 2012 affirming the Order**  **of the Court of Common Pleas of Elk County, entered May 22, 2012 at No.**  **C.P. 2011-485.**

**ARGUED: October 8, 2014**

DISSENTING OPINION

MR. CHIEF JUSTICE SAYLOR DECIDED: APRIL 27, 2015 **I would find that the caption as stated effectively make s the injured employee the**  **use plaintiff. Accordingly, I respectfully dissent. The majority notes that a workers’ compensation insurance**  **carrier has no right to bring suit against a third-party tortfeasor in its own**  **name primarily because actions arising from tortious conduct are unitary and may not b**  **e divided.** See **Majority Opinion,** slip op. **at 16-17. To my mind, these observations are not pa rticularly controversial,**  **having been established in this jurisdiction for many y ears.**  See, e.g., Spinelli v.**[J-92-2014][M.O. – Baer, J.] - 2**

Maxwell **, 430 Pa. 478, 481, 243 A.2d 425, 427 (1968) (reaff irming the single-cause-of**  **action rule for injuries arising from one tort);** Scalise v. F.M. Venzie & Co. **, 301 Pa. 315, 320, 152 A. 90, 92 (1930) (observing, in a workers’ com**  **pensation setting, that any civil action against the tortfeasor remains invested in the in**  **jured employee, albeit the employer may bring an action in the employee’s name i**  **f the employee opts not to sue). Therefore, it seems to me that the more significant que**  **stion for purposes of this appeal is whether the common pleas court properly dismissed the com**  **plaint in view of the specific wording of the caption.**  **In the complaint, the plaintiff was captioned as, “Lib erty Mutual Insurance**  **Company, as subrogee of George Lawrence, Plaintiff.” Notably, use of the phrase, “as**  **subrogee of,” is a particularized means of bringing suit in the name of the use plaintiff.**  **As such, there was little danger that the cause of action might be divided since any**  **subsequent action brought directly by Mr. Lawrence would have been barred under the** 

**doctrine of** res judicata

**. 1**  **Thus, by denominating itself as the subrogee of the i njured**  **party, Liberty Mutual filed a complaint of the type endorsed by this Court in**  Scalise

**. 2**  **Indeed, Liberty Mutual made this very argument in op posing Dotmar Paper’s preliminary**  **objection.** See **Plaintiff’s Memorandum of Law in Opposition to Defen dant’s Preliminary** 

**1 Some jurisdictions express this principle by observing th**  **at a subrogee insurance company is in privity with its subrogor.**  See, e.g., Geico Ins. Co. v. Graham **, 14 N.E.3d 854, 861 (Ind. Ct. App. 2014) (“A subrogee is in priv**  **ity with its subrogor under the** res judicata **doctrine.” (quoting** Ohio Dep’t of Human Servs. v. Kozar **, 651 N.E.2d 1039, 1041 (Ohio Ct. App. 1995)));**  Travelers Ins. Co. v. Royal Ins. Co. **, 841 N.E.2d 287, 2006** **WL 223854, *2 (Mass. App. Ct. Jan. 30, 2006) (“The pri** **vity of the relevant parties here to the original action is undisputed: as subrogee of P**  **eabody, the plaintiff stands in the shoes of the subrogor in whose name the original action**  **was brought.” (internal quotation marks and brackets omitted)).** 

**2 To the degree Mr. Lawrence’s rights might be compromise**  **d by Liberty Mutual’s action – since Liberty Mutual was only subrogated to the amoun**  **t it paid Mr. Lawrence – the court could have required his joinder as an additional**  **plaintiff. [J-92-2014][M.O. – Baer, J.] - 3** 

**Objections to Plaintiff’s Complaint at 4;** see also **Brief for Appellant at 28 (renewing the argument). In my view, the common pleas court should ha**  **ve credited the argument and overruled Dotmar Paper’s preliminary objection.**  **Even insofar as one might argue that this Court’s decisio nal law only specifically**  **endorses phraseology along the lines of “for the use of ,” “to use of,” or “in the name of,”**  **common pleas courts may, in the interests of justice, disreg ard formal defects that do**  **not affect the parties’ substantial rights.** See **Pa.R.C.P. 126. Presumably, then, the court could have – and in my view should have – permit**  **ted Liberty Mutual to amend the caption’s wording accordingly so that it would not lose i**  **ts subrogation rights, which this**

**Court has described as “absolute.”** Winfree v. Phila. Elec. Co. **, 520 Pa. 392, 394, 554 A.2d 485, 485 (1989);**  see also Scalise **, 301 Pa. at 320, 152 A. at 92 (“The employer . . . is not to be denied his right of suit because the emplo**  **yee does not sue, but may institute the action in the latter’s name.”).**  **Although the majority acknowledges this possibility, it e lects to bypass the**  **argument primarily on the grounds that the allocatur grant does not encompass it.**  See **Majority Opinion,** slip op. **at 17-18 n.7. I note, however, that the question f ramed for**  **review is very broad: “Does Section 319 of the Pennsyl vania Workers’ Compensation**  **Act, 77 P.S. § 671, allow the employer/insurer to ste p into the shoes of the insured**  **employee to subrogate against the tortfeasor?”** Liberty Mut. Ins. Co. v. Domtar Paper

Co. **, ___ Pa. ___, 92 A.3d 809 (2014) (per curiam). In fact, subrogation by its very**  **nature involves stepping into another party’s shoes.** See, e.g., Frazier v. WCAB (Bayada Nurses, Inc.) **, 616 Pa. 592, 603, 52 A.3d 241, 248 (2012) (“In sub rogation, the**  **insurer stands in the shoes of the insured in attempting to recover what is rightfully**  **owed to it from a third-party tortfeasor.” (interna l quotation marks omitted)); B**  **LACK ’**  **S L**  **AW**

**D ICTIONARY**  **1654 (10th ed. 2014). Therefore, it is not apparen t why reaffirming the** **[J-92-2014][M.O. – Baer, J.] - 4**

**established precept that an employer or insurer may onl y bring an action against a third**  **party tortfeasor in the name of the injured party f alls within the question’s scope, but the**  **dispositive issue concerning the proper manner of caption ing a complaint brought in the**  **subrogor’s name falls outside of it. Since the majority does not address the merits of**  **the dispositive issue, Liberty Mutual is effectively pu t out of court as by now the two**  **year limitations period has expired. 3**  **Accordingly, I respectfully dissent.**

**3 The precept that a party initiating an action in the**  **common pleas court should not be placed out of court due to a non-fatal defect in the f**  **iling was delineated in this Court’s recent decision in**  Burke ex rel. Burke v. Independence Blue Cross **, ___ Pa. ___, 103 A.3d 1267 (2014).**  See id. **at ___ & n.9; 103 A.3d at 1275-76 & n.9. Although** Burke **involved an improvident appeal from a quasi-governm ental agency, the same principle**  **logically applies to a complaint filed in the common pl eas court’s original jurisdiction and**  **is consistent with the focus of Rule 126.**

**It may also be noted that, in** Burke **, as here, the issue accepted for review centered on the statute in question and did not expressly inquire in**  **to the proper judicial response to a pleading defect.**  See Burke ex rel. Burke v. Independence Blue Cross **, 620 Pa. 598, 71 A.3d 249 (2012) (per curiam) (reciting the issue as:**  **“Did the Pennsylvania General Assembly intend to deprive families of children with au**  **tism of the right to appeal insurance denials to court[,] while granting that righ**  **t to insurance companies?”). Thus,** Burke **is analogous to this matter and I am unable to discern a persuasive reason why**  **Liberty Mutual should be treated differently than th e plaintiff in**  Burke

**.**