# FILED
February

5, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

AETNA INSURAN CE COMPANY and ) CHURCH OF GOD O F PROPHECY, ) (HICKORY VALLEY ROAD), ) ) HAMILTON CIR CUIT Plaintiffs/Appella nts ) ) v. ) ) NO. 03A01-9601- CV-00024 LITTLE GIANT MFG. C O., INC. and ) EDWIN L. W IEGAND DIVI SION OF ) EMERSON E LECTRI C COMPANY, ) ) Defendants/Appellees ) VACATED AND R EMANDED

Daniel J. R ipper, Chattano oga, For theAppellant. James P. Anderson,Jr., Chatta nooga, For the Appellee, Little Gian t Mfg. Co., Inc. Douglas M . Campbell, C hattanooga, For the Appellee, Edw in L. Wiegand, Divis ion of Emerson Electr ic Co.

O P I N I O N INMAN, Se nior Jud ge This complaint was filed by the Church of God of Prophecy against the Little Giant Mfg. Co. and Kick-Shaw, Inc., alleging that its property was destroyed by fire caused by a de fective water heater manufactured by Littl e Giant and sold to the plaintiff by Kick-Shaw, Inc. Various def enses were interposed by the defen dants, none of which i s relevan t to the issue before us. Thereafter, the complaint was repeatedly amended; new par ties came and went; and, in its present posture, the plaintiffs are Aetna

Insurance Company

and Church of God of Pr ophecy and the def end ants are L ittle Gian t Mfg . Co. , Inc . and Emer son E lect ric Co mpa ny. This is a Rul e 10 appeal from the act ion of the trial court in r uling that A etna Insurance Company should be joined as a party-plaintiff since it is the real party in interest in this subrog ation case. The Church insured by Aetna was heavily damaged in a fire which occurred in 1991. Aetna paid the loss and thereafter f iled this action in the name of the church2

to recoup its

payment under p rinciples of subrogation. The complaint was filed on November 3, 1992, with t he knowledg e of all parties that it was a subrogat ion action. The case was finally set for trial on December 1, 1995 before a jury. On November 27, 1995, the tri al court ord ered that Aetna Ins urance Co. shou ld be a named party since it was the real par ty in int erest. Aetna objected to i ts invol untarily role, asser

ting that the case had been pending for three and on e-half years when, three days before trial, it was summarily added as a plainti ff. W e granted a R ule 10 applicat ion to consider the propriety

of this action. Rule 17.01, T ENN . R. C IV . P. provides: Every action shall be prosecuted in the name o f the real party in interest; but an executor, administrator , guardian, bailee, trust ee of an expressed t rust, party

to whose r ights another is subrog ated, a party with whom or in whose name a contract has been mad e for the benef it of a noth er, o r a pa rty au thor ized b y stat ute, may su e in h is or h er own name without j oining the par ty for w hose benefit the acti on is broug ht; and when a statute so prov ides an action for the use or benefit of another shall be brought in the name of the state. No action shal l be dismissed on th e ground that i t is not pros ecuted in the name of the real party

in interest

until a reas onable time has been allowed after obje cti on for

rat ific atio n or

comm ence ment , or

joi nder or s ubst itut ion of, the real party

in interest , and such rati fication, joinde r or substi tution shall havethe same affect as if the ac tion had been commenced in the name of a real party

in interest

. Additionally , the Advis ory Committ ee comment to T ENN . R. C IV . P. 17.01 specifically provides:
The rule is si milar to Feder al Rule 17(a) , but unlike t he Federal Rul e, Rule 17.01 author izes sui t by a part y in the par

ty’s ow n name even though another has bee n subrogated to the right which the party seeks to enforce.
The Rule clear ly authori zes Aetna Ins urance Company to bring a n action in the name of the pa rty to whose rights it is subrogated without being named itself as a party to th is laws uit. See T rave lers I ns. Co . V. W

illia ms , 541 S.W.2d 587, 590 (Tenn. 1976). The defendants argue that after the loss was paid, the debris was hauled away by the church’s contractor, with nothing being salvaged except the suspect3

heater, thereby thwarting and impeding the def ense that the fire was arsenetic in nature. We are not here concer ned with thespoliation of ev idence defense; the defendants’ argument

is centered on the allegat ion that Aetna knew from the beginning that the fire may have been of ince ndiary or igin, but no netheless took n o action to preserve the debris. During argument, it was revealed that the church’s contractor hau led the debris from the site, for w hich Aetna was somehow l iable, and disposed of it. Aside from the fact that the disposal of the debris may well have been more advantag eous to the defendants tha n a chemical anal ysis of it ,we see no procedural c orrelation b etween the con tractor’s apparently necessary action and the status of Aetna. Rule 19 is ar

gued by the defendants to be support ive of the acti on of the trial court in the ev

ent Rule 17 is

not. Rule 19 p rovides t hat “a person . . . shall be joined as a party if in his absenc e complete reli ef cannot be accorded among those already parties.” A short answer to this i nsistence is simply t hat complete rel ief may be accorded to the p arties in t he absence of Aetna. Finally , the defendants arg ue that they w ill be depri ved of the defense of spoliage of the evidence i f “they are pr ohibited from prov ing Aetna’s role in . .

. disp osin g of t he evi den ce.” The f act t hat A etna is not a par ty pla inti ff will no t dep rive the defendants of any relevant, j usticiable d efense, but may sal utarily serve to eliminate a rather obviou s, unspoken element . No other reason comes to mind for the peculiar language of Ru le 17.01. Accor dingly , the order requiringAetna to be joined as a par

ty plainti ff is vacated. The case is remanded, with cos ts on appeal assessed to the def endants-appellees.

__________________________________ W illiam H. I nman, Senior Ju dge

CONCUR:4

______________________________ Housto n M. Godd ard, Pre siding Jud ge

______________________________ Charles D. Susano , Jr., Jud ge