No. 12951 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

BEATRICE ANN BERGH, 

Plaintiff and Appellant, 

-vs - 

JOHN C. ROGERS, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. 33. Sande, Judge presiding. 

Counsel of Record : 

For Appellant : 

McNamer and Thompson, Billings, Montana 

Charles R. Cashmorc argued, Billings, Montana 

For Respondent : 

Keefer and Roybal, Billings, Montana 

Neil S. Keefer argued, Billings, Montana 

Submitted: May 7, 1975 

Decided: j1j& 19 lc~qs 

Filed : &tJ!i L G ,37L, 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This appeal arises from a negligence action filed in the 

district court, Yellowstone County, in November 1972. Plaintiff 

Beatrice Ann Bergh alleged damage to her vehicle resulting from 

an intersection collision proximately caused by defendant John 

C. ~ogers' negligent operation of his automobile. Defendant answered and counterclaimed, alleging the accident was proximately 

caused by plaintiff's own negligence. 

plaintiff's insurer Mountain West Farm Bureau Mutual 

Insurance Company, hereinafter referred to as Mountain West, 

paid for the repair of all damage to her vehicle, other than a 

$25 deductible. Although Mountain West thereby became subrogated 

to a major portion of plaintiff's claim, it was not named as a 

party plaintiff in this action. 

At the pretrial conference defendant filed a "~otion to 

Prohibit the Introduction of Evidence by Plaintiff" based on 

failure to comply with the "real party in interest" requirement 

of Rule 17(a), M.R.Civ.P. That motion was granted and plaintiff's 

subsequent motion for leave to amend the complaint by joining 

Mountain West as a plaintiff was denied. The district court then 

granted defendant's motion for dismissal. That dismissal operates 

as a bar to further litigation since the statute of limitations 

has run on this claim. 

This appeal, taken from the district court's rulings and 

its final judgment in favor of defendant, centers on a single issue: 

Did the district court err in denying plaintiff's motion for leave 

to join an additional party plaintiff? 

Consideration of that issue necessarily involves Rule 17(a), 

M.R.Civ.P., which provides: 
"Every action shall be prosecuted in the 

name of the real party in interest. * * * 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 the action had 

been commenced in the name of the real party in 

interest. 1 I 

The parties here agree that Mountain West was a real 

party in interest and this Court's recent decision in State ex rel. 

Slovak v. District Court, Mon t . , 534 P.2d 850, 32 St. 

Rep. 420, compels that conclusion. Rule 17(a), M.R.Civ.P., is 

therefore clearly applicable. 

The Advisory Committee's notes accompanying Rule 17(a) 

are helpful in determining the proper construction to be given 

the language contained therein. The Advisory Committee's note 

to the September 29, 1967, amendment to Rule 17(a), M.R.Civ.P., 

states : 

"The provision that 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 the 

objection has been raised for ratification, etc., 

keeps pace with modem decisions which, in the 

interests of justice, are inclined to be lenient 

when an honest mistake has been made in choosing 

the party in whose name the action is filed." 

That language clearly draws on the comments to the comparable 

federal rule which noted that the amendment was an attempt "to 

codify in broad terms the salutary principle of Levinson v. 

Deupree, 345 U.S. 648 (1953), and Link Aviation, Inc. v. Downs, 

325 F.2d 613 (D.C.Cir.1963)." Advisory Committee Notes to 1966 

Amendment to Fed.R.Civ.P., Rule 17(a), 12 Wright & Miller, Federal 

Practice and Procedure, p. 398. 

Our review of the language of the rule, the advisory 

committee notes to both the federal and Montana rules, and the 

cases cited therein lead us to conclude the district court here 
erred in refusing to allow joinder of a real party in interest-- 

the subrogated insurance company, Mountain West. The factual 

situation here is similar to that before the court in Link Aviation 

Inc. v. Downs, 325 F.2d 613, 615, when it considered the amendment 

to Rule 17(a) and applied it to those facts by holding: 

"* * * though brought in the name of the 

insureds, this suit was not a nullity, since, as 

we hold, it was brought for the use of the real 

parties in interest, It was thus not so lacking 

in validity as to furnish no support for a motion 

to bring it into compliance with Rule 17(a). Any other rule would be highly technical without 

meaningful purpose. The complaint alleged injury 

at the hands of defendants. The suit was to 

recover therefor, That the recovery, if made, 

would inure not to the benefit of the nominal 

plaintiffs, but to that of the insurers because 

they had made the plaintiffs whole, did not 

deprive the suit of a status which enabled the 

insurers to substitute themselves as plaintiffs 

and continue the suit in their own names in 

compldilnce with Rule 17(a). For us 'TO hold 

otherwise would be nothing less than a narrow 

and ill-grounded construction of the rules of 

civil procedure not in harmony with their intent 

and purpose. ' [Citing cases 1" 

The court reached that holding even though the statute of 

limitations had run on plaintiffs' claim, similar to the situation here. 

plaintiff's motion here should have been granted by 

the district court. Since the judgment entered herein was 

predicated, at least in part, on the absence of a real party 

in interest, we reverse and remand for further proceedings 

consistent with this opinion. 

Justice 

We Concur: 

Chief Justice 

(xJJ' JUS tices . - hF -