No. 12951 INTHE 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&

## 19lc~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, inNovember 1972. Plaintiff Beatrice Ann Bergh alleged damage toher 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 toasMountain West, paid for the repair of alldamage toher vehicle, other than a 

### $25 deductible. Although Mountain West therebybecame subrogated toa 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 tocomply 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 toamend 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 tofurther litigation since the statute of limitations has run on this claim. This appeal, taken from the district court's rulings and 

### its finaljudgment in favor of defendant, centers on a single issue: Did the district court err indenying plaintiff's motion for leave tojoin an additional party plaintiff? Consideration of that issuenecessarily involves Rule 17(a), M.R.Civ.P., which provides:"Every action shallbe prosecuted inthe name of the real party in interest. 

# *** No action shallbe dismissed on the ground that it 

### isnot 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 actionby, orjoinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shallhave the same effect as if the action had been commenced inthe name of the realparty in interest. 1I The parties here agree that Mountain West was a real party in interest and this Court's recent decision in State ex rel. Mont

# . Slovak v. District Court, 

## , 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)

arehelpful in determining the proper construction tobe given the language contained therein. The Advisory Committee's note to the September 29, 1967, amendment toRule 17(a), M.R.Civ.P., states: "The provision that no action shallbe dismissed on the ground that it 

### isnot prosecuted in the name of the real party in interestuntil a reasonable time has been allowed after the objection has been raised forratification, etc., keeps pace with modem decisions which, in the interests of justice, are inclined tobe lenient when an honest mistake has been made in choosing the party inwhose name the action 

### is filed." That language clearly draws on the comments to the comparable federalrulewhich noted that the amendment was an attempt "to codify inbroad 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 toFed.R.Civ.P., Rule 17(a), 12Wright & Miller, Federal Practice and Procedure, p. 398. Our review of the language of the rule, the advisory committee notes toboth the federal and Montana rules, and the

cases cited therein lead us toconclude the district court hereerred inrefusing toallowjoinder of a real party in interest-- the subrogated insurance company, Mountain West. The factual situation here 

### is similar to that before the court inLink Aviation Inc. v. Downs, 325 F.2d 613, 615, when it considered the amendment toRule 17(a) and applied it to those factsby holding: 

# "*** though brought in the name of the insureds, this suitwas not a nullity, since, as we hold, itwas brought for the use of the real parties in interest, 

### It was thus not so lacking invalidity as tofurnish no support for a motion tobring it into compliance with Rule 17(a). Any other rulewould be highly technical without meaningful purpose. The complaint alleged injury atthe hands of defendants. The suitwas to recover therefor, That the recovery, ifmade, would inurenot 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 statuswhich enabled the insurers to substitute themselves asplaintiffs 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 civilprocedure not inharmony 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 thejudgment entered herein was predicated, atleast inpart, on the absence of a real party in interest, we reverse and remand for furtherproceedings consistent with this opinion.

Justice We Concur:

Chief Justice

(xJJ' JUStices

# . - hF 

# -