'As we have seen, two points are settled in this Commonwealth: (1) That an insurance policy may be reformed in an action in assumpsit brought to recover under it as reformed; and (2) that an action may be brought on an insurance policy by the beneficiary without the joinder of the insured. So far as we know these two rules have never been applied in the same case in Pennsylvania, but we see no reason why they cannot be.
'There are a number of cases in other jurisdictions holding that an injured third person can sue the insurer for reformation of a policy without joinder of the insured. In the case of Binswanger, admr., etc. v. The Employers' Liability Assurance Corp., Ltd., 224 Mo.App. 1025, 28 S.W.2(d), 448, the court permitted reformation at the suit of the injured party alone, and disposed of the defendant's contention in that case, similar to the present defendant's contention, as follows ((224 Mo.App. at) p. 1036 (28 S.W.2d at page 454)):
"In this connection it is argued that 'the rule uniformly applied in determining who are entitled to reformation, limits the remedy to original parties or those in privity with them.' * * *.'
"That there was such a privity between the insured and the deceased, to whom the insured owed a duty not to negligently injure, there can be no question (Citing cases, including Rose (& Son) v. Zurich, 296 Pa. 206 (145 A. 813)) * * *
"It is substantially admitted by the defendant that if there is any privity between plaintiff and the insured that plaintiff is entitled to bring this suit for reformation. From the authorities we have cited it is quite apparent that such privity exists."
I am in complete agreement with Judge Woodside that the insured is not a necessary party in an action brought on an insurance policy by a beneficiary and I can see no reason why a policy may not be reformed in an action in assumpsit brought to recover under it as reformed. I believe I am justified in concluding that the principles of law enunciated in the Marshall case would be affirmed by the Pennsylvania appellate courts.
Defendant thinks the Marshall case is poor law. It notes that there are no appellate court cases sustaining the holding of that case. It only covers one side of the coin, however. It fails to cite in its brief any other case in Pennsylvania, appellate or lower court, which holds contrary to the Marshall case, or which has ever criticized that holding.
The fact that in Pennsylvania there are no separate chancery courts, that one of the fundamental objectives of the Federal Rules of Civil Procedure is to avoid multiplicity of actions, that in actions of this sort the courts have held that privity exists between the third party beneficiary and the insured, all convince me that the reformation of the policy should be considered jointly with the action on the policy and that the insured is not a necessary party.
As stated by Judge Woodside in the Marshall case, (54 Pa.Dist. & Co. 391, 404):
'The insurance carrier elected to ignore the trial against its alleged insured and it cannot now complain of the manner in which that contest was carried on.'
Defendant's motion to dismiss will be denied.
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