suit, and the insurer has a right to have its obligations to the injured party, as well as to the insured, determined. Maryland Casualty Co. v. Consumers Finance Service, supra. Central Surety & Ins. Corporation v. Caswell, 5 Cir., 1937, 91 F.2d 607.
The insurance contract provides:
'4. Action Against Company. No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.
'Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy.'
Plaintiff argues that the complaint in Civil Action No. 7343 alleges joint and several negligence and liability on the part of Ditoro, Mazaleski and The Pittston Hospital. If it is subsequently determined that concurrent negligence of Ditoro and Mazaleski caused injury to Paul Brawer, and Mazaleski is compelled to satisfy the judgment, Mazaleski would be entitled to contribution from Ditoro. Smith v. Whitmore, 3 Cir., 1959, 270 F.2d 741; Falciani v. Philadelphia Transportation Co., E.D.Pa.1960, 189 F.Supp. 203. Mazaleski could assert his claim for contribution against the plaintiff. Therefore, Mazaleski has a material interest in the action.
In The Cyclopedia of Federal Procedure, 3rd Edition, 1953, Vol. 15, Section 90.73, the following is stated:
' -- In actions as to insurance.
'In suits for declaratory relief as to insurance policies, the insurer, insured beneficiaries, or claimants whose demands against the insured are within the coverage of the policy, ordinarily are proper if not necessary or indispensable parties. Where the suit is by a liability insurer, persons suing or having a possible claim against the insured within the possible coverage of the policy are proper and, under some circumstances, necessary or indispensable parties. Usually, the insured is an indispensable party. And another insurer may be at least a proper party. However, in a declaratory suit by an insurer, persons who will be affected by the declaration, but with whom the insurer has no controversy, are not necessary parties.'
Rule 57 of the Federal Rules of Civil Procedure provides that the procedure for obtaining a declaratory judgment is to be in accordance with the rules. See also Samuel Goldwyn, Inc. v. United Artists Corporation, 3 Cir., 1940, 113 F.2d 703; Mutual Life Ins. Co. of New York v. Benton, W.D.Mo.1940, 1 F.R.D. 151. The injured party, before judgment against the insured, is a necessary and proper party to a declaratory judgment action under Rule 19. Maryland Casualty Co. v. Consumers Finance Service, supra. If Mazaleski is required to satisfy any judgment obtained against him and Ditoro, Mazaleski would be injured at least to the same extent as the injured plaintiff who is proceeding against Ditoro, but who has not as yet obtained judgment.
In addition, under Rule 20 of the Federal Rules of Civil Procedure, a person having an interest in the subject matter of the litigation which may be conveniently settled in the action is a proper party to and may be joined as a defendant in an action provided there is asserted against him and other defendants any right to relief presenting common questions of law and fact and arising out of the same transactions, occurrences or series of transactions and occurrences. Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, Sections 511, 533. Moore's Federal Practice, Second Edition, Sections 19.02, 20.06; Dunham v. Robertson, 10 Cir., 1952, 198 F.2d 316.
Plaintiff's liability to Ditoro, and to Mazaleski on a claim for contribution, is dependent on whether Ditoro fulfilled the conditions of the insurance policy. Cameron v. Berger, 1939, 336 Pa. 229, 7 A.2d 293. The relief requested involves common questions of law and fact arising out of the same occurrence. Mazaleski, having a material interest in the action, is at least a proper party. Great American Insurance Company v. Harleysville Mutual Casualty Co., 4 Cir., 1961, 285 F.2d 262. Associated Indemnity Corporation v. Davis, supra. This is consistent with the policy of the rules favoring the resolution of all the rights of different persons arising out of a common contract. Rush and Halloran, Inc. v. Delaware Valley Financial Corp., E.D.Pa.1960, 180 F.Supp. 63.
The motions to dismiss will be denied.
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