of Pennsylvania does not, of course, bind this court's decision on a federal rule of procedure, but it does represent a studied legislative determination on the issue now before this court.
Apart from whether Potomac and General Accident are real parties in interest, however, they do not qualify as "necessary and indispensable" parties to this litigation under Rule 19. Rule 19 is meant to insure both that all parties interested in the outcome of a suit have a chance to affect such outcome, and that the parties in any case will have the benefit of finality as to the judgment rendered. See 3A Moore's Federal Practice § 19.07 (1) (2d ed. 1974). In the instant case, because of their de facto control of the plaintiff's litigation, Potomac and General Accident clearly have the chance to affect the outcome of this case. Similarly, as noted earlier in this opinion, a judgment in this case would bind both Potomac and General Accident even though they are not parties of record, because of their interest in and control of plaintiff's case. Thus, Rule 19 would not require the joinder of Potomac and General Accident in this case. See, e.g., Wright v. Schebler Co., 37 F.R.D. 319 (S.D. Iowa 1965), where the court held that Rule 19 did not require the joinder of a workmen's compensation carrier/subrogee since the subrogee's absence would not preclude complete and final adjudication and relief in the case.
United States v. Aetna Casualty and Surety Co., 338 U.S. 366, 94 L. Ed. 171, 70 S. Ct. 207 (1949), does not compel a different result. In that case, after holding inter alia that a workmen's compensation carrier/subrogee was a real party in interest under Rule 17(a) who could bring the action in its own name, the Court said in dicta that such subrogee would also be a "necessary" party whose joinder could be compelled under Rule 19. It seems fair to assume, however, the Court had in mind an ordinary subrogee who would not otherwise have participated in the litigation if not joined on motion of the parties. Such case contrasts markedly with the instant one, where the insurer will voluntarily be vitally involved in the litigation even if not formally a party of record. In any event, the Aetna Court expressly went on to note that the insurer, while a "necessary" party, was clearly not "indispensable" under Rule 19, 338 U.S. at 382, n. 19, and thus even under Aetna's dicta the joinder of an insurer/subrogee is not required.
Accordingly, to summarize, this Court concludes that defendant's motion to join Potomac and General Accident must be denied for any and all of several reasons. First, while Pennsylvania has not ruled on whether an insurer which has paid an insured by way of loan receipts may itself bring suit on its insured's cause of action, consistency with existing Pennsylvania law on loan receipts would indicate that the Pennsylvania courts would answer this question in the negative if the issue were to arise. In such case, Potomac and General Accident would not qualify as real parties in interest under the established test of Rule 17(a).
Second, because denying the motion to join Potomac and General Accident would not prejudice defendant's interest in finality of judgment, such denial would in no way violate the purpose and reason for Rule 17(a).
Finally, while no prejudice to defendant would arise from a denial of its motion, prejudice to Potomac and General Accident, and especially plaintiff, could very possibly arise if defendant's motion were granted.
AND NOW, to wit, this 27th day of November, 1974, it is Ordered that the Motion of defendant Hope X-Ray in the above captioned matter to join Potomac Insurance Company and General Accident Group as parties plaintiff is hereby DENIED.
AND IT IS SO ORDERED.
Clarence C. Newcomer, J.
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