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No. 12970
IN THE SUPREME COURT OF THE STATE OF MONTANA 1975
STATE ex rel., ROGER SLOVAK, Relator,
THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, in and for the COUNTY OF YELLOWSTONE and the HONORABLE CHARLES B. SAMDE, Judge of the Thirteenth Judicial District, Judge Presiding,
Respondents.
ORIGINAL PROCEEDING: Counsel oft Record : For Relator: Cate, Lynaugh and Fitzgerald, Billings, Montana Jerome 3. Cate and Thomas Lynaugh argued, Billings, Montana For Respondents: Crowley, Kilbourne, Haughey, Hanson and Gallagher, Billings, Montana Jack Ramirez argued, Billings, Montana
Submitted: April 7, 1975
Honorable E. Gardner Brownlee, District Judge, sitting in place
of Mr. Chief Justice James T. Harrison, delivered the opinion
of the Court.
Roger Slovak, relator herein, filed an action in Yellow-
stone County district court wherein he alleged the named defend-
ant was guilty of negligent driving and caused damage to relator's
automobile in the sum of $2,000 as well as extensive injuries
to his person. Subsequent to filing the action, relator's insur-
ance carrier reimbursed relator for all but $100 of the property
damage. Defendant in the district court action moved to dismiss
that portion of the property damage claim which had been paid by
the insurance company for the reason that as to that amount plain-
tiff (relator) was not the real party in interest and therefore
was not entitled to prosecute the action pursuant to Rule 17 (a),
M.R.Civ.P.
A hearing on the motion was held and the district court
then entered this order:
"IT IS, THEREFORE, ORDERED that the plaintiff's
insurance carrier must within twenty (20) days
from the date of this order be joined as a party
plaintiff or file written ratification in this
action; and, upon its failure to do so in the

time specified, the action will be dismissed, without prejudice, as to its subrogation interest." Relator has applied to this Court for a writ of super-
visory control because his insurance company does not desire to be joined as a party plaintiff in the district court action. Neither does it desire to ratify relator's action nor execute an assignment of its possible claim against the district court de- fendant. The reason is the existence of a binding arbitration agreement between it and the insurance company representing the district court defendant.
The basic question presented here is: Where an insurer has paid all or a part of a loss sustained by its insured and has thereby become subrogated to that extent to any claim against a third party for the loss, what is the effect of Rule 17(a),
M.R.Civ.P. on an action brought against the third party? Rule
17 (a) provides :
"Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made, for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the state of Montana so provides, an action for the use or benefit of another shall be brought in the name of the state of Montana. 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 ratifi- cation 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 has been commenced in the name of the real party in interest. "
Relator's position is well presented in his brief, wherein
he states:
"In conclusion it is submitted that the adoption
of the rule which permits the insured to bring
suit for the entire amount of his loss in his own
name, without requiring the joinder of his subro-
gating insurance carrier, is the only view consis-
tent with the policy of the Montana Supreme Court
against disclosure of insurance and the only posi-
tion consistent with the law in Montana that the
Plaintiff has the right to prove and recover for
all of his actual damage under the collateral
source rule whether paid for by his insurance or
the insurance of the Defendants. Further, the
adoption of the rule here proposed by Plaintiff
does not prejudice the Defendants in any manner
since the absence of the insurer as a party does
not deprive them of any defenses nor does it sub-
ject them to a multiplicity of law suits since the
entire claim is presented in one suit, which is
after all the purpose of Rule 17 requiring joinder
of real party in interest. Further, it should be
stated that the only result in joining the Plain-
tiff 's insurer would be to prejudice the jury by
making an impression in their minds that the
Plaintiff has already been compensated for all
his special damages, which is not true by any
means.I'
In federal courts, in those instances where the insur-
ance company has become partially subrogated to the claim of the insured, the majority rule is that the insurer is the real
party in interest under Rule 17 of the Federal Rules of Civil
Procedure and that the defendant in an action brought solely
by the insured can compel the joinder of the insurance company
if jurisdiction can be obtained. 6 Wright & Miller Federal
Practice and Procedure; Civil S 1546; 6 Cyclopedia of Federal
Procedure,

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