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Metropolitan Property & Casualty v. Harper6/7/2000
he Holcombs' name.
Although ORCP 26 A generally provides that actions must be pursued in the name of the real party in interest, the same rule provides that
" o 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 ratification 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 had been commenced in the name of the real party in interest."
We have previously observed that the "principal area of application" of the ratification exception to the real party in interest rule arises "where an insurer who has paid all or part of a claim is subrogated to its insured's right of recovery but does not want to pursue the action in its own name." Jensen v. Alley, 128 Or App 673, 679, 877 P2d 108, rev den 320 Or 272 (1994). In such situations, the insurer may file a certificate, stating that the named plaintiff is authorized to prosecute the action and that the insurer agrees to be bound by the final determination of the case. Id. The defendant's interest in not being subjected to multiple actions is protected because the real party in interest is bound by the final judgment.
Harper and All City jointly moved to substitute Metropolitan as the real party in interest on September 21, 1998. At the same time Harper sought expedited consideration of the motion. Metropolitan filed its response to the motion on September 25. In its response, Metropolitan advanced only its loan receipt argument; it did not raise the ratification issue. A telephonic hearing was held on the motion, and Metropolitan again advanced only the loan receipt argument. The court took the motion under advisement. On September 28, the court issued a letter opinion concluding that " itle to the claim is with the insurance company and it will be substituted in as the real party in interest." In the same letter, the court directed Harper to prepare an order documenting that ruling. Metropolitan did not file the ratification until October 1, three days after the court decided the motion. The order granting the motion was entered on October 9.
Implicit in Metropolitan's argument is an assumption that the late filing of the ratification required the trial court to reconsider its September 28 ruling. We disagree. The motion was decided when the trial court issued its letter opinion; the court was not required, sua sponte, to consider the effect of the untimely filed ratification. Accordingly, the trial court did not err in granting defendants' motion for substitution.
In conclusion, Metropolitan is entitled on remand to reinstatement of specifications (b) through (g) of its negligence claim against All City and to a new trial with respect to specification (a) of its negligence claim against All City. With respect to Harper, Metropolitan is entitled to a new trial on its breach of contract claim and on specifications (a), (b) and (c) of its negligence claim.
Summary judgment reversed and remanded; directed verdict on Metropolitan's contract claim against Harper reversed and remanded for new trial; directed verdict in All City's favor on Metropolitan's negligence specification in subparagraph (a) reversed and remanded for new trial; directed verdict in Harper's favor on Metropolitan's negligence specifications subparagraphs (a), (b), and (c) reversed and remanded for new trial; otherwise affirmed.
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