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KRAPFL v. FARM BUREAU MUT. INS. CO.5/22/1996
in interest and may bring an action; that, where the insurance covers only a portion of the loss, the right of action remains in the insured for the entire loss, the insured becoming a trustee for the insurer (to the extent of the loss paid by the insurer) in the recovery secured by it; that the right of action for the entire loss is single and cannot be split and separately maintained by the owner and the various insurers who have paid parts of the loss."
Id. at 30-31 (quoting Firemen's Ins. Co. v. Bremner, 25 F.2d 75, 76 (8th Cir. 1928)). Although there is language in the Johnson case indicating that a subrogee may join with a subrogor in an action against a tortfeasor, we have recognized that such joinder requires the consent of the subrogor. Caligiuri v. Des Moines Ry., 227 Iowa 466, 468-69, 288 N.W. 702, 702-03 (1939). Absent such consent a subrogated party that has paid only a portion of the entire loss has no right to claim directly against the tortfeasor in competition with a subrogor who is actively pursuing the entire claim.
We have recognized the right of the subrogee to intervene in the subrogor's action against a tortfeasor. Mata v. Clarion Farmers Elevator Co-op., 380 N.W.2d 425, [548 NW2d Page 880]
427 (Iowa 1986); Johnson, 278 N.W.2d at 31; Peters v. Lyons, 168 N.W.2d 759, 761-63 (Iowa 1969); Price v. King, 255 Iowa 314, 318-20, 122 N.W.2d 318, 321-22 (1963); Rursch v. Gee, 237 Iowa 1391, 1398, 25 N.W.2d 312, 315 (1946); Cawley v. Peoples Gas & Elec. Co., 193 Iowa 536, 549, 187 N.W. 591, 598 (1922). We are convinced, however, that, absent some inability or unwillingness of the subrogor to adequately pursue the entire claim, the role of the intervening subrogee should be limited to seeking satisfaction of its subrogation interest from those sums recovered through the efforts of the subrogor. That should ordinarily not be a factor in the apportionment of the subrogor's attorney fee under section 668.5.
We have considered all issues presented and conclude that the judgment of the district court must be reversed. Because the district court made no finding on the reasonableness of plaintiffs' attorney fees for collecting the entire sum recovered, the case is remanded to the district court for that purpose and for the determination of the litigation expenses reasonably incurred in pursuing the claim. The intervenor shall pay from its portion of the total recovery a pro rata share of the reasonable attorney fees and expenses thus fixed by the district court.
REVERSED AND REMANDED.
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