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Weiner v. American Cancer Society6/6/2002
t cannot now challenge the adequacy of summary judgment-related discovery.
. The third assignment of error is overruled.
. The fourth assignment of error provides:
. IV. THE TRIAL COURT ERRED IN DENYING THE MOTION OF ACS TO SUBSTITUTE REAL PARTIES IN INTEREST.
. Appellant argues that the trial court should have granted its motion to substitute GSLEC's insurers as real parties in interest because those insurers, having paid the settlement amount to plaintiffs on behalf of GSLEC, were subrogees on GSLEC's cross-claim for indemnification.
. Appellant's argument overlooks the fact that, following the GSLEC settlement with plaintiffs, GSLEC and its insurers executed an assignment trust agreement in which the insurers assigned any rights of recovery and subrogation they may have against ACS to GSLEC, "retaining no rights or causes of action unto themselves," and that in the event of a settlement or judgment in favor of GSLEC, that GSLEC would hold that settlement or judgment, less the costs of GSLEC, in trust for the insurers. See assignment agreement attached to ACS's motion for summary judgment, at page 3 of Exhibit F.
. The test for determining who is a real party in interest is: "Who would be entitled to damages?" Young v. Merrill, Lynch, Pierce, Fenner & Smith, Inc. (Cuyahoga, 1993), 88 Ohio App.3d 12, 16, citing Nuco Plastics, Inc. v. Universal Plastics, Inc. (1991), 76 Ohio App.3d 137, 143, and Lyons v. Chapman (1931), 40 Ohio App. 1, 6.
. As trustee of an express trust or as a party to a contract in whose name a contract (trust agreement) has been made for the benefit of another (the insurers), GSLEC was authorized to sue in the insurers' name without joining the insurers as a party to the action. See Civ.R. 17(A) , 25(C); Accord Centennial Equities Corp. v. Wizard Group, Inc. (Mar. 17, 1994), Cuyahoga App. No. 64898. Further the real party in interest, the party who would get the money involved in the cross-claim for indemnification, was, by virtue of the trust agreement, GSLEC. We conclude that, under the facts presented, the trial court acted within its discretion in not ordering the substitution of parties.
. The fourth assignment of error is overruled.
Judgment affirmed in part, and reversed and remanded in part.
This cause is affirmed in part and reversed in part and remanded to the lower court for further proceedings consistent with this opinion.
The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
KENNETH A. ROCCO, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR.
JAMES D. SWEENEY JUDGE
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