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TB OF BLYTHEVILLE v. LITTLE ROCK SIGN & EMBLEM6/2/1997
mitigated its damages by procuring a second sign. This sign was not purchased as a repair to the first sign but as a new sign that was needed to sustain business. The fact that the first sign fell gave rise to the need for the second sign; however, the purchase of the second sign was not a subsidiary action to the first contract but a second, independent contract between the parties.
Because the contract for the second sign was an independent contract for the sale of goods, that transaction is also governed by the UCC. Therefore, upon the execution of the sales contract, all the duties of buyers and sellers under the UCC governed the parties. Upon acceptance of the second sign, Taco Bell had a duty under the UCC to pay LR Sign pursuant to the contract. According to Ark. Code Ann. ยง 4-2-607(1)(1991), the effect of Taco Bell's acceptance of the sign is the obligation to pay "the contract rate for any goods accepted." This legal duty to pay renders the voluntary-payment rule inapplicable to the second contract. In order for the voluntary-payment rule to apply, Taco Bell must not have had such a duty. Therefore, the trial court erred in holding that the voluntary-payment rule applied.
II. Agency of Claims Adjuster
Appellant also contends that the trial court erred in submitting an interrogatory to the jury regarding the voluntary-payment rule, which states: "Glenn Norwood was acting within the scope of his authority as an agent of Interested Underwriter's at Lloyd's, London, and while acting within the scope of his authority as an agent . . . had prior knowledge of (and)(or) consented to the payment. . . ."
We agree that there was error in submitting this interrogatory. Foremost, this was error because the voluntary-payment rule is not applicable to the case before us. Additionally, the record does not contain any evidence establishing an agency relationship between Mr. Glenn Norwood, an employee of Gay & Taylor, and Interested Underwriter's at Lloyd's. There is nothing in the record to establish that an agency relationship existed between Mr. Norwood and Lloyd's.
III. Real Party in Interest
On the morning of the trial, the trial court ruled that Lloyd's was the real party in interest, not Taco Bell. Appellant argues that the trial court erred in this ruling. We agree.
Rule 17 of the Arkansas Rules of Civil Procedure provides that only a real party in interest may bring a cause of action. That party is generally considered the person "who can discharge the claim on which suit is brought, and not necessarily the person ultimately entitled to the benefit of recovery." Childs v. Philpot, 253 Ark. 589, 487 S.W.2d 637 (1972).
In Farm Bureau Ins. Co. v. Case Corp., 317 Ark. 467, 878 S.W.2d 741 (1994), we held that the general rule is that where an insurance company has only partially reimbursed an insured for his loss, the insured is the real party in interest and can maintain the action in his own name for the complete amount of his loss. See also, McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W.2d 566 (1950). Partial reimbursement includes instances when an insured has not been reimbursed for the amount of his deductible. This court has held that where the insured has a deductible interest, he is the real party in interest and the action must be brought in his name for his own benefit. Page v. Scott, 263 Ark. 684, 686, 567 S.W.2d 101 (1978); Washington Fire & Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S.W.2d 811 (1964); see also Thompson v. Brown, 5 Ark. App. 111, 633 S.W.2d 382 (1982). The insured stands as trustee to the insurer as to any amount recovered; the insurer is not a necessary party.
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