Miss. R. Civ. P. 17
Comment
Rule 17 prescribes the general requirements that must be satisfied regarding the plaintiff’s interest in the subject matter of the proceeding and each litigant’s capacity either to sue or be sued. Rule 17(a) sets forth the basic principle for determining who may bring an action by requiring that it be prosecuted “in the name of the real party in interest,” provides specific capacity rules to be followed in actions involving infants or persons under legal disabilities, and provides for the appointment and remuneration of attorneys as guardians ad litem.
The second sentence of Rule 17(a) contains a specific enumeration of a number of persons who are real parties in interest; the purpose of this listing is to provide guidance in cases in which it might not be clear who the real party in interest is and to emphasize the fact that he might not be the person beneficially interested in the potential recovery. Of course, the rule presumes that applicable substantive laws of Mississippi give the persons named in the rule the right to sue. Attempts have been made to interpret Rule 17 of the Federal Rules of Civil Procedure (after which M.R.C.P. 17 was drafted) as creating an exception to the joinder requirements of Rule 19 by the portion of Rule 17(a) stating that anyone listed “may sue in his own name without joining with him the party for whose benefit the action is brought”; the courts have rejected this interpretation and have held that Rule 17(a) assumes that the joinder of those beneficially interested in the action is not otherwise required. As a result, Rule 19 always must be consulted to determine if all the necessary parties have been joined. 6 Wright & Miller, Federal Practice and Procedure, Civil 1543 (1971).
The provision that 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 the objection has been raised, for ratification, joinder, or substitution, is added simply in the interests of justice. Originally the rule was permissive in purpose: it was designed to allow an assignee to sue in his own name. That having been accomplished, the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to ensure generally that the judgment will have its proper effect as res judicata. See Miss. Code Ann. 11-7-3(1972);Smith v. Copiah County, 219 Miss. 633, 69 So.2d 404 (1954).
Rule 17(b) governs real parties in interest in subrogation cases. One of the most common instances of subrogation is when the insurer indemnifies its insured, at which time the former succeeds to whatever rights the latter has against the person who allegedly caused the damage. Difficulties arise when the subrogated insurer seeks to bring suit in the name of the insured in order to avoid the antipathy juries are thought to have toward insurance companies, especially as against an injured person. As a practical matter, of course, the insurance company will control the prosecution of the lawsuit no matter in whose name it is brought.
The general rule under the federal equivalent of M.R.C.P. 17(b) is that if an insurer has paid the entire claim it is the real party in interest and must sue in its own name. This is sound since it is logical that an insured who has no interest in the outcome of the litigation may not bring suit. See U.S. v. Aetna Cas. & Sur. Co., 338 U.S. 366 [70 S. Ct. 207, 94 L.Ed. 171] (1949);American Fid. & Cas. Co. v. All Am. Bus Lines, Inc., 179 F.2d 7 (10th Cir. 1949); 6 Wright & Miller, supra, Civil 1546.
The insurer who pays a part of the loss is only partially subrogated to the rights of the insured. This may occur when the loss exceeds the coverage or when the insurance policy contains a deductible amount that must be borne by the insured. The respective rights of theparties in this situation parallel those when there has been a partial assignment: either the insured or the insurer may sue in his own name. See U.S. v. Aetna Cas. & Sur. Co., supra. Thus, if the insured brings suit, the insurer who is partially subrogated may intervene in the action to protect his pro rata share of the potential recovery. See McDonald v. E. J. Lavino Co., 430 F.2d 1065 (5th Cir. 1970); Smith Petroleum Serv. Inc. v. Monsanto Chem. Co., 420 F.2d 1103 (5th Cir. 1970). If either sues and the other does not voluntarily join or intervene, the defendant may protect himself from multiple lawsuits, by having the absent party joined. See U.S. v.. Aetna Cas. & Sur. Co., supra, Cross v. Harrington, 294 F. Supp. 1340 (N.D.Miss. 1969); 6 Wright and Miller, supra, Civil 1546.
The first, sentence of M.R.C.P. 17(c) provides that whenever an infant or person, under a legal disability has a representative, such as a guardian, conservator, or other fiduciary, the representative may sue or defend on behalf of his ward. If the infant or person under a legal disability does not have a representative, he may be represented by a guardian ad litem.
If the rights of an unborn or unconceived person are before the court, that person may also be represented by a guardian ad litem. Infants and persons under a legal disability may sue by their next friends. Rule 17(c) gives the court the discretion to appoint guardians ad litem when deemed necessary. For an example of when the appointment of a guardian ad litem was held unnecessary to protect an infant, See Hutton v. Hutton, 233 Miss. 458, 102 So.2d 424 (1958). The rule also sets forth the general, professional qualifications for a guardian ad litem.
Rule 17(d) provides that when the appointment of a guardian becomes necessary, the court shall appoint an attorney to serve in that capacity, whose compensation shall be determined by the court and taxed as a cost of the action. Rules, 17(c) and (d) are adapted from Miss. Code Ann. 9-5-89(1972). See also V. Griffith, Mississippi Chancery Practice, 34 (2d ed. 1950).
Rule 17(e) permits public officials to be referred to by their official titles when sued or suing in their official capacities; however, the trial court is empowered to require that the official’s proper name be added. This subsection appears as Federal Rule 25(d)(2); however, since it pertains more to capacities and interests of parties than to substitution of parties, it was moved to Rule 17.
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