State Farm Mutual Automobile Insurance v. Ware's Van Storage

DISSENTING OPINION BY

TAMILIA, J.:

¶ 1 I respectfully dissent to the Majority Opinion. I would affirm the Order of the Honorable Stanton Wettick granting ap-pellees’ preliminary objections and dismissing State Farm’s case pursuant to Pa. R.C.P. 1020, Pleading More Than One Cause of Action. Alternative Pleading. Failure to Join. Bar.

¶2 Initially, I believe the Majority’s holding undermines the very purpose of Rule 1020(d). Rule 1020(b) refers directly to, inter alia, Pa.R.C.P. 2229(a), Permissive Joinder, which provides: “Persons may join as plaintiffs who assert any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the rights to relief of all such persons will arise in the action.” The Majority concludes, “Rule 1020(d) can be used to compel joinder of causes of action brought by multiple parties in separate actions (and waiver of those not so joined) only if the interests of those parties would require compulsory joinder in a single action as plaintiffs.” Op. at 572 (emphasis in original). This holding allows for a plaintiff who is not subject to compulsory joinder ab initio to permissibly join an action pursuant to Rule 2229(a) by establishing he has a claim related to those of another plaintiff whose action is pending and, once so joined, to preserve claims arising out of the underlying transactional or occurrent relationship for future litigation because he, the joining plaintiff, was not subject to compulsory joinder in the first instance. See contra Hineline v. Stroudsburg Elec. Supply Co., 402 Pa.Super. 178, 586 A.2d 455, 456 (1991), appeal denied 528 Pa. 680, 598 A.2d 284 (1991) (“The purpose of Rule 1020(d) is to avoid multiplicity of suits, thereby ensuring the prompt disposition of all rights and liabilities of the parties in a single suit.”).2

¶ 3 My concern is more than academic. As the Majority points out, Rule 2227(a) compulsory joinder is only available in limited circumstances — namely, when the plaintiff subject thereto has a “joint interest” with a plaintiff who is party to a pending action. Op. at 573. I would venture to say that more plaintiff joinders occur pursuant to Rule 2229(a) than pursuant to the Rule 2227(a) “joint interest” test. In short, I am at a loss to explain why our Supreme Court would craft Rule 1020(d) in a manner which would compel a plaintiff who is compulsorily joined in an action to raise all claims he has relative to the action joined or face waiver, but would not also require a plaintiff who chooses to join an action to do the same. Such a result is incongruous. See contra Pa. R.C.P. 128(a), Presumptions in Ascertaining the Intent of the Supreme Court.

¶4 Secondly, while it can be argued there is a distinction between the plaintiff who volitionally seeks permissive joinder and is forced to bring all his claims in the joined action and the insurer, such as State Farm, who seeks to prosecute its subrogation lien with notice of its insured’s pending action and who is forced to join its subrogation claim with the pending action, *576I respectfully suggest the distinction is one which is not dispositive. While there is no question the subrogated insurer that is forced to join its claim with an insured’s pending action would have no choice to do so whereas the plaintiff seeking permissive joinder does have the choice to join, it is important to recognize the subrogated insurer’s damages are measured by what the insured can establish the value of the insurer’s subrogation lien to be. See e.g., Chow v. Rosen, 571 Pa. 369, 812 A.2d 587, 590 (2002), citing Bell v. Slezak, 571 Pa. 333, 812 A.2d 566, 574 (2002). Practically speaking, it makes little sense to permit an insurer who is aware of an insured’s pending action to bring a separate claim for purposes of prosecuting a subrogation lien when the value of the lien is dependent on the outcome of the insured’s action. The insurer is given no choice, practically speaking, as to how the value of its subro-gation lien will be calculated, irrespective of whether it is forced to join its claim to an insured’s pending action or not.

¶ 5 Third, our Supreme Court is fully capable of crafting a rule limiting the compulsory joinder of claims to situations where the plaintiffs are subject to compulsory joinder in the first instance. Indeed, our Supreme Court did so with Pa.R.C.P. 2228, Joinder of Related Plaintiffs, a provision which requires “mandatory join-der” of both parties and causes of action in circumstances where spouses have individual claims arising out of a single injury inflicted on one of the spouses, and where a minor and his or her parents have individual claims arising out of an injury to the minor. See Pa.R.C.P. 2228, Note. Rule 2228, as contrasted with Rule 1020(d), shows our Supreme Court fully grasps the subtleties that arise when a controversy implicates both the compulsory joinder of parties and the compulsory joinder of claims, and that the Court tailored the various procedural provisions dealing with joinder in rigorous and precise fashion.

¶ 6 Further, while our caselaw does not speak directly to the issue before us, the caselaw is clear that a subrogated insurer is prohibited from pursuing its lien after its insured obtains a judgment against the tortfeasor for damages unreimbursed by the insurer when both the subrogation claim and the unreimbursed damages action arise out of the same transaction or occurrence. See e.g., Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425, 428 (1968); Saber v. Supplee-Wills-Jones Milk Co., 181 Pa.Super. 167, 124 A.2d 620, 622 (1956); Erie Ins. Exchange v. Gouse, 180 Pa.Super. 488, 119 A.2d 672 (1956); Moltz v. Sherwood Bros., Inc., 116 Pa.Super. 231, 176 A. 842 (1935). State Farm does not allege there is a principled distinction between prohibiting a subrogated insurer from pursuing a claim subsequent to its insured obtaining a judgment and prohibiting a subrogated insurer from pursuing a claim independent of an insured’s pending action when the insurer has notice of the pending action.

¶ 7 Of course, there is a principled distinction between these prohibitions, albeit one which further belies the Majority’s analysis. Depriving a subrogated insurer the right to pursue a claim after its insured has obtained judgment leaves the insurer with no recourse. Depriving a subrogated insurer the right to pursue a claim independent of an insured’s pending action is not without recourse in cases, much like the instant matter, where the insured’s suit has not progressed to a point in which it is impractical for the subrogat-ed insurer to seek consolidation, coordination, permissive joinder, or intervention. Indeed, State Farm, even after demurrer was granted by the trial court, was still free to seek permissive joinder and/or intervention in its insured’s action. Thus, to *577the extent the equities play an unspoken role in the Majority’s Opinion, these equities, when brought to murmur, speak to a proposition contrary to the Majority’s holding.

¶ 8 Finally, with respect to the Rule 1020(d) issue and in light of the Majority’s holding that Rule 1020(d) does speak to the claims of multiple plaintiffs when such plaintiffs are subject to compulsory join-der, I am not sure how to construe the statement: “We find no basis to interpret references to a single party to refer to more than one party where Rule 1020 delineates its own scope in terms of causes of action rather than parties,” Op. at 572 (emphasis in original). While I agree with the premise that Rule 1020(d) speaks to causes of action and not parties, it seems anomalous for the Majority to rely on the “plain language” of Rule 1020(d), Op. at 572, when its reading of this language contradicts the result the Majority believes this language compels.

¶ 9 Inasmuch as I do not reach the same conclusion as the Majority does with respect to the first issue raised by State Farm, I would address the second issue raised by State Farm on the merits. Nonetheless, I also would conclude State Farm is not entitled to relief with respect to its assertion that the trial court should have sua sponte consolidated its claim with its insured’s pending action. While Pa. R.C.P. 213(a), Consolidation, Severance and Transfer of Actions and Issues within a County. Actions for Wrongful Death and Survival Actions, vests the trial court with the authority to consolidate pending actions sua sponte, Rule 213(a) also vests the trial court with the discretion to determine whether this authority should be exercised. See Hill v. Hill, 422 Pa.Super. 533, 619 A.2d 1086, 1087 (1993) (“The question [of consolidation] is one that must necessarily be left to the discretion of the trial judge ... ”), quoting Azinger v. Pennsylvania R.R. Co., 262 Pa. 242, 105 A. 87, 88 (1918). State Farm raised the issue of consolidation for the first time in its Rule 1925(b) statement; the trial court decided this controversy by answering the question appellees asked of it — whether State Farm’s complaint should be dismissed pursuant to the prohibition against splitting causes of action. It was not the trial court’s duty to find ways to save State Farm’s complaint from dismissal, it was State Farm’s duty. Moreover, by the time the issue of consolidation was put before the trial court in State Farm’s Rule 1925(b) statement it was September 10, 2007, over 30 days after the final Order subject to appeal was entered. At that point, the trial court was without jurisdiction to amend its prior Order even if it were so inclined. See 42 Pa.C.S.A. § 5505, Modification of orders.

¶ 10 Based on the foregoing analysis, I would affirm the Order of the Honorable Stanton Wettick sustaining appellees’ preliminary objections and dismissing State Farm’s case.

. Notably, State Farm never argued that Rule 1020(d) should be used to compel the joinder of claims only when the plaintiffs themselves can be compulsorily joined.