HNRK Coverage Corner

On May 25, 2018, Judge Furman of the SDNY issued a decision in American Ins. Co. v. Kartheiser, Case No. 17-CV-5545 (JMF), denying a motion to dismiss a subrogation action for failure to join the insured as a party.

In American Ins. Co., an insurer brought a subrogation action in federal court, seeking to recover amounts it paid to the insured for property damage caused by the defendant.  Joining the insured -- which was was separately suing the defendant in state court for amounts not covered by the insurer -- would have defeated diversity jurisdiction in the insurer's federal subrogation action.  The Court held that insured need not be joined as a party, since it was not an indispensable party for purposes of Fed R. Civ. P. 19:

Under long-settled Second Circuit law, Watson Photography is “clearly” not an indispensable party and Defendants’ motion must be denied. See Arkwright-Boston Mfrs. Mut. Ins. Co. v. City of N.Y. (“Arkwright-Boston”), 762 F.2d 205, 209 (2d Cir. 1985). In Arkwright-Boston, as here, an insurer sued in federal court to recover for payments made to its insured, while the insured sued the same defendants in state court to recover its deductible. On appeal, the Second Circuit affirmed the district court’s denial of the defendants’ motion to dismiss pursuant to Rule 12(b)(7). “In a subrogation case,” the Court explained, “the insurer and the insured are ‘necessary’ parties, but clearly they are not indispensable parties.” Id. at 209 (citing United States v. Aetna Cas. & Sur. Co., 388 U.S. 366 (1949)). The insured’s “state action,” the Court continued, “seeks only its . . . deductible, while [the insurer’s] federal subrogration suit is for the [money] it paid to [the insured]. These two claims are separate and distinct, and . . . [t]he fact that the defendants may be required to defend more than one action arising from the same tort is not grounds for finding the insured an indispensable party to its insurer’s partial subrogation action.” Id.; see also St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 81 (2d Cir. 2005) (“[I]f joinder of the absent insured or insurer would deprive the court of jurisdiction over the subject matter of the action, the court may properly proceed in accordance with Rule 19 to adjudicate the rights of the suing plaintiff alone; the consequence is that the defendant may have to defend two or more actions on the same tort.” (internal quotation marks omitted)).

Arkwright-Boston compels denial of Defendants’ motion. As in Arkwright-Boston, AIC seeks only to recover the money it paid to Watson Photography. (See Am. Compl. ¶ 3). By contrast, Watson Photography seeks to recover in its state-court action only the “damages [that] are not covered under [Watson’s] insurance policy.” (Docket No. 18, Ex. 7, at ¶ 11). Accordingly, there is no danger of double recovery. And in the absence of such a danger, the mere risk that a finding in one action would be given collateral estoppel effect in the other does not alone render Watson Photography an indispensable party. See, e.g., Arkwright-Boston Mfrs. Mut. Ins. Co. v. City of N.Y., No. 84-CV-5724 (CSH), 1984 WL 1263, at *2 (S.D.N.Y. Nov. 21, 1984) (“Although defendants may be collaterally estopped from denying liability in a subsequent state court trial if found liable in negligence in the trial of this action, there is no possibility of double recovery against defendants.”), aff’d, 762 F.2d 205; see also, e.g., Allstate Ins. Co. v. Choi, No. 06-CV-3870 (CPS), 2007 WL 29384, at *3 (E.D.N.Y. Jan. 4, 2007) (“Resolution of the action between [the insurance company] and the defendants for the amounts paid by [the insurance company] on the policy will not impede the [the insured’s] ability to pursue their state court remedies.”).