Opinion
No. 3331.
Decided June 2, 1942.
In an action by a tenant against his landlord to recover damages from sprinkler leakage, the plaintiff having received payment for its damages from its insurer, a motion of the defendant to join the insurer as a party plaintiff should be denied; for the right of such insurer to be joined as plaintiff in interest is not the right of the defendant to insist that the insurer be so joined. In such case the insurer, if a non-resident, may be required to enter security for costs without being joined as a plaintiff. In such case the insurer of the landlord defendant may not be joined as a party defendant on the plaintiff's motion, though such insurer has the right, or has agreed with the defendant, to defend the action. The fact of liability insurance should not be disclosed unless the disclosure be unavoidable.
ACTION, by a tenant against a landlord for damages from sprinkler leakage.
The plaintiff has received payment of its damages from its insurers, and its rights against the defendant have been acquired by them under subrogation. The defendant is protected by an insurer which has agreed to satisfy any judgment which the plaintiff may obtain in the action.
The defendant has moved that the plaintiff's insurers as the plaintiffs in interest" be made to join as party plaintiffs" and that each of them be required to furnish security for costs.
The plaintiff has moved that the defendant's insurer "be joined as a party defendant."
The questions whether these motions should be granted, together with the question whether the fact of insurance for a party if the motion of the other party should be granted should be disclosed to the jury on a jury trial of the action, have been transferred without ruling by Young, C. J.
Thorp Branch, by brief, for the plaintiff.
McLane, Davis Carleton, by brief, for the defendant.
No sufficient reason for granting the defendant's motion appears. While the plaintiff has no interest to maintain the action and while its insurers are the real and active claimants against the defendant, the rights of the insurers are only to enforce the rights of the plaintiff, in whose name the action must stand and be maintained. The right of the insurers to be joined as plaintiffs in interest is not a right of the defendant that they shall be. They are parties privy to the action without actual appearance therein.
The insurers being non-residents, the defendant has the right that security for costs be furnished (P. L., c. 341, s. 3; P. L., c. 330, s. 8; Hening's Dig., 361, and cases cited), but the security may be ordered without their appearance as necessary parties.
The plaintiff's motion should also be dismissed. It has no rights against the defendant's insurer unless by trustee-process, and the insurer is in no respect a party in interest, even if it has the right or has agreed to defend the action.
The facts of insurance in a trial of the action should not be disclosed to the jury without unavoidable necessity. Piechuck v. Magusiak, 82 N.H. 429; Fine v. Parella, ante, 81.
Case discharged.
BRANCH, J., did not sit.