Filed: Mar. 02, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 3-2-2005 Durabla Mfg Co v. Goodyear Tire Precedential or Non-Precedential: Non-Precedential Docket No. 04-1818 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Durabla Mfg Co v. Goodyear Tire" (2005). 2005 Decisions. Paper 1487. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1487 This decision is brought to you for free and open access
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 3-2-2005 Durabla Mfg Co v. Goodyear Tire Precedential or Non-Precedential: Non-Precedential Docket No. 04-1818 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Durabla Mfg Co v. Goodyear Tire" (2005). 2005 Decisions. Paper 1487. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1487 This decision is brought to you for free and open access ..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-2-2005
Durabla Mfg Co v. Goodyear Tire
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1818
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Durabla Mfg Co v. Goodyear Tire" (2005). 2005 Decisions. Paper 1487.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1487
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-1818
____________
DURABLA MANUFACTURING COMPANY,
Appellant
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR CANADA INC., a/k/a GOODYEAR
TIRE & RUBBER COMPANY OF CANADA, LIMITED,
Defendants/Third-Party Plaintiffs
v.
DURABLA CANADA LTD.,
Third-Party Defendant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 98-cv-03221)
District Judge: Honorable John C. Lifland
____________
Argued January 26, 2005
Before: SCIRICA, Chief Judge, RENDELL and FISHER, Circuit Judges.
(Filed March 2, 2005 )
William F. Mueller (Argued)
Clemente, M ueller & Tobia
218 Ridgedale Avenue
P.O. Box 1296
Morristown, NJ 07962
Attorney for Appellant
David J. Novack
Budd, Larner, Gross, Rosenbaum,
Greenberg & Sade
150 John F. Kennedy Boulevard, 3 rd Floor
Short Hills, NJ 07078-0999
Robert C. Mitchell
Vorys, Sater, Seymour & Pease
52 East Gay Street
P.O. Box 1008
Columbus, OH 43216
Diane F. Bosse (Argued)
Volgenau & Bosse
237 Main Street
750 Main Seneca Building
Buffalo, NY 14203
Attorneys for Appellees, Goodyear Tire
& Rubber Company and Goodyear
Canada Inc.
Jeffrey S. Lipkin
Drinker, Biddle & Reath
500 Campus Drive
Florham Park, NJ 07932
Attorney for Appellee, Durabla Canada Ltd.
____________
OPINION OF THE COURT
____________
2
FISHER, Circuit Judge.
Appellant Durabla Manufacturing Company (“Durabla”) appeals from the District
Court’s grant of summary judgment in favor of Appellees Goodyear Tire & Rubber
Company and Goodyear Canada Inc. (collectively “Goodyear”) and denial of Durabla’s
Motion for Reconsideration of the summary judgment order. The District Court granted
summary judgment primarily on grounds that Durabla was not the real party in interest to
the indemnity and contribution claims in this action. See Fed. R. Civ. P. 17(a). Rather,
the District Court determined that Durabla’s three insurance carriers who had paid all
asbestos settlement and defense costs to date were the real parties in interest. Upon
reconsideration, the District Court determined that Durabla had exceeded the reasonable
time period after objection for the filing of its insurers’ ratifications as provide for in Rule
17(a) and declined to accept the ratifications that would permit Durabla to maintain the
suit on its insurers behalf.
Because we write only for the parties who are familiar with the factual and legal
contentions, this opinion discusses only those issues related to the real party in interest
analysis and Rule 17(a) ratification. We will remand for further proceedings because we
determine that Durabla should have been permitted an opportunity to provide ratifications
from its insurers upon the District Court’s determination that Durabla was not a real party
in interest for purposes of maintaining suit. 1 We have carefully considered and will
1
Although our standard of review is plenary in relation to our review of summary
judgment determinations, we apply an abuse of discretion standard in reviewing the
3
affirm the District Court’s conclusions as to all remaining claims including the res
judicata effect of the New York Action as to Counts One, Seven, Eight and Nine; the
requirement of a “judgment” for purposes of maintaining a contribution claim under the
New Jersey Joint Tortfeasors Contribution Act N.J.S.A. 2A:53A-1 through 29; and the
finding that the declaratory judgment claim does not concern an actual controversy ripe
for judicial determination.
Rule 17(a) of the Federal Rules of Civil Procedure provides that
[e]very action shall be prosecuted in the name of the real party in interest.
An executor, administrator, guardian, bailee, trustee of an express trust, a
party with whom or in whose name a contract has been made for the benefit
of another, or a party authorized by statute may sue in that person’s own
name without joining the party for whose benefit the action is brought....
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 objection for ratification of commencement of the action by, or joinder
or substitution of, the real party in interest....
Durabla challenges the District Court’s determination that it was not the real party
in interest pursuant to Rule 17(a) because its entire loss to date had been paid for by its
insurers. Durabla argues that there was only partial subrogation given the continuing
nature of the claims that would ultimately lead to the exhaustion of insurance coverage.
But, Durabla admitted that its three insurance carriers covered all defense and settlement
costs incurred to date. The proper analytical framework therefore is that of a fully-
denial of the motion for reconsideration to permit a reasonable time for ratification by the
insurers. See Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002); ICON Group, Inc. v.
Mahogany Run Development Corp.,
829 F.2d 473 (3d Cir. 1987); Federal Kemper Ins.
Co. v. Rauscher,
807 F.2d 345, 348-49 (3d Cir. 1987).
4
subrogated claim, where an insurer who pays the entire loss incurred is the only real party
in interest. United States v. Aetna Casualty & Surety Co., 338 U.S. 366 (1949). As the
District Court correctly determined, Durabla is not a real party in interest to these fully-
subrogated claims.
Durabla is correct in its assertion that under the circumstances presented here, the
District Court should have provided an opportunity for Durabla to provide its insurers’
ratifications within a reasonable time from the District Court’s determination that Durabla
was not a real party in interest. Rule 17(a) requires that no action be dismissed upon a
finding that it was not brought by the real party in interest absent allowance of a
reasonable period following objection for ratification by the real party in interest. Fed. R.
Civ. P. 17(a).
After the District Court entered summary judgment, Durabla sought
reconsideration of that order asserting inter alia that Durabla should have been given an
opportunity to obtain ratification. In support of its argument, Durabla pointed to the fact
that prior to the entry of summary judgment, Durabla had provided an informal
ratification in the form of a letter from counsel indicating that the insurers would consent
to maintenance of the action on their behalf. This “informal ratification” was insufficient
as a matter of law given that it did not come from Durabla’s insurers and failed to
communicate an agreement to be bound by its result. ICON Group v. Mahogany Run
Development Corp., 829 F.2d 473, 478 (3d Cir. 1987) (proper ratification under Rule
5
17(a) requires that the ratifying party (1) authorize continuation of the action and
(2) agree to be bound by its result).
The District Court discounted Durabla’s submission of ratifications from its
insurance carriers in conjunction with its motion for reconsideration finding that they
were provided beyond a reasonable time from Goodyear’s real party in interest objection
as provided for in Rule 17(a). While it is true that Durabla had ample opportunity since
the filing of Goodyear’s objection in 2000 in which to file such ratifications, it also is
apparent from the hotly-contested real party in interest issues before this Court that
Durabla was pursuing other avenues, whether by necessity in order to obtain ratifications
from its insurers or as part of its litigation strategy. Regardless of the reason Durabla
persisted in maintaining the suit on its own behalf, under the circumstances presented
here, we find it was an abuse of discretion to deny Durabla a reasonable time from the
determination that it was not a real party in interest to obtain ratifications from its
insurers. See ICON, 829 F.2d at 477-78 (Court provided ICON repeated opportunities to
ratify where prior ratifications were not effective, given complexity of litigation, and
ICON’s good faith attempt to comply with a prior district court order requiring
ratification). However, we do not hold generally that an order of court is required to
trigger the obligation to provide ratification. Rather, our holding is premised upon the
facts presented in this case, which as in ICON, evidence Durabla’s good faith in
advancing its position given the complexity of the asbestos litigation it faces nationally.
6
We have considered all of the arguments of the parties and conclude that no
further discussion is necessary. We will affirm the judgment of the District Court
granting summary judgment to Goodyear including the Orders of Court dated April 16,
1999 and December 31, 2002. We will reverse the District Court’s August 6, 2003 Order
denying Durabla’s Motion for Reconsideration of the December 31, 2002 determination
only to the extent that the District Court should have permitted Durabla an opportunity to
provide ratifications from its insurers. We will remand the case to permit Durabla to
proceed with the action pursuant to the ratifications previously provided to the District
Court. Consequently, we vacate the final judgment entered March 2, 2004.
7
