Safeway Ins. Co. v. Collins
In Safeway Ins. Co. v. Collins, 192 Ariz. 262, 963 P.2d 1085 (App. 1998), the Court considered Rule 17(a) in the context of a subrogation action.
The insurer filed suit against those allegedly responsible for a motor vehicle accident, in anticipation of its subrogation claim, to preserve the statute of limitations. Id. at 263, PP 2-4, 963 P.2d at 1086.
The Court found that the insured was the proper party plaintiff and quoted Rule 17(a), stating that the remedy for failure to comply with the rule "is not an immediate dismissal by the trial court." Id. at 266, PP 18, 20, 963 P.2d at 1089.
Instead, Rule 17(a) "requires the court to allow the claimant the opportunity to cure the defect before dismissing." Id. at P 22.
The Court noted that most courts have not read Rule 17(a) literally and cited authority applying the rule only in cases necessary to avoid injustice. Id. at 268, P 28, 963 P.2d at 1091.
The Court concluded that joinder of the insured after the statute of limitations expired would relate back to the date the complaint was filed because:
the cause of action was the same regardless of which party prosecuted the case;
there was no prejudice to the alleged tortfeasors;
the insurer had difficulty crafting a remedy to preserve its subrogation claim. 192 Ariz. at 268, P 29, 963 P.2d at 1091.
Notably, in Safeway, there was no mistake or difficulty in ascertaining the real party in interest.