SCOTT G RA HA M HA RTMA N,
K A Y H A R T M A N , His M other and
                                                  )
                                                  )                         F IL E D
D uly Q ualified C onserv ator and                )
G uardian, and C L E O N H A R T M A N ,          )                           Ma rch 16, 2000
                                                  )
                                                                            C e c il C ro w s o n , J r.
       Plaintif fs/A ppellants,                   )
                                                                          A p p e l la t e C o u rt C le rk
                                                  )       A ppeal N o.
v.                                                )       M 1999-02730-C O A -R 3-C V
                                                  )
T H E U N IV E R S IT Y O F T E N N E S S E E     )       T ennessee C laims C ommission
and S T A T E O F T E N N E S S E E ,             )       N o. 85,209
                                                  )
       D efendants/A ppellees.                    )



                      C O U R T O F A P PE A L S O F T E N N E S S E E


         A P PE A L F R O M T H E T E N N E S S E E C L A IM S C O M M IS S IO N

                           A T N A S H V IL L E , T E N N E S S E E


             T H E H O N O R A B L E W . R . B A K E R , C O M M I S S IO N E R



P A U L S . D A V ID S O N
JOEL T. GA LA NTER
S tokes & B artholomew
424 C hurch S treet, Suite 2800
N ashv ille, Tennessee 37219-2386
       A T T O R N E Y S F O R P L A IN T I F F S /A P PE L L A N T S


BEA UC HA MP E. BROGA N
RONA LD C . LEA DBETTER
719 A ndy H olt T ow er
K noxv ille, Tennessee 37996-0170
      A T T O R N E Y S F O R D E F E N D A N T S /A P PE L L E E S




                              REV ERSED A ND REM A NDED




                                                           W I L L IA M B . C A I N , J U D G E
                               O PIN IO N

          F or the second time, the claimants appeal a decision of the T ennessee
C laims C omm ission deny ing them recovery from the U niv ersity of T ennessee
and the S tate of T ennessee of $1,026,666 in medical expenses allegedly paid by
B ellS outh C orporation under an E R IS A plan w ith B ellS outh alleged to be
subrogee of such pay ments.


          T he claimant S cott H artman is the son of the claimants K ay H artman
and C leon H artman. On A pril 17, 1987, S cott H artman w as permanently and
catastrophically injured w hile participating in a track meet under a student athlete
scholarship at the U niv ersity of T ennessee in K noxv ille. T he claimants filed in
their ow n name a broad-based claim in both contract and tort against the
U niv ersity of T ennessee and the State of T ennessee whic h w as decided by the
C laims C ommission in M arch of 1998. A ll issues were resolv ed except the
alleged subrogation claim f or BellS outh in the amount of $1,026,666. In this
respect, the C laims C ommission held in part:
          [W ]hile the B ellS outh plan may hav e a claim ag ainst the
          U niv ersity or the State based on a theory of subrogation,
          insuperable barriers exists to this C ommission’ s
          consideration of such a claim. (a) N either in the original
          pleadings instituting thi s claim, nor in the subsequent
          pleadings and filing s, have the parties claimed, asserted,
          discussed, or raised the issue of subrogation, ex cept f o r a
          mention of the plan’ s potential subrogation rights in the form
          of an order the claimants submitted in connection with the
          motion now under consideration. T hus, the subrogation
          issue properly is not before this C ommissi on. (b) T his
          C o m m is si on ’ s procedures require both that proceedings be
          brought by the real parties in interest, and that all necessary
          parties be joined in the proceedings if possible. The
          B ellS outh plan is the real party in interest, and a necessary
          party in any action for subrogation, and the plan is not a party
          to this proceedings. (c) T his C ommission lacks jurisdiction
          to consider and decide a claim of a party not properly before
          it, w here there is no ev idence about w hether that party has
          ev en asserted the claim against the S tate or the U niv ersity .
          T ennessee C ode A nnotated section 9-8-307. In short: the
          claim f o r subrogation belongs to the B ellS outh plan and not
          to the claimants, and the plan is not a party to this claim.



                                         2
            O n appeal, this court affirmed the judgment of the C laims C ommission
holding that nothing appeared in the record to indicate anything about a
subrogation claim and making the follow ing observ ation: “In the present case,
the v olunteer subrogors are seeking to recov er in their ow n names f unds w hich
may or may not be justly due a third party w hich is not a participant in this
proceeding and the basis of w hose rights is not in this record.” H artman v.
U niversity of Tennessee, N o. 01A 01-9804-B C -00196, 1998 W L 639121 at * 3
(T enn. C t. A pp. S ept . 14, 1 998 ). T he C ourt then observ ed that “the w ay is open
for the third party subrogee to assert its rights, if any, in a separate claim to the
C laims C omm ission.” Id.


            In disposing of a petition to rehear filed by the claimants this C ourt
held as follow s: “The w hole diff iculty could hav e been avoided if the H artmans
had simply stated in their claim that it w as presented on behalf of nam ed
subrogees, or had amended their claim to include such a statement. T hey did not
do so, and the record on appeal fails to show that they ev er paid any ex pense.
T herefore, they are not entitled to recov er any thing in this proceeding f or their
ow n benefit, and they hav e not legitim ately pursued the path that would entitle
them to recov er for the benefit of any one else.” H artman v. U niversity of
Tennessee, N o. 01A 01-9804-B C -00196, 1998 W L 702057 (T enn. C t. A pp. Oct.
9, 1998).


            T he S upreme C ourt of T ennessee denied an application for permission
to appeal in M arch 1999.            The case w as remanded back to the C laims
C ommission, and on M arch 10, 1999, the claimants filed a “N otice of J oinder of
B ellS outh C orporation” and “B ellS outh’ s C orporat ion ’ s R ati f ica tio n of C lai ms .”
O n M arch 25, 1999, the defendants filed a motion to strike the claimants’ M arch
10, 1999 pleadings. This m otion w as sustained by the C laims C ommission on
M ay 10, 1999 wherein the C ommission held:
            T he proposed joinder of B ellS outh comes too late.
            Proposing such a joinder almost tw elv e y ears after this claim
            w as filed, three y ears after the State raised the real-party -
            interest issue, practically a y ear after this C ommission’ s
            judgment, and also after consideration by both the C ourt of
            A ppeals and the S upreme C ourt – such a joinder simply is
            not timely .

                                               3
                                          ...
           F inally , B ellS outh’s position m ust be rejected on sound
           judicial-policy grounds. To let B ellS outh enter this claim
           after the action taken by the C ourt of A ppeals and the
           Supreme C ourt w ould mock fi nality of judicial decisions, and
           w ould inv ite a w aste of appellate courts’ time and resources.

           B ellS outh has just waited too long.

F rom this judgm ent of the C laims C ommission, B ellS outh C orporation now
appeals.


           T his entire controv ersy centers around Rule 17.01 of the T ennessee
R ules of C iv il Procedure and a singular substantiv e diff erence therein from its
federal counterpart, R ule 17(a) of the F ederal R ules of C iv il Procedure. Rule
17(a) of the F ederal R ules of C iv il Procedure prov ides:
           E v ery action shall be prosecuted in the name of the real party
           in interest. A n executor, administrator, g uardian, bailee,
           trustee of an e x press trust , a party w ith w hom or in whose
           name a contract has been made for the benefit of another, or
           a party authoriz ed by statute may sue in that person’s ow n
           name w ithout joining the party for w hose benefit the action
           is brought; and w hen a statute of the U nited S tates so
           provides, an action for the use or benefit of another shall be
           brought in the name of the U nited S tates. N o 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
           allow ed after objection for ratification of com mencement of
           the action by, or joinder or substitution of, the real party in
           interest; and such ratification, joinder, or substitution shall
           hav e the same eff ect as if the action had been commenced in
           the nam e of the real p arty in i nte rest.

T he singular substantive diff erence between F ederal R ule 17(a) and T ennessee
R ule 17.01 appears in the opening sentence of the T ennessee R ule: “E v ery action
shall be prosecuted in the name of the real party in interest; but an executor,
administrator, g uardi an, b ail ee, t ruste e of an e x press trust , a party to w hose rights
another is subrogated, a party w ith w hom or in w hose name a contract has been
made for the benefit of another, or a party authorized by statute may sue in his
or her own name w ithout joining the party for w hose benefit the action is brought
....” (emphasis added).



                                              4
           A substantial body of f ede ral la w con strue s R ule 17(a), F ed. R . C iv . P .
Particularly important to the problem in this case are the res judicata safeg uards
in complete or partial subrogation cases m anifested by federal court
interpretation of R ule 17(a). Beg inning w ith U nited S tate s v . A etna C as. & Sur.
C o., 33 8 U .S . 366 (U .S . 194 9), bot h t he su bro g or and the subrogee are real
parties in interest and necessary parties to the suit.


           In P rosperity Realty, Inc. v. H aco-C anon, 724 F.S upp. 254 (S .D .N .Y .
1989), suit w as brought in the name of the subrogor Prosperity R ealty , Inc. T he
defend ant insisted that F ireman’s F und Insurance C ompany , subrogee o f
Prosperity , w as the real party in interest to the action and should be substituted
as plaintiff. F ireman’s F und had submitted an affidav it of ratification from
F i re m an ’ s F und, ratify ing “this action in the name of P rosperity pursuant to R ule
17(a), that F ireman’s F und agrees to be bound by the results of this action, and
w aiv es any right to pursue its subrogation rights outside of this proceeding.” Id.
at 258. In denying the defendant’s motion, the court emphasized that a non-party
subrogee, w hile not necessarily being named as a party, must take such action in
the case as to bind itself in res judicata eff ect. Said the court:
                [T he defen dant] asserts that Prosperity ’s $1,000 interest
           in the litigation is not suff icient for it to be the real party in
           interest. T his C ourt n eed not reach tha t is sue , how ev er,
           because of F ire m an’s F und’s ratification. The eff ect of
           service of a R ule 17(a) ratification agreement is the same as
           if the insurer had been a party from the beginning of the
           action. T he purpose of R ule 17(a) is to protect the defendant
           f ro m subsequent actions by the party actually entitled to
           recover, and to ensure that the judgment w ill be giv en its
           proper res judicata ef f ect . N otes of A dv isory C omm ittee on
           R ules, 1966 A mendment to R ule 17(a). The ratification by
           F i re m an ’ s Fund submitted by Prosperity accomplishes that
           purpose, and it is therefore unnecessary to substitute
           F irem an’ s F und as t he p lai nti f f in t his act ion .

               [T he defendant] also arg ues that F ireman’s F und is
           controlling the litigation on Prosperity ’s behalf and should
           therefore be the named plaintiff. T hat argum ent is not
           persuasive. “A s a practical matter, ... the insurance company
           w ill control the prosecution no matter in w hose name it is
           broug ht.” C . W rig ht & A . M iller, F ederal P ractice and
           P rocedure § 1546 at 656. Therefore, substitution of
           F ireman’s F und is inappropriate here.


                                             5
P ros per ity Re alty, 724 F .Supp. at 258 (citations omitted).


           In P atte rs on E nter pr ise s, Inc . v. B rid g es tone /F ire sto ne, I nc., 812
F .S upp. 1152 (D . K an. 1993), the defendant argued that Patterson E nterprises
w as subrogor and G reat W est C asualty C ompany w as subrogee and that
Patterson’s claim should be dismissed unless the com plaint w as amended to add
G reat W est C asu al ty C o m pany as a party . The court declined to require G reat
W est to be made a party but used the ratification mechanism of R ule 17(a), F ed.
R . C iv . P., the sam e m ech ani sm prov ide d by R ule 17.0 1, T enn . R . C iv . P ., to bind
G reat W est to res judicata eff ect.
           T he defendant w ill not be prejudiced if M r. Patterson is
           allow ed to pursue his claims w ithout G reat W est being added
           as a party so long as G reat W est is bound by the results of the
           litigatio n and G reat W est allows F irestone adequate access
           to discov erable materials and information.

               R ule 17(a) provides a m echanism w hereby a real party in
           interest may ratify another party bringing the suit and ag ree
           to be bound by the results of the litigation. This m echanism
           of ratification “is principally applied w here an insurance
           company has paid all or a portion of a claim and becomes
           subrogated to its insured’s right of recov ery”, such as here.
           “A proper ratification under Rule 17(a) requires that the
           ratify ing party (1) authorize continuation of the action and
           (2) agree to be bound by its result.”
               M r. Patterson has giv en this court notice that G reat W est
           has already ratified the commencem ent of the law suit.
           H ow ev er, M r. Patterson’s notice to the court could not have
           a leg all y bin din g ef f ect on G reat W est . T herefore, if G reat
           W est w ishes to ratify the commencement of this law suit, it
           shall file w ith the court an acknowledg ment of ratification no
           later than F ebruary 19, 1993, w hich shall meet the follow ing
           requirements set out by this order: T he acknowledg ment
           shall (1) be executed in a manner w hich shall make it legally
           binding on G reat W est, (2) ratify the commencement of this
           action, (3) authorize continuation of this action, (4) refer to
           this action particularly rather than provide a g eneral
           authorization for litigation, (5) bind G reat W est to comply
           w ith any of the defendant’ s discov ery requests and w ith any
           of this court’s orders to the same ex tent as if it w ere a named
           party to this action and (6) agree to be bound by the results
           of this action. If G reat W est fails to so ratify this action, the
           court w ill entertain a motion to reconsider F irestone’s joinder
           demand.



                                               6
P atterson E nterprises, 812 F.S upp. at 1155-56 (citations omitted); see also
M utuelles U nies v. K roll & L instrom, 957 F.2d 707 (9th C ir. 1992); A rabian A m.
O il C o. v. S carfone, 939 F.2d 1472 (11th C ir. 1991); P revor-M ayorsohn
C aribbean, Inc . v. P uer to R ico M ar ine M anagement, 620 F .2d 1 (1st C ir. 1980);
N aghiu v. I nter -C ontine ntal H ote ls G ro up, Inc., 165 F.R .D. 413 (D . Del. 1996).


           S o it is under federal practice that a subrogee insurance company does
not hav e to be joined as a party -plaintiff in a law suit against a third party if the
record show s an aff irmativ e ratification by the subrogee of the acts of the
subrogor in the litigation so as to bind the subrogee to the outcom e of the case
on res judicata principles.


           A s w e hav e observ ed T ennessee Rule 17.01 is slightly diff erent from
F ederal R ule 17(a). This dif ference is the addition in the T ennessee Rule
allow ing “a party to w hose rights another is subrogated” to sue in his own name
w ithout joining the subrogee. The trouble with the position of B ellS outh
C orporation throughout this litigation is that no w here in the pleadings prior to
the M arch 10, 1999 filing of the “C laimant’ s N otice of J oinder of B ellS outh
C orporation” and the simultaneous filing of “B ellS outh C orporation’ s
R atification of C laims” is any men tion made of B ellS outh C orporation, of
subrogation, or of the fact that the claimants H artman are in any w ay parties “to
w hose rights another is subrogated.” In v ain, one may search the record in the
prior appeal and the briefs f iled on behalf of the H artman claimants for a v iable
reason f o r the failure to plead the Rule 17.01 mandated prerequisite for the
exception to the requirement that “ev ery action shall be prosecuted in the name
of the real p arty in i nte rest.”


           A s this court prev iously observ ed in its O ctober 9, 1998 ruling on the
petition to rehear the prev ious appeal, “the whole dif ficulty could hav e been
av oided if the H artmans had simply stated in their claim that it w as presented on
behalf of nam ed subrogees, or had amended their claim to include such a
statement. They did not do so, and the record on appeal fails to show that they
ev er paid any expense. T heref ore, they are not entitled to recov er any thing in
this proceeding f o r their ow n benefit, and they hav e not legitimately pursued the

                                           7
pat h th at w oul d en tit le t hem to rec ov er f or the ben ef it o f any one els e.”


           In spite of the diff erence in w ording be tw een F ederal R ule 17(a) and
T ennessee R ul e 1 7.01 , the ne ed to bi nd th e s ub rog ee un de r res judicata
principles is the same, and no reason is apparent w hy the ratification procedure
in P atterson E nterprises and P rosperity Realty cannot be used for that purpose.
T he subrogee insurance company under such ratification mechanism does not
hav e to be made a party plaintiff but does hav e to bind itself to the outcome of
the litigation in res judicata eff ect. Tennessee cas es c ons truin g 17.0 1, T enn . R .
C iv . P ., presuppose that the action in issue is brought not by the subrogor but
rather by the subrogee in the name of the subrogor. Traveler’ s Ins. C o. v.
W illiams, 541 S .W .2d 587 (T enn. 1976); A etna Ins. C o. v. L ittle G iant M fg. C o.,
958 S .W .2d 749 (T enn. C t. A pp. 1997).


           T he late-filed M arch 10, 1999 “C laimant’s N otice of Joinder of
B ellS outh C orporation” and “BellS outh C orporation’s R atification of C laims”
solv e all res judicata eff ect problems under Tennessee R ule 17.01.                     The
def initiv e question before the court on this appeal is the correctness of the
C laims C ommission’ s action in striking t hese M arch 10, 1999 pleadings as
untimely and insufficie nt. H av ing observ ed that the failure of the H artman
claimants to disclose in their pleadings prior to M arch 10, 1999 that they w ere
representing a subrogee and the failure of B ellS outh C orporation to affirmativ ely
bind itself to accept res judicata eff ect of final judg ment in the case caused their
problems in the first place, it is necessary now to look to the other side of the
coin.


           T he last sentence of T ennessee Rule 17.01 prov ides exactly as does the
last sentence of F ederal R ule 17 (a). “N o 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 allow ed after objection for ratification of com mencement of the
action by , or joinder or substitution of, the real party in interest; and such
ratification, joinder, or substitution shall have the same ef fect as if the action had
bee n co mm enc ed i n th e na me of the real p arty in i nte rest.”



                                               8
              M ore than tw o y ears before the C laims C ommission decision of M arch
16, 1998, which w as the subject of the prev ious appeal in this case, claimants
H artman, in support of their motion for partial summary judgment, submitted the
aff idav it    of   E dw ard    L.   Ranki n,     III,   an   attorney     for    B ellS outh
T elecommunications. T his af f i dav it disclosed in detail the B ellS outh medical
plan, its subrogation prov isions, its pay ment of $1,223,515.29 for medical
expenses of S cott G . H artman in the period A pril 17, 1987 through F ebruary 1,
1990, its recov ery from the insurance carrier for the defendants of $196,848.58
and a net balance for its subrogation interest of $1,026,666 as of S eptember 2,
1993. T he defendants off ered no objection under R ule 17.01 that the claim w as
not being prosecuted by the “real party in interest.” T he first time any assertion
w as made by the defendants w as on F ebruary 8, 1996 when the defendants filed
their “R esponse to C laimants’ M otion for Partial S ummary Judg ment crediting
and liquidating the amount of the U niv ersit y ’ s li abi lit y f or me dic al a tte nti on.”
O n the sev enth page of this response, it is asserted:
              T he B ellS outh C orporation is not a party to this action and
              the C ommission is not presented any claim for disposition as
              to w hether B ellS outh or the U niv ersity w ould be primarily
              responsible for the medical care expenses w hich B ellS outh
              paid. B ellS outh has brought no action against the U niv ersity
              seeking reimbursements of these pay ments.

              T he defendants nev er hav ing, by motion or other pleading, objected
under the “real party in interest” requirements of R ule 17.01 might easily be held
to hav e w aiv ed suc h ob jec tio n. H efley v. J ones, 687 F.2d 1383 (10th C ir. 1982);
U nited H ealthC are C orp. v. A merican Trade Ins. C o., L td., 88 F.3d 563 (8th C ir.
1996). In S un R efining and M anufa ctur ing C o. v. G ol ds tein O il C o., 801 F.2d
343 (8th C ir. 1986), the court observ ed:
                  F ed.R .C iv .P . 17(a) provides that “[e]v ery action shall be
              prosecuted in the name of the real party in interest.” W e
              hav e held that “a real party in interest objection should be
              raised w ith ‘reasonable promptness’ in the trial court
              proceedings. If not raised in a timely or seasonable fashion,
              the general rule is that the objection is deemed w aiv ed.”
              C hicago & N orthwestern T ransportation Co. v. Neg us-
              Sweenie, Inc., 549 F .2d 4 7, 50 (8th C ir. 1977) (citations
              omitted). In C hicago & N orthwestern Transportatio n C o.,
              raising the defense f or the first time on appeal w as found to
              be untimely because the trial court w as not giv en the chance


                                              9
          to correct any error. See id. In the present case, A pex did
          not allege that S un T ransport, rather than S R M C , was the
          real party in interest until after trial. The T enth C ircuit has
          tw ice ruled that the real party in interest defense w as w aiv ed
          because it w as not asserted until v ery shortly bef ore trial.
          W e feel that the real party in interest issue w as untimely
          raised by A pex in this case, and w e are therefore inclined to
          hold that the defense w as w aiv ed.

              M oreover, it does not appear that SR M C w as giv en the
          opportunity to obtain ratification of the action from S un
          T ransport prior to entry of judg ment. R ule 17(a) provides:

              N o 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 af ter
              objection for ratification of com mencement of the
              action by , or joinder or substitution of, the real party
              in interest; and such ratification, joinder, or
              substitution shall hav e the same ef fect as if the action
              had been commenced in the name of the real party in
              interest.

              S R M C obtained ratification from S un T ransport shortly
          after jud g me nt w as e nte red. S R M C mov ed to hav e the case
          reopened pursuant to F ed.R.C iv .P. 52 and 59 based on the
          ratification, but the court denied the motion. This case
          presents the unusual situation where S un T ransport is ow ed
          demurrage but S R M C is the only party w ith the right to
          enforce the contractual prov ision. H ad A pex asserted the
          real party in interest defense before conclusion of the
          ev idence, S un T ransport could hav e been joined as a party or
          could hav e ratified the action w ell before the case w as
          submitted.

              N o apparent prejudice to A pex w ould hav e resulted had
          the district court accepted the ratification. T he eff ect of not
          accepting the ratification is a forfeiture by S un T ransport of
          its demurrage claim . Ru le 17(a) w as designed to av oid such
          an unj ust resul t.       See C hicago & N orthwestern
          Transportation C o., 549 F.2d at 5 0. W e therefore conclude
          that the court erred in not accepting the ratification obtained
          by S R M C from S un T ransport.

S un R efining , 801 F .2d 3 at 344-45 (citations omitted).


          It is not necessary in this case to hold that the defendants hav e w aiv ed
the “real party in int erest ” de f ens e. T he record show s that the defendants w ere


                                         10
w ell adv ised as to the facts inv olv ing the B ellS outh subrogation interest, at least
as early as the filing of the R ankin affidav it on F ebruary 21, 1996. The
subrogation diff erence between F ederal R ule 17(a) and T ennessee Rule 17.01
mig ht w ell induce one to conclude that federal interpretations of F ederal R ule
17(a) w ere not applicable to Tennessee R ule 17.01. T he “relation back”
provisions of R ule 17.01 are precisely the same as the f ederal rule. There has
been no adjudication on the merits in this case as to whet her or not or to what
extent B ellS outh C orporation may be entitled to recov er from the defendants on
their subrogation claim. T here is little or no prejudice to the defendants by
allow ing trial on the merits on a claim of w hich they hav e been aw are since
F ebruary 1996. On the other hand, to sustain the position of the defendants
w ould produce a harsh result for B ellS outh C orporation.


           In this respect we are confronted w ith a situation similar to that w hich
faced the S ixth C ircuit C ourt of A ppeals in E xecutive J et A via tion, Inc. v. U nited
S tate s, 507 F .2d 508 (6th C ir. 1974). In that case, the gov ernment had raised the
real party in interest defense in its initial answer to the complaint. The S ixth
C ircuit C ourt of A ppe als hel d th at u nde r R ule 17(a), F ed. R . C iv . P., ev en if the
action is prosecuted in the name of one not a real party in interest and the defense
is properly raised before the trial court, dismissal is not necessarily appropriate.
T he court held as follow s:
           In the case at bar, E xecutiv e Jet presented its claim w ell
           w ithin the statutory period. A t that point the G ov ernment
           w as on suff icient notice to begin assembling w itnesses and
           ev idence in preparation for a defense on the merits. In no
           sense w as this claim permitted to slumber or to become stale.
           Indeed, under general principles of subrogation, the subrogee
           stands in the shoes of the subrogor. Thus it is diff icult to see
           how the G ov ernment’s substantiv e defense w ould hav e been
           aff ected if the insurers had joined in E xecutiv e Jet’ s
           administrative claim and in the present litigation.

              In addition, the U nited S tates cannot claim surprise at the
           insurers’ late entry into the case. T he G ov ernment does not
           argue that it was unaw are of the insurers’ interest in the
           claim. In f act , the G ov ernment raised in its answ er the
           defense that E xecutiv e Jet w as not the real party in interest,
           and this pleading w as filed more than one y ear before the
           statute of limitations had run. W e are conv inced that our
           decision in no w ay w ill prejudice the G ov ernment except

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            insofar as it may hav e hoped to av oid entirely a substantial
            portion of its potential liability through an adroit application
            of § 2401(b). On the other hand, it is clear that to sustain the
            G o v e rn m en t’ s position w ould produce a harsh result for the
            insurers, for they w ould be left w ith no recourse against the
            U nited S tates, which is alleg ed to hav e been the party
            ultimately responsible for this airplane accident.

E xecutive J et, 507 F.2d at 516 (citation omitted).


            In the order of remand from the prev ious appeal, w e held as follow s:
“M oreover, the w ay is open for the third party subrogee to assert its rights, if any,
in a separate claim to the claims commission.” To hold now that R ule 17.01 is
not an appropriate means of implem enting this “separate claim” is to exalt form
ov er substance which w e decline to do. T he trial court erred in striking the
M arch 10 , 199 9 “N ot ic e o f J oi nd er o f B el lS ou th C orp ora tion” and “BellS outh
C orporation’s R at if ic at io n o f C la im s.” T he se pl ea di ng s, al be it la te f il ed , are
adequate to bind B ellS outh C orporation under res judicata principles to
w hatev er final judgm ent is ultimately entered in this case. T he purpose of R ule
17.01 is thus serv ed and the “relation back” prov isions of the R ule are applicable
to the end that the case should be tried on its merits.


            T he judgment of the C laims C ommission is rev ersed and the case is
remanded for trial on the merits of the issues draw n betw een the claimants and
the defendants as ratified by B ellS outh C orporation. C osts of this cause are
taxed to the appellees f or which ex ecution may issue.




                                         _______________________________________
                                         W I L L IA M B . C A I N , J U D G E

C O N C U R:

______________________________________
B E N H . C A N T R E L L , P .J ., M .S .

______________________________________
W I L L IA M C . K O C H , J R ., J U D G E


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