                   IN THE COURT OF APPEALS OF TENNESSEE

                        EASTERN SECTION AT KNOXVILLE             FILED
                                                                  February 5, 1997

                                                                 Cecil Crowson, Jr.
AETNA INSURANCE COMPANY and               )                      Appellate C ourt Clerk
CHURCH OF GOD OF PROPHECY,                )
(HICKORY VALLEY ROAD),                    )
                                          )      HAMILTON CIRCUIT
       Plaintiffs/Appellants              )
                                          )
v.                                        )
                                          )      NO. 03A01-9601-CV-00024
LITTLE GIANT MFG. CO., INC. and           )
EDWIN L. WIEGAND DIVISION OF              )
EMERSON ELECTRIC COMPANY,                 )
                                          )
       Defendants/Appellees               )      VACATED AND REMANDED




Daniel J. Ripper, Chattanooga, For the Appellant.

James P. Anderson,Jr., Chattanooga, For the Appellee, Little Giant Mfg. Co., Inc.

Douglas M. Campbell, Chattanooga, For the Appellee, Edwin L. Wiegand, Division of
      Emerson Electric Co.



                                     OPINION

                                                                INMAN, Senior Judge

       This complaint was filed by the Church of God of Prophecy against the Little

Giant Mfg. Co. and Kick-Shaw, Inc., alleging that its property was destroyed by fire

caused by a defective water heater manufactured by Little Giant and sold to the

plaintiff by Kick-Shaw, Inc. Various defenses were interposed by the defendants,

none of which is relevant to the issue before us. Thereafter, the complaint was

repeatedly amended; new parties came and went; and, in its present posture, the

plaintiffs are Aetna Insurance Company and Church of God of Prophecy and the

defendants are Little Giant Mfg. Co., Inc. and Emerson Electric Company.

       This is a Rule 10 appeal from the action of the trial court in ruling that Aetna

Insurance Company should be joined as a party-plaintiff since it is the real party in

interest in this subrogation case.

       The Church insured by Aetna was heavily damaged in a fire which occurred in

1991. Aetna paid the loss and thereafter filed this action in the name of the church
to recoup its payment under principles of subrogation. The complaint was filed on

November 3, 1992, with the knowledge of all parties that it was a subrogation action.

The case was finally set for trial on December 1, 1995 before a jury. On November

27, 1995, the trial court ordered that Aetna Insurance Co. should be a named party

since it was the real party in interest.

       Aetna objected to its involuntarily role, asserting that the case had been

pending for three and one-half years when, three days before trial, it was summarily

added as a plaintiff. We granted a Rule 10 application to consider the propriety of

this action.

       Rule 17.01, TENN. R. CIV. P. provides:


       Every action shall be prosecuted in the name of the real party in
       interest; but an executor, administrator, guardian, bailee, trustee of an
       expressed trust, party to whose rights another is subrogated, 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 his or her own
       name without joining the party for whose benefit the action is brought;
       and when a statute so provides an action for the use or benefit of
       another shall be brought in the name of the state. 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 or commencement, or joinder or substitution of,
       the real party in interest, and such ratification, joinder or substitution
       shall have the same affect as if the action had been commenced in the
       name of a real party in interest.


       Additionally, the Advisory Committee comment to TENN. R. CIV. P. 17.01

specifically provides:


       The rule is similar to Federal Rule 17(a), but unlike the Federal Rule,
       Rule 17.01 authorizes suit by a party in the party’s own name even
       though another has been subrogated to the right which the party seeks
       to enforce.


The Rule clearly authorizes Aetna Insurance Company to bring an action in the

name of the party to whose rights it is subrogated without being named itself as a

party to this lawsuit. See Travelers Ins. Co. V. Williams, 541 S.W.2d 587, 590

(Tenn. 1976).

       The defendants argue that after the loss was paid, the debris was hauled

away by the church’s contractor, with nothing being salvaged except the suspect



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heater, thereby thwarting and impeding the defense that the fire was arsenetic in

nature. We are not here concerned with the spoliation of evidence defense; the

defendants’ argument is centered on the allegation that Aetna knew from the

beginning that the fire may have been of incendiary origin, but nonetheless took no

action to preserve the debris. During argument, it was revealed that the church’s

contractor hauled the debris from the site, for which Aetna was somehow liable, and

disposed of it. Aside from the fact that the disposal of the debris may well have been

more advantageous to the defendants than a chemical analysis of it,we see no

procedural correlation between the contractor’s apparently necessary action and the

status of Aetna.

       Rule 19 is argued by the defendants to be supportive of the action of the trial

court in the event Rule 17 is not. Rule 19 provides that “a person . . . shall be joined

as a party if in his absence complete relief cannot be accorded among those already

parties.” A short answer to this insistence is simply that complete relief may be

accorded to the parties in the absence of Aetna.

       Finally, the defendants argue that they will be deprived of the defense of

spoliage of the evidence if “they are prohibited from proving Aetna’s role in . . .

disposing of the evidence.” The fact that Aetna is not a party plaintiff will not deprive

the defendants of any relevant, justiciable defense, but may salutarily serve to

eliminate a rather obvious, unspoken element. No other reason comes to mind for

the peculiar language of Rule 17.01. Accordingly, the order requiring Aetna to be

joined as a party plaintiff is vacated. The case is remanded, with costs on appeal

assessed to the defendants-appellees.



                                           __________________________________
                                           William H. Inman, Senior Judge




CONCUR:




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______________________________
Houston M. Goddard, Presiding Judge



______________________________
Charles D. Susano, Jr., Judge




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