Poteet v. Sauter

HOLLANDER, Judge. In this case, we must decide whether the Circuit Court for Washington County erred by failing to compel the joinder of a partially subrogated insurance company as a party plaintiff. The case arises from a serious automobile accident that occurred in Berkeley Springs, West Virginia on August 21, 1996, involving two vehicles, one driven by Evelyn Poteet, appellant, and the other by Raymond Sauter, Jr. (“Mr'.Sauter”), appellee. Mr. Sauter’s wife, Brenda, and two of their three children, Jan and Kasey, 1 were passengers in his car and are appellees here.

Following the motor vehicle accident, Poteet’s insurance company, State Farm Mutual Automobile Insurance Company (“State Farm”), offered to settle with the Sauters for Poteet’s policy limit of $50,000, but appellees refused to accept that sum. Instead, on June 2,1998, appellees reached a settlement agreement with their own insurance carrier, State Auto Mutual Insurance Company (“State Auto”), pursuant to the under-insured motorist provision of the Sauters’ policy. In accordance with the terms of the settlement, appellees received $150,000 collectively, in exchange for an assignment of rights to State Auto. . Thereafter, on August 17, 1998, appellees filed suit against Poteet in Washington County. 2 Appellant subsequently sought to join State Auto as a plaintiff, claiming the Sauters had assigned their rights against Poteet to State Auto.

The court denied appellant’s motion. ³⁸⁹ Following a three-day jury trial that began on December 1, 1999, the jury returned a verdict in favor of appellees in the amount of $308,388.83. From that verdict, appellant noted her appeal. She presents two issues for our consideration, which we have rephrased slightly: I. Did the court err in refusing to add State Auto as a necessary party to the action?

II

Did the court err in refusing to submit the issue of contributory negligence to the jury? We answer both questions in the negative and shall affirm. I. FACTUAL SUMMARY A. The Proceedings Below After the accident, State Farm, Poteet’s liability insurer, offered to pay the Sauters $50,000, which was the maximum per accident limit of coverage available under Poteet’s policy. As we noted, the Sauters declined to accept that sum in settlement of their claim against Poteet.

Instead, they pursued a claim with their own insurance company, State Auto, based on the underinsured policy provisions of their own policy, which had “a single limit” of $100,000. On June 2, 1998, in exchange for $150,000, the Sauters entered into an Agreement and Release with State Auto (the “Agreement”). 3 In the Agreement, State Auto expressly refused to waive its subrogation rights against Poteet. As the terms of the Agreement are central to this case, we shall set forth below its pertinent provisions: AGREEMENT AND RELEASE SECTION TWO Explanation 2.01 As a result of the Occurrence, the Sauters have made a Claim against Poteet who is insured under the State ³⁹⁰ Farm Policy. State Farm has offered to pay to the Sauters the per accident limit of liability coverage ($50,000.00) under the State Farm Policy.

The Sauters have made a claim against State Auto for underinsured motorist coverage benefits provided under the State Auto Policy. State Auto, after an examination of the land and tax records in Washington County, Maryland, has determined that Poteet is the sole owner of an unencumbered piece of real estate located in Hancock, Washington County, Maryland, which has a minimum value of $90,000.00. Therefore, State Auto is unwilling to waive its rights of subrogation against Poteet. State Auto has agreed to pay the Settlement Amount to the Sauters in consideration for which the Sauters, pursuant to the State Auto Policy and the terms of this Agreement, will cooperate with State Auto who plans to subrogate against Poteet.

SECTION THREE Agreement 3.01 In consideration of the Settlement Amount paid by State Auto to the Sauters, the receipt and sufficiency of which is hereby acknowledged by the Sauters, the Sauters do hereby remise, release and forever discharge State Auto from (a) any and all Claims under, pursuant to or arising out of the State Auto Policy and (b) any and all Claims for Damages. 3.03 The Sauters expressly agree to indemnify and hold State Auto and State Farm forever harmless against any losses sustained by State Auto and State Farm as a result of any further Claims that may hereafter or at any time be made or brought by the Sauters (or any of them) against State Auto or State Farm in connection with the Occurrence, the State Auto Policy, the State Farm Policy, or the Damages. ³⁹¹ 3.04 The Sauters agree to discharge all Liens, if any, and expressly agree to indemnify and hold State Auto and State Farm forever harmless against all Losses sustained by either of them as a result of the Sauters’ failure to do so 3.05 The Sauters expressly waiver [sic], and assume the risk of, any and all Claims for Damages which exist now or which may exist in the future, but of which the Sauters are or may be unaware, whether through ignorance, oversight, error, negligence or otherwise and which, if known, would materially affect the Sauters’ decision to enter into this Agreement. 3.06 The Sauters hereby irrevocably assign to State Auto their right to the per accident limit of liability coverage ($50,000.00) under the State Farm Policy. State Farm acknowledges this assignment and joins in this Agreement to evidence its consent to this assignment. 3.07 The Sauters hereby assign to State Auto the proceeds of their Claim against Poteet and agree, pursuant to and consistent with the terms of the State Auto Policy and this Agreement, to cooperate fully with State Auto and to do all things necessary or convenient to the prosecution of State Auto’s subrogation claim against Poteet including, without limitation, travelling to the venue of the subrogation litigation, meeting with State Auto’s attorneys, appearing in Court, appearing for depositions, responding to discovery, providing information, and appearing for medical evaluations. State Auto will be responsible for the payment of all expenses related to travel and lodging for an [sic] such activity as aforesaid; * * * 3.07.02 Sauter hereby agrees to hold in trust for the benefit of State Auto all rights of recovery against Poteet. The Sauters, subject to the provisions of Section 3.08 below, hereby assign to State Auto the proceeds of any settlement with or judgment against Poteet.

The Sauters hereby ³⁹² authorize State Auto to take any action against Poteet ivhich may be necessary either in law or in equity, in the Sauters’ own names. 3.07.03 The Sauters warrant that they have made no settlement with, given a release to, or prosecuted any claim to judgment against Poteet, and that no such settlement will be made, no such release will be given and no such claim will be prosecuted to judgment without State Auto’s prior written consent. 3.08 If, as a result of State Auto’s subrogation effort against Poteet, State Auto obtains and collects a verdict against Poteet for a sum which, after reduction of State Auto’s legal fees and litigation expenses, is more than sufficient to fully satisfy State Auto’s subrogation claim of $150,000.00, then State Auto will pay the excess jointly to the Sauters who will be solely responsible for the allocation of the excess proceeds and who, if necessary, will seek Court approval of that allocation. Nothing in this Agreement or in this paragraph 3.08 shall be construed (a) to require State Auto to proceed with litigation against Poteet (b) to give the Sauters any control over such litigation, (c) to require consent by the Sauters to any settlement of such litigation, or (d) to require consent by the Sauters to any settlement of State Auto’s Claim against Poteet prior to the initiation of litigation, all such matters being left to State Auto’s sole discretion. (Emphasis added.) On August 17, 1998, after the Sauters settled with State Auto, suit was filed against Poteet, captioned “Raymond Sauter, Jr. and Brenda Sauter, Individually and as Parents and Next Friends and Guardians of Jan Michael Sauter and Kasey Sauter, minor children, Plaintiffs v. Evelyn F. Poteet, Defendant.” Thereafter, on November 12, 1999, appellant filed a “Motion To Include A Necessary Party”, pursuant to Rule 2-311 and Rule 2-211. In support of her motion, appellant said: “State Auto Insurance Company, by virtue of its claim against the proceeds of any judgment is a real party in interest and should be included in this lawsuit as a matter of law.” In her ³⁹³ motion, Poteet pointed to State Auto’s “real financial interest”, based on the Agreement between State Auto and Sauter, which “entitled [State Auto] to the first $150,000 of any judgment” entered against Poteet.

Appellees opposed the motion, arguing that joinder of State Auto “would tend to depress an assessment of damages against the tortfeasor”, and “claiming that their injuries entitled them to compensation in excess of the amount paid by their insurer.” The joinder motion was denied on November 20, 1998. The court subsequently denied a motion to reconsider. B. The Accident The accident occurred at about 9:00 p.m. on August 21, 1996, at the intersection of Fairview Drive and River Road. The intersection is controlled by a stop sign that requires traffic on Fairview Drive to stop and yield the right-of-way to traffic on River Road.

At the time, appellant was driving north on Fairview Drive, towards River Road, while Mr. Sauter was proceeding east on River Road in his 1986 Chevrolet Camaro. He was accompanied by his wife and two of his three children. The family had just attended a carnival in Berkeley Springs, and was on the way home. The speed limit on River Road is 55 miles per hour.

At trial, Mr. Sauter testified that he had frequently traveled on River Road and was familiar with railroad tracks located approximately 75 to 100 yards from the intersection in question. On the night of the occurrence, Mr. Sauter crossed the railroad tracks under the speed limit, at a speed of approximately 40 to 45 miles per hour. Thereafter, Mr. Sauter increased his speed approximately 5 to 8 miles per hour as he pulled away from the train tracks and progressed towards the intersection. After Mr. Sauter crossed the tracks, he noticed Poteet’s car, located approximately 100 yards from the stop sign on Fair-view Road.

When he first saw appellant’s vehicle, Mr. Sauter said he was traveling 40-45 miles per hour. As Mr. Sauter approached the intersection, he saw the “third brake light” on the trunk lid of appellant’s car, as it traveled on Fairview ³⁹⁴ Drive towards the intersection. According to Mr. Sauter, Poteet’s ear then “dart[ed] in front” of his vehicle. Poteet accelerated and turned left directly in front of the Sauters’ vehicle.

Although Mr. Sauter “hit the brakes on [his] Camaro [and] turned the wheel,” swerving to the right, he could not avoid the collision, and left seventy feet of skid marks on the road. Mr. Sauter asserted that, at the time, the weather was “clear” and he had “no problem” with visibility caused by fog. He added that his “vision” was not “impair[ed]”, stating: “If you was to look up, say to look at the stars, it was just cloudy. You couldn’t see stars.

You know, I don’t know if it’s fog, clouds, or what it is but it wasn’t nothing. Standing on the ground visibly looking there was no problem.” Further, Mr. Sauter stated: “I didn’t see actually no fog period. I didn’t even know it was foggy period until I had got to the hospital. When the [ambulance] driver was trying to back into the hospital he said it was foggy.

That’s the only time I heard anything about fog period or seen fog.” Moreover, Mr. Sauter denied any alcohol consumption, and claimed that no alcohol was in the car at the time of the accident. That was confirmed by a blood alcohol test taken at the Washington County Hospital shortly after the accident, which was “negative”. Appellant’s expert, Richard Conant, M.D., acknowledged that the results of the test indicated the absence of alcohol in Mr. Sauter’s system. Jan Sauter, who was about ten years old at the time of the occurrence, also testified about the accident.

He stated that, at the time of the incident, he was sitting in the back seat of the vehicle, behind his father. Nevertheless, he claimed that he could see the intersection just before the collision, and he recounted what occurred: “We just came over the train tracks and Mrs. Poteet was coming out of Fairview Drive and she just pulled out in front of us and we hit her.” Although Jan saw Poteet’s car slow down as she approached the stop sign, he said: “I don’t know if it was to a stop because it was dark and all you could see was lights.” ³⁹⁵ Deputy Sheriff Anthony Lynch was notified of the accident at 9:28 p.m. and responded to the accident scene. He testified that “visibility was not obstructed at all at the time we traveled to get to the scene.” He acknowledged, however, that “there was fog setting in,” and he listed the weather conditions as “foggy” on his official police report. He also recalled that the Medivac helicopter could not land because the fog was too thick.

Officer Lynch did not observe any evidence of alcohol in the Sauters’ vehicle, nor was he informed that anyone had been drinking. He stated: “I would have investigated it further to see if possibly alcohol was a factor in the accident.” Appellant did not testify at trial. Nevertheless, several witnesses testified on her behalf. Ida Berwiger testified that she and Poteet were together during the afternoon and early evening hours of August 21, 1996.

Prior to the accident, Poteet drove Berwiger to her home on Fairview Avenue, which was located approximately two to two and a half miles from the intersection. Berwiger claimed that at that time it was “quite foggy” at the intersection of Fairview Drive and River Road. Genevieve Virginia Funk, a friend of Poteet, had been out earlier that same evening. She lived about three and a half miles from the accident scene, and returned to her home located on Fairview Drive at approximately 9:80 p.m.

Funk confirmed that as she drove through the intersection of Fair-view Drive and River Road, the weather conditions were “very foggy.” Indeed, she claimed traffic progressed very slowly on Fairview Drive because of the fog, and it took her “twice as long to get home because of the fog.” Shortly after Funk returned home, she received a phone call informing her that Poteet had been in an accident. Funk immediately returned to the intersection. According to Funk, when she arrived at the scene the weather conditions were “still foggy. There was tremendous lights on and it was kind of a glow around it because of the fog.” ³⁹⁶ Harry Sloan, Jr., a member of the Hancock Volunteer Fire and Rescue squad, was notified of an emergency and assisted at the scene of the accident.

He testified that it took him approximately “two, three minutes at the most” to arrive at the accident scene from his home, two miles away. Sloan also stated: ■ When I left my house there was no fog. When I got in several dips in ... it was all hilly ground up in that area, it was fog in the low lying area. And when I approached the accident, it was clear on the bridge and when' I turned on to River Road it was clear there.

As soon as I crested the hill and got right almost where the accident was, you couldn’t hardly see anything. It was real foggy. According to Sloan, he and other rescue workers moved Mr. Sauter out of his Camaro in order to have him transported to the hospital. At that time, Sloan noticed a “strong odor of alcohol” coming “from the occupant” of the Camaro, and saw several beer cans on the floor of the vehicle.

Sloan acknowledged that there were about a dozen emergency personnel and two police officers at the scene, none of whom suggested any alcohol use by Mr. Sauter. Sloan claimed that he was friends with almost everybody in Hancock, including Poteet. Although Sloan claimed that he saw appellant only a couple of times per year, he acknowledged that in 1996 he borrowed money from Poteet to buy a truck. In an effort to rebut Funk’s claims of fog and obstructed vision, appellees introduced a portion of Poteet’s deposition taken on August 19,1999.

It stated, in relevant part: [APPELLEES’ ATTORNEY]: You drove I g-uess what would be northward on Fairview Drive from Mrs. Berwiger’s house, is that correct? * * * [POTEET]: Yes. [APPELLEES’ ATTORNEY]: You saw another pair of headlights on Fairview Drive? ³⁹⁷ [POTEET]: Uh huh. [APPELLEE’S ATTORNEY]: Who was driving that car? Whose car was it? [POTEET]: It was my friend and she was driving her own car with her daughter. [APPELLEES’ ATTORNEY]: What was her name? Or what is her name? [POTEET]: Jenny Funk ... At the end of the trial, the court declined to instruct the jury regarding contributory negligence, despite appellant’s request.

The following colloquy, which preceded the jury instructions, is relevant: [APPELLANT’S ATTORNEY]: ... I would ask that the standard contributory negligence instruction be given. THE COURT: I’m going to reject that. I’m not going to give a contributory negligence instruction.

I don’t feel even with evidence taken most favorably for you that there is any evidence of negligence by Mr. Sauter’s operation of his motor vehicle. [APPELLANT’S ATTORNEY]: Do you want me to just put my reasons on the record now? THE COURT: Certainly. [APPELLANT’S ATTORNEY]: Judge I think that there is sufficient evidence that the fog that night was so dense that to operate a vehicle at his testified speed of anywhere from forty-five to fifty ... up to fifty-five mile an hour, was clearly negligent because the fog was so dense you couldn’t see in front of you. The speed is further indicated by way of the seventy feet of skid marks that were noted on Deputy Lynch’s report. I think that there is sufficient evidence to show that he was negligent and that his negligence was a possible contributing factor to the accident.

I think it should be a jury question. I would except to the Court’s failure to grant the contributory negligence instruction. ³⁹⁸ THE COURT: Understood. My decision is based on the causal connection and I do not feel that there is any evidence that a jury ... that a reasonable jury could find that the operation of his own injury, cause of the collision. After the court gave its jury instructions, counsel for both sides noted their exceptions.

But, appellant’s counsel did not renew his objection to the court’s failure to instruct the jury as to contributory negligence. We shall include additional facts in our discussion.

II

DISCUSSION A. Appellant contends that “it is apparent” that State Auto is the real party in interest and, in light of her timely request, the court should have granted the joinder request. Poteet points to the Agreement between appellees and State Auto, in which the Sauters assigned to State Auto their right to bring a claim against Poteet, and asserts that the suit was filed “primarily to recoup the $150,000.00 payment made by State Auto.” Conversely, appellees argue that they only assigned to State Auto part of the “proceeds of their claim against Poteet.” Accordingly, they maintain that the court did not err in denying appellant’s motion to “include” State Auto as a necessary party. Resolution of the issue before us involves an analysis of the Agreement as well as the interplay of Md. Rules 2-211 and 2-201. Appellant relies on those two rule to support her claim that the court erred in denying her motion to join State Auto as a party plaintiff. 4 These rules state, in relevant part: ³⁹⁹ Rule 2-201.

Real Party in interest. Every action shall be prosecuted, in the name of the real party in interest, except that an executor, administrator, personal representative, guardian, bailee, trustee of an express trust, person with whom or in whose name a contract has been made for the benefit of another, receiver, trustee of a bankrupt, assignee for the benefit of creditors, or a person authorized by statute or rule may bring an action without joining the persons for whom the action is brought. When a statute so provides, an action for the use or benefit of another shall be brought in the name of the State of Maryland. 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 joinder or substitution of the real party in interest.

The joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. (Emphasis added). Rule 2-211. Required joinder of parties.

(a) Persons to be joined. Except as otherwise provided by law, a person who is subject to service of process shall be joined as a party in the action if in the person’s absence (1) complete relief cannot be accorded among those already parties, or (2) disposition of the action may impair or impede the person’s ability to protect a claimed interest relating to the subject of the action or may leave persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations by reason of the person’s claimed interest. ⁴⁰⁰ In Mid-Atlantic Power Supply Ass’n. v. Public Service Com’n, 361 Md. 196, 221 , 760 A.2d 1087 (2000), the Court recently recognized the “trend” to define real party in interest as follows: A person entitled under the substantive law to enforce the right sued upon and who generally but not necessarily, benefits from the actions [sic] final outcome. Speaking for this Court in South Down Liquors v. Hayes, 80 Md.App. 464 , 564 A.2d 119 (1989), aff'd, 323 Md. 4 , 590 A.2d 161 (1991), Judge Wilner expounded on the history of the concept of real party in interest, as well as the joinder rule. He noted that, “in its earliest derivation”, the requirement to bring a civil action in the name of the real party in interest seems “to have been intended as much as an authorization as a requirement.” Id. at 475, 564 A.2d 119 .

The Court also observed that the 1984 revisions of the Maryland Rules repealed Md. Rule 243, a mandatory provision that had previously authorized those claiming by subrogation to sue at law. Id. at 478-79 , 564 A.2d 119 . In the same year, Rule 2-211 was enacted. In the Court’s view, “the repeal of Rule 243 in light of Rule 2-211 would seem rather clearly to indicate that, thenceforth, issues of required joinder would be governed by Rule 2-211 and not by Rule 2-201.” Id. at 479 , 564 A.2d 119 .

The Court endeavored to implement a view that gave “proper meaning” to both Rules 2-201 and 2-211. Id. at 480 , 564 A.2d 119 . Reasoning by analogy to the federal counterparts to the Maryland rules, the Court explained: “ ‘When there is more than one party that is a real party in interest, and one of them has bought the action, the tendency has been to take the requirement of [F.R.Civ.P] 17(a) as met, and resolve the issue as a question of joinder under [F.R.Civ.P] 19.’ ” Id. (alteration in original) (citation omitted).

That approach guides us here. B. The principles of subrogation are important in deciding whether State Auto is a real party in interest. Writing on ⁴⁰¹ behalf of the Court of Appeals, Judge Cathell recently explained subrogation, stating: “Subrogation is founded upon the equitable powers of the court. It is intended to provide relief against loss and damage to a meritorious creditor who has paid the debt of another.

The doctrine is a legal fiction whereby an obligation extinguished by a payment made by a third person is treated as still subsisting for the benefit of this third person.” Riemer v. Columbia Medical Plan, Inc., 358 Md. 222, 231 , 747 A.2d 677 (2000)(quoting Bachmann v. Glazer, Inc., 316 Md. 405, 412 , 559 A.2d 365 (3 989) (internal citations omitted). By compelling payment of a debt by one who ought to pay it, subrogation serves to “ ‘promote and to accomplish justice.’ ” Bachmann, 316 Md. at 413 , 559 A.2d 365 (citation omitted). The “rationale” of the doctrine is to prevent unjust enrichment, as the party primarily liable on the debt is obligated to pay it. Riemer, 358 Md. at 231-32 , 747 A.2d 677 (citations omitted).

Because “a person entitled to subrogation stands in the shoes of the creditor, he is ordinarily entitled to all the remedies of the creditor, and he may use all the means which the creditor could employ to enforce payment.” Bachmann, 316 Md. at 413 , 559 A.2d 365 . In Maryland, there are three kinds of subrogation: 1) legal subrogation, arising by operation of law; 2) conventional subrogation, arising by an express or implied agreement; 3) statutory subrogation, created by an act of the Legislature. Bachmann, 316 Md. at 413 , 559 A.2d 365 ; see South Down Liquors v. Hayes, 323 Md. at 10 n. 1, 590 A.2d 161 ; Stancil v. Erie Ins. Co., 128 Md.App. 686 , 740 A.2d 46 (1999); Roberts v. Total Health Care, Inc., 109 Md.App. 635, 648 , 675 A.2d 995 (1996) aff'd, 349 Md. 499 , 709 A.2d 142 (1998).

Rights arising from statutory or conventional subrogation will vary with the terms of the agreement or statutes involved. South Down Liquors, 323 Md. at 10 n. 1, 590 A.2d 161 . Ordinarily, in the insurance context, pursuant to a contract, the subrogee insurer is subrogated to the insured, against a party who has caused the insured’s loss and for which the insurer has ⁴⁰² compensated its insured. See generally Riemer, 358 Md. at 231 , 747 A.2d 677 ; Collins v. United Pacific Ins.

Co., 315 Md. 141, 145 , 553 A.2d 707 (1989); Roberts, 109 Md.App. at 635 , 675 A.2d 995 . In this case, State Auto’s subrogation right arose at least in part by way of an assignment to State Auto, pursuant to a contractual agreement with the Sauters. 5 This is a type of conventional subrogation. See Bachmann, 316 Md. at 413 , 559 A.2d 365 ; see also Security Insurance Co. of New Haven, v. Mangan, 250 Md. 241, 249 , 242 A.2d 482 (1968). In Bachmann , the Court explained: “Conventional subrogation is founded upon an agreement, express or implied, between a debtor and a third party or between a creditor and a third party that, upon payment of the debt, the third party will be entitled to all the rights and securities of that debtor or creditor.” 316 Md. at 413-14 , 559 A.2d 365 . “Recovery on a theory of conventional subrogation is based on contract but it is nevertheless subject to principles of equity.” Id. at 416 , 559 A.2d 365 .

Partial subrogation occurs when “both the subrogor and the subrogee retain an interest in the claim.” 4 James W. Moore, et al., Moore’s Federal Practice, § 17.11[3][b] at 17-50 (3d ed.1999). As Professor Moore explains: [I]f the insurer satisfies his liability to the insured, but the insured sues and recovers his entire original loss, the recovery is impressed with a trust for the insurer up to the amount to which he was entitled by principles of subrogation. The insurer, therefore, owned that portion of the substantive right, and the insured owned the remainder. There are two real parties in interest ... 3A James W. Moore, et al., Moore’s Federal Practice, § 17.09[2.1] at 17-78 (2d ed.1987). ⁴⁰³ In South Down Liquors, 323 Md. at 9-10 , 590 A.2d 161 , the Court said that because the subrogee and the subrogor were both entitled to bring a claim against the tortfeasor, both were real parties in interest.

Similarly, in United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 381 , 70 S.Ct. 207 , 94 L.Ed. 171 (1949), the Supreme Court explained that “if [the subrogee] has paid only part of the loss, both the insured and the insurer ... have substantive rights against the tortfeasor which qualify them as real parties in interest.” It follows that if State Auto had obtained complete subrogation rights, it would have been the sole real party in interest. But, if State Auto only paid part of the Sauters’ alleged loss, it only acquired partial subrogation rights. In that circumstance, the Sauters and State Auto would all qualify as real parties in interest, and either the Sauters or State Auto could bring the underlying action in their own names, as real parties in interest. See Jefferson v. Ametek, 86 F.R.D. 425, 427 (D.Md.1980); Stark v. Gripp, 150 Md. 655, 658 , 133 A. 338 (1926).

We conclude that State Auto had only partial subrogation rights. In analyzing whether State Auto was partially or fully subrogated, the terms of the Agreement are important. In § 3.07 of the Agreement, appellees “irrevocably assigned] to State Auto the proceeds of their Claim against Poteet----” (Emphasis Added). Further, in § 3.07.02, appellees agreed to “hold in trust” for State Auto “all rights of recovery against Poteet”, and assigned “the proceeds of any settlement with or judgment against Poteet.” But, they did not relinquish their right to pursue a claim against Poteet.

Instead, the Sauters warranted in § 3.07.03 that “no ... claim will prosecuted to judgment without State Auto’s prior written consent.” The Agreement also provided that if State Auto obtained a judgment against Poteet, the Sauters would be entitled to retain from a verdict against Poteet any sum in excess of the insurer’s subrogation claim of $150,000, “after reduction of State Auto’s legal fees and litigation expenses ⁴⁰⁴ In reaching our conclusion that State Auto had only partial subrogation rights, we have also considered appellant’s contentions. In appellant’s brief, Poteet does not argue that the terms of the Agreement foreclosed appellees’ right to sue appellant. Nor does appellant claim that the assignment from the Sauters created complete subrogation rights for State Auto. 6 In this regard, it is also noteworthy that, in the proceedings below, appellant never sought to substitute State Auto for the Sauters. Rather, she wanted to add State Auto as an additional plaintiff.

Therefore, as we construe appellant’s argument, she recognizes that the Sauters and the insurer had viable claims against Poteet, and she believed that they all should have been made parties to the suit. C. The question, then, is whether State Auto, as one of the real parties in interest, had to be joined as a party plaintiff. In resolving that question, appellant urges us to follow the reasoning of Aetna Casualty, 338 U.S. 366 , 70 S.Ct. 207 . In Aetna Casualty , the Supreme Court considered whether, under the Federal Tort Claims Act, and in light of a federal law restricting assignments of claims against the United States, an insurance company could bring suit against the United States in its own name, based on a claim to which it had become subrogated because of a payment to an insured.

Three cases were involved, each presenting a varied aspect of the issue. The Supreme Court considered whether, “[i]n cases of partial subrogation, ... suit may be brought by the insurer alone, whether suit must be brought in the name of the insured for his own use and for the use of the insurance company, or whether all parties in interest must join in the action.” Id. at 381 , 70 S.Ct. 207 . In applying F.R.Civ.P. 17(a), the federal counterpart to Md. Rule 2-201, the Court ⁴⁰⁵ stated: “If the subrogee