Wilbur K. Miller, Senior Circuit Judge, and MacKinnon and Robb, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Frank C. JOYNER, Appellant, American Motorists Insurance
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
MacKINNON, Circuit Judge:
Appellant Joyner was injured on March 18, 1968 during the course of his employment with the A.B.C. Consolidated Corporation. As a result of these injuries, he was paid workmen's compensation benefits by American Motorists Insurance Co. (American), the compensation insurance carrier for his employer, under the terms of the Longshoremen's and Harbor Workers' Compensation Act. *fn1 The payments were made by American without a formal award of compensation benefits being entered. *fn2
On February 19, 1969 Joyner filed a third-party action against appellee Calacino as the person allegedly responsible for Joyner's injuries, and against F. & B. Enterprises, Inc. as Calacino's employer. *fn3 The complaint alleged that Joyner's injuries were caused by the defendants' negligence and/or their intentional, willful and malicious acts. The defendants then filed a motion with the trial court to join American as a named party plaintiff in the action.
The pretrial examiner entered a recommendation that the motion to join American be granted, and Joyner filed an opposition to the recommendation. *fn4 The trial judge denied the motion in opposition, but granted leave to apply to this court for permission to take an interlocutory appeal under 28 U.S.C. § 1292(b) (1964). On March 6, 1970 the petition for an interlocutory appeal was granted by order of this court, and the appeal is now here for decision on the merits. I.
The meaning and object of the real party in interest provision would be more accurately expressed if it read:
An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced.
3A J. Moore, Federal Practice para. 17.02, at 53 (2d ed.1953) (emphasis in original). This concept of a real party in interest has been given effect by the courts, see generally 3A J. Moore (supra) para. 17.07, and has been applied to the circumstances of subrogation as between an insurer and an insured. For example, in United States v. Aetna Cas. & Surety Co., 338 U.S. 366, 380, 70 S. Ct. 207, 215, 94 L. Ed. 171 (1949), the Court said that "of course the insurer-subrogee, who has substantive equitable rights, qualifies as [a real party in interest]." But the Court also made clear that the "substantive equitable rights" referred to were "substantive rights against the [third party] tortfeasor." 338 U.S. at 381, 70 S. Ct. at 215 (emphasis supplied). The question to be resolved then reduces to whether, by the terms of the applicable substantive law, American possesses substantive rights against the defendants on the facts of the present case.
The substantive law to be applied begins with section 33(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 933(b) (1964):
(b) Acceptance of [workmen's] compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.
Subsection (b) has been construed to confer subrogation rights on the employer, or on the employer's insurance carrier, *fn6 even where workmen's compensation was paid without the entry of a formal compensation award, as in the present case. E. g., Hugev v. Dampskisaktieselskabet International, 170 F. Supp. 601 (S.D.Cal.1959), aff'd, Metropolitan Stevedore Co. v. Dampskisaktieselskabet International, 274 F.2d 875 (9th Cir.), cert. denied, 363 U.S. 803, 80 S. Ct. 1237, 4 L. Ed. 2d 1147 (1960); The Etna, 138 F.2d 37 (3d Cir. 1943); see Potomac Electric Power Co. v. Wynn, 120 U.S.App.D.C. 13, 343 F.2d 295 (1965). The significant point to be explored concerns ...