Tyler v. Dowell, Inc

274 F.2d 890, cert. denied 363 U.S. 812 (10th Cir. 1960)

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Nature of the Case

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Facts

Tyler (P) and King, d.b.a., King Drilling contacted with Phillips Petroleum to drill and complete a well. That work was accomplished. While King Drilling was ordered to stand by, Phillips contracted with Dowell (D) to sand frack the well to increase productivity. That resulted in an accident, and spraying oil caused losses to King Drilling equipment. P sued D for negligent fracking and D countered with contributory negligence and assumption of the risk and sought indemnity from Phillips as part of that relationship. D and Phillips settled their differences, and the trial court sustained D's motion to make P's insurance carrier a party plaintiff on grounds that it had paid part of the loss and was, therefore, a necessary or real party in interest. P objected to making the insurance company party plaintiff on grounds that it had not actually paid any of the loss but had merely entered into a loan agreement with the contractor by which it had advanced the contractor a stipulated sum of money to be repaid from the proceeds of the litigation. The trial court determined that the insurance company was a real party in interest because it could collect sums due under P's note from the parties to the litigation.