39*
THE GREEN BAG
JOINDER OF ACTIONS IN FIRE INSURANCE LITIGATION BY FREDERICK T. CASE IN nearly every fire insurance litigation, misjoinder of several causes of action, and whether large or small, there are several without the right then to start afresh. companies involved on separate and dis Under our present Standard Form policy, tinct policies, and the important question however, there would seem to be a perfectly must inevitably suggest itself to the attorney proper basis on well-recognized principles for the assured of whether or not he shall for a single omnibus suit against all of the bring one single blanket action against all companies involved in the loss. That is by of the insurance companies or shall bring a reason of the pro rata clause that is found in separate action against each. The practice every policy, expressly providing that the heretofore with a few exceptions seems company issuing it shall not be liable for always to have been to bring a separate any greater proportion of any loss to the action on each separate policy, but just described property than the amount thereby why that has been done, whether from insured bears to the whole insurance whether choice or fancied necessity, no one seems valid or invalid. It thus happens that each to know. company is immediately interested in, and In view of the fact that the question of affected by, the two principal questions joining Uhe several companies in a single involved in the fight between each company action must so frequently come before the and the assured, namely, the amount of the attorneys in their practice, it is surprising loss and the amount of the insurance which that it should so seldo'm be brought into is to bear the loss. But before deciding court, and that there should be very little whether or not it is correct at law to sue all authority upon it. The probable reason of the insurers in one suit, many will pause for this is practical rather than legal, and to see whether that would be a desirable arises no doubt from the caution and un course. Besides the man who has a doubt certainty of the attorney and his unwilling ful or uncertain loss on his hands and who ness to take any chances in exploring new will wish to string out his litigation so as to fields, rather than because the law is so well draw his opponent's fire in one or more settled as to clearly mark out his proper preliminary cases there will also be found course of procedure. This caution arises the smaller and less attractive specimen of generally from his unwillingness to risk his attorney who, having plenty of time on his whole recovery in one single trial, when he hands and little work of value, wishes to has the opportunity to discover the oppo extend the work over as much ground as nent's case in a first more or less preliminary possible, provided he can thereby heap up trial, perhaps upon one of the smallest of court costs. And for the companies too, the policies, and then go into the subse this course may often be the best, as for quent more important cases knowing just example in a series of cases that recently what he will have to meet. But he may came to the writer's attention where the also be influenced by a fear that in the slow defenses were fraud, false swearing, and process of determining in the courts whether arson. In that instance it was impossible he may properly join all of the defendants to know what the assured and his associates in one action, the twelve months statute of would swear to, and it seemed almost cer limitations in the Standard Form policy tain that they would go so far astray in might run, and that he might then find him their first testimony that they could not self thrown out of court, with his complaint testify again without contradicting them dismissed on the mere technical ground of selves and proving their own unreliability
