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Unformatted text preview: should have been filed against its principal, the
Westchester Fire Insurance Company of New York. 36 This point is also well taken. Section 2, Rule 3 of the Rules of Court requires that "every action must be
prosecuted in the name of the real party in interest." A corollary proposition to this rule is that an action
must be brought against the real party in interest, or against a party which may be bound by the judgment
to be rendered therein. The real party in interest is the party who would be benefited or injured by the
judgment, or the "party entitled to the avails of the suit".
In the case at bar, the defendant issued upon in its capacity as agent of Westchester Fire Insurance
Company of New York in spite of the fact that the insurance contract has not been signed by it. As we have
said, the defendant did not assume any obligation thereunder either as agent or as a principal. It cannot,
therefore, be made liable under said contract, and hence it can be said that this case was filed against one
who is not the real party in interest.
We agree with counsel for the appellee that the defendant is a settlement and adjustment agent of the
foreign insurance company and that as such agent it has the authority to settle all the losses and claims
that may arise under the policies that may be issued by or in behalf of said company in accordance with the
instructions it may receive from time to time from its principal, but we disagree with counsel in his
contention that as such adjustment and settlement agent, the defendant has assumed personal liability
under said policies, and, therefore, it can be sued in its own right. An adjustment and settlement agent is no
different from any other agent from the point of view of his responsibility, for he also acts in a representative
capacity. Whenever he adjusts or settles a claim, he does it in behalf of his principal, and his action is
binding not upon himself but upon his principal. And here again, the ordinary rule of agency applies. The
following authorities bear this out:
An insurance adjuster is ordinarily a special agent for...
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This document was uploaded on 03/11/2014.
- Fall '14