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03/02/88 GARRY E. EULER v. SEYMOUR NATIONAL BANK AS

Filed: March 2, 1988.

GARRY E. EULER, GREENLAND DIVISION, ASHLAND OIL, INC., APPELLANTS (DEFENDANTS BELOW), BENJIE A. STEWARD, HOWARD MARTIN, INC., RONALD E. SWINFORD AND WEITZEL CONSTRUCTION COMPANY, INC., DEFENDANTS,
v.
THE SEYMOUR NATIONAL BANK AS PERSONAL ADMINISTRATOR OF THE ESTATE OF RAYMOND H. MEURER, DECEASED, APPELLEE (PLAINTIFF BELOW).



Appeal from the Lawrence Circuit Court, The Honorable Linda L. Chezem, Judge, Cause No. C-84-C312

Miller, P.j., Conover, J., Concurs. Sullivan, J., Dissents With Opinion.

Author: Miller

MILLER, P.J.

Garry Euler and Ashland Oil, Inc. ("Euler") have filed this interlocutory appeal asserting that the trial court improperly denied their motion for joinder and interpleader. We affirm.

In June of 1983, a multi-vehicle collison occurred on Interstate 65 in Jackson County. Ronald Swinford was traveling south in a truck owned by his employer, Weitzel Construction Company, when the truck began to emit dense smoke. Upon encountering the smoke, Garry Euler, who was driving a semi truck owned by his employer, Ashland Oil Co., Inc., applied his brakes and was struck in the rear by a pick-up truck owned by Raymond Meurer and occupied by Meurer and John Koling. The Meurer vehicle was then struck in the rear by a semi truck owned by Howard Martin, Inc. and operated by Benjie Steward. The Meurer vehicle overturned and Meurer was killed and Koling sustained serious injuries.

On May 22, 1984, Seymour National Bank (Seymour Bank), as Personal Administrator of the Estate of Meurer, filed a wrongful death action in Lawrence Circuit Court against Euler, Ashland, Benjie Steward, Howard Martin, Inc., Ronald Swinford, and Weitzel Construction Company, Inc. Koling was not involved in the Lawrence County action. Instead, he and his wife, Carolyn, filed an action in November of 1985 in Federal District Court against the same defendants. In the state court action, Defendant Euler filed motions to join and interplead the Kolings. The trial court denied the motions and we accepted Euler's interlocutory appeal.

Euler contends that joinder or interpleader should have been granted under Ind. Rules of Procedure, Trial Rules 19(A)(2)(b), 20 and 22. We disagree. Trial Rule 19(A)(2)(b) provides as follows:

(A) Persons to Be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if:

(2) he claims an interest relating to the subject of the action and is so situated that the Disposition of the action in his absence may:

(b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

Euler claims that the Kolings are indispensible parties. He specifically contends that a failure to join the Kolings might subject him to inconsistent obligations if both John Koling and Meurer are found to have been the passengers rather than the driver of the Meurer vehicle. We find this argument to be purely speculative. "Such speculation is not sufficient to satisfy the requirements of Trial Rule 19(A)." Grove v. Thomas (1983), Ind.App., 446 N.E.2d 641, 643.

In addition, Euler has not demonstrated that the Kolings claim such "an interest in the subject of the present action" to subject them to compulsory joinder. Although the Kolings, like Seymour Bank, are making a claim for personal injuries against the same defendants, they have no stake in the Seymour Bank case and will in no way be affected by its outcome.

Rather, the Kolings' general interest in the subject of the Seymour Bank litigation is ostensibly that of a proper party[Footnote 1] who may be permissibly joined under Trial Rule 20. "A proper party has been defined as a party which does not have an interest in the controversy between the immediate litigants but who has an interest in the subject matter of the litigation which may be conveniently settled in the suit." 2 Harvey, W., Indiana Practice ยง 20.1, p. 251 (2d ed. 1987) citing Lumbermens Mut. Casualty Co. v. Borden Co. (S.D.N.Y. ...


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