Corbishley v. Pep Boys - Manny, Moe & Jack of Delaware, Inc. et al

Filing 51

ORDER. Walmart's motion to intervene is untimely, and IT IS THEREFORE ORDERED that Walmart's Motion to Intervene [Doc # 40 ] is DENIED, by Judge Lewis T. Babcock on 3/13/2018. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 17-cv-00052-LTB-KMT
EARLENE F. CORBISHLEY,
Plaintiff,
v.
PEP BOYS - MANNY, MOE & JACK OF DELAWARE, INC.,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case is before me on Walmart Stores, Incorporated’s (“Walmart”)
Motion to Intervene [Doc # 40]. Walmart’s motion in unopposed by Plaintiff
Earlene F. Corbishley but opposed by Defendant Pep Boys - Manny, Moe & Jack of
Delaware, Inc. (“Pep Boys”). After consideration of the motion, all related
pleadings, and the case file, I deny Walmart’s motion for the reasons set forth
below.
I. Background
This case arises out of a July 27, 2014 fall by Ms. Corbishley in the parking
lot of a Pep Boys retail store after she allegedly slipped on a large oil and grease
spot. Ms. Corbishley has asserted a single claim for relief against Pep Boys under
Colorado’s premises liability statute, C.R.S. § 13-21-115. Ms. Corbishley’s claim

against Pep Boys was first filed in state court on April 18, 2016 and removed to this
court on January 6, 2017. See Doc # 1. Discovery was completed in this case in
December of 2017, and a 5-day jury trial is scheduled to commence on June 25,
2018. Pep Boys has a pending motion for summary judgment that has been fully
briefed by the current parties to the case.
Ms. Corbishley, an employee of Walmart acting within the course and scope
of her employment at the time of her fall, submitted a claim for workers’
compensation benefits related to this indcident. In March of 2016, Ms. Corbishley’s
counsel provided notice of her third-party claim against Pep Boys to Walmart’s
workers’ compensation administrator. See Doc # 49, Exs. C & D. Walmart’s
current counsel filed an entry of appearance in Ms. Corbishley’s workers’
compensation case in October of 2016. See Doc # 49, Ex. D. On October 26, 2016,
Walmart notified Plaintiff’s counsel of its ongoing lien for workers’ compensation
benefits of approximately $150,000 paid to Ms. Corbishley and requested notice
prior to any settlement of Ms. Corbishley’s claim against Pep Boys. Id., Ex. H.
On December 16, 2016, Ms. Corbishley’s treating physician opined that she
reached maximum medical improvement on October 26, 2016. Id., Ex. F. Ms.
Corbishley appealed this finding and underwent an independent medical
examination with Dr. James Regan, who concluded that Ms. Corbishley was not at
maximum medical improvement as of June 20, 2017. Doc #40, p.2. Walmart is
currently challenging Dr. Regan’s conclusion. Id. Based on the current posture of
the case then, there is a possibility that Ms. Corbishley may recover additional
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workers’ compensation benefits.
Walmart filed its motion to intervene pursuant to Fed. R. Civ. P. 24(a) & (b)
on January 19, 2018. Walmart’s proposed complaint in intervention adds an
additional claim for negligence against Pep Boys.
II. Standard of Review
Fed. R. Civ. P. 24(a) provides that, on timely motion, the court must permit a
party to intervene if that party either is given an unconditional right to intervene
by a federal statute or claims an interest relating to the subject of the action “and is
so situated that disposing of the action may as a practical matter impair or impede
the [party’s] ability to protect its interest, unless existing parties adequately protect
that interest.”
Fed. R. Civ. P. 24(b) provides that, on timely motion, a court may permit a
party to intervene if that party is either given a conditional right to intervene by a
federal statute or has a claim or defense that shares a common question of fact or
law with the main action. In exercising its discretion under Rule 24(b), the court
must consider whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights. Fed. R. Civ. P. 24(b)(3).
III. Analysis
Walmart argues that it satisfies the standard for both intervention as of right
under Rule 24(a) and permissive intervention under Rule 24(b) because of its
interest in recovering workers’ compensation benefits paid to Ms. Corbishley. Pep
Boys doesn’t dispute that Walmart has an interest in recovering these amounts but
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argues that Walmart’s motion is untimely and therefore properly denied under Rule
24(a) & (b). I agree.
“The timeliness of a motion to intervene is assessed in light of all of the
circumstances, including the length of time since the applicant knew of its interest
in the case, prejudice to the existing parties, prejudice to the applicant, and the
existence of any unusual circumstances.” Elliott Indus. Ltd. P’ship v. BP Am. Prod.

Co., 407 F.3d 1091, 1103 (10th Cir. 2005) (quoting Utah Ass’n of Counties v.
Clinton, 255 F.3d 1246, 1250 (10th Cir. 2001)).
It is clear from the background set forth above that Walmart has known of its
interest in this case for well over a year prior to filing its motion to intervene.
Although Walmart emphasizes the current posture of Ms. Corbishley’s workers’
compensation claim, the fact remains that it has known that it had an interest in
collecting significant benefits paid or to be paid to Ms. Corbishley for an inordinate
amount of time prior to the filing of its motion to intervene.
Moreover, if Walmart is permitted to intervene in this case at this late stage,
Pep Boys will undoubtedly be prejudiced. Walmart argues that because it only
intends to call one additional witness at trial, any additional discovery necessitated
by its entry into the case would be minimal. It is entirely possible, however, that
Pep Boys will need to conduct significant additional discovery based both on the
testimony that this new witness plans to offer at trial and the fact that all discovery
has been conducted to date based on the current posture of the case. In addition,
Walmart seeks to add a common law negligence claim which Pep Boys will have to
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address though this claim appears to be futile. See Vigil v. Franklin, 103 P.3d 322,
328 (Colo. 2004) (“...plain language [of premises liability statute] preempts prior
common law theories of liability, and establishes the statute as the sole codification
of landowner duties in tort.”).
Conversely, I am not convinced that there will be any prejudice to Walmart if
it is not permitted to intervene in this case. Under Colorado’s Workers’
Compensation Act, Walmart’s subrogation rights extend to all economic and
physical impairment damages that Ms. Corbishley recovers from Pep Boys but not
to Ms. Corbishley’s limited right to recover noneconomic damages such as pain and
suffering. C.R.S. § 8-41-203(1)(b)(c) & (d)(I)(A)(B) & (C). See also C.R.S. § 13-21102.5(1)(d)(I)(a) (capping the recovery of noneconomic damages). Based on past
disclosures in this case, the bulk of the damages Ms. Corbishley seeks to recover in
this case are subject to Walmart’s subrogation rights. Furthermore, because of the
uncertainty currently surrounding her workers’ compensation claim, Ms. Corbishley
has every incentive to maximize the total amount of any damages that are awarded
against Pep Boys. In the event that Ms. Corbishley seeks to circumvent Walmart’s
subrogation rights by characterizing any settlement proceeds she received from Pep
Boys as noneconomic damages, Walmart would have recourse whether it is a party
to this case or not. See Chavez v. Kelley Trucking, Inc., 275 P.3d 7373, 740 (Colo.
App. 2011) (“... an employee may not defeat [an employer’s] subrogation rights by
settling causes of action and agreeing with the defendant to characterize the
proceeds as noneconomic damages.”).
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Under the circumstances of this case then, I conclude that Walmart’s motion
to intervene is untimely, and IT IS THEREFORE ORDERED that Walmart’s
Motion to Intervene [Doc # 40] is DENIED.

Dated: March 13, 2018 in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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