NAVELSKI et al v. INTERNATIONAL PAPER COMPANY

Filing 186

ORDER granting 131 Motion to Intervene, as limited in the Order. Signed by CHIEF JUDGE M CASEY RODGERS on 1/28/2018. (aow)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
JOHN NAVELSKI, et al.,
Plaintiffs,
v.

CASE NO. 3:14cv445-MCR/CJK

INTERNATIONAL PAPER
COMPANY,
Defendant.
_________________________________/
ORDER
Plaintiffs filed this putative class action tort suit against Defendant
International Paper Company (“IP”), alleging property damage from a dam breach,
and the Court later certified a class on liability only. Trial is scheduled to begin on
February 20, 2018. Pending is a Motion to Intervene filed by United Services
Automobile Association (a Reciprocal Inter-Insurance Exchange) (“USAA”) and
USAA General Indemnity Company (“USAA GIC” or collectively, “Intervenors”),
seeking to assert subrogation rights based on their payment of several putative
members’ property insurance claims. ECF No. 131. Having fully considered the
matter, the Court finds that the motion should be granted, as limited in this Order.

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Background
Plaintiffs filed a putative class action suit in state court, claiming that IP failed
to properly maintain the Kingsfield Road Dam, which it owned and which collapsed
during a storm in April 2014, allegedly causing damage to Plaintiffs’ homes. The
suit was removed to federal court. The Amended Complaint, ECF No. 38, asserts
claims of negligence, trespass, nuisance, and strict liability. On March 25, 2017, the
Court certified a class solely for the purpose of determining liability. Class Notice
was approved on September 19, 2017, and class members were given 45 days from
the date of mailing the notice to opt out.1
On November 9, 2017, USAA and USAA GIC moved to intervene to assert a
subrogation right to recover insurance payments they made on claims arising out of
the same occurrence that is the subject of this suit. USAA and USAA GIC were
insurers of seven class members. 2 The Complaint in Intervention alleges that each
insured complied with all terms of the policies and filed proofs of loss specifying the
amount of damages caused by this occurrence and that the Intervenors paid the total

1

The list of class members and opt-outs has been filed. Only one couple has filed an
exclusion request. See ECF No. 139.
2

The insureds are Justin Schaffer, Kenneth Morris, David Pearce, Charlie Code, Martin
Stephens, John Nickell, and James Westbrook, none of whom is a named Plaintiff in the suit but
each received the class notice and has not opted out of the certified class.
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sums claimed as loss. It is alleged that USAA paid its insureds the total sum of
$411,756.45 and USAA GIC paid its insureds a total of $679,305.04.

The

Intervenors seek to join as plaintiffs in the counts asserted in the First Amended
Complaint based on these insurance payments.
Plaintiffs oppose the Motion to Intervene as premature, arguing that the
Complaint in Intervention fails to state a ripe subrogation claim. In reply, the
Intervenors argue that the claim is ripe, that Plaintiffs have misstated Florida’s madewhole doctrine, and that the requirements for intervention are satisfied.

The

Intervenors also clarify and limit the scope of the proposed intervention, confirming
that they are not requesting to participate in the upcoming liability trial. Specifically,
the Intervenors reference “the conditions listed in [paragraph] Number 3” of an email
between counsel dated November 21, 2017. See ECF No. 145-2, at ¶ 3. Although
not attached to the original motion, this email states in Paragraph Number 3 that
“USAA and USAA GIC will not participate in the trial on liability unless issues of
their rights to subrogation are implicated or the class settles its claims beforehand.”3
Id.
3

The email is attached as an exhibit to Intervenor’s Reply. See ECF No. 145-2. It includes
a list of other conditions as well, including the right to be informed of, and participate in, all
mediation or settlement negotiation efforts, to have access to all filings and be informed of the
progress of litigation, and to have the right to reject a global settlement offer made at any stage of
the litigation and pursue their own suit. However, in their Reply, the Intervenors only reference
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Defendant IP initially did not oppose the motion to intervene but reserved the
right to “oppose the imposition of any conditions on the Insurers’ intervention that
might prejudice IP’s rights.” ECF No. 140. IP now opposes the Intervenors’
proposed conditions to intervention, ECF No. 148, arguing that the Intervenors
waived their right to request conditions and that IP would suffer prejudice by the
proposed conditions.
Discussion
In this diversity suit, on substantive matters, the Court applies the substantive
law of the forum state, which in this case is Florida, see So. Owners Ins. Co. v.
Easdon Rhodes & Assocs., LLC, 872 F.3d 1161, 1164 (11th Cir. 2017), while
“federal law governs matters of procedure,” Palm Beach Golf Ctr.-Boca, Inc. v. John
G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1259 (11th Cir. 2015). See Erie R.R. v.
Tompkins, 304 U.S. 64 (1938).
A.

Ripeness

The doctrine of ripeness, “[b]orn from both Article III and prudential
concerns,” is related to standing in that it prevents courts from the premature

the condition in paragraph 3 and note that they will pursue individual damages trials if liability is
found.
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adjudication of abstract disagreements.4 See Temple B’Nai Zion, Inc. v. City of
Sunny Isles Beach, 727 F.3d 1349, 1356 (11th Cir. 2013) (citing Nat’l Park
Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 807 (2003)); see also Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18 (1993). “Ripeness is peculiarly a
question of timing.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580
(1985) (internal quotation and marks omitted). Determining whether a dispute is
ripe requires courts to undertake a two-step analysis: (1) evaluating the fitness of the
issues for judicial determination, and (2) considering the hardship to the parties if
judicial determination is withheld. Midrash Sephardi, Inc. v. Town of Surfside, 366
F.3d 1214, 1224 (11th Cir. 2004).
In this case, the fitness of the issue for judicial determination turns on the
nature of the subrogation claim. In Florida, subrogation is described as “the
substitution of one person in the place of another with reference to a lawful claim or
right.” Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 646 (Fla. 1999)

4

The concept of standing to sue requires consideration of both constitutional and related
prudential limitations, which, taken together, ensure that a federal court will address only a “case
or controversy” brought by a party with a personal stake in the matter (that is, one who has suffered
an actual or imminent injury that is not abstract); with an injury bearing a causal relationship to
the challenged action; and a claim that is capable of being redressed. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992). “The standing question thus bears close affinity to
questions of ripeness—whether the harm asserted has matured sufficiently to warrant judicial
intervention—and of mootness––whether the occasion for judicial intervention persists.” Warth
v. Seldin, 422 U.S. 490, 499 n.10 (1975)
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(quoting W. Am. Ins. Co. v. Yellow Cab Co. of Orlando, 495 So. 2d 204, 206 (Fla.
5th DCA 1986)). Legal subrogation (also called “equitable subrogation”) is “a
creature of equity” that arises as “a legal consequence of the acts and relationship of
the parties” and “is based on the policy that no person should be unjustly enriched
by another’s loss.” 5 Yellow Cab Co., 495 So. 2d at 207; see also Dade Cty., 731 So.
2d at 647. A claim for equitable subrogation is “generally appropriate” if: “(1) the
subrogee made the payment to protect his or her own interest, (2) the subrogee did
not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the
subrogee paid off the entire debt, and (5) subrogation would not work any injustice
to the rights of a third party.” Dade Cty., 731 So. 2d at 646. Ordinarily, a release of
other responsible parties is also required. See id. at 646-47; see also Welch v.
Complete Care Corp., 818 So. 2d 645, 648 (Fla. 2d DCA 2002) (noting equitable
subrogation requires a showing that the claim has been paid and that the party
seeking subrogation has obtained a release). The Florida Supreme Court has

5

Florida law also recognizes “conventional subrogation,” which arises from a contract in
which one party has voluntarily paid the debt of another and by agreement is given the rights and
remedies of the original creditor. See Intervest Constr. of Jax, Inc. v. Gen. Fidelity Ins. Co., 133
So. 3d 494, 504 (Fla. 2014); Dade Cty., 731 So. 2d at 646. Cf. Yellow Cab, 495 So. 2d at 207
(stating “[s]ubrogation in equity is not available to a mere volunteer or stranger” who pays without
any obligation to do so). The proposed Intervenors were not mere volunteers; they paid a claim
pursuant to their insurance contract obligations. Although their payments stemmed from a
contractual obligation, they do not assert reliance on a subrogation clause in the policy, and
therefore, the Court assumes that conventional subrogation does not apply.
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consistently applied this test in the tort context to the “prototypical case” where a
tortfeasor asserts an equitable subrogation claim. Holmes Reg’l Med. Ctr., Inc. v.
Allstate Ins., 225 So. 3d 780, 785-86 (Fla. 2017) (dismissing a tortfeasor’s
intervention in a victim’s suit against a subsequent tortfeasor in the absence of full
payment of an existing judgment); Dade Cty., 731 So. 2d at 646 (stating equitable
subrogation requires a tortfeasor to first pay the entire debt, not merely a partial
payment). Florida’s “made whole doctrine” provides that an “insurer has no right
as against the insured where the compensation received by the insured is less than
his loss.” Holmes, 225 So. 3d at 786 (quoting Rubio v. Rubio, 452 So. 2d 130, 132
(Fla. 2d DCA1984)); see also Intervest Constr. of Jax, Inc. v. Gen. Fidelity Ins. Co.,
133 So. 3d 494, 504 (Fla. 2014) (discussing Florida’s made whole doctrine); Dade
Cty., 731 So. 2d at 646 (rejecting a “liberal application of the equitable subrogation
doctrine” that would allow subrogation for partial payment).

Thus, until the

obligation to the victim is fully discharged, the victim is “entitled to enforce the
balance of his claim” and the person whose property has been used in discharging
only a part of the claim is not entitled to occupy his position” in the litigation.
Holmes, 225 So. 3d at 785 (quoting Restatement (First) of Restitution § 162 com. C
(Am. Law Inst. 1937)).

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Plaintiffs contend that these principles squarely apply and the Intervenors
have failed to state a ripe subrogation claim because no judgment has been entered
and they did not pay in full and secure a release from the insureds. The Intervenors
argue that the context here is different from the “prototypical tort case,”6 Dade Cty.,
731 So. 2d at 646, because they are not tortfeasors attempting to recover without
paying the entirety of the insured’s claim. They insist that a release is not necessary
because they paid their entire contractual obligation to the insureds based on what
the insureds represented as their total proof of loss. The Court agrees with the
Intervenors. Allowing them to intervene and assert a subrogation claim on these
facts, where the insurers have satisfied the whole demand of each insured, is
consistent with Florida law. See Morgan v. Gen. Ins. Co. of Am., 181 So. 2d 175,
178 (Fla. 1st DCA 1965) (holding that intervention by insurer in suit by the insured
against the tortfeasor and participation in settlement negotiations was effective to
protect insurer’s subrogation rights); see also QBE Ins. Corp. v. Jorda Enters., Inc.,
No. 10-21107-CIV, 2012 WL 12844302, at *7 (S.D. Fla. Aug. 6, 2012) (“Florida
law is clear that no right of subrogation may be claimed until the whole demand of
the creditor has been satisfied.”) (internal quotations omitted). Having paid the loss,

6

Again, the prototypical tort situation is where one tortfeasor settles with the victim and
then attempts to exercise subrogation rights against another tortfeasor.
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the insurer may join the insured’s suit, see Holyoke Mut. Ins. v. Concrete Equip.,
394 So. 2d 193, 195 (3d DCA 1981) (stating the injured party’s insurer “had the
right, as the real party in interest, to prosecute the action in its name”), 7 provided
that the insured is entitled to be “made whole” before the subrogated insurer is
permitted to any recovery from the tortfeasor, Ins. Co. of N. Am. v. Lexow, 602 So.
2d 528, 531 (Fla. 1992) (insurer paid a claim and joined the insured in bringing suit).
Notably, the Florida Supreme Court in Lexow observed that the insurer’s “right to
claim subrogation exists solely by virtue of having paid a claim under the policy.”
Id.
Federal law also supports this decision. As commentators have noted, “[o]ne
of the most common instances of subrogation is when an insurer indemnifies its
insured, at which time the former succeeds to whatever rights the latter has against
the third party who allegedly caused the damage.” 6A The Late Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, et al., Federal Practice and Procedure
§ 1546 (3d ed. 2010). Federal common law recognizes that if an insurer “has paid
an entire loss suffered by the insured, it is the only real party in interest and must sue
in its own name,” whereas “[i]f it has paid only part of the loss, both the insured and

7

See Fed. R. Civ. P. 17(a) (requiring an action to “be prosecuted in the name of the real
party in interest”).
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insurer (and other insurers, if any, who have also paid portions of the loss) have
substantive rights against the tortfeasor which qualify them as real parties in
interest.” 8 United States v. Aetna Cas. & Sur. Co., 338 U.S. 366, 380–81 (1949).
Regardless of whether it is ultimately determined that the insured class member
plaintiffs’ loss in fact was greater or less than what they claimed initially (and greater
than what insurance paid), the Court finds that the claim is ripe because the insurers
allege that they paid the class members’ entire proof of loss. 9
B.

Intervention

Rule 24 of the Federal Rules of Procedure distinguishes between two types of
intervention – intervention as of right under Rule 24(a) and permissive intervention
under Rule 24(b). Intervention as of right requires a showing of (1) timeliness, (2)
an interest related to the property or transaction that is the subject of the suit, (3) that
the intervenor is so situated that disposition of the suit may impede or impair the
ability to protect that interest, and (4) that the interest is not adequately represented

8

While Florida law provides that a “partial payment” is not sufficient to permit a
subrogation claim, see Holmes, 225 So. 3d at 785; Dade Cty., 731 So. 2d at 646, the allegations
here include that the insurers paid the entirety of each claim.
9

On the facts alleged by the Intervenors, it is questionable whether their insureds have any
real interest in this litigation.
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by the existing parties to the suit.10 See Tech. Training Assocs, Inc. v. Buccaneers
Ltd. Partnership, 874 F.3d 692, 695-96 (11th Cir. 2017); Chiles v. Thornburgh, 865
F.2d 1197, 1213 (11th Cir. 1989) (noting that once these requirements are met,
intervention must be allowed). Thus, intervention as of right requires a showing that
“interest asserted is direct, substantial and legally protectable.” Huff v.
Commissioner of IRS, 743 F.3d 790, 796 (11th Cir. 2014) (internal quotations
omitted); Mt. Hawley Ins. Co. v. Sandy Lake Props., Inc., 425 F.3d 1308, 1311 (11th
Cir. 2005). If a proposed intervenor would be “practically disadvantaged by his
exclusion from the proceedings,” intervention as of right is satisfied. Salvors, Inc.
v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278, 1295 (11th Cir. 2017)
(quoting Huff, 743 F.3d at 800).
Permissive intervention under Rule 24(b) requires a showing of (1) timeliness,
and (2) that the intervenor’s claim or defense shares a common question of fact or
law with the main action. Fed. R. Civ. P. 24(b); Chiles, 865 F.2d at 1213.
1.

Timeliness

10

Specifically, the rule requires the Court to permit intervention for anyone who “claims
an interest relating to the property or transaction that is the subject of the action, and is so situated
that disposing of the action may as a practical matter impair or impede the movant’s ability to
protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P.
24(a)(2).
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Several factors are relevant to a determination whether the motion to intervene
is timely, including the length of time that the proposed intervenor knew or
reasonably should have known of its interest in the case, the extent of any prejudice
to existing parties or to the proposed intervenor if intervention is denied, and the
existence of unusual contributing circumstances. See United States v. Jefferson Cty.,
720 F.2d 1511, 1516 (11th Cir. 1983); see also Stallworth v. Monsanto Co., 558 F.2d
257, 263 (5th Cir. 1977).11 Plaintiffs argue that intervention is untimely because the
claim is premature, lacking a direct and substantial legally protected interest at this
time, citing Taco Bell Corp. v. Continental Cas. Co., No. 01-C-0438, 2003 WL
124454 (N.D. Ill. Jan. 13, 2003) (excess insurer denied intervention because
insured’s liability and primary insurer’s liability had not yet been determined); B&B
Hardware, Inc. v. Fastenal Co., No. 4:10CV00317-BRW, 2011 WL 1540445, at *1
(E.D. Ark. Apr. 22, 2011) (intervention denied where judgment against debtor was
on appeal). Plaintiffs also contend that Rule 24(a)(2) does not prevent the proposed
intervenors from refiling their request if circumstances change, citing Fahnestock v.
E. Alliance Ins. Co., No. 1:13-CV-2417, 2016 WL 7384138, at *3 (M.D. Pa. Dec.
21, 2016) (finding intervention timely but the claim that the lawsuit might impede a

11

See Bonner v. Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting the
case law of the former Fifth Circuit developed before October 1, 1981, as precedent in this Circuit).
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third party’s ability to recover in a separate suit did not justify intervention). The
Court rejects the contention that the claim is premature for reasons discussed above
and in light of the limited scope of intervention proposed. Moreover, the Court
agrees with Intervenors that the cases cited by Plaintiffs are factually distinguishable
from this case and therefore inapposite.12
The Court finds that intervention is timely because the Intervenors filed their
motion within two months of the class notice being issued. Although discovery was
closed by that time, the Intervenors maintain that they will not participate in the trial
and want only to be on notice of the proceedings and to participate in any settlement
discussions.13 On these conditions, there is no prejudice to Plaintiffs or the interests

12

The Taco Bell case involved an excess insurer whose liability was contingent on the
judgment. 2003 WL 124454. Contrary to the facts of this case, the excess insurer in Taco Bell
had not paid the entire claim but was requesting to intervene to determine its duty to indemnify.
In B&B Hardware, a judgment creditor sought to intervene and stay a case in order to seize and
execute on property that was the subject of the suit, but the original judgment was still on appeal
so intervention was found to be premature; additionally, the court found that the creditor remained
free to assert a lien against any recovery, so intervention was denied. 2011 WL 1540445. Those
facts are distinct from those of this case. Finally, in Fahnestock, a worker’s compensation insurer,
which was paying ongoing benefits, sought to intervene in the worker’s premises liability suit.
The petition to intervene was found timely, even after three years of litigation, and the insurer was
found to have a sufficient interest. See Fahnestock, 2016 WL 7384138. However, the court
ultimately determined that intervention was premature because any recovery on the claim
remained speculative. The court indicated that intervention would be considered again after the
verdict and before judgment. Id. at *4. The discretionary decision to consider intervention at a
later time in the suit is instructive but not binding on this Court and not persuasive on the facts of
this case.
13

Rarely will a motion to intervene be deemed timely where the proposed intervention
seeks to undo settlement negotiations. See generally, Hollywood Community Synagogue, Inc. v.
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of IP, and no delay will be injected into the Court’s trial calendar by granting
intervention at this time for this limited purpose.
2.

Interest in the Subject of the Suit

Plaintiffs contend that the Intervenors lack a cognizable legally protectable
interest in the suit. The Court disagrees. There is no question that the Intervenors
have direct, substantial, and legally protected subrogation rights relevant to this suit.
See Athens Lumber Co. v. Fed. Election Comm’n, 690 F.2d 1364, 1366 (11th Cir.
1982) (“In essence, the intervenor must be at least a real party in interest in the
transaction which is the subject of the proceeding.”). The insurers allege that they
have paid the claims of their insureds, which constitutes a sufficient interest to
warrant intervention as a real party in interest, although the insured plaintiffs retain
priority of recovery if they have not yet been made whole. See Holyoke, 394 So. 2d
at 197 (“an insurer which has paid an insured's loss is a subrogee of the insured’s
cause of action against a tort-feasor. . . [and] is permitted, but not required, to
prosecute and maintain an action against the tort-feasor in its own name”); Schonau
v. GEICO Gen. Ins. Co., 903 So. 2d 285, 287 (Fla. 4th DCA 2005) (“where both the

City of Hollywood, Fla, 254 F. App’x 769, 771 (11th Cir. 2007) (unpublished) (affirming the denial
of a motion for intervention as of right as untimely when filed one day prior to the district court’s
approval of a consent decree and no unusual circumstances justified undoing the settlement
negotiations that had culminated in a consent decree).
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insurer and the insured simultaneously attempt to recover all of their damages from
a tortfeasor who cannot (because of insolvency, limited insurance coverage, or other
reasons) pay the full value of damages, the insured has priority of recovery over the
insurer”); see also Aetna Cas. & Sur. Co., 338 U.S. at 381 (noting that where an
insurer has paid a claim, “both insured and insurer ‘own’ portions of the substantive
right and should appear in the litigation in their own names” and the insurer is a real
party in interest under the Federal Rules of Civil Procedure).
3.

Impairment

The Intervenors contend that their ability to protect their legal interest will be
impaired “as a practical matter,” as required under Fed. R. Civ. P. 24(a)(2), if
intervention is not allowed, because they will be bound by the final judgment in this
case due to their privity with their insureds and identity of interest with them, citing
QBE Ins. Corp., 2012 WL 12844302, at *13 (dismissing insurer’s subsequent suit
for subrogation on res judicata grounds applying Florida law). The Court agrees that
the Intervenors’ rights could be impaired by a class settlement of this case if they are
not allowed to intervene. See id. (stating, the insurer “stands in the shoes of its
subrogor” and suffers not only all of the rights but also “all of the liabilities to which
the subrogor would be subject”); Massey v. David, 831 So. 2d 226, 233 n.12 (Fla.
1st DCA 2002) (“An insurer may be a virtual party to a lawsuit involving its insured
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where their interests coincide.”). The Intervenors would potentially be impaired by
exclusion from a final damages determination or settlement negotiations. See Tech.
Training Assocs., 874 F.3d at 696–97 (finding, “the risk that the movants will be
bound by an unsatisfactory class action settlement satisfies Rule 24(a)(2)’s third
prong).
4.

Adequate Representation by Existing Parties

The Court also finds that the insurers are not adequately represented by the
existing parties with respect to the damages determination or any potential
settlement discussions. There is a presumption of adequacy of representation in this
class context, where the insurers and class plaintiffs share a common interest in IP
being found liable and in obtaining the greatest damages award. See id., at 697. The
Court finds that the liability class Plaintiff representatives will adequately represent
the interests of the class members and the Intervenors in the liability phase, as long
as it proceeds through the trial, because all share the identical interest in IP being
found liable for the dam breach. As to damages or the possibility that any settlement
discussions could occur, however, their interests may diverge, and no party yet
represents the interest of the insurers.14 The Plaintiffs may have conflicting interests

14

Also, although the Intervenors have the same general claim as their insureds, who are
class members, their insureds are not named plaintiffs and thus do not control the proceedings. See
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with the insurers with respect to the amount they would be willing to settle for and
in establishing the extent of loss if liability is found or a settlement is negotiated.
Therefore, the Court finds that the Intervenors have established a right to intervene
under Rule 24(a)(2).
Alternatively, even if intervention as of right were not met, the Court finds
that permissive intervention––limited in scope to settlement discussions and
damages––is appropriate on these facts under Rule 24(b). Timeliness is established
and the Intervenors’ claims undoubtedly share a common question of law or fact
with this case that otherwise could be determined to their disadvantage. See
Jefferson Cty., 720 F.2d at 1315. Moreover, intervention for this limited purpose
will promote efficiency and consistency by facilitating the resolution of all related
issues and claims in a single proceeding.
Accordingly, the Motion to Intervene, ECF No. 131, is GRANTED for the
following limited purpose: Intervenors are entitled to receive filings and participate
in any settlement discussions that occur during the course of the liability phase; but
they are not entitled to participate at the class pretrial conference or class liability

Day v. Persels & Assocs., LLC, 729 F.3d 1309, 1317 (11th Cir. 2013) (“Absent class members are
not designated on record as a plaintiff or defendant [and they] ordinarily lack the power to control
proceedings.”).
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trial.15 If liability is established, all unnamed plaintiff class members and Intervenors
alike are free to pursue individual damages suits. Intervenors are directed to file
their Complaint in Intervention as a stand-alone pleading.
DONE AND ORDERED this 28th day of January 2018.

M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

15

Of course, this does not preclude the Intervenors from attending the proceedings.

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