HORTON HOMES INC v. LUMBERMAN UNDERWRITING ALLIANCE
Filing
14
ORDER granting 9 Motion to Intervene. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 10/14/16 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
HORTON HOMES, INC.,
:
:
Plaintiff,
:
:
v.
:
:
JOHN M. HUFF, DIRECTOR OF THE :
MISSOURI DEPARTMENT OF
:
INSURANCE, FINANCIAL
:
INSTITUTIONS, & PROFESSIONAL :
REGISTRATION, ACTING IN HIS :
CAPACITY AS THE STATUTORY
:
RECEIVER OF LUMBERMEN’S
:
UNDERWRITING ALLIANCE,
:
:
Defendant.
:
___________________________________ :
FIRST‐CITIZENS BANK & TRUST
:
COMPANY f/k/a FIRST CITIZENS
:
BANK AND TRUST COMPANY, INC. :
Assignee and Successor in Interest to :
The Federal Deposit Insurance
:
Corporation as Receiver for Georgian :
Bank,
:
:
Plaintiff‐Intervenor,
:
:
v.
:
:
JOHN M. HUFF, DIRECTOR OF THE :
MISSOURI DEPARTMENT OF
:
INSURANCE, FINANCIAL
:
INSTITUTIONS, & PROFESSIONAL :
REGISTRATION, ACTING IN HIS :
CAPACITY AS THE STATUTORY
:
No. 5:15‐CV‐473 (CAR)
1
RECEIVER OF LUMBERMEN’S
UNDERWRITING ALLIANCE,
:
:
:
Defendant.
:
___________________________________ :
ORDER ON MOTION TO INTERVENE
Plaintiff Horton Homes, Inc. originally filed this breach of contract action in the
Superior Court of Putnam County against its commercial property insurer,
Lumbermen’s Underwriting Alliance (“Lumbermen’s”), for alleged hail damage from a
storm in March 2013. Lumbermen’s is a reciprocal inter‐insurance exchange organized
under the laws of the State of Missouri, with its principal place of business in Florida. In
May 2015, Lumbermen’s was ordered into receivership for the purposes of
rehabilitation by the Circuit Court of Cole County, Missouri. That court appointed John
M. Huff, Director of the Missouri Department of Insurance, Financial Institutions &
Professional Registration as the statutory Receiver of Lumbermen’s. As Receiver, Huff
has succeeded to all rights, duties, powers, and obligations of Lumbermen’s. Defendant
removed the action to this Court pursuant to the Court’s diversity jurisdiction.
Currently before the Court is First‐Citizens Bank & Trust Company’s (“FCB”) Motion to
Intervene. For the following reasons, the Motion [Doc. 9] is GRANTED.
FCB holds a judgment and perfected security interest against Plaintiff’s property,
including insurance proceeds. FCB’s Security Agreement and UCC‐1 entitle FCB to any
damages, insurance proceeds, settlement funds, or other benefit owed or that might
2
come to Plaintiff as debtor. FCB files this Motion pursuant to Federal Rule of Civil
Procedure 24(a) and 28 U.S.C. § 1962 to impress its lien on any insurance proceeds
which Receiver owes or may come to owe Plaintiff. No party objects to this Motion.
DISCUSSION
Intervention is permitted as a matter of right when the moving party
demonstrates (1) its motion to intervene is timely; (2) it has an interest relating to the
property or transaction that is the subject of the action; (3) it is so situated that
disposition of the action, as a practical matter, may impair or impede its ability to
protect that interest; and (4) the parties to the action inadequately represent that
interest.1 The asserted interest, furthermore, must be supported by a “direct, substantial
and legally protectable interest in the proceedings.”2 The proposed intervenor bears the
burden of showing that the existing parties cannot adequately represent its interest.3 All
four elements of Rule 24(a) must be met before intervention of right will be permitted.4
Here, FCB has met its burden to intervene as a matter of right. First, the Motion
is timely. Discovery is ongoing, and no dispositive motions have been filed. Second,
Plaintiff’s interest in the insurance proceeds is established in FCB’s Judgment, Security
Agreement, and recorded Writ of Execution and UCC‐1. Third, if FCB is not allowed to
intervene, FCB could lose its right to the insurance proceeds that are the subject matter
Fed. R. Civ. P. 24(a)(2).
Purcell v. Bank Atl. Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 1996).
3 Fed. Savings & Loan Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 216 (11th Cir. 1993).
4 Chiles v. Thornburgh, 865 F.2d 1197, 1213–14 (11th Cir. 1989).
1
2
3
of this action.5 Finally, permitting FCB to intervene in this case will not unduly delay or
prejudice adjudication of the original parties’ rights because FCB does not seek to
litigate this action for either Plaintiff or Receiver. FCB seeks payment of any damages,
proceeds, or settlement funds paid or awarded to Plaintiff until FCB’s judgment is
satisfied in full.
CONCLUSION
Based on the foregoing, FCB’s Motion to Intervene [Doc. 9] is GRANTED.
SO ORDERED, this 14th day of October, 2016.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
See Chiles, 865 F.2d at 1214 (“Where a party seeking to intervene in an action claims an interest in the
very property and very transaction that is the subject of the main action, the potential stare decisis effect
may supply that practical disadvantage which warrants intervention as of right.”).
5
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?