Ohio Security Insurance Company v. Newsome et al

Filing 75

ORDER granting Hartford Fire Insurance Company's 28 Motion to Intervene as a Plaintiff; granting Great American Insurance Company's 49 Motion to Intervene as a Plaintiff; and, denying 40 Motion for Hearing. Signed by Judge J. Randal Hall on 03/27/2015. (jah)

IN THE UNITED

STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

OHIO SECURITY INSURANCE

*

COMPANY,

*
*

Plaintiff,

*
*

V.

*

CV 114-125

*

JOSHUA A. NEWSOME; KODIAK
EQUIPMENT, INC.; RAPID PREP,
LLC; GAYNOR NEWSOME; VDOLA
GROVENSTEIN; LOWELL
GROVENSTEIN, SR.; LOWELL

*
*
*
*
*

GROVENSTEIN, JR.; and the
HERTZ CORPORATION,

*
*
*

Defendants.

*

ORDER

This

matter

comes

before

the

intervene by Defendant Rapid Prep,
and

excess

insurance

("Hartford")
American")

and

carriers,

Great

Insurance

Movants

here

Company's

two

motions

to

primary

Insurance

Company

Company

("Great

(Docs. 12,

48.)

For

the Movants' motions are GRANTED.

I.

The

Fire

Insurance

"the Movants").

the reasons stated herein,

on

LLC's ("Rapid Prep")

Hartford

American

(collectively,

Court

seek

("Ohio

BACKGROUND

to

intervene

Security")

in

Ohio

Security

declaratory

judgment

action, which addresses an insurance dispute over a car accident

in McDuffie County, Georgia.
declaratory judgment action,
what,

if any,

Equipment,

(Compl., Doc. 1,

K 33.)

With the

Ohio Security seeks declaration of

insurance coverage it owes to its insured,

Inc.

("Kodiak").

Kodiak

inter alia,

Ohio Security alleges,

that it does not owe coverage because Joshua Newsome

("Newsome")

was not working in the course and scope of business with Kodiak
at the time of the accident,

but rather was conducting business

for himself and Rapid Prep at
other

hand,

claim

their

insured

Accordingly,

importance

present

—

that

Rapid

Newsome

Prep

Newsome's

to

both

motions

to

that time.
was

-

at

not

the

employment

the

working

time

status

declaratory

intervene,

The Movants,

and

of

is

judgment

the

on

behalf

the

of

of

accident.

particular

action

Court

on the

and

briefly

the

reviews

those facts now.1

A.

Defendant Newsome7s Trip to Georgia and Employment Status

On

April

Georgia.

29,

(Compl.

2013,

% 33;

According to Newsome,

purposes.

(See Newsome

regularly traveled
renew

1

his

his

Newsome

Newsome Dep.,
trip

Dep.

Doc.

from

Washington

39 Ex.

C,

to Georgia served at

at

to Thomson,

prescriptions,

traveled

which

21,

72.)

For

at 70.)

least two

one,

Newsome

Georgia to see his doctor and
he

did

on

the

morning

of

Given the infancy of this litigation and the limited record,

purpose

of

the

present motions

the

to

Court

deposition for its understanding of the facts.

relies

heavily

on

the

for the

Newsome's

accident.
have

(Id.

been

employers,

at 21,

assessing

79-80.)
future

business

Kodiak and Rapid Prep,

the rental of large equipment.

Because
the

Additionally,

time

Newsome

of

the

was

accident,

a

to

was

Kodiak.

(Id. at

Newsome

55-56.)

for

his

both of which were involved in

(Id. at 145-46.)

is

accident,

opportunities

employed by Kodiak

between the two companies
the

Newsome claims to

brief

review

necessary.
the

and Rapid

sole

At

of

the

all

owner

Prep

at

interplay

times relevant

and

president

of

Following some financial difficulties

at Kodiak that arose well before the accident,2 Newsome contacted
Rapid

Prep

to

set

up

an

arrangement

whereby Rapid

take over Kodiak's territory in the Northwest.
All

of

became

Kodiak's

Rapid

Newsome as

Prep

its

employees

employees.

sole employee,

2013, when it dissolved.

When

Newsome

informed Chris

—

(Id.

at

(Id. at 61-63.)

Newsome

63-64.)

—

thereafter

Kodiak,

with

remained in operation until late

(Id. at 65.)

decided

McNamara,

including

Prep would

to

make

co-owner of

the

trip

Rapid

to

Prep,

Georgia,

of

his

he

plans

and McNamara neither prohibited nor affirmatively endorsed the

trip.

(Id. at 113-14.)

At all times leading up to the accident

2
Specifically, a dispute arose between Newsome, who then held forty
percent ownership in Kodiak, and his partner, Steven Danzig, regarding the
non-payment of payroll taxes.
(Newsome Dep. at 55.)
As a means to resolve
the conflict, Newsome became the sole owner of Kodiak.
(Id. at 56.)
However, following payment to the IRS, Kodiak owed a substantial debt to some
of its suppliers.
(Id. at 61-62.)
After Newsome contacted Chris McNamara,
co-owner of Rapid Prep, Rapid Prep agreed to take over Kodiak's Northwest
territory, including the Kodiak employees and contracts. (Id. at 63-64.)

it

was

Newsome's

understanding

that

he

was

in

Georgia

investigate business opportunities for both companies.

to

(See id.

at 149.)

For the trip, Newsome purchased the plane tickets with his

corporate Rapid Prep credit card.
arrival

in Atlanta,

Georgia,

(Id. at 116.)

Newsome

rented

a

Then upon his
car

which he paid for with his personal credit card,

Augusta,

Georgia.

(Id.

the Augusta area,
home,

his

at 79,

122.)

he picked up his

drove to the

doctor,

prescriptions.

(Id.

from Hertz,

and drove

to

When Newsome arrived in
father

from his

childhood

and then to the pharmacy to refill

at

79-80.)

After

he

went

to

the

pharmacy, Newsome stopped at a local Office Depot to purchase a

printer and computer monitor to use for business purposes.
at 83-85.)
with

his

He then went to lunch and the grocery store,
father

errands

that

(Compl.

% 35;

in

the

tow.

(Id.

accident

at

with

Newsome Answer,

80.)
the

Doc.

It

was

during

Grovensteins

17,

%35.)

(Id.
still
these

occurred.

According to

Newsome, he fell asleep at the wheel, went through a stop sign,
and

hit

the

Grovensteins'

result of the accident,

vehicle.

(Doc.

39,

Newsome

claims

to

F.)

As

a

Newsome was charged with running a stop

sign and driving under the influence ("DUI") .3

3

Ex.

have

been

charged

with

DUI

(IcL)

because

On the

there

was

prescription medicine in the car, but he expected that charge to be dismissed
pending the results of his blood test.
(Doc. 39, Ex. F at 2.)
He does not
dispute, however, that he took prescription medication the morning of the
accident.

(Newsome Dep. at 131.)

Friday

following

the

accident,

McNamara

fired

Newsome4

and

informed him that Rapid Prep was uninterested in expanding into
Georgia.

(Newsome Dep.

Each

of

American —

Rapid

allege

at 134, 140.)

Prep's

that

insurers

following the

Ex.

1

at

5.)

Thereafter,

Hartford5

accident

made demands for the policy limits..
49,

—

the

(Doc. 28,

the

and

Great

Grovensteins

Ex. 3 at 5; Doc.

Grovensteins

filed

suit

in

this Court for damages on February 7, 2014,

which was dismissed

for

on

lack

of

subject

(Grovenstein et al.

(S.D.

Ga.

2014).)

Feb.

7,

v.

matter

jurisdiction

Newsome et al.,

2014);

Id.

at

No.

Doc.

May

19,

2014.

1:14-cv-00042,

38

(S.D.

Ga.

Doc.

May

1

19,

The Grovensteins then re-filed in the Superior Court of

Glascock

County

on

June

3,

2014,

specifically

alleging

that

Newsome was acting within the course and scope of his employment

with both Kodiak and Rapid Prep
(Doc.

49,

claims

Ex.

1.)

The

against Newsome,

at

Grovensteins

Kodiak,

the

time

have

of

since

Rapid Prep,

the

accident.

settled

and the

their

insurers,

and the Glascock County action will be dismissed with prejudice.
4

Newsome contends that the reason for his split from Rapid Prep was that

McNamara "didn't want this on his insurance.

rates raised."
5

Hartford

(Newsome Dep.
sent

A-B) and Newsome

two

He didn't want their insurance

at 140-41.)

letters

to

the

Grovensteins'

counsel

(Doc.

39,

Exs.

(Doc. 38, Exs. A-B) dated July 9, 2013 and October 9, 2013,

stating that the accident was not covered by the Hartford policy.
sent a third letter to Newsome on February 12, 2014,

Hartford

after the filing of the

damages suit in district court, reiterating the same.
(Doc. 38, Ex. D.)
On
August 12, 2014, roughly two months after the Grovensteins' complaint was
filed in Superior Court, Hartford sent a fourth letter to Newsome to inform
him that it would provide him with a defense subject to a reservation of
rights agreement, which Newsome has not signed.
(Doc. 43, Ex. A.)

(Doc.

64.)

On March

26,

2015,

dismissed from this action.

B.

the

(Doc.

Grovenstein defendants

were

74.)

The Declaratory Judgment Action

On May 29,

2014,

Ohio Security filed this action seeking a

declaration that it has no duty to defend or provide coverage to
Kodiak

or

Newsome

uncooperative

in

because

failing

to

(1)

Kodiak

provide

and

documents

Newsome

relating

were

to

the

accident and the purpose of the trip to Georgia (Compl.

ff 82,

85);

at

(2)

Newsome

was

not

an

"insured"

under

the

policy

the

time of the accident because he was not acting in the course and

scope

of

Kodiak's

business

(Id.

%^

92-94);

and

(3)

Newsome

engaged in fraud by knowingly supplying false information6 to
Ohio Security regarding the accident and the purpose of his trip

to Georgia
this

(Id.

Court

interest,
Newsome's
constitute

to

^

100, 105) .

declare

attorney

the

fees,

Ohio Security additionally asks

policy
and

costs

alleged misrepresentations,
a

breach

of

the

void

ab

in

its

fraud,

"Concealment,

Fraud" provision in the insurance policy.

initio

and

and

award

favor

because

false

swearing

Misrepresentation

Or

(Id. UK 106-10.)

6
On June 24, 2013, Newsome gave a statement to Hartford, in which he
stated the purpose of his trip to Georgia was to set up an office for Rapid

Prep.
(Compl. % 102.)
Based on this recorded statement, Ohio Security
alleges that "Newsome's representations to Ohio Security that he was
conducting business for Kodiak at the time of the Accident were false."
(Id.
1 100.)

On August 13, 2014, Hartford filed its motion to intervene,
to

which

the

objected.
American,

Grovensteins,

Thereafter,

Newsome,

Rapid

Prep's

filed its own motion to

same objections.

Kodiak,

and

excess

intervene,

Hertz

insurer,

all

Great

which garnered the

Given the substantial overlap between the two

motions to intervene — and particularly the identical nature of
the Movants'

interests — the Court addresses them concurrently.

II.

The

Movants

DISCUSSION

each seek

to

intervene

in

the

present

action

either as a matter of right or permissively pursuant to Federal

Rule

of

Civil

declaratory
Movants'

Procedure

judgment

standing to

into the merits

of

24.

action
raise

Many

object,

such a

the motion to

of

the

Defendants

focusing

claim.

heavily

Thus,

intervene,

in

the

before
Court

on

this

the

delving

addresses

the standing concerns.

A.

Standing

The Declaratory Judgment Act provides that "[i]n a case of
actual

controversy within its

the United States,

may

declare

interested
further

the
party

relief

is

jurisdiction,

. . . any court of

upon the filing of an appropriate pleading,

rights
seeking
or

and
such

could be

other

legal

declaration,
sought."

28

relations

of

any

whether

or

not

U.S.C.

§ 2201(a).

This

"controversy"

"touch

the

legal

interests."

F.3d

4 09,

alteration

must

be

more

relations

than mere

of

parties

Atlanta Gas Light Co.

414

(11th

omitted).

Cir.

v.

case-by-case basis

circumstances."

Am.

1355,

1358

(N.D.

determining

Ins.

Ga.

Co.

2010)

whether

a

v.

a

(internal

plaintiff

of

affairs

justiciable

of

controversy

Atlanta Gas Light,
filed;

as

rather,

the

must

68 F.3d at 414.

Hartford

and

of

and

exists

F.

Supp.

omitted).

its

the

existed

Here,

Great

699

68

is

the
2d

In

burden

of

courts must "look to the

filing
have

Co.,

met

Co.,

totality of

quotations

has

legal

quotation

and by the

establishing the requisite controversy,
state

& Sur.

controversy

Evercare

and must

adverse

(internal

such

determined on a

having

Aetna Cas.

1995)

"Whether

conjecture

complaint;

at

that

a

time."

no complaint has been

American

simply

request

the

opportunity to do so.

Even so,
briefs

bring

Defendants

challenging

Hartford's

a

declaratory

discern,

Defendants

Movants'

expend a

judgment
make

two

and

substantial portion of
Great

action.

American's

As

arguments

best

with

their

standing

the

Court

respect

to

to

can
the

standing to bring a declaratory judgment action.

First,

they

allege

that

the

Movants'

prior

denial

of

coverage forecloses any actual controversy.

Defendants rely on

two

the

now

Georgia cases
seek

a

for the

declaration

proposition that
of

rights

8

because

Movants
they

cannot
already

unequivocally denied coverage.7

In these two Georgia cases, the

Georgia Supreme Court and Georgia Court of Appeals held that an
insurer cannot deny coverage and thereafter bring a declaratory

judgment action to validate

that

decision.

There,

the

courts

held that a live controversy did not exist because there were no

remaining rights to be resolved.8
In contrast,

state

have

a number of

held

that

cases from federal courts of this

insurers

seeking

to

bring

declaratory

judgment actions following an initial denial of coverage do,
fact,

have

standing.

For

court

held

that

possibility

"the

lawsuit created by
is

sufficient

Evercare,

to

699

[an

example,

insurer's]

in
or

Evercare,

the

conjecture

refusal

of

in

district
a

future

[to provide coverage]

establish a controversy of threatened injury."

F.

Supp.

2d

at

1359

(internal

quotations

and

alterations omitted).

Here,
if

the

Movants

response
7

there is clearly the potential

brief

fail

to

provide

recognizes

that

coverage.

the

Drawdy v. Direct General Ins. Co.,

Fire & Marine Ins.

Co.

v.

for a

Movants'

Indeed,

Newsome's

refusal

to

586 S.E.2d 228

Metro Courier Corp.,

future lawsuit

defend

(Ga. 20 03); Empire

507 S.E.2d 525

(Ga.

Ct.

App.

1998) .

8

These cases, although persuasive,

can be distinguished on their facts.

Drawdy, for example, involved an insurer who never agreed to provide a
defense pursuant to a reservation of rights, but rather unequivocally denied
coverage and thereafter brought a declaratory judgment action.
Drawdy, 586
S.E.2d at 229-31.
Further, the underlying damages suit in Empire Fire was
entirely resolved unlike the case at bar.
Empire Fire, 507 S.E.2d at 528.
That is, all claims were adjudicated in arbitration leaving no further

litigation pending.
claims,
Newsome.

another

Id.

damage

Here,
suit

is

while the Grovensteins have settled their
possible

from

Newsome's

father,

Gaynor

"will

entitle

failure"

Defendant

(Doc.

38

at

5;

Newsome
Doc.

51

to
at

seek

damages

for

that

9) , and Hartford and Great

American could each face indemnity claims following judgment in
a

tort

action,

Evercare,

should

699 F.

Supp.

one

be

filed

2d at 1359

(Doc.

51

at

10).

See

(xx[T]he purpose of declaratory

judgment actions is to resolve outstanding controversies without
forcing

a

putative

subjected

to

suit.")

omitted) ; see

F.

Supp.

held

State

817

(N.D.

an

liabilities

insurance

under

to

wait

(internal

also

807,

that

defendant

an

Auto

1982)

company
insurance

see

quotations

Farm Mut.

Ga.

and

Co.

("Federal

case

address

in

Evercare,

[Defendants']

w[a]

contract

under the policies[.]"
This

Court

is

demand

v.

Bates,

long

determination

declaratory

ongoing

will

could

utilize

federal

remedies

plaintiff
Thus,

only,

with

faced with a

although

diversity

inapplicable

Declaratory

a

the

would

equally

[Movants']

perform

conflict between holdings

Judgment

substantive

procedural

this

its

See id.

thus

not

have

as was

of Georgia courts and federal courts within Georgia.
"[t]he

of

542

Indeed,

judgment

that

be

alterations

courts

Declaratory Judgment Act for such a purpose.").
the

it

and

Ins.

seeking

if

case

jurisdiction,

insofar as

Act

rights,

providing

alternative
is

before

any

involves

a

federal

relief.

Court

Erie-mandated

they relate
10

to

procedural

judicial

for

the

However,

whether

because

of

concerns

are

the

may

Court

entertain

[the

(internal

citations

established

holds

Movants']

case

that

omitted).

law of

the

claims."

other

Movants'

Bates,
This

F.

Supp.

Court

thus

courts

district

prior

542

in

denials

of

at

817

follows

this

the

state

coverage

and

do

not

preclude an actual case or controversy.

Defendants next allege that no controversy exists because,

based on the face

of the Grovensteins'

Movants owed a duty to defend.
argument,
to

the

As the Court understands this

Defendants allege that because the Movants owe a duty

defend

disputed

complaint9 alone,

and

any

issue

underlying

of

tort

respondeat

suit

will

superior,"

there

address

is

no

"any

live

controversy to be addressed by this Court that will not already
be

addressed

in

the

state

courts.

In that

regard,

Defendants

argue that because the duty to defend arose immediately upon the
filing of the Grovensteins'
for

this

Court

to

decide

complaint,

in terms

of

there, is no "controversy"
whether

the

Movants

owe

a

defense to their insured.

As

noted

above,

"[f]ederal

courts

long

have

held

that

an

insurance company seeking determination of its liabilities under
an insurance contract could utilize the Declaratory Judgment Act

for that purpose."
Ins. Co.

Bates, 542 F. Supp. at 817; see also Coregis

v. McCollum,

955 F.

Supp.

120,

124

(M.D.

Fla.

1997)

("The underlying state court action will not fully resolve this
9

As detailed above, the Grovensteins have since dismissed the underlying

lawsuit following settlement.
11

controversy.
the

state

policy,
its

be

Before Plaintiff incurs large expense in defending
action,

or

before

it

admits

liability

under

the

Plaintiff has a right to know whether it is bound under

contract

liable

to

under

defend

the

its

insured

coverage

of

and whether

its

policy

or

in

not

the

it

would

event

the

state court renders a judgment against it.").

Thus,

any

argument

that

the

underlying

litigation

resolve whether Newsome was acting within the

course

and scope

Based on the above,

of his employment is unavailing.

the Court

finds that an actual controversy does exist,
Movants'

B.

Intervene

party wishing to intervene may do so through one of two

avenues:

intervention

permission of

as

the court.

covered by Federal Rule of
court

notwithstanding the

prior denials of coverage.

Motion to

A

will

of

right

and

intervention

Intervention as
Civil Procedure

of

right,

24(a),

with

which is

requires

the

to

permit anyone to intervene who [] claims an interest
relating to the property or transaction that is the
and is so situated that
subject of the
action,
disposing of the action may as a practical matter
impair or impede the movant's ability to protect its
interest,
that

Fed.

R.

unless existing parties adequately represent

interest.

Civ.

P.

24(a)(2).

Specifically,

intervene as a matter of right must show:

12

a

party

seeking

to

(1) his application to intervene is timely; (2) he has
an interest relating to the property or transaction
which is the subject of the action;
(3) he is so
situated
that
disposition
of
the
action,
as
a
practical matter, may impede or impair his ability to
protect
that
interest;
and
(4)
his
interest
is
represented inadequately by the existing parties to
the suit.

Stone v.

2004)

First

Union

(quoting

Servs.,

Corp.,

Worlds

929 F.2d 591,

Additionally,

v.

593

371

F.3d

Dep't

of

(11th Cir.

1305,

1308-09

Health

&

(11th Cir.

Rehabilitative

1991)).

Rule 24(b) provides that "[o]n timely motion,

the court may permit any one to intervene who . . . has a claim
or defense that shares with the main action a common question of
law or fact."

intervene

discretion
Worlds,
the

Fed. R. Civ. P.

under

to

Rule

24(a),

must

it

allow permissive

929 F.2d at 595.

Court

24(b).

"consider

When there is no right to

is

wholly

within

intervention under

The Federal Rules
whether

the

the

Rule

Court1s

24(b).

instruct only that

intervention

will

unduly

delay or prejudice the adjudication of the original parties'
rights."
Here,

Fed. R. Civ. P. 24(b)(3).
both Hartford and Great

American

contend

that

they

should be permitted to intervene in this declaratory judgment

action by right pursuant to Rule 24(a) or,

permissively pursuant to Rule 24(b).
that

permissive

intervention

13

is

in the alternative,

Because the Court finds
appropriate

under

the

circumstances,

it

only

discusses

its

reasoning

under

that

section.10

1.

Timely Motion

Whether

a

motion

to

intervene

is

timely

depends

on

four

factors:

1)
the length of
time during which the proposed
intervenor knew or reasonably should have known of its
interest in the case before it petitioned for leave to
intervene; 2) the degree of prejudice to the existing
parties as a result of the proposed intervenor's
failure

to

move

to

intervene

as

soon

as

it

knew

or

reasonably should have known of its interest; 3) the
extent of prejudice to the proposed intervenor if its
position
is
denied;
4)
the
presence
of
unusual
circumstances
militating
either
for
or
against
a
determination that the application is timely.
Lancer Ins.

(M.D.

Ga.

Co.

v.

Hitts,

July 20,

No.

2010) .

5:09-cv-302,

2010

WL

2867836,

*3

"The question whether an application

for intervention is timely is largely committed to the district
court's
(11th

discretion[.]"

Cir.

exactitude

10

1985) .

or

of

Reeves

v.

"Furthermore,

precisely

Wilkes,

754

timeliness

measurable

is

F.2d
not

965,
a

dimensions.

word

968
of

The

Seemingly in response to the second prong of the intervention as of

right test, Defendants provide considerable argument that the Movants do not
have an interest that will be helped or harmed by this Court's ruling.
More
specifically, Defendants claim that the present declaratory judgment action
addresses only whether Newsome was acting in the course and scope of his
business with Kodiak,

and it is

irrelevant whether he was working

Prep in addition to or instead of Kodiak.

However,

for Rapid

as will be developed in

more detail below, to satisfy the permissive intervention test, the Movants
need only show a timely motion, common questions of law or fact, and a lack
of any resulting prejudice.
The Movants need not show an interest in the
pending litigation that will be impaired if not permitted to intervene.
Thus, the Court need not address the merits of Defendants' assertions.
14

requirement
toward

of

both

timeliness

the

court

must have

and

the

litigants

successfully employed to regulate
of justice."
Pittsburgh,

accommodating
if

flexibility

it

is

to

be

intervention in the interest

Office Depot, Inc. v. Nat'l Union Fire Ins. Co. of
Pa., No. 09-80554-CIV,

Feb. 3, 2010)

2010 WL 431886,

*2 (S.D. Fla.

(internal quotations omitted).

Addressing the first factor,

the Movants admittedly knew of

their interest months before filing their motions to

intervene.

Specifically,

underlying

litigation
statement

the

in

Grovensteins

February

in June

2013.

2014

initiated

and

The motions

the

Hartford
to

took

Newsome's

intervene were not

filed

until August and September 2014.

Even considering the fact that

the

have

Grovensteins'

through
delay

claims,

discovery,

sufficient

the
to

which

Court

does

consider

the

since

not

find

motions

settled,

the

proceeded

several

untimely.

month

Indeed,

courts have routinely found that a several month delay does not
render

a

motion

WL 2867836,
the movant

of

the

at

to

*3

intervene

"untimely."

(finding a motion to

declaratory

for the court's

timely

intervene

Lancer,

2010

timely where

filed its motion "shortly after having become aware

action

and

immediately

plaintiff's motion for summary judgment,

1118,

Compare

1125-26

filed

review)

(5th Cir.

even

and Diaz v.

1989)

though

S.

following"

the

which was not yet ripe

Drilling Corp.,

427 F.2d

(finding a motion to intervene was

discovery
15

was

complete

and

the

litigation was

over

proceedings

had

(finding

motion

three

a

years

interest

a

taken

the

old because

place)

to

after

in

year

with

intervene

the

and

legally

Reeves,

untimely

Movants

case

no

F.2d

when

should

emphasizing

754

significant

have

970-71

came

it

at

nearly

known

that

the

of

their

Movants

had

"procrastinated and delayed in asserting their interests").
also Georgia v.
60

(11th

months

Cir.
in

U.S.
2002)

("We

itself

Thornburgh,

865

motion

to

seven

months

to

F.2d

1197,

after

in

[the

Depot,

intervene

after

not

the

F.3d 1242,

of

six

Chiles

v.

(11th

(finding

part

Cir.

because

plaintiff]
WL

where

the

a

delay

1989)
it

"was

filed

431886,

it

filing of

that

1259-

untimeliness.");

2010

timely

302

believe

1213

timely

Office

seven months

do

constitutes

intervene

complaint");
motion

Army Corps of Eng'rs,

See

was

filed

his

at

*2

filed

a

only

original
(finding

a

"approximately

Complaint,

a

time period

deemed timely by other courts in this Circuit").
For

the

second and

third

factors,

the

Court

must

consider

the degree of prejudice both to the existing parties and to the
Movants.

Beyond

inquiry,

prejudice

Court

below,

must

its

is

consider.

consideration

itself
For

an

the

within

independent

reasons

the

element

described

timeliness

that

in more

the

detail

the Court finds that the original parties would not face

significant prejudice should the Court allow intervention.
is particularly

true

in

light

of

16

the

potential

This

for multiple

declaratory judgment actions if the Movants are not permitted to
intervene.

interests

because

Moreover,

"could

an

be

adverse

the

prejudiced

finding

would potentially expand
WL

2867836,

at

Court

*4 .

in

if

the

[their]

To

that

states

that

the

coverage

excess

to

any

other

owes

final

intervention.

Hartford's

for

established

factor

also

Given the

the

Movants'

to

intervene

allowed

declaratory

end,

it

not

that

liability[.]"

potentially owed by Ohio Security.
The

finds

a

judgment

action

See Lancer,
policy

non-owned

coverage,

2010

expressly

auto

such

is

as

in

that

(Doc. 28, Ex. 1 at 8.)

weighs

substantial

in

favor

of

similarity of

allowing

issues,

the

Court does not find any unusual circumstances that would dictate

denying intervention at this time.
test

articulated

in

Reeves,

the

Thus,
Court

applying the four-part
finds

that

the

present

motions to intervene were timely filed.

2.

Common Question of Law or Fact

These actions certainly involve common questions of law and
fact.

Here,

both

Plaintiff

and

the

Movants

seek

declaration

from this Court that their respective insurance policies do not

cover the April

29,

2013 car accident.

Moreover,

the claims

asserted in the declaratory judgment complaint and the proposed

intervention
insured

at

complaints
the

time

of

each
the

allege

that

accident

17

Newsome

and

that

was
he

not

an

breached

misrepresentation

would

be

required

provisions
Movants'

clauses

under

in

to

the

the

contracts.

analyze

same

strikingly

legal

similar

standards.

Court

policy
the

claims do not just share common questions of fact;

they

fact.

First,

an insured under either policy will
purpose

of

the

Georgia

Kodiak and Rapid Prep.
Plaintiff

and

misrepresented
Hartford.
will

the

Finally,

share identical questions of

the

Thus,

the

material

require

and

investigation into
employment

with

As to the misrepresentation claim,

both

Movants

trip

whether Newsome was

assert

facts

Newsome's

that

during

Newsome

a

recorded

In addressing the coverage disputes

necessarily be

looking at

the

intentionally

same

set

statement

then,

of

to

the Court

facts

as

they

pertain to the same individual.
Given the substantial similarly of

and

the

underlying

factual

the legal issues raised

circumstances,

the

Movants

clearly

meet the second prong of the permissive intervention test.
Nat'l

Union

Fire

Inc. , et al. , No.

Dec.

14,

2011)

Ins.

Co.

11-04897,

of

Pittsburgh,

2011 WL 6329224,

Pa.

v.

Elec.

at *2-3

(allowing four insurance companies

to

See
Arts,

(N.D.

Cal.

intervene

in another insurer's declaratory judgment action in part because

the Movants sought the same declaratory relief as the original

plaintiffs,

their policies

and exclusions were

identical,

the claims shared common questions of law and fact).

18

and

3.

Delay or Prejudice

Having

determined

that

the

Movants'

Ohio Security share common questions
that the motions were timely made,

of

claims

and

that

the

existing

parties

of

both law and fact and

the Court must still consider

any undue delay or prejudice to the original parties.
finds

those

will

not

face

The Court

undue

delay

or

prejudice.
The Court reaches this conclusion for five reasons.

the Plaintiff in this matter,

Ohio Security,

present motions to intervene.
provided

substantial

First,

has not opposed the

Second, although the Grovensteins

argument

regarding

delay

and

prejudice,

they have since settled all claims arising out of the accident,

rendering their arguments moot.11
have

failed

Instead,

to

Newsome,

make

any

Kodiak,

reference

and Hertz

Hartford's

and Great American's

what

perceive .to be

they

Newsome,

Third,

a

the other Defendants

to

prejudice

focus almost exclusively on

interest in the

lack

suffered.

thereof.

litigation —

Defendant

or

Gaynor

the remaining injured party in the accident, has yet to

file any response in this matter.

Fourth, there is currently no

pending litigation that could be delayed by intervention, as the
Grovensteins

current

have

settled

declaratory

all

of

judgment

their

claims.

litigation

Finally,

would

not

the

be

11
More specifically, the Grovensteins alleged prejudice based on the
severity of their injuries and their advancing age.
Quite obviously, these
concerns were unique to the Grovensteins and do not apply to the remaining
Defendants.

19

substantially

delayed

On January 6,

2015,

an

extension

unopposed

or

prejudiced

and Hartford

to

allowing

intervention.

the United States Magistrate Judge granted
of

discovery,

discovery for March 23, 2015.

Accordingly,

by

the

Court

the

close

of

(Doc. 59.)

finds

intervene

setting

in

that

this

allowing Great American

declaratory

judgment

action

would not prejudice the existing parties but rather serves the
interests of justice and judicial economy.
2867836,

at

*3

("There

is

the

added

See Lancer,

likelihood

that

2010 WL

Amerisure

may also seek declaratory judgment to ascertain its legal rights
and

obligations

under

the

insurance

[intervention now] , therefore,

proceed

more

efficiently

policy ....

will make the overall

because

the

Court

will

Allowing
litigation

have

the

opportunity to resolve these related insurance contract disputes
together.").

III.

CONCLUSION

This Court will adhere to the Eleventh Circuit's preference

of resolving related actions

concurrently and grant

and Great American's motions to intervene.~

See Fed.

Hartford's
Sav.

& Loan

Ins. Corp. v. Falls Case Special Taxing Dist., 983 F.2d 211, 216
(11th

Cir.

allowing

1993)

("Any

intervention

doubt

should

concerning

be

resolved

the

in

propriety

favor

of

of

the

proposed intervenors because it allows the court to resolve all
20

related
the

disputes

Movants

Therefore,

in

have

a

single

each

Hartford's

met

unnecessary,

DENIED

(Doc.

and

the

The

Court

standards

American's

of

finds

Rule

Motions

that

24 (b) .

to Intervene

The Court also finds that a hearing

motion

for

a

hearing

is,

therefore,

40).

ORDER ENTERED
March,

the

and Great

(Docs. 28, 48) are GRANTED.

is

action.").

at Augusta,

Georgia,

this

£>< I " day of

2015.

HONORABLE J.

RANDAL HALL

UNITED/ STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

21