Farnsworth v. Cox et al
Filing
27
MEMORANDUM AND ORDER granting 19 Motion to Intervene. The Hub of Syracuse, Inc. and Bituminous Casualty Corporation shall be allowed to intervene under Fed.R.Civ.P. 24(a)(2). They shall further be allowed ten (10) days from the date of this order to file a memorandum concerning the defendants' motion to dismiss. The defendants shall be allowed ten (10) days to file a response to this memorandum. Signed by District Judge Richard D. Rogers on 7/17/2012. (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DONNA K. FARNSWORTH,
Individually,Heir-at-Law of
Richard V. Farnsworth,
deceased; and, DONNA K.
FARNSWORTH, as Natural
Guardian, Next Friend and
Conservator for H.L.F., a
Minor, Heir-at-Law of
Richard V. Farnsworth, deceased,
Plaintiffs,
vs.
Case No. 11-1263-RDR
MICHAEL B. COX and WADE HILL
d/b/a M&W TRUCKING,
Defendants.
MEMORANDUM AND ORDER
This is a wrongful death action.
before
the
court
upon
the
motion
This matter is presently
to
intervene
pursuant
to
Fed.R.Civ.P. 24 of The Hub of Syracuse, Inc. and Bituminous
Casualty Corporation.
Having carefully reviewed the arguments of
the parties, the court is now prepared to rule.
I.
This action arises out of a motor vehicle accident in Hamilton
County, Kansas on August 31, 2009 in which Richard V. Farnsworth
was killed.
At the time of the accident, Mr. Farnsworth was in the
course and scope of his employment with The Hub of Syracuse, Inc.,
a Kansas corporation.
Bituminous Casualty Corporation was the
workers compensation liability insurance carrier for The Hub of
Syracuse.
As a result of Mr. Farnsworth’s death, The Hub of
Syracuse and Bituminous Casualty have paid, and continue to pay,
benefits under the Kansas Workers Compensation Act to plaintiffs
Donna Farnsworth and H.L.F., the surviving heirs of Mr. Farnsworth.
In the instant motion, The Hub of Syracuse and Bituminous
Casualty seek to intervene under Fed.R.Civ.P. 24(a) and 24(b).
They contend, pursuant to K.S.A. 44-504(b), that they have a
subrogation interest and lien against any recovery obtained by the
plaintiffs in this action.
They assert they are entitled to
recover the workers compensation benefits they have provided and
continue to provide plaintiffs as a result of the work-related
death of Mr. Farnsworth.
They seek to intervene at the present
time so they can address the pending motion to dismiss filed by the
defendants.
II.
Under Federal Rule of Civil Procedure 24(a)(2), upon timely
motion the court must permit anyone to intervene 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).
Under
this
provision, a party may intervene as of right if (1) its application
is timely; (2) it claims an interest relating to the property or
2
transaction which is the subject of the action; (3) its interest
may as a practical matter be impaired or impeded; and (4) its
interest is not adequately represented by existing parties.
See
Elliot Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091, 1103
(10th Cir. 2005).
Under Federal Rule of Civil Procedure 24(b)(1), the court may
permit a party to intervene when the applicant’s claim shares with
the main action a common question of law or fact.
24(b)(1)(B).
Permissive
discretion of the court.
Cir. 1992).
intervention
is
within
Fed.R.Civ.P.
the
sound
Arney v. Finney, 967 F.2d 418, 421 (10th
In deciding the motion, the court considers (1)
whether the application is timely; (2) whether the movant’s claim
and the underlying action share a common question of law or fact;
and (3) whether the intervention will unduly delay or prejudice
adjudication of rights of the original parties.
See Fed.R.Civ.P.
24(b); Kane County, Utah v. United States, 597 F.3d 1129, 1135 (10th
Cir. 2010).
III.
The defendants contend only that the motion to intervene is
untimely and that the movants’ interest is more than adequately
represented by the existing plaintiffs.
The defendants point out
that the movants have the right to pursue subrogation for workers
compensation benefits paid or payable under K.S.A. 44-504.
They
contend that, under that statute, the movants have had since
3
February 28, 2011 to bring a cause of action against them.
They
note that the movants did not file their motion to intervene until
March 30, 2012.
They further note that the movants waited nearly
four months to seek to intervene after the plaintiffs filed the
instant case.
Under these circumstances, they argue that the
movants’ motion is untimely.
The defendants also contend that they would be prejudiced by
allowing the movants to intervene.
would
allow
the
movants
to
They suggest that intervention
assert
applicable statute of limitations.
their
claims
outside
the
They further contend the
interests of the movants are adequately protected by K.S.A. 44504(b).
Finally, they assert that this case is substantially
different than other subrogation cases due to the pending motion to
dismiss.
They suggest that allowing intervention would be futile
because the statute of limitations has run on the plaintiffs’
claims.
The defendants have also argued that the interests of the
movants are adequately represented by the plaintiffs. They contend
that the plaintiffs can protect and have protected their interests
in this litigation.
IV.
The court has carefully considered the aforementioned factors.
The court shall focus solely on the issue of timeliness because it
is clear that the movants have the right to intervene if their
4
motion is viewed as timely.
The Tenth Circuit has recognized the
following
being
four
factors
as
relevant
when
deciding
the
timeliness element: “(1) the length of time the movant knew of its
interests in the case; (2) prejudice to the existing parties; (3)
prejudice
to
the
movant;
[and
(4)
existence
of
unusual
circumstances].” Okla. ex rel. Edmondson v. Tyson Foods, Inc., 619
F.3d 1223, 1232 (10th Cir. 2010) (alterations in original omitted).
As noted previously, this case arose from an accident that
occurred on August 31, 2009.
2011.
This action was filed on August 30,
Plaintiffs served their complaint on the defendants on
December 12, 2011.
The defendants filed a motion to dismiss on
December 29, 2011.
Briefing on that motion was completed on March
5, 2012.
brief.
Plaintiffs, however, have asked to file an additional
The motion to intervene was filed on March 30, 2012.
On
July 16, 2012, the court allowed plaintiff to present additional
argument on the pending motion to dismiss.
The court is not persuaded by the defendants’ argument that
intervention should be denied because the statute of limitations
for an employer to bring an action under K.S.A. 44-504 has expired.
As pointed out by the movants, the fact that the employer and the
insurance company allowed plaintiffs to proceed does not, and
should not, bar their intervention.
See Roberts v. Krupka, 246
Kan. 433, 443-44, 790 P.2d 422 (1990) (motion to intervene by
employer and insurer in medical malpractice action to protect
5
subrogation interest was not untimely even though motion came over
five years after cause of action accrued and 38 months after filing
of the action).
Here, the movants sought intervention less than
four months after the filing of this case, and prior to the filing
of an answer by the defendants.
There is no evidence of any
prejudice to the existing parties as a result of the delay here.
The court fails to see how allowing the movants to weigh in on the
motion to dismiss will cause any prejudice to the defendants.
The
court has recently allowed plaintiffs to submit additional argument
on the motion to dismiss, so allowing the movants additional time
to submit arguments on the motion to dismiss will not result in any
additional delay.
In sum, the court finds no merit to any of the
arguments offered by the defendants. The court shall allow The Hub
of Syracuse, Inc. and Bituminous Casualty Corporation to intervene
under Rule 24(a)(2).
IT IS THEREFORE ORDERED that the motion to intervene of The
Hub of Syracuse, Inc. and Bituminous Casualty Corporation (Doc. #
19) be hereby granted.
Casualty
Corporation
The Hub of Syracuse, Inc. and Bituminous
shall
be
allowed
to
intervene
under
Fed.R.Civ.P. 24(a)(2). They shall further be allowed ten (10) days
from the date of this order to file a memorandum concerning the
defendants’ motion to dismiss. The defendants shall be allowed ten
(10) days to file a response to this memorandum.
IT IS SO ORDERED.
6
Dated this 17th day of July, 2012 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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