Goodrich v. Cequent Performance Products, Inc et al

Filing 45

District Judge Timothy S Hillman: ORDER AND MEMORANDUM OF DECISION entered denying 30 Motion to Intervene. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

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Plaintiffs,
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v.
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CEQUENT PERFORMANCE PRODUCTS,
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INC., TRIMAS CORPORATION, CIMLINE, )
INC., AND PLYMOUTH INDUSTRIES, INC., )
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Defendants.
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___________________________
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BRYAN GOODRICH, PATRICIA
GOODRICH INDIVIDUALLY AND AS
MOTHER AND NEXT FRIEND OF
S.M.G. AND S.L.G.,

CIVIL ACTION
NO. 4:15-cv-40030-TSH

ORDER AND MEMORANDUM OF DECISION ON NORGUARD INSURANCE CO.’S
MOTION TO INTERVENE (Docket No. 30)
September 29, 2015
HILLMAN, D.J.
In this products liability case, Plaintiffs brought suit against Defendants to recover damages
for serious injuries suffered by Brian Goodrich. Plaintiffs allege that Goodrich acquired an Asphalt
Melter/Applicator for use in his business, Regal Seal Asphalt Services, Inc., and was injured while
using said Asphalt Melter/Applicator. On August 27, 2015, NorGuard Insurance Co. (NorGuard)
moved to intervene as a matter of right pursuant to Rule 24(a) of the Federal Rules of Civil
Procedure. NorGuard alleges that it provided workers’ compensation insurance for Regal Seal
Asphalt Services, Inc. at the time of Goodrich’s injury and that, accordingly, it has a subrogation
interest in any potential damages recovered by Plaintiffs.
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Rule 24(a)(2) provides that “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.” NorGuard claims a
subrogation interest pursuant to Mass. Gen. Laws ch. 152, § 15 and asserts that this interest will
not be adequately protected by the existing parties to this lawsuit.
However, the statute that grants NorGuard’s interest, Mass. Gen. Laws ch. 152, § 15, also
provides extensive and adequate protection of that interest. This statute provides in pertinent part
as follows:
Where the injury for which compensation is payable was caused
under circumstances creating a legal liability in some person other
than the insured to pay damages in respect thereof, the employee
shall be entitled, without election, to the compensation and other
benefits provided under this chapter. Either the employee or insurer
may proceed to enforce the liability of such person, but the insurer
may not do so unless compensation has been paid in accordance with
sections seven, eight, ten A, eleven C, twelve or nineteen nor until
seven months following the date of such injury. The sum recovered
shall be for the benefit of the insurer, unless such sum is greater than
that paid by it to the employee, in which event the excess shall be
retained by or paid to the employee. . . . Except in the case of
settlement by agreement by the parties to, and during a trial of, such
an action at law, no settlement by agreement shall be made with such
other person without the approval of either the board, the reviewing
board, or the court in which the action has been commenced after a
hearing in which both the employee and the insurer have had an
opportunity to be heard. At such hearing the court shall inquire and
make a finding as to the taking of evidence on the merits of the
settlement, on the fair allocation of amounts payable to the
employee and the employee’s spouse, children, parents and any
other member of the employee’s family or next of kin who may have
claims arising from the injury for which are payable, under this
chapter in which the action has been commenced after an
opportunity has been afforded both the insurer and the employee to
be heard on the merits of the settlement and on the amount, if any,
to which the insurer is entitled out of such settlement by way of
reimbursement, and on the amount of excess that shall be subject to
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offset against any future payment of benefits under this chapter by
the insurer, which amount shall be determined at the time of such
approval.
Mass. Gen. Laws ch. 152, § 15 (emphases added). Thus, in the event that Plaintiffs recover
damages for Goodrich’s injuries, NorGuard will be entitled to appropriate reimbursement pursuant
to the terms of chapter 152. NorGuard will also have the opportunity to protect its interest by
participating in any future settlement proceedings relating to this case.

The procedural

mechanisms set forth in section 15 of chapter 152 are sufficient to protect NorGuard’s subrogation
interest.
Furthermore, Mass. Gen. Laws ch. 152, § 15 forecloses NorGuard from pursuing this suit
as a plaintiff because Goodrich has already initiated a lawsuit. See Pinto v. Aberthaw Const. Co.,
637 N.E.2d 219, 222 (Mass. 1994) (emphasis added) (“If an employee does not bring suit within
seven months of the date of the injury, either the insurer or the employee, but not both, may file
suit”). Here, the injury occurred on or about April 22, 2013; Plaintiffs filed suit on February 25,
2015. Although Plaintiffs did not file suit within seven months of the injury, they have now done
so and, thus, NorGuard is precluded from asserting its own claims to recover damages for
Goodrich’s injuries.
For these reasons, NorGuard’s motion to intervene is denied. Plaintiffs’ request for
sanctions in the form of attorneys’ fees is also denied.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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