CASTRACANE-SEDLAC v. MASON et al
ORDER denying 30 Motion to Intervene and Granting Counsel leave to refile Motion to Withdraw as Counsel. Signed by Magistrate Judge Karen M. Williams on 10/8/21. (dd, )
[Dkt. No. 30]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 20-6080-KMW
JEFFREY MASON, et al.,
THIS MATTER having come before the Court upon the motion of
proposed intervenor, United Financial Casualty Company (“UFCC”),
for an Order permitting UFCC to intervene in the above-captioned
matter; and the Court noting that there is no opposition to the
motion; and the Court having considered this matter pursuant to
Fed. R. Civ. P. 78; and for the reasons that follow, UFCC’s Motion
this action against Jeffrey Mason (“Defendant Mason”), Mason
Courier Company (“Defendant Mason Courier” and together with
Defendant Mason, “Defendants”), John Doe(s) (B-Z) and Jane Doe(s)
(A-Z) arising from a motor vehicle accident between a vehicle
operated by Defendant Mason 1 and a vehicle operated by Plaintiff.
Complaint, Dkt. No. 1-1. The case was subsequently removed to
this Court on May 19, 2020.
Notice of Removal, Dkt. No. 1.
On April 1, 2020, UFCC sent a Reservation of Rights letter
to Defendants “declining coverage for the accident, based upon
the fact that the vehicle involved in the accident was not an
Furthermore, counsel Cipriani & Werner, P.C. (“Counsel”) was
assigned to represent Defendant Mason Courier Company “under a
reservation of rights based upon the [noted] restriction of
UFCC continued its coverage investigation and on November
23, 2020, issued a declination of coverage letter to Defendants,
“declining coverage, both defense and indemnification, on the
It has been represented to the Court that Defendant Mason owned at least two
Defendant Mason owned a 2007 Pontiac G6 that he used in his
business for Mason Courier Company.
With respect to the 2007 Pontiac G6,
Defendant Mason maintained a commercial automobile insurance policy through
UFCC; UFCC issued a Commercial Auto Policy to named insured Jeffrey Mason and
Mason Courier Company with a policy period of July 15, 2017 to July 24, 2018
(the “UFCC Policy”).
Motion to Intervene, Dkt. No. 30-1 at 3.
Policy provides that coverage is afforded for those accidents which arise out
of the ownership, maintenance or use of an “insured auto,” which is defined
as a vehicle specifically scheduled on the policy, or a “temporary auto
substitute” being used for a scheduled auto. Id. at 4. Only the 2007 Pontiac
G6 is listed on the declarations page of the UFCC Policy. Id. at 3. Defendant
Mason also owned a 2014 Dodge Avenger (incorrectly identified on the police
report as a Dodge Charger), which Defendant Mason was driving at the time of
the accident at issue.
The 2014 Dodge Avenger is not listed on the
declarations page of the UFCC Policy. Id. at 6. UFCC asserts that the 2014
Dodge Avenger was not covered by the UFCC Policy. Id. at 2-9.
basis that the [automobile involved in the accident] was not an
‘insured auto’ as defined in the policy; that the [automobile
substitute auto’ for the [insured automobile] because, pursuant
to the policy, Jeffrey Mason owned both vehicles.”
Id. at 8.
coverage, UFCC advised Defendants that “it would be withdrawing
the defense of Mason Courier Company which was at that time being
provided under a reservation of rights and advised that by copy
of the declination of coverage letter, UFCC would be instructing
defense counsel Cipriani & Werner, P.C. to withdraw from the
On December 3, 2020, Counsel filed a Motion to Withdraw as
Counsel for Defendant Mason Courier.
Motion to Withdraw, Dkt.
On April 9, 2021, the Court held an on-the-record hearing
Minute Entry, Dkt. No. 29.
During the hearing, and
without discussing the merits of intervention, the Court granted
leave for UFCC to file its Motion to Intervene for the Declaratory
Judgement and terminated the Motion to Withdraw without prejudice
to refile based on the outcome of the Motion to Intervene.
On April 23, 2021, UFCC filed the present Motion to Intervene
seeking to intervene to obtain a declaratory judgment that there
is no coverage under UFCC’s insurance policy issued to Defendants,
establish that it has no duty to defend or indemnify Defendants,
and permit counsel assigned by UFCC to withdraw from the defense
of Defendant Mason Courier.
Motion to Intervene, Dkt. No. 30-1
Specifically, UFCC claims that the automobile at issue in
this matter is not covered by the UFCC Policy, and therefore,
UFCC has no duty to defend or indemnify Defendant Mason Courier.
In support of the Motion, UFCC asserts that the application
is timely because it made the application upon the completion of
its coverage investigation.
Id. at 10.
UFCC also claims it has
an “unquestionable interest, insofar as it is the commercial auto
specifically listed vehicles and those qualifying as temporary
substitutes which by definition, cannot be vehicles owned by the
UFCC further argues that “[w]hile a defense was
afforded to Mason Courier Company under a reservation of rights,
that defense was subject to a determination as to the business
use of the vehicle and the status of the vehicle being operated
at the time of the accident, which was confirmed by Jeffrey
Mason’s [Examination Under Oath] testimony.”
Id. at 11.
also claims that the declaration sought “is necessary to determine
whether UFCC’s assigned defense counsel may withdraw from the
representation of Mason Courier Company in the within matter, and
to declare that UFCC has no indemnity obligations with regard to
the claims made in the within lawsuit.”
argues its interests will not be adequately represented because
no existing party shares or can advocate for its interests.
Federal Rule of Civil Procedure 24 provides two types of
intervention: intervention of right and permissive intervention.
See Fed. R. Civ. P. 24.
1. Intervention of Right
Federal Rule of Civil Procedure 24(a) provides, in pertinent
part, on 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.
A litigant seeking to intervene under Rule 24(a)(2) must
application for leave to intervene, 2) a sufficient interest in
the underlying litigation, 3) a threat that the interest will be
impaired or affected by the disposition of the underlying action,
and 4) that the existing parties to the action do not adequately
represent the prospective intervenor's interest.”
Mutual Insurance Company v. Treesdale, Inc., 419 F.3d 216, 220
(3d Cir. 2005) (citing Kleissler v. United States Forest Service,
157 F.3d 964, 969 (3d Cir. 1998)).
UFCC fails to establish that it has a sufficient interest in
intervene as of right under Rule 24(a).
As noted above, to
intervene as of right, an intervenor must have a significantly
protectable interest in the case.
Treesdale, 419 F.3d at 220.
Such an interest has been described as more than a mere economic
Id. at 221; Mountain Top Condo. Ass'n v. Dave Stabbert
Master Builder, Inc., 72 F.3d 361, 366, 33 V.I. 311, 318 (3d Cir.
Further, courts have held that a contingent interest is
not sufficient; the interest must be direct and sufficiently close
to the dispute.
See Travelers Indemnity Company v. Dingwell, 884
F.2d 629, 638 (1st Cir. 1989); CPL (Linwood), LLC v. Rossetti
Roofing, Inc., No. CV 09-6228-RMB-KMW, 2010 WL 11570374, at *2
(D.N.J. July 28, 2010); see also Restor-A-Dent Dental Lab'ys,
Inc. v. Certified Alloy Prod., Inc., 725 F.2d 871, 874 (2d Cir.
1984) (noting that an interest for intervention as of right “must
be direct, as opposed to remote or contingent”).
The Court of
Appeals for the First Circuit explained in Dingwell that "[w]hen
the insurer offers to defend the insured but reserves the right
to deny coverage . . . the insurer's interest in the liability
phase of the proceeding is contingent on the resolution of the
Id. (citing Restor-A-Dent Dental Laboratories,
Inc., 725 F.2d at 874-876); see also Deskevich v. Spirit Fabs,
Inc., No. 4:20-CV-01387, 2021 WL 880429 (M.D. Pa. Mar. 9, 2021)
(denying the insurer’s motion to intervene to address coverage
issues because the insurer’s interest in the action was contingent
on both the entry of judgment and a determination regarding
coverage and thus was not sufficient under Rule 24(a)); Carey v.
City of Wilkes-Barre, No. 05-CV-2093, 2008 WL 11492790, at *2
(M.D. Pa. Nov. 10, 2008) (noting that the lawsuit concerned
obligations of an insured and his insurer[ ] under [an] insurance
policy’” and therefore any interest the insurer may have is
“contingent on the resolution of the coverage issue”).
This Court previously denied a motion to intervene in a case
similar to the present circumstances.
In CPL (Linwood), LLC v.
Rossetti Roofing, Inc., this Court denied a motion to intervene
when an insurance carrier assigned to the defendant under a
reservation of rights sought “to intervene to seek declaratory
indemnify [the defendant].”
2010 WL 11570374, at *1.
this Court found that because the insurer had chosen to defend
the defendant “subject to a reservation of rights, its interest
in the liability phase of [the] case [was] contingent,” and
therefore, the insurer would not be permitted to intervene.
at *2; see also Dingwell, 884 F.2d at 638; Deskevich, 2021 WL
Here, as in CPL, UFCC’s interest in the case is derived from
Furthermore, UFCC has not cited to any case to support its
argument that it has a protectable interest sufficient to entitle
it to intervention of right under Rule 24.
Notably, like in CPL,
UFCC does not argue that it will be unable to resolve the coverage
issues in a separate declaratory judgment action so it cannot
argue that any alleged interest would be impaired by disposition
of this action.
See CPL, 2010 WL 11570374, at *2.
UFCC is not entitled to intervene as of right. 2
2. Permissive Intervention
If a non-party is not entitled to intervention as a matter
of right pursuant to Rule 24(a), the Court may nevertheless permit
Because the Court finds that UFCC does not have a sufficient interest in this
litigation, the Court need not analyze the remaining requirements. Treesdale,
419 F.3d at 227 (finding that because the movant had not established a
sufficient interest to intervene as of right, it need not proceed to the
impairment inquiry); CPL, 2010 WL 11570374, at *2 (finding that because the
movant did not have a sufficient interest in this litigation to satisfy Rule
24(a)(2), “the Court need not analyze the remaining requirements”) (citing
Dingwell, 884 F.2d at 637).
it to intervene under Rule 24(b).
Rule 24(b) provides that the
Court may permit anyone to intervene who has a claim or defense
that shares a common question of law or fact with the main action.
Fed. R. Civ. P. 24(b).
Courts have broad discretion in deciding
a request for permissive intervention.
Treesdale, 419 F.3d at
appropriate, the Court must consider whether the intervention
will cause undue delay or may prejudice the adjudication of the
original parties' rights.
Fed. R. Civ. P. 24(b)(3).
because there is no common question of law or fact, and therefore,
UFCC has failed to meet the requirements set forth in Rule 24(b).
The Third Circuit held in Treesdale that a contingent financial
insufficient to demonstrate a common question of law or fact
Specifically, the Circuit Court found that “[t]he declaratory
judgment action turns on the interpretation of the contracts of
insurance” whereas the personal injury suits have nothing to do
with interpreting such insurance policies.
Court concluded that “[w]here a proposed intervenor has only a
contingent financial interest in a declaratory judgment action to
establish insurance coverage, he/she can not accurately claim
that there are common questions of law or fact between the
coverage dispute and actions to determine liability for injuries
[the insured] may have caused.”
Id. at 228 (citing Liberty Mut.
Ins. Co. v. Pac. Indem. Co., 76 F.R.D. 656, 660 (W.D. Pa. 1977)).
This Court in CPL was “reluctant to infuse interpretations of the
contract of insurance and insurance coverage issues into a case
wherein the main causes of action [were] negligence and breach of
contract with regard to a roofing job.”
2010 WL 11570374, at
n.2; see also Deskevich, 2021 WL 880429, at *3 (denying permissive
intervention because the purpose of the case was to determine
liability, not to decide questions of insurance coverage, and
thus the intervention would not add anything to the litigation).
The Court is similarly reluctant to infuse such interpretations
of an insurance policy here where the main cause of action
concerns alleged negligence surrounding an automobile accident.
Notably, UFCC does not assert any common question of law or
fact in its Motion.
Accordingly, because the Court finds no
common question of fact or law with the main action, UFCC has
failed to establish the requisite element necessary to grant
Because UFCC does not meet the requisite element of Rule
intervention will unfairly prejudice the original parties.
Consequently, for the reasons set forth above:
IT IS on this 8th day of October, 2021, hereby
ORDERED that UFCC’s Motion to Intervene [Dkt. No. 30] shall
be, and hereby is, DENIED; and it is further
ORDERED that Counsel is granted leave to re-file the Motion
to Withdraw as Counsel.
s/ Karen M. Williams
KAREN M. WILLIAMS
UNITED STATES MAGISTRATE JUDGE
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