Adams et al v. Ohio University et al
ORDER denying 30 Motion to Intervene. Signed by Magistrate Judge Kimberly A. Jolson on 10/16/2017. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
CHRISTINE ADAMS, et al.,
Civil Action 2:17–cv–200
Judge Algenon L. Marbley
Magistrate Judge Jolson
OHIO UNIVERSITY, et al.,
This matter is before the Court on the Motion of Liberty Mutual Fire Insurance Company
(“Liberty”) to intervene as an additional plaintiff. (Doc. 30). Defendant Andrew Escobedo
(“Defendant Escobedo”) opposes the Motion to Intervene. (Doc. 37). The Motion is unopposed
by remaining Defendants, Joseph McLaughlin and Ohio University (Doc. 38), and Plaintiffs,
Christine Adams and Susanna Hempstead (Doc. 39). For the reasons that follow, this Court
DENIES Liberty’s Motion to Intervene as Additional Plaintiff Instanter.
On March 8, 2017, Plaintiffs filed this action against Defendant Escobedo and two others
asserting various claims for relief, all stemming from Defendant Escobedo’s alleged sexual
harassment. (Doc. 1). On June 19, 2017, Plaintiffs amended their complaint to assert claims for
violations of Title IX of the Education Amendments of 1971 (“Title IX claims”), violations the
Fourteenth Amendment of the Constitution of the United States (“equal protection claims”),
negligence, and injunctive relief. (Doc. 23).
Liberty moved to intervene on August 21, 2017. (Doc. 30). Liberty alleges that, at all
times relevant to the underlying action, it insured Defendant Escobedo under a homeowner’s
insurance policy. (Id. at 3). That policy provides for up to $300,000 in “personal liability”
coverage. (Doc. 30-3 at 2, 16). Liberty seeks a determination of its duty to defend and/or
indemnify Defendant Escobedo under this provision of the policy. (Doc. 30 at 3).
MOTION TO INTERVENE
Liberty moves for intervention as of right pursuant to Fed. R. Civ. P. 24(a) or, in the
alternative, for permissive intervention under Fed. R. Civ. P. 24(b).
Intervention of Right
Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that, upon timely motion,
a third party must be permitted to intervene if he or she “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.” According to the Sixth Circuit, a
movant seeking to intervene under this rule must meet the following requirements:
Rule 24(a) . . . establish[es] four elements, each of which must be satisfied before
intervention as of right will be granted: (1) timeliness of the application to
intervene, (2) the applicant’s substantial legal interest in the case, (3) impairment
of the applicant’s ability to protect that interest in the absence of intervention, and
(4) inadequate representation of that interest by parties already before the court.
Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (citing Cuyahoga Valley Ry.
Co. v. Tracy, 6 F.3d 389, 395 (6th Cir. 1993)).
The Sixth Circuit has “opted for a rather expansive notion of the interest sufficient to
invoke intervention” as contemplated by the second factor, id.; however, this expansive view
“does not mean that any articulated interest will do.” Coal. to Defend Affirmative Action v.
Granholm, 501 F.3d 775, 780 (6th Cir. 2007). Rather, the legal interest claimed must be both
substantial and direct. Cascade Nat. Gas Corp. v. El Paso Nat. Gas Co., 386 U.S. 129, 154
(1967) (The third party’s interest must be “sufficiently direct and immediate to justify his entry
as a matter of right.”); see also Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 638 (1st Cir.
1989) (The intervener’s interest “must be direct, not contingent.”).
Indeed, “courts have routinely denied intervention on grounds that insurers contesting
coverage have no more than a contingent interest in the underlying action.” J4 Promotions, Inc.
v. Splash Dogs, LLC, No. 2:09–cv–136, 2010 WL 1839036, at *3 (S.D. Ohio May 3, 2010)
(denying insurer intervention for declaration that it no duty to defend or indemnify the
defendant). As the First Circuit explained,
There can be no dispute that an insurer has a direct interest in a lawsuit brought by
an injured party against its insured when the insurer admits that the claim is
covered by the policy in question. When the insurer [disputes] coverage, however,
the insurer’s interest in the liability phase of the proceeding is contingent on the
resolution of the coverage issue.
Travelers, 884 F.2d at 638 (citing Restor–A–Dent Dental Labs., Inc. v. Certified Alloy Prods.,
725 F.2d at 874–76 (2nd Cir. 1984)); see also Siding & Insulation Co. v. Beachwood Hair
Clinic, Inc., No. 1:11-CV-01074, 2012 WL 645996, at *2 (N.D. Ohio Feb. 28, 2012). Courts
have also refused to permit intervention on the basis that these types of claims do not relate to the
property or transaction at issue in the underlying action, which is an express requirement of Fed.
R. Civ. P. 24(a)(2).
Travelers, 884 F.2d at 640 (“The problem with the second potential
interest—that there is no coverage or that whatever coverage exists has been waived—is that it is
not related to the subject matter of the action.”); Restor–A–Dent, 725 F.2d at 876 (denying
intervention because the amount the insurer may owe defendant under its policy did not qualify
as interest in subject matter of action); Siding & Insulation, 2012 WL 645996, at *2 (denying
insurer’s motion to intervene because its duties under the insurance contract are “wholly a matter
of state contract law and bear[ ] no relation to the underlying lawsuit”); J4 Promotions, Inc.,
2010 WL 1839036, at *3 (finding the “coverage issue” unrelated to the underlying copyright
infringement and unfair competition claims).
Here, Liberty’s interest is contingent upon a determination of Defendant Escobedo’s
liability and an adjudication of Liberty’s obligations under the insurance contract. Liberty has
other means for determining this insurance coverage question, such as a separate declaratory
action. J4 Promotions, Inc., 2010 WL 1839036, at *3. Until Liberty knows whether or not it
owes a duty to defend and/or indemnify Defendant Escobedo, it has no direct interest in claims
asserted against him in this case. See, e.g., Travelers, 884 F.2d at 638 (“[T]he insurer’s interest
in the liability phase of the proceeding is contingent on the resolution of the coverage issue.”).
Moreover, Liberty’s claims do not relate to the transaction that is the subject of this suit.
Plaintiffs assert Title IX, equal protection, and negligence claims arising from Defendant
Escobedo’s alleged sexual harassment. (Doc. 23). Liberty claims a state–law contractual dispute
between an insurer and insured over the extent of coverage. (Doc. 30). These distinct claims
necessarily will involve the application of different laws and the presentation of different
evidence. Simply put, Liberty’s interest (insurance coverage) bears no relation to the subjectmatter of the underlying action (alleged sexual harassment). See Travelers, 884 F.2d at 640
(“We will not permit [insurers] . . . to drag substantive issues of insurance law into a lawsuit
whose subject matter is the allocation of liability….”). Accordingly, Liberty has no right to
intervene under Fed. R. Civ. P. 24(a)(2).
The Court also considers Liberty’s argument that the Court should allow permissive
intervention. Rule 24(b)(1)(B) of the Federal Rules of Civil Procedure provides that “[o]n timely
motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with
the main action a common question of law or fact.” As discussed previously, Liberty’s contract
claim is unrelated to Plaintiffs’ claims for damages flowing from Defendant Escobedo’s alleged
sexual assault. Liberty thus cannot establish that its claim shares common questions of law or
fact with Plaintiffs’ claims. See, e.g., Design Basics, LLC v. A.J. Bokar Bldg. Co., No. 16–cv–
669, 2016 WL 6067780, at *2 (N.D. Ohio Oct. 17, 2016) (“For the same reasons that [the
movant] lacks a substantial legal interest in the outcome of the underlying litigation, it cannot
establish that its insurance action shares questions of law and facts with the underlying copyright
action.”); Trs. of Painting Indus. Ins. Fund v. Glass Fabricators, Inc., No. 1:14–cv–00313, 2014
WL 5878201, at *3 (N.D. Ohio Nov. 10, 2014) (denying permissive intervention because
declaratory judgment and underlying action would “require different evidence and different laws
will apply”). Accordingly, the Court finds permissive intervention unwarranted.
Based upon the foregoing, Liberty has not established that intervention is warranted
under either Fed. R. Civ. P. 24(a) or 24(b). Accordingly, Liberty’s Motion to Intervene Instanter
Motion to Reconsider
Any party may, within fourteen days after this Order is filed, file and serve on the
opposing party a Motion for Reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A), Rule
72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01, pt. IV(C)(3)(a). The Motion must
specifically designate the Order or part in question and the basis for any objection. Responses to
objections are due fourteen days after objections are filed and replies by the objecting party are
due seven days thereafter. The District Judge, upon consideration of the Motion, shall set aside
any part of this Order found to be clearly erroneous or contrary to law.
This Order is in full force and effect even if a Motion for Reconsideration has been filed
unless it is stayed by either the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.
IT IS SO ORDERED.
Date: October 16, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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