Zurich American Insuance Company v. JLG Industries, Inc. et al
Filing
25
Memorandum Opinion and Order denying 16 Motion to Intervene as Plaintiff under Rule 24. The clerk is directed to unfile Intervenor's 18 Designation of Experts. (Ordered by Judge Sam A Lindsay on 8/7/2012) (ctf)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ZURICH AMERICAN INSURANCE CO.,
Plaintiff,
v.
JLG INDUSTRIES, INC. AND
SUNBELT RENTALS, INC.,
Defendants.
§
§
§
§
§
§
§
§
§
§
Civil Action No. 3:11-CV-3431-L
MEMORANDUM OPINION AND ORDER
Before the court is the Motion to Intervene as Plaintiff under Rule 24 (Doc. 16), filed by
Humberto Ramirez on June 22, 2012. Defendants oppose the motion. After considering the motion,
briefing, record, and the grounds asserted for the requested intervention, the court determines that
the Motion to Intervene as Plaintiff under Rule 24 should be and is hereby denied.
I.
Background
Plaintiff Zurich American Insurance Co. (“Zurich”) brought this subrogation action against
Defendants JLG Industries, Inc. (“JLG”) and Sunbelt Rentals, Inc. (“Sunbelt”) (collectively,
“Defendants”) in the 191st Judicial District Court, Dallas County, Texas, on October 26, 2011. The
action was removed to this court on December 9, 2011. Zurich seeks reimbursement for the amounts
it paid under an insurance policy issued by Zurich for injuries and lost wages sustained by Humberto
Ramirez (“Ramirez”), who was injured on October 27, 2009, while operating a scissor lift
manufactured by JLG and leased to Ramirez’s employer by Sunbelt.
Memorandum Opinion and Order - Page 1
According to Zurich’s Amended Complaint (“Complaint”), Ramirez underwent emergency
surgery to stabilize the fractures in his right leg and was released from Parkland Hospital with
instructions to return for additional future surgeries. Zurich further alleges that Ramirez has
continued to experience pain as a result of injuries to his back and legs, and that the injuries have
made him unable to work, enjoy life, perform household services, and care for himself. Zurich
contends that Ramirez’s injuries were caused by the failure of the upper lift cylinder pin on the
scissor lift operated by Ramirez, and that JLG has since acknowledged that the failure of this pin is
a systematic problem that requires distributors to visually inspect and replace the pins.
Zurich seeks to recover the amounts paid to date to Ramirez in the workers’ compensation
proceeding for indemnity benefits and medical expenses totaling $169,953.67. Zurich also seeks
additional indemnity and medical benefits to cover the additional benefits claimed by Ramirez for
additional surgeries has undergone or scheduled, as well as attorney’s fees, costs, and prejudgment
and postjudgment interest. Zurich contends that it is entitled to reimbursement for the benefits
claimed by Ramirez on the grounds that JLG is strictly liable for introducing a defective and
unreasonably dangerous scissor lift into the stream of commerce that was, and Defendants were
negligent in failing to safely design, adequately warn, and properly maintain the equipment.
Ramirez’s proposed Complaint in intervention mirrors the factual allegations in Zurich’s Complaint
almost verbatim. Like Zurich, Ramirez’s claims are also based on strict liability and negligence.
II.
Analysis
Ramirez seeks to intervene as a matter of right, or alternatively he requests that he be
permitted to permissively intervene.
Memorandum Opinion and Order - Page 2
Unless there is a federal statute conferring an unconditional right to intervene, a motion to
intervene as of right is governed by Federal Rule of Civil Procedure 24(a)(2). A motion to intervene
under Rule 24(a)(2) is proper when:
(1) the motion to intervene is timely; (2) the potential interven[o]r asserts an interest
that is related to the property or transaction that forms the basis of the controversy in
the case into which [he] seeks to intervene; (3) the disposition of that case may
impair or impede the potential interven[o]r’s ability to protect [his] interest; and (4)
the existing parties do not adequately represent the potential interven[o]r’s interest.
Saldano v. Roach, 363 F.3d 545, 551 (5th Cir. 2004). A court may permit a party to permissively
intervene if the intervenor: (1) timely files a motion, (2) has a claim or defense that shares a common
question of law or fact with the main action, and (3) has an independent basis for jurisdiction, if
jurisdiction in the original action was based on diversity of citizenship. Fed. R. Civ. P. 24(b)(1);
Harris v. Amoco Prod. Co., 768 F.2d 669, 675 (5th Cir. 1985). Permissive intervention, however,
“is wholly discretionary with the [district] court . . . even though there is a common question of law
or fact, or the requirements of Rule 24(b) are otherwise satisfied.” Kneeland v. Nat’l Collegiate
Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir. 1987). Factors relevant to whether an application to
intervene is timely include: “(1) the length of time the proposed intervenor knew or should have
known of [his] interest in the case, (2) the extent of the prejudice that existing parties may suffer by
the proposed intervenor’s delay in moving to intervene, (3) the extent of the prejudice that the
would-be intervenor would suffer if intervention is denied, and (4) any unusual circumstances that
bear upon the timeliness of the application.” Trans Chem. Ltd. v. China Nat’l Mach. Import and
Export Corp., 332 F.3d 815, 822 (5th Cir. 2003).
Defendants contend that Ramirez cannot intervene as a matter of right because Zurich’s
subrogation interest and indemnity claim under section 417.001 et seq. of the Texas Labor Code
Memorandum Opinion and Order - Page 3
(Texas Workers Compensation Act) are the only property or funds at issue in this case and no federal
statute applies. Defendants further assert that Ramirez’s proposed intervention is untimely, and
Defendants will be prejudiced if he is permitted to intervene because his claims for damages will
expand the scope of discovery and delay the resolution of this case. Sunbelt also argues that
Ramirez’s conclusory assertions are insufficient to carry his burden with regard to establishing
timeliness, prejudice, and an independent basis for jurisdiction.
Ramirez counters that he is entitled to intervene as a matter of right because, in addition to
suing to recover medical bills and benefits paid to him, Zurich is also suing to recover future medical
expenses and the Texas Workers Compensation Act requires Zurich to pay any such future indemnity
and medical benefits to Ramirez. He therefore contends that he has an interest in the proceeds at
issue, and Zurich does not adequately represent his interests in maximizing the recovery of his future
medical expenses.
Ramirez further contends that his request to intervene is timely because timeliness is based
on when the intervenor became aware of his interest in a lawsuit that is the subject of the motion to
intervene. In support of his assertion that the motion to intervene is timely, Ramirez submitted an
affidavit in which he states that he did not learn of the suit by Zurich until May 31, 2012. Ramirez
asserts that because he moved within six weeks of learning of the action to intervene, his motion is
timely.
Ramirez disagrees that Defendants will be prejudiced by his intervention because in the eight
months the case has been pending, limited discovery has taken place and the case is not set for trial
until December 3, 2012. According to Ramirez, his intervention will likely only require three
additional depositions, one for him that likely would have been taken in any event, and two for
Memorandum Opinion and Order - Page 4
experts he designated on July 5, 2012. Ramirez therefore asserts that his intervention will not delay
the case from proceeding to trial as scheduled.
The court determines that intervention is not mandated under Rule 24(a) or Rule 24(b).
Ramirez is not seeking to intervene based on a federal statute that confers the right to intervene.
Accordingly, to intervene, he must establish that intervention is proper under Rule 24(a)(2) as a
matter of right, or permissively under Rule 24(b).
Intervention is improper under both Rule 24(a)(2) and Rule 24(b) because Ramirez’s motion
is untimely. Ramirez was injured almost three years ago on October 27, 2009. This lawsuit was
filed in state court by Zurich and was pending eight months before Ramirez sought to intervene.
Ramirez states in his affidavit that he did not learn of the lawsuit by Zurich until May 31, 2012;
however, he does not explain how he learned of the lawsuit or what efforts he undertook in that
regard for the court to make a determination of when he should have known of his interest in the
case. Discovery in this case closed on August 3, 2012, and the dispositive motion deadline is August
17, 2010. Pursuant to the court’s Scheduling Order, extending these deadlines will necessarily
require an extension of the trial date. See Scheduling Order (Doc. 8) ¶ 13. Ramirez’s intervention
would therefore delay the disposition of this case.
Regardless of whether Ramirez’s request to intervene is timely, the court determines that he
has not shown that he will suffer prejudice from denial of intervention in this suit. Further, his
interests are adequately protected by Zurich, who has incentive to maximize any recovery of future
damages from Defendants since Ramirez will be looking to it for compensation to cover additional
benefits claimed. Staley v. Harris Cnty., 160 F. App’x 410, 414 (5th Cir. 2005) (affirming denial
Memorandum Opinion and Order - Page 5
of permissive intervention where district court found that existing party adequately represented the
interests of the party seeking to intervene).
Additionally, the court notes that Ramirez’s proposed claims for strict liability and
negligence accrued on October 27, 2009. The two-year statute of limitations for such claims expired
on October 27, 2011, and Ramirez does not allege any basis for equitable tolling in his proposed
Complaint.* Thus, Ramirez’s best chance at recovering money for any alleged future medical costs
and lost earning capacity is through Zurich.
Moreover, Ramirez has not established an independent jurisdictional basis for his claims.
See Harris, 768 F.2d at 675; E.E.O.C. v. National Children’s Ctr., 146 F.3d 1042, 1046 (C.A.D.C.
1998) (“No less than the original claimants, a third party who seeks to intervene in a federal action
and litigate a claim on the merits must demonstrate that the claim falls within the court’s limited
jurisdiction.”). While jurisdiction is purportedly based on diversity, Ramirez’s proposed Complaint
contains defective jurisdictional allegations. Ramirez alleges that he is a Texas resident; however,
a bare allegation of residency is insufficient to satisfy the requirement of citizenship. Strain v.
Harrelson Rubber Co., 742 F.2d 888, 889 (5th Cir. 1984). Additionally, Ramirez’s Complaint
contains no allegations regarding the amount-in-controversy. Although such defects could possibly
*
Under Texas law, the statute of limitations for personal injury actions, regardless of whether the
claims are couched in terms of negligence or product liability, is two years from the date the cause of action
accrues. See Tex. Civ. Prac. & Rem. Code § 16.003; Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (per
curiam); Childs v. Haussecker, 974 S.W.2d 31, 37 (Tex. 1998) (product liability case). Generally, “a cause
of action accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury
or if all resulting damages have yet to occur.” Childs, 974 S.W.2d at 36; Johnson & Higgins of Tex., Inc.
v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998) (holding that a cause of action for negligence
accrues on the date the negligent, injury-producing act is committed.). Ramirez’s claims therefore accrued
on October 27, 2009.
Memorandum Opinion and Order - Page 6
be cured by amendment, the court will not permit amendment since it concludes that Ramirez’s
request to intervene should be denied.
III.
Conclusion
For the reasons explained, the court denies the Motion to Intervene as Plaintiff under Rule
24 (Doc. 16), filed by Humberto Ramirez. Further, because Ramirez filed his Designation of Experts
before the court ruled on his motion to intervene, the clerk is directed to unfile Intervenor’s
Designation of Experts (Doc. 18).
It is so ordered this 7th day of August, 2012.
________________________________
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order - Page 7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?