Haines v. Sheriff Robert "Bobby" Shirley et al

Filing 58

ORDER DENYING INTERVENTION; denying 51 Motion to Intervene by West Virginia Counties Group Self-Insurance Risk Pool Inc. ; granting 54 Motion for Leave to File Motion to Partially Withdraw Motion for Leave to Intervene to Assert Declaratory Judgment Complaint by West Virginia Counties Group Self-Insurance Risk Pool Inc. Signed by Chief Judge John Preston Bailey on 2/25/2013. (tlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Martinsburg

MARK HAINES,
Plaintiff,
v.

Civil Action NO. 3:12-CV-51
Judge Bailey

SHERIFF ROBERT “BOBBY” SHIRLEY,
in his official and individual capacity,
DEPUTY JOSEPH FORMAN, in his individual
capacity, DEPUTY TERRY PALMER, in his
individual capacity, TROOPER JOSEPH BUSH,
in his individual capacity, DEPUTY J.H. JENKINS,
in his individual capacity, DEPUTY C. MERSON,
in his individual capacity, , DEPUTY COREY
WELCOME, in his individual capacity, and
DEPUTY T.A. SHERMAN, in his individual
capacity,
Defendants.

ORDER DENYING INTERVENTION
Pending before this Court are a Motion for Leave to Intervene to Assert Declaratory
Judgment Complaint (Doc. 51) and Motion for Leave to Partially Withdraw Motion for Leave
to Intervene to Assert Declaratory Judgment Complaint (Doc. 54), both filed by the West
Virginia Counties Self-Insurance Risk Pool, Inc., d/b/a WV County Risk Pool (“Risk Pool”).
In the first motion, the Risk Pool seeks leave to intervene in this personal injury
action to assert a declaratory judgment action. The Risk Pool seeks a declaration that it
owes no duty to defend or indemnify defendant Sheriff Robert “Bobby” Shirley and that it
has only a limited duty to indemnify defendants Deputy Joseph Forman and Deputy Terry
1

Palmer with respect to the allegations in the Amended Complaint. In the second motion,
the Risk Pool withdraws its pursuit of the declaratory judgment with respect to Deputies
Forman and Palmer.
BACKGROUND
On or about May 29, 2012, the plaintiff brought suit in the United States District
Court for the Northern District of West Virginia under 42 U.S.C. § 1983 and West Virginia
state law alleging deprivation of constitutional rights under 42 U.S.C. § 1983 (Count 1) and
common law assault, battery, and intentional infliction of emotional distress (Count 2) (Doc.
1). On November 30, 2012, the plaintiff filed an Amended Complaint adding parties (Doc.
18).
On January 24, 2013, the West Virginia Counties Group Self-Insurance Risk Pool,
Inc. (“Risk Pool”) filed its Motion to Intervene (Doc. 51).
DISCUSSION AND CITATION TO AUTHORITY
Rule 24(a)(2) of the Federal Rules of Civil Procedure 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. Rule 24(b)(1)(B) provides that the court has the
discretion to allow a party to intervene where the party “has a claim or defense that shares
with the main action a common question of law or fact.”
Courts have noted the lack of common issues of law or fact where an insurer seeks
to intervene in a case involving the insured where the insurer denies liability. See e.g.

2

Travelers Indemnity Co. v. Dingwell, et al., 884 F.2d 629 (1st Cir. 1989), Seneca
Insurance Co., Inc. v. Lexington and Concord Search and Abstract, LLC, et al., 484
F.Supp. 374 (E.D. Pa. 2007). In Dingwell, the court addresses the precise issue at bar,
namely the propriety of allowing an insurer to intervene so as to litigate whether the insurer
is liable to the insured defendant for any of the claims of the action. The court found that
the problem with allowing intervention for this purpose is that the issue of insurer liability
“is not related to the subject matter of this action between [the plaintiff] and the [insured
defendant].” Id. at 640. (citations omitted).
The issues in the above-styled action relate to tort liability and not the apportionment
of that liability between the insured and the insurer. The court in Dingwell found that the
suit against the insured in which the insurer sought to intervene involved “the
apportionment of tort liability, not the respective rights and obligations of an insured and his
insurers under their insurance policy.... In short, we will not allow the insurers to bootstrap
their coverage defenses into this lawsuit.” Id. Likewise, the court in Seneca rejected the
insurer’s arguments for permissive joinder finding that the declaratory judgment sought by
the insurer involved “interpretation of the [insured’s policies].... which involv[ed] issues
distinct from [the liability of the insured with respect to the claims in the original action].”
Seneca, 484 F.Supp. at 380.
As “the district court enjoys broad discretion in making determinations regarding
permissive intervention under 24(b)(2),” Dingwell, 884 F.2d at 641; and the issues of
interpretation of the insured’s policy are distinct from the issues of the insured’s liability in
tort to the plaintiff in this action, the Court finds that the Motion to Intervene should be

3

DENIED.
CONCLUSION
The Court, therefore, finds that the West Virginia Counties Group Self-Insurance
Risk Pool, Inc.’s Motion for Leave to Intervene to Assert Declaratory Judgment Complaint
(Doc. 51) should be DENIED.

The West Virginia Counties Group Self-Insurance Risk

Pool, Inc.’s Motion for Leave to Partially Withdraw Motion for Leave to Intervene to Assert
Declaratory Judgment Complaint (Doc. 54) is GRANTED.
It is so ORDERED.
The Clerk is hereby directed to transmit copies of this Order to counsel of record
and to the proposed intervenors.
DATED: February 25, 2013.

4