Woodruff v. Thornsbury et al
Filing
254
MEMORANDUM OPINION AND ORDER denying National Union Fire Insurance Company of Pittsburgh, PA's 224 MOTION to Intervene. Signed by Judge John T. Copenhaver, Jr. on 11/13/2014. (cc: attys; any unrepresented parties) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROBERT WOODRUFF,
Plaintiff,
v.
Civil Action No. 2:13-24001
MICHAEL THORNSBURY, individually and
in his official capacity, and
TROOPER BRANDON MOORE, individually and
in his official capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is a motion to intervene filed by National Union
Fire Insurance Company of Pittsburgh, PA, (“National Union”),
filed October 23, 2014.
I.
National Union is the liability insurance carrier for
the State of West Virginia, its agencies and various
municipalities.
The coverage exists through a special insurance
program administered by the West Virginia Board of Risk and
Insurance Management (“BRIM”).
There is the potential that
defendants Michael Thornsbury and Trooper Brandon Moore may
qualify as insureds under one or more of the insurance policies
issued by National Union to the state.
National Union asserts that its defense of Mr.
Thornsbury and Trooper Moore is under a reservation of rights with
potential questions respecting whether either qualifies as
“insureds” under the applicable policies.
It also contends that
its interests are not represented by any of the current parties.
It seeks to develop the “appropriate facts” respecting its rights
and responsibilities under the policies, particularly the
defendants’ status as “insureds” and whether the tortious conduct
in question amounts to a single occurrence or multiple
occurrences.
In particular, National Union asserts as follows:
These questions largely depend on the facts of the
instant litigation, but will not necessarily be
established by the current parties to the lawsuit,
because they are concerned with establishing or
defending against liability and damages, not the facts
necessary to determine whether there is coverage under
an insurance policy. Hence, it is imperative that
National Union be allowed to intervene in this matter so
that it may properly establish the facts necessary to
determine the rights and obligations under the insurance
policies.
. . . .
For instance, the question of whether the Defendants’
actions occurred in the course and scope of their work
duties may not be relevant to the determination of
liability and damages in the instant matter, but it will
have a profound effect on whether or not they qualify as
insureds and subsequently if coverage exists.
Additionally, if this matter proceeds to trial with a
finding of liability and a verdict against the
potentially insured defendants, it is possible that such
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verdict could exceed the applicable insurance policy
limits. In such event, it will be necessary for National
Union to know upon what facts the jury made its
findings, and whether those facts implicate or preclude
coverage, and whether those facts amount to a single
occurrence or multiple occurrences under the policies. .
. . it is imperative that National Union’s inclusion in
this matter be allowed so as to permit its participation
in discovery, to allow it access to prior discovery, and
finally, to permit it to submit special interrogatories
to the jury in order to accurately determine such
questions.
(Nat’l Union Mem. in Supp. at 3, 6).
Mr. Woodruff opposes the motion to intervene.
He
asserts, inter alia, that the issues concerning insurance coverage
have already been adequately briefed in the companion case of
National Union Fire Insurance v. Thornsbury, No. 2:14-15608,
pending before the undersigned.
Mr. Thornsbury also opposes the
motion, noting, inter alia, the pendency of the aforementioned
National Union declaratory judgment action.
He additionally
contends that the motion to intervene is untimely.
In reply, National Union asserts that it wishes to
intervene only to obtain discovery materials and preserve the
“possibility of presenting” special interrogatories to the jury
related to factual issues that may impact insurance coverage.
(Nat’l. Union Reply at 2).
It also suggests, without substantial
elaboration, that there are factual issues that may be determined
in this matter that will have a profound effect on the separate
declaratory judgment action.
(See Nat’l Union Reply at 3 (“If the
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jury is not going to be asked to determine any issues regarding
whether the Defendants’ actions fell within the scope of their
duties, then National Union will not need to have input on the
same; if, on the other hand, the jury is going to be asked by the
currently existing parties to determine issues regarding whether
the Defendants’ actions fell within the scope of their duties,
then National Union should be allowed input on how best to phrase
such special interrogatories.”)).
II.
A.
Governing Standard
Federal Rule of Civil Procedure 24 governs request for
intervention.
It provides materially as follows:
(a) Intervention of Right. On timely motion, the court
must permit anyone to intervene who:
. . .
(2) 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.
(b) Permissive Intervention.
(1) In General. On timely motion, the court may
permit anyone to intervene who:
. . .
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(B) has a claim or defense that shares with
the main action a common question of law or
fact.
Fed. R. Civ. Proc. 24.
To intervene as of right under Rule 24(a), a movant must
satisfy all four of the following requirements: (1) the
application must be timely, (2) the movant must have an interest
in the subject matter sufficient to merit intervention, (3) the
denial of intervention would impair or impede the applicant's
ability to protect its interest, and (4) the applicant's interest
is not adequately represented by the existing parties to the
litigation.
See Fed. R. Civ. Proc. 24(a); Scardelletti v. Debarr,
265 F.3d 195, 202-03 (4th Cir. 2001); Houston General Ins. Co. v.
Moore, 193 F.3d 838, 839 (4th Cir. 1999).
As noted, Rule 24 explicitly requires a “timely motion.”
Id.
The question of timeliness is committed to the sound, and
“wide” discretion of the district court.
Alt v. United States
E.P.A., 758 F.3d 588, 591 (4th Cir. 2014); NAACP v. New York, 413
U.S. 345, 365–66; Houston Gen. Ins. Co. v. Moore, 193 F.3d 838,
839 (4th Cir. 1999); Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th
Cir. 1989).
As recently stated in Alt, the question of timeliness is
governed by three factors:
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[F]irst, how far the underlying suit has progressed;
second, the prejudice any resulting delay might cause
the other parties; and third, why the movant was tardy
in filing its motion.
Alt, 758 F.3d at 591.
The timeliness requirement applies to both Rule 24(a)
and (b).
Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989)
(“Both intervention of right and permissive intervention require
timely application.”); see also Houston General, 193 F.3d at 839
(“[T]imeliness is a cardinal consideration of whether to permit
intervention.” (internal quotation marks omitted)).
“‘The purpose
of the requirement is to prevent a tardy intervenor from derailing
a lawsuit within sight of the terminal.’”
Alt, 758 F.3d at 591
(quoting Scardelletti v. Debarr, 265 F.3d 195, 202 (4th Cir. 2001 ,
rev'd on other grounds, Devlin v. Scardelletti, 536 U.S. 1
(2002)).
B.
Analysis
Turning first to the timeliness requirement, this action
will proceed to trial within days.
Discovery has concluded,
dispositive motions have been adjudicated, the pretrial conference
has been held and the pretrial order submitted -- all completed
before the motion to intervene was filed on October 23, 2014.
addition, motions in limine have been briefed and jury
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In
instructions have been submitted.
In sum, the case has reached
fruition.
The second factor, prejudice to the nonmoving parties,
is present as well, albeit in a limited manner.
The parties would
have to react to National Union’s late entry into the case,
perhaps oppose any discovery that it might seek to acquire, and
assess any proposed special interrogatories that it might choose
to submit.
It is also a possibility that post-trial proceedings
might be disrupted in some way as yet unknown.
Third, and
foremost, National Union offers no good explanation why it has
waited until the eve of trial to seek joinder in a case it has
known about for near a year.
The court, accordingly, concludes that the untimely
request is sufficient to deny entry into the case under either
Rule 24(a) or (b).
Morever, there is substantial doubt concerning
the second and third factors, namely, whether National Union
has a sufficient interest in the subject matter of this action or
whether the denial of intervention would impair or impede its
ability to protect its interests.
There is no showing why
National Union cannot obtain the discovery it seeks within the
confines of the pending declaratory judgment action.
Additionally, it concedes that it is speculative at this point
whether it would even be necessary for it to offer special
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interrogatories.
These considerations thus also counsel against
intervention.
As in Alt, the intervention request is, essentially,
“‘too little, and too late.’”
Denial Order at 6).
Id. at 591 (quoting Dist. Ct.
It is, accordingly, ORDERED that the motion
to intervene be, and hereby is, denied.
The Clerk is directed to transmit copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
ENTER:
November 13, 2014
John T. Copenhaver, Jr.
United States District Judge
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