Terry v. County of Milwaukee et al

Filing 99

ORDER signed by Judge J.P. Stadtmueller on 4/4/2018: GRANTING 52 Wisconsin County Mutual Insurance Corporation's ("WCMIC's") Motion to Intervene; DIRECTING Clerk of Court to separately docket WCMIC's third-party complaint for declaratory judgment against Defendant Morgan Benevue (Docket #52-1); and DENYING as moot 96 Defendant Milwaukee County's Motion for Order Granting WCMIC's Motion to Intervene. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
REBECCA TERRY,
Plaintiff,
v.
COUNTY OF MILWAUKEE, DAVID
A. CLARKE, JR., OFFICER BRIAN
WENZEL, UNKNOWN EMPLOYEES
OF MILWAUKEE COUNTY JAIL,
UNKNOWN JAIL SUPERVISORS,
ARMOR CORRECTIONAL HEALTH
SERVICES, CAROLYN EXUM,
MORGAN BEVENUE, MARGARET
HOOVER, UNKNOWN EMPLOYEES
OF ARMOR CORRECTIONAL
HEALTH SERVICES, and
UNKNOWN ARMOR
HEALTHCARE SUPERVISORS,

Case No. 17-CV-1112-JPS

ORDER

Defendants.

On March 5, 2018, Wisconsin County Mutual Insurance Corporation
(“WCMIC”) filed a motion to intervene in this action as a third-party
plaintiff. (Docket #52). WCMIC claims that Defendant Morgan Benevue
(“Benevue”), a former Milwaukee County employee, will not cooperate or
communicate with the counsel it retained to defend her. (Docket #53 at 1–
3). According to WCMIC, this conduct means that Benevue is excluded
from the coverage it provides. Id. As such, it now seeks to intervene
pursuant to Federal Rule of Civil Procedure 24(a)(2) to assert a third-party
complaint against her for a declaratory judgment that it has no duty to
defend or indemnify her with respect to this action. Id. That Rule requires

the court to permit intervention where the intervenor “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 [its] ability to protect its interest, unless existing parties
adequately represent that interest.” Fed. R. Civ. P. 24(a).
Only Plaintiff responded to the motion, and she does not oppose it.
(Docket #91).1 Because no party opposes WCMIC’s request, and because it
appears the requirements of Rule 24(a) have been met, the Court will grant
the motion. Notably, while the Circuits dispute whether an insurer has a
sufficiently definite interest to intervene before a determination of liability
as to the insured, this case is unique in that the insured is not participating
in the suit, leaving it fairly likely that default will result. Neither the parties
nor the Court have cited authority providing that intervention is
inappropriate under these circumstances.
Accordingly,
IT IS ORDERED that Wisconsin County Mutual Insurance
Corporation’s motion to intervene in this action (Docket #52) be and the
same is hereby GRANTED;
IT IS FURTHER ORDERED that Wisconsin County Mutual
Insurance Corporation’s third-party complaint for a declaratory judgment
against Defendant Morgan Benevue (Docket #52-1) shall be separately
docketed by the Clerk of the Court; and

Defendant Milwaukee County filed its own motion seeking an order
granting WCMIC’s motion. (Docket #96). A response indicating its non-opposition
would have been the better vehicle to express its views on the matter of
intervention. Milwaukee County’s motion will be denied as moot.
1

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IT IS FURTHER ORDERED that Defendant Milwaukee County’s
motion for an order (Docket #96) be and the same is hereby DENIED as
moot.
Dated at Milwaukee, Wisconsin, this 4th day of April, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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