Wausau Homes, Inc. v. Menning, Basia et al
Filing
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OPINION AND ORDER granting 12 Motion to Intervene. Signed by District Judge Barbara B. Crabb on 5/17/2017. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WAUSAU HOMES, INC.,
OPINION AND ORDER
Plaintiff,
17-cv-129-bbc
v.
BASIA MENNING, BRADLEY J. MENNING
and PRIME DESIGN CONSTRUCTION, LLC,
Defendants,
and
ACUITY, A MUTUAL INSURANCE COMPANY,
Intervenor Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Wausau Homes, Inc. brings this action for copyright infringement and
breach of contract, seeking both damages and injunctive relief. Third party and mutual
insurance company Acuity has filed a motion to intervene pursuant to Fed R. Civ. P. 24 (a)
and (b), dkt. #12, seeking to participate in the lawsuit and obtain a judicial determination
as to its duties to defend and indemnify defendant Prime Design Construction, LLC. None
of the parties object to the intervention as proposed. Because Acuity has demonstrated
sufficiently that intervention is proper, as further explained below, its motion to intervene
is granted.
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OPINION
According to its filings, Acuity issued a business policy covering defendant Prime
Design Construction, LLC from September 2, 2016, through September 2, 2017. The policy
includes both an agreement to indemnify and an agreement to defend Prime Design. Prime
Design tendered the defense of this lawsuit, which was filed on February 22, 2017, to Acuity
pursuant to their insurance contract. Reserving its rights, Acuity then hired counsel to
represent defendant Prime Design and also retained separate counsel to contest insurance
coverage for the allegations in this lawsuit. Dkt. #14, ¶¶ 2-4. Because there is an apparent
dispute about the scope and application of the insurance contract to this case, Acuity now
“seeks to establish whether there is insurance coverage for the allegations, or at the very least,
what constitutes covered versus non-covered damages.” Dkt. #13, at 4. More specifically,
Acuity wants to move for a declaratory judgment to determine the extent of its
indemnification obligations to defendant Prime Design. Acuity filed its motion to intervene
on March 15, 2017, attaching its insurance policy and its proposed counterclaim and cross
claim (seeking declaratory relief) as exhibits. Dkts. ##14-1 and 14-2. Neither defendant
Prime Design nor any other party filed a response.
Under Federal Rule of Civil Procedure 24(a)(2), “the court must permit anyone to
intervene who . . . [files a timely motion and] 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.” The court also, under Rule 24(b)(1)(B),
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“may permit anyone to intervene who . . . has a claim or defense that shares with the main
action a common question of law or fact.” See also Security Insurance Company of Hartford
v. Schipporeit, 69 F.3d 1377, 1380-81 (7th Cir. 1995); United States v. Thorson, 219
F.R.D. 623, 626-29 (W.D. Wis. 2003).
Based on its unopposed filings, Acuity appears to have a significant financial interest
in this case that might be severely impeded by the prosecution of the lawsuit and is not
adequately represented by the parties. Indeed, defendant Prime Design may be directly
opposed to Acuity’s interest and the other parties appear to be indifferent at best. Moreover,
the motion here was timely because Acuity seems to have acted promptly once it learned of
this lawsuit, and its intervention should not delay the proceedings or otherwise prejudice any
of the parties. E.g., Thorson, 219 F.R.D at 626-28. Particularly because the parties have
declined to file a response opposing intervention, I see no basis for inferring any prejudice.
Thus, Acuity has made a prima facie showing to satisfy the standard for mandatory
intervention under Rule 24(a)(2) and I will grant its unopposed motion to intervene. I need
not consider whether permissive intervention would be appropriate under Rule 24(b).
Acuity maintains that it “in no way seeks to delay” and “is not seeking to bifurcate
or stay the current proceedings.” Dkt. #13, at 1. I will hold Acuity to that representation,
and intervention is allowed on the understanding that it will not delay the current case
schedule. Any additional deadlines for new claims, motions or responsive pleadings will be
set by the Federal Rules of Civil Procedure.
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ORDER
IT IS ORDERED that Intervenor Defendant Acuity’s unopposed motion to intervene,
dkt. #12, is GRANTED.
Entered this 17th day of May, 2017.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge
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