Opinion
No. CV-09-6005029
May 20, 2010
MEMORANDUM OF DECISION RE MOTION FOR REARGUMENT AND RECONSIDERATION
The principal issue raised by the plaintiff's objection to the motion to intervene of the proposed intervenor, Securitas Security Services USA, Inc. (Securitas), is whether a notice given by the plaintiff pursuant to General Statutes § 31-293, which states "Should you fail to join in the action, your right of action against the responsible tortfeasor shall abate" satisfies the due process requirement imported into the statute in Worsham v. Greifenberger, 242 Conn. 432, 444-45 (1997), that requires the notice to "also include a notice that the recipient's right to bring an action against the third party tortfeasor will be permanently lost if the recipient does not move to intervene in the action within thirty days of such notification." This court holds that the language of the plaintiff's notice does not satisfy the requirements of Worsham. For this reason, the objection to the motion to intervene is overruled.
General Statutes § 31-293(a) provides in relevant part: "When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate . . ."
This is an action seeking damages for personal injuries sustained by the plaintiff when his vehicle was allegedly rear-ended by a vehicle operated by the defendant, Richard Lyons. The plaintiff brought the action on November 21, 2010, with a return date of December 22, 2010. On or about December 7, 2009, the plaintiff's attorney sent, via certified mail, return receipt requested, a letter to Securitas, the plaintiff's employer, on his law firm's letterhead which stated as follows:
Securitas Security Services 1 New Haven Avenue, Suite 103 Milford, CT 06460
Re: Albert Modey v. Richard Lyons
Dear Sir or Madam:
Notice is hereby given pursuant to Connecticut General Statutes § 31-293 that Albert Modey has commenced an action, returnable to the Superior Court for the Judicial District of Fairfield at Bridgeport, against Richard Lyons for injuries, sustained in a motor vehicle accident which occurred on November 9, 2008. A copy of the writ, summons and complaint is enclosed.
Please be advised that, under Connecticut law, you have the right to intervene in this action within thirty days of this notice. Should you fail to join in the action, your right of action against the responsible tortfeasor shall abate.
Very truly yours,
S/
On February 4, 2010, Securitas filed an appearance and motion to intervene for the purpose of filing an intervening complaint seeking reimbursement of workers' compensation benefits it had paid to the plaintiff. On February 17, 2010, the plaintiff objected to Securitas' motion to intervene for the reason that, under General Statutes § 31-293, it was untimely. On February 26, 2010, the court sustained the plaintiff's objection. On March 9, 2010, Securitas moved to reargue the court's decision. That motion is now before the court.
Additional facts will be set forth as necessary.
I
Securitas moves to reargue the court's order sustaining the plaintiff's objection to its motion to intervene because it never received notice that the plaintiff's objection was going to be taken for decision by the court on the March 1, 2010 short calendar. The plaintiff responds that "[n]otwithstanding . . . that Securitas had received a copy of plaintiff's Objection to Motion to Intervene, Securitas failed to timely file a memorandum in opposition [to the plaintiff's objection to the motion to intervene] and chose not to oppose the same until simultaneously filing its opposition papers along with its Motion for Reargument and Reconsideration dated March 9, 2010. Therefore, the fact that Securitas was omitted from the short calendar entry has no effect on the court's consideration of plaintiff's objection . . ." Essentially, the plaintiff argues that Securitas was not prejudiced by its failure to receive notice that the plaintiff's objection was on the short calendar for nonarguable matters.
"[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address . . . claims of law that the [movant] claim[s] were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . ." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94 n. 28, 952 A.2d 1 (2008).
The following additional facts are necessary to a resolution of Securitas' motion to reargue. The plaintiff's February 17, 2010 objection to Securitas' motion to intervene was certified to counsel of record, pursuant to Practice Book § 10-12 et seq. Securitas does not deny that it timely received the plaintiff's objection. Securitas' motion to intervene was printed on column 14, position 31, on the February 22, 2010 calendar of non-arguable motions. While the appearances of counsel for the plaintiff and for the defendant were listed on the calendar, counsel for Securitas was not listed, even though Securitas' attorney had filed an appearance on February 4, 2010. The clerk's office did not receive any marking for the motion to intervene when it appeared on that week's calendar and the court took no action on the motion to intervene at that time.
Neither Securitas nor the plaintiff mentions that the motion to intervene was printed on the February 22, 2010 calendar. Because Securitas' counsel was not listed on that calendar, Securitas presumably did not receive notice of it.
Subsequently, the plaintiff's objection to Securitas' motion to intervene was printed at column 7, position 76, of the March 1, 2010 calendar. As on the previous week's calendar, the appearance of Securitas' counsel was absent from the calendar. Therefore, Securitas did not have actual notice that the plaintiff's objection was on the March 1, 2010 calendar. The objection to the motion to intervene was marked "ready" by the plaintiff and the court sustained the objection.
In general, "all issues of law must be placed on the short calendar list. No motions will be heard which are not on said list and ought to have been placed thereon . . ." Practice Book § 11-13(a). "Notice of the assigned date and time of the motion shall be provided to attorneys and pro se parties of record." Practice Book § 11-14. In addition, the notice that appears on the calendar of non-arguable matters in this judicial district states in relevant part: "Counsel and self-represented parties must give timely notice of markings to all self-represented parties and counsel of record."
It is unclear whether the office staff of the plaintiff's attorney notified Securitas' attorney that it was marking its objection ready. While the plaintiff presumably had a copy of Securitas' motion to intervene, the appearance of Securitas attorney was not printed on the calendar.
It is important to recognize that the court failed to comply with Practice Book § 11-14 by failing to print the appearance of Securitas' attorney on the March 1, 2010 short calendar for nonarguable matters and to give notice to that attorney that the plaintiff's objection to the motion to intervene was on that calendar. Nonetheless, the plaintiff argues that this lack of notice to Securitas was harmless because Securitas did not file a memorandum in opposition to the plaintiff's objection before the objection appeared on the short calendar, as required by Practice Book § 11-10. Practice Book § 11-10, entitled "Requirement that Memorandum of Law Be Filed with Certain Motions," provides in relevant part: "A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions and requests: (1) motions regarding parties filed pursuant to Sections 9-18 through 9-22 . . . Memoranda of law may be filed by other parties on or before the time the matter appears on the short calendar." (Emphasis added.) Practice Book § 9-19 governs the intervention of parties. Rocque v. Sound Mfg., Inc., 76 Conn.App. 130, 136, 818 A.2d 884, cert. denied, 263 Conn. 927, 823 A.2d 1217 (2003).
Practice Book § 9-19 provides in relevant part: "New parties may be added and summoned in . . . by order of the judicial authority, at any stage of the cause, as it deems the interests of justice require."
The plaintiff's objection to the motion to intervene was itself a "motion" regarding parties under Practice Book § 11-2. Practice Book § 11-2 provides: "As used in these rules, the term `motion' means any application to the court for an order, which application is to be acted upon by the court or any judge thereof, and the term `request' means any application to the court which shall be granted by the clerk by operation of these rules unless timely objection is filed." The plaintiff's objection was an application to the court for an order which was required to be acted on by the court. See King v. Sultar, 253 Conn. 429, 449 n. 9, 754 A.2d 782 (2000) (observing, in context of motion to intervene pursuant to General Statutes § 31-293, that a party opposed to intervention "can seek court intervention by filing . . . an objection to the pleading" [emphasis added; internal quotation marks omitted]). Therefore, under Practice Book § 11-10, it was incumbent on Securitas, if it had grounds to oppose the plaintiff's objection, to determine when the plaintiff's objection would appear on the court's calendar and to file a memorandum of law on or before that time.
Practice Book § 11-14 states: "Short calendar sessions shall be held in each judicial district and geographical area at least once each month the date, hour and place to be fixed by the presiding judge upon due notice to the clerk. The caseflow coordinator or clerk, in consultation with the presiding judge, shall determine the number of lists, such as whether there shall be separate lists for family relations matters and foreclosures, and whether various portions of any one list shall be scheduled for different days and for different hours of the same day. Notice of the assigned date and time of the motion shall be provided to attorneys and pro se parties of record."
For time immemorial, it has been the custom in this judicial district to hold short calendar sessions once a week on the first court day of the week, with the exception of the week between Christmas and New Year's Day.
However, it was reasonable for Securitas to assume that the notice to which it was clearly entitled under Practice Book § 11-14 would be provided in order to aid in that task.
Moreover, it is customary for counsel to extend the courtesy of a first continuance when opposing counsel requests additional time to respond to a motion or objection such as a motion to intervene. Had counsel declined to consent to a continuance, Securitas could have moved for and would have obtained a continuance of the objection to a later date. Also, even after the plaintiff's objection appeared on the short calendar, Securitas could have requested oral argument on that objection. Although the granting of such a request would have been at the discretion of the court; Practice Book § 11-18; it cannot be said that the court would have denied such a request. "It is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." (Internal, quotation marks omitted.) Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). For these reasons, the court is not persuaded that Securitas was not prejudiced by its failure to receive notice that the plaintiff's objection to its motion to intervene was on the short calendar for decision by the court.
Extensions of time to respond to dispositive motions such as motions to dismiss, motions to strike and motions for summary judgment are automatically granted by the clerk. See Practice Book §§ 10-30, 10-40, 17-45.
Finally, this is an appropriate case for reargument because Securitas proposes to show that "there is some decision or some principle of law which would have a controlling effect, and which has been overlooked;" (internal quotation marks omitted) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 94 n. 28; namely, the due process requirements for a notice provided pursuant to § 31-293. That issue was not addressed by the court when it sustained the plaintiff's objection since the issue had not been raised. Nor is this a case where a party is attempting a "second bite of the apple," because Securitas' arguments have yet to be considered by the court. For these reasons, Securitas' motion for reargument and reconsideration is granted.
II
The court turns to the merits of the plaintiff's objection to Securitas' motion to intervene. The basis of that objection is that the motion to intervene was untimely because it was not filed within thirty days of the plaintiff's notice to Securitas of the pendency of this action, as required by General Statutes § 31-293. Securitas replies that its motion was not untimely for two reasons. First, Securitas argues that the plaintiff has not produced evidence that its letter was mailed or received by Securitas. Second, Securitas argues that the plaintiff's letter did not notify Securitas that unless it timely intervened, its right to do so would be permanently lost, as required by Worsham v. Greifenberger, supra, 242 Conn. 432. The plaintiff responds with evidence that it sent the letter by certified mail and has produced a "track and confirm" paper from the U.S. Postal Service. The plaintiff also argues that the language in its letter to Securitas that "[s]hould you fail to join in the action, your right of action against the responsible tortfeasor shall abate" adequately complied with the due process requirements articulated in Worsham. The court addresses each of these arguments in turn.
A.
First, Securitas argues that the plaintiff has not produced satisfactory evidence that its letter was mailed or received by Securitas because the plaintiff has not produced a green return receipt.
"General Statutes § 31-293(a) `specifically grants an employer who has paid workers' compensation benefits to an employee the right to join as a party plaintiff in the employee's actions against third party tortfeasors.' Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990)." Gurliacci v. Mayer, 218 Conn. 531, 578, 590 A.2d 914 (1991). Section 31-293(a) further provides: "If the employee, the employer or the custodian of the Second Injury Fund brings an action against such person, he shall immediately notify the others, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate . . ." "An employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 [cannot] be barred from intervening by the passage of time which this statute prescribes, because, until notice is given, the time does not begin to run." (Internal quotation marks omitted.) Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 536.
The plaintiff sent Securitas notice of the pendency of this action by certified mail. A "track and confirm" notice from the U.S. Postal Service states that it was forwarded on December 7, 2009, and delivered to Securitas on December 23, 2009. Securitas did not move to intervene until February 3, 2010. Accordingly, Securitas' intervention was untimely and is barred unless the notice it received from the plaintiff was inadequate.
Securitas claims that notice was inadequate because the plaintiff has not produced a green return receipt. The short answer to Securitas' assertion is that the statute provides for notice "by personal presentation or by registered or certified mail . . . General Statutes § 31-293(a). It does not require a green return receipt. The track and confirm memo from the Postal Service literally confirms that the letter bearing the same receipt number as the certified mail receipt was delivered on December 23, 2009, at 11:15 a.m. Where service of a notice is sent by certified mail and there is proof of delivery, a strong presumption of effective service arises. Alrefae v. Chertoff, 471 F.3d 353, 359 (2d Cir. 2006); Securitas does not deny that the letter was properly addressed nor has it produced evidence disputing its delivery. The plaintiff's § 31-293 notice is not deficient for failure of the plaintiff to receive or produce a green return receipt.
Indeed, Securitas does not deny delivery.
B.
Second, Securitas argues that the plaintiff's notice was inadequate because it did not state that Securitas' right to intervene would be permanently lost if Securitas did not intervene within thirty days. The court agrees.
"[U]nder § 31-293, an employee or employer who brings a third party action must simply notify the other of two facts: (1.) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable. The plain terms of the statute require no more." Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 538. Nevertheless, in Worsham v. Greifenberger, supra, 242 Conn. 432, the Supreme Court held that due process requires a § 31-293 notice to include an additional statement not expressly required by the statute. Specifically, the Worsham court held that "in compliance with the due process clause, the notice must also include a notice that the recipient's right to bring an action against the third party tortfeasor will be permanently lost if the recipient does not move to intervene in the action within thirty days of such notification." (Emphasis added.) Id., 444-45.
The plaintiff argues that it complied with Worsham because its letter informed Securitas that "[s]hould you fail to join in the action, your right of action against the responsible tortfeasor shall abate." The issue devolves into whether informing a party that its right of action shall "abate" is equivalent to informing it that its right of action will be "permanently lost." To paraphrase the language of the seminal case on constitutionally adequate notice, the test is whether the plaintiff provided Securitas with "notice reasonably calculated, under all the circumstances," to apprise Securitas of the information which Worsham requires. See Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
First, "we ordinarily look to the dictionary definition of a word to ascertain its commonly approved usage." State v. Gelormino, 291 Conn. 373, 380, 968 A.2d 379 (2009). Webster's Third New International Dictionary defines "abate" as follows: "1. law a to bring entirely down DEMOLISH: put an end to do away with ~a nuisance ~an action b: NULLIFY: make void ~a writ 2 obs: to lower in status . . . 3a: to reduce or lessen in degree or intensity: DIMINISH, MODERATE may . . . ~their zeal and give up their hopes of world conquest . . . b: to reduce in value ~a taxthe legacies were abated pro rata to pay debts 4: DEDUCT, OMIT ~part of a price 5: to beat down, cut away, or otherwise lower . . . 6: DEPRIVE . . . 7 obs: to turn or dull the edge or point of: BLUNT . . ." (Emphasis in original.) See also Case v. Humphrey, 6 Conn. 130, 140 (1826) (Abate "is a generic term, derived from the French word abattre, and signifies to quash, beat down, or destroy. 3 Black. Com. 168." [Emphasis in original.]).
Random House Webster's Collegiate Dictionary (2001) defines "abate" as follows: "1. to reduce in amount, degree, intensity, etc; lessen; diminish: to abate a tax; to abate one enthusiasm. 2. Law. a. to stop or suppress (an action, nuisance, etc.) b. to annul (a writ). 3. to deduct or subtract: to abate part of the price . . . 4. to diminish in intensity, violence, amount, etc.: The storm has abated. 5. Law. to end; become null and void." (Emphasis in original.)
"Abate" has also been held to be the equivalent of "stay." Jackson v. Penny Duquette Knits, Inc., 276 Or. 465, 467, 555 P.2d 201 (1976) (interpreting a statute directing a court to abate an action arising out of an agreement which contains a provision for arbitration). "Depending upon the context, it can mean, when applied to an action or suit, either temporary suspension or final termination." Id. As one court has stated, abate "is a technical word applicable to and used in many relations, and like all such words, it takes its color and content from the context of the subject-matter with which it deals." Gulf States Steel Co. v. United States, 56 F.2d 43, 46 (5th Cir.), aff'd 287 U.S. 32, 53 S.Ct. 69, 77 L.Ed. 150 (1932). In varying contexts, abate has been held to be ambiguous; Jackson v. Penny Duquette Knits, Inc., supra, 276 Or. 467; and not ambiguous. See Dollar Land Corp. v. F.W. Woolworth Co., 48 App.Div.2d 373, 376, 370 N.Y.S.2d 45 (1975), appeal dismissed, 38 N.Y.2d 997, 348 N.E.2d 915, 384 N.Y.S.2d 439 (1976). To the extent that a layperson may have heard or used the word, it likely would be in the context of taxes. For purposes of taxation, "abate" means to either reduce or eliminate. See General Statutes §§ 12-3b, 12-39, 12-64a, 12-81o, 12-81p, 12-81r, 12-81t, 12-81u, 12-81v, 12-81z, 12-81aa, 12-81dd, 12-124a, 12-239, 12-284b, 12-581, 51-81b; see also LSP Assn. v. Gilford, 142 N.H. 369, 373, 702 A.2d 795 (1997) ("For purposes of taxation, the term `abate' means `to reduce in value.' Webster's Third New International Dictionary 2 (unabridged ed. 1961)").
The court in Jackson v. Penny Duquette Knits, Inc., supra, 276 Or. 465, was interpreting ORS 33.240 which, at that time, provided: "If any action, suit or proceeding is brought upon any issue arising out of an agreement which contains a provision for arbitration of the matter in controversy in such action, suit or proceeding, then, upon application, any judge of a circuit court, upon being satisfied that the issue is referable to arbitration, shall abate the action, suit or proceeding so that arbitration may be had in accordance with the terms of the agreement. The application shall be heard similarly to hearings on motions." See Transco Northwest, Inc. v. Allied Equities Corp., 275 Or. 675, 679, 552 P.2d 824 (1976), overruled on other grounds by Jackson v. Penny Duquette Knits, Inc., supra, 276 Or. 465.
Second, the court's decision is informed by the reality that, "recipients of § 31-293 notice will not ordinarily have legal training . . ." Worsham v. Greifenberger, supra, 242 Conn. 441. Moreover, since the recipient in most cases is an employer, the recipient will presumably be busy with other matters. Undoubtedly, the applicable definition of "abate" in the context of § 31-293 is absolutely clear when reference is made to case law construing the statute. However, a busy employer will rarely have the time or training to do such research. Under Worsham, the notice must clearly inform the recipient of the consequences of its not intervening within thirty days, without reference to secondary sources.
Third, it is significant that a § 31-293 notice is usually given by a private attorney representing an injured party who has an obvious motive to obfuscate the notice. This is because if the employer fails to timely intervene, the employer loses its opportunity for reimbursement of workers' compensation paid to its employee and its right to a credit to the extent that there are excess proceeds from a third-party recovery. Libby v. Goodwin Pontiac-GMC Truck, Inc., 241 Conn. 170, 695 A.2d 1036 (1997); Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 528 A.2d 826 (1987). To that degree, the plaintiff-employee receives a double recovery from the proceeds of the third-party tortfeasor. See Goodyear v. Discala, 269 Conn. 507, 521, 849 A.2d 791 (2004); Skitromo v. Meriden Yellow Cab Co., supra, 490. This provides the plaintiff's attorney with a powerful incentive for creative draftsmanship. It is therefore appropriate for courts to require the draftsman to adhere closely to the language used by the court in Worsham. See, e.g., Proscino v. Oswald, Superior Court, judicial district of Fairfield, Docket No. 01383787 (January 29, 2003, Thim, J.).
Courts may take judicial notice of, and take into consideration "`the motives which influence and control human action . . .' Howe v. Raymond, 74 Conn. 68, 72, 49 A. 854 (1901)."
Rosado v. Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield, Docket No. CV 93 302072 (June 2, 1995, Levin, J.) ( 14 Conn. L. Rptr. 393, 400). However, there is no evidence that the plaintiff's attorney in this case harbored such a motive.
Finally, other judges of this court have held that a notice which used the word "abate" did not adequately communicate to the employer that its rights would be permanently lost if the employer did not move to intervene within thirty days. See Deleskis v. CIL Realty, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5000769 (April 5, 2007, Upson, J.) ( 43 Conn. L. Rptr. 219); Gregory v. Wainright, Superior Court, judicial district of New London, Docket No. 562732 (September 5, 2003, Hurley, J.T.R.) ( 35 Conn. L. Rptr. 411); Proscino v. Oswald, supra, Superior Court, Docket No. 01383787. Also instructive is Holtz v. Toledo, Court of Appeals of Ohio, No. L-05-1217 (June 30, 2006), in which the court held that notices to a building owner to clean up and repair his property within a specified time period or "the public nuisance may be abated" did not adequately communicate that the city would demolish the building. In Holtz v. Toledo, the court stated: "Demolition and destruction are not synonyms that immediately leap to mind when the term `abate' is used." Id., ¶ 43.
But see Foster v. Knox, Superior Court, judicial district of Hartford, Docket No. CV 06 5003209 (May 1, 2008, Dubay, J.) ( 45 Conn. L. Rptr. 475, 476) ("This court disagrees that the word abate is unclear, given its use in General Statutes § 31-293. However, even if `abate' is ambiguous, Foster's complaint states that failure to intervene within thirty days will result in `complete abatement' of the town's rights. The addition of the word `complete' emphasizes the permanency of the loss, and is therefore sufficient.").
For these reasons, the court holds that the plaintiff's letter to Securitas did not comply with the due process requirement, articulated in Worsham, that the notice required by General Statutes § 31-293 "must also include a notice that the recipient's right to bring an action against the third party tortfeasor will be permanently lost" if the recipient does not timely move to intervene. The plaintiff's objection to Securitas' motion to intervene is overruled. Securitas' motion to intervene is granted.
Moreover, the plaintiff's notice did not clearly state that Securitas' rights would be permanently lost if it did not move to intervene within thirty days of the plaintiff's notice. The letter-notice stated in relevant part: "you have the right to intervene in this action within thirty days of this notice. Should you fail to join in the action, your right of action against the responsible tortfeasor shall abate." A reasonable interpretation of the letter to a lay recipient is that after the thirty day "right" to intervene had expired, the recipient's entitlement to intervene lay in the discretion of the court; BNY Western Trust v. Roman, 295 Conn. 94, 204 n. 8 (2010); and that only if the recipient failed to intervene at any time while the action was pending did its "right of action against the responsible tortfeasor . . . abate."