Summary
In Trinity, as in the present case, the proposed intervenors were representatives of deceased loved ones who sued the funeral home for claims arising from the improper disposal of human remains at an allegedly unlicensed crematory.
Summary of this case from Landmark Am. Ins. Co. v. M.J. Edwards & Sons Funeral Home, Inc.Opinion
No. 1:02-cv-231 (lead case) Edgar; No. 1:02-cv-298 Edgar; No. 1:03-cv-083 Edgar
September 18, 2003
MEMORANDUM
I. Introduction
Carol Bechtel, Paula Yockel, Thomas Conyers, Naomi Webb, and others similarly situated ("Movants"), move to intervene in these consolidated declaratory judgment actions as a matter of right pursuant to Fed.R.Civ.P. 24(a)(2), or in the alternative, seek to intervene permissively pursuant to Fed.R.Civ.P. 24(b)(2). [Case No. 1:02-cv-231, Court File No. 23, 38]; [Case No. 1:02-cv-298, Court File No. 21]; [Case No. 1:03-cv-38, Court FileNo. 6].
II. Background
These consolidated declaratory judgment actions arise out of the discovery of uncremated, improperly disposed of human remains on or around the property surrounding the Tri-State Crematory, Inc. ("Tri-State"). Following discovery of the remains, Movants brought suit against Turner Funeral Homes, Inc. ("Turner") for the alleged mishandling of the remains of their deceased loved ones due to Turner's relationship with Tri-State, which was an allegedly unlicensed crematory. [Case No. 1:03-cv-83, Court File No. 6, pp. 1-2]; [Case No. 1:02-cv-298, Court File No. 21, pp. 1-2]; [Case No. 1:02-cv-231, Court FileNo. 23, pp. 1-2].
A copy of the aforementioned complaint, the First Amended Complaint, in In Re: Tri-State Crematory Litigation, Civil Action No. 4:02-cv-041-HLM (N.D. Ga. 2002), appears in the record. [Case No. 1:03-cv-83, Court File No. 6, Exhibit A]. In that class action, movants, inter alia, sued various parties, including Turner, asserting, inter alia, claims for: (1) breach of contract, (2) breach of covenants of good faith and fair dealing, (3) breach of fiduciary/special duty, (4) fraud, (5) negligence, (6) willful interference with remains and intentional mishandling of a corpse, (7) negligent interference with remains and mishandling of a corpse, (8) intentional infliction of emotional distress, (9) negligent infliction of emotional distress, and (10) unjust enrichment. Id.
In the first of these consolidated declaratory judgment actions, Case No. 1:02-cv-231, Trinity Universal Insurance Company ("TUIC"), which issued policies of insurance to Turner for the periods between September 15, 1997 and March 1, 2001, seeks a declaratoryjudgment that the three policies it issued to Turner do not provide coverage for Turners' liability, if any, with respect to the underlying actions concerning Tri-State. [Case No. 1:02-cv-231, Court File No. 1, pp. 8-10].
In the second of these consolidated declaratory judgment actions, Case No. 1:02-cv-298, National Grange Mutual Insurance Company ("NGMIC"), which issued policies of insurance to Turner for the period from March 1, 2001 to March 2, 2003, seeks a declaratory judgment that it owes no defense or indemnity obligation to the defendants under the policies it issued to Turner. [Case No. 1:02-cv-298, Court File No. 1, pp. 10-12]. NGMIC further alleges that the Tri-State situation was known and publicized before the second policy period of the policy it issued to Turner became effective on March 1, 2002. Id. at 12. Hence, NGMIC seeks a declaratory judgment that it owes no defense or obligation to defendants for the second policy period, which ran from March 1, 2002 to March 2, 2003, because at the time the second policy period became effect the Tri-State situation/claims were known risks or losses. Id.
Finally, in the third of these consolidated declaratory judgment actions, Case No. 1:03-cv-83, State Auto Insurance Company ("SAIC"), which issued policies of insurance to Turner, for consecutive policy periods between August 1, 1995 and August 1, 1998, seeks a declaratory judgment that the policies it issued to Turner do not provide coverage and do not obligate it to provide a defense for the defendants with respect to the claims in the underlying actions concerning Tri-State. [Case No. 1:03-cv-83, Court File No. 1, pp. 8-9].
III. Motion(s) to Intervene
In Case No. 1:02-cv-231, Movants seek to intervene in the declaratory judgment action involving the policies which TUIC issued to Turner for the policy periods September 15, 1997 to March 1, 2001 [Case No. 1:02-cv-231, Court File No. 23, p. 2]. Movants allege they have asserted claims against Turner for bodily injury and/or property damage in two class action lawsuits involving Tri-State Crematory, Inc. Id. Movants further allege that the claims they have asserted against Turner fall within the coverage of the TUIC policies. [Case No. 1:02-cv-231, Court File No. 23, p. 2]. Finally, Movants assert that all conditions pursuant to the aforementioned policies which TUIC issued to Turner have either attached or will attach at the end of litigation. Id. at 2-3.
The two cases are In re Tri-State Crematory Litigation, United States District Court, Northern District of Georgia, Rome Division, MDL 1467 and Oden v. Taylor Funeral Home, et al., Circuit Court of Tennessee, Eleventh Judicial District at Chattanooga, Case No. 02C-414. [Case No. 1:02-cv-231, Court File No. 38, p. 1].
In their motion to intervene, Movants allege they are entitled to intervention as a matter of right under Fed.R.Civ.P. 24(a)(2) because disposition of this declaratory judgment action will impair or impede their ability to protect their interests which are not adequately represented by the existing parties to this action. Id. at 3. With regard to permissive intervention under Fed.R.Civ.P. 24(b)(2), Movants allege they should be permitted to intervene because their interest in establishing coverage under the policies which TUIC issued to Turner involves the same questions of law and fact at issue in the underlying declaratory judgment action. Id.
In their motion to intervene in Case No. 1:02-cv-298, the Movants have made essentially the same allegations as those set forth above [Case No. 1:02-cv-298, Court File No. 21, pp. 1-3], with one exception. Movants' allegations in Case No. 1:02-cv-298 involve a business owners policy which NGMIC issued to Turner for the policy periods from March 1, 2001 to March 1, 2002. Id. at 2.
Likewise, in their motion to intervene in Case No. 1:03-cv-038, Movants make the identical allegations as in Case Nos. 1:02-cv-231 and 1:02-cv-298. [Case No. 1:03-cv-83; Court File No. 6]. Movants' allegations in Case No. 1:03-cv-83 involve a preferred business policy and commercial umbrella policy which SAIC issued to Turner for the period between August 1, 1995 and August 1, 1998. Id. at p. 2.
The defendants in these consolidated actions have responded that they "have no objection" to the motion(s) to intervene. [Case No. 1:02-cv-231, Court File No. 28]; [Case No. 1:02-cv-298, Court File No. 26]; [Case No. 1:03-cv-83, Court File No. 8]. Likewise, in Case No. 1:02-cv-298, the plaintiff, NGMIC, has responded that it has no objection to the motion to intervene. [Case No. 1:02-cv-298, Court File No. 28].
Plaintiff SAIC has filed an objection to the motion to intervene [Case No. 1:03-cv-83, Court File No. 9]. SAIC asserts that aspect of the motion to intervene as a matter of right under Fed.R.Civ.P. 24(a)(2) should be denied: (1) because the movants have failed to comply with the requirements of Fed.R.Civ.P. 24(c) which requires that a motion to intervene must be "accompanied by a pleading setting forth the claim or defense for which intervention is sought;" (2) the movants have not satisfied the requirements for intervention in this/these action(s) as a matter of right because their interest in this/these action(s) is contingent upon their obtaining a judgment against defendants in a separate action; and (3) any interest the movants have in this/these action(s) is more than adequately protected by the existing parties to this/these action(s). Id.
Further, SAIC asserts the movants have failed to establish grounds for permissive intervention in this action under Fed.R.Civ.P. 24(b)(2). SAIC contend this action and the movants' underlying action(s) against the defendants do not have common questions of law and fact. Namely, SAIC notes that this/these declaratoryjudgment action(s) will address the issue of whether there is coverage under the various insurance policies issued to the defendants; however, it will not address the merits of the claims the movants have asserted against the defendants. Id. A. Intervention as a Matter of Right [Case No. 1:02-cv-231, Court File No. 23]; [Case No. 1:02-cv-298, Court File No. 21]; [ Case No. 1:03-cv-83. Court File No. 61]
In their motions, Movants seek to intervene in these consolidated declaratory judgment actions either as a matter of right under Fed.R.Civ.P. 24(a)(2), or in the alternative, to intervene permissively under Fed.R.Civ.P. 24(b)(2).
Fed.R.Civ.P. 24 states in pertinent part:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties . . . The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which the intervention is sought . . .
The Sixth Circuit has concluded that for intervention as of right under Fed.R.Civ.P. 24(a)(2) there are:
four elements, each of which must be satisfied before intervention as of right will be granted: (1) timeliness of the application to intervene, (2) the applicant's substantial legal interest in the case, (3) impairment of the applicant's ability to protect that interest in the absence of intervention, and (4) inadequate representation of that interest by parties already before the court.Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (citing Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 395 (6th Cir. 1993)).
(1) Compliance with Fed.R.Civ.P. 24(c)
In its response to the motion to intervene, SAIC asserts that the Movants have not complied with the requirements of Fed.R.Civ.P. 24(c). [Case No. 1:03-cv-83, Court File No. 9, p. 2]. Specifically, SAIC asserts that the motions to intervene were not "accompanied by a pleading setting forth the claim or defense for which intervention is sought" as required by Rule 24(c). Id.
However, in their motion to intervene in Case No. 1:02-cv-231, Movants identified with particularity the policies which TUIC issued to Turner Funeral Home. [Case No. 1:02-cv-231, Court File No. 23, ¶ 2]. Moreover, Movants referred to their claims against the defendants in the underlying action and stated:
Movants will show their claims against Turner fall within the coverage of the TUIC policies, that such claims are not excluded under such policies, and that all conditions precedent to coverage under such policies have attached or will attach by the conclusion of litigation . . .Id. at ¶ 3 4.
Similarly, in Case No. 1:02-cv-298, the Movants in their motion to intervene identified with particularity the policies which NGMIC issued to Turned and then stated:
Movants will show their claims against Turner fall within the coverage of the NGMIC policy, that such claims are not excluded under the policy, and that all conditions precedent to coverage under the policy have attached or will attach by the conclusion of litigation.
[Case No. 1:02-cv-298, Court File No. 21, ¶¶ 2, 3 and 4]. Again, in Case No. 1:03-cv-83, the motion to intervene identifies the policies which SAIC issued to Turner with particularity, and then pleads:
Movants will show their claims against Turner fall within the coverage of the State Auto policies, that such claims are not excluded under such policies, and that all conditions precedent to coverage under such policies have attached or will attach by the conclusion of litigation . . .
[Case No. 1:03-cv-83, Court File No. 6, ¶¶ 2, 3, 4].
While the motions to intervene are not accompanied by a separate complaint, the Court concludes that the portion of the motions outline above, comports with Fed.R.Civ.P. 8(a)(2) which requires "a short plain statement of the claim showing that the pleader is entitled to relief . . ."
Accordingly, the Court will not deny the motions to intervene on the grounds they failed to comply with Fed.R.Civ.P. 24(c).
(2) Timeliness
With regard to timeliness, the Sixth Circuit has identified a number of factors which the courts should consider when making a determination as to whether a motion to intervene is timely. See St. Paul Fire Marine Ins. Co. v. Summit-Warren Industries Co., 143 F.R.D. 129, 132 (N.D. Ohio 1992) (citing Jansen v. City of Cincinnati, 904 F.2d 336, 340(6th Cir. 1990)). Here, no party has challenged the movants' motion to intervene as untimely. Moreover, in view of all the circumstances of this litigation, including, its complexity, particularly with regard to the large number of parties involved in the underlying actions, were this court to apply the five factors set forth in St. Paul, 143 F.R.D at 132, in detail, it would not be inclined to find that the motion to intervene was untimely brought in this instance. (3) Significant Legal Interest in the Subject Matter la Redland Ins. Co. v. Chillingsworth Venture, Ltd., 171 F.R.D. 206 (N.D. Ohio 1997), the court stated:
There is no clear definition of what constitutes a litigable "interest" for purposes of intervention under Fed.R.Civ.P. 24(a)(2). Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987). The Supreme Court has noted that "[w]hat is obviously meant [by Fed.R.Civ.P. 24(a)(2)] is a significantly protectable interest." Donaldson v. United States, 400 U.S. 517, 532, 91 So. Ct. 534, 543, 27 L.Ed.2d 580 (1971). Similarly, the Sixth Circuit has required a "direct, substantial interest" in the litigation, which must be "significantly protectable." Jansen v. City of Cincinnati, 904 F.2d 336, 341; Grubbs, 870 F.2d at 346. The Sixth Circuit has opted for a rather expansive notion of the interest sufficient to invoke intervention of the right. Michigan State AFL-CIO v. Miller, 103 F.3d at 1245.Id. at 207.
The Redland court further noted that the right to intervene in a declaratory judgment action involving the issue of insurance coverage "has caused a split in the courts which have confronted this question." Id. at 207 (citing New Hampshire Ins. Co. v. Greaves, 110 F.R.D. 549 (D.R.I. 1986); St. Paul Fire Marine Ins. v. Summit-Warren Ind., 143 F.R.D. 129 (N.D. Ohio); Independent Petrochemical Corp. v. Aetna Casualty Surety Co., 105 F.R.D. 106 (D.D.C. 1985); Liberty Mut. Ins. Co. v. Pacific Indem. Co., 76 F.R.D. 656 (1977)). The Redland court then denied the motion to intervene as of right on the grounds that the potential intervenors "ha[d] nothing more than a hypothetical interest in the present action as they are yet to obtain a judgment in the tort action. Absent a present, noncontingent interest in the insurance policies at issue in this declaratory judgment action, they lack the 'significantly protectable interest' required . . ." Id. at 208.
However, in New Hampshire Ins. Co. v. Greaves, 110 F.R.D. 549 (D.R.I. 1986), the court permitted intervention in a declaratory judgment involving the issue of the validity of an insurance where the party seeking to intervene had not obtained a judgment in the underlying action. The Greaves court stated that with regard to the interest requirement, "[s]ome courts have held that 'the right or interest which will authorize a third person to intervene must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment.'" Id. (quoting 67 A CIS 2nd Parties § 575).
The Greaves court further stated:
While there are relatively few subsequent court decisions and scholarly commentaries which have considered the issue, most have adopted the position set forth in the Liberty Mutual line of cases: a movant whose tort claim is wholly contingent on his ability to obtain a judgment in a separate suit may not intervene. It seems clear, however, that what constitutes a sufficient interest is a factual question which should be determined on a case by case basis. The mere fact that an interest is contingent upon success in some other proceeding should not necessarily bar intervention . . .
. . . The interests of justice are best served by looking to both the letter and the spirit of F.R.C.P. 24(a) and determining on a case by case basis whether intervention should be granted. Some of the factors that the Court should consider when evaluating a petition for intervention to determine if there is adequate interest include: basis of the movant's concert with the litigation, degree of interference with the pending litigation which may result, probable result on judicial process (e.g. needless complication or ultimate consolidation and simplification), right of original parties to control the destiny of their own suits vs. actual hardship to the parties created by permitting intervention.Id. 552.
The Greaves court then permitted intervention stating:
The insurer, having brought the declaratory judgment action, is forced to present it case as to why the policy should be invalidated. Surely it runs counter to our notions of fairness and justice to find that the company would be harmed by being forced to face a stronger, more vigorous opposition. The role of this court and the judicial process is to reach a just and equitable resolution based on the facts, a task which can only be aided and served by the assistance of the strongest possible arguments by counsel.Id. However, of primary concern to the court was the fact that if the potential intervenors in Greaves were not allowed to intervene and the policy were invalidated, they would have no adequate remedy in their underlying action, because the defendant in the underlying state court action was, absent insurance, "without sufficient assets from which to satisfy any substantial judgment." Id. at 552-553.
Likewise, in St. Paul Fire Marine Ins. Co. v. Summit-Warren Industries Co., 143 F.R.D. 129 (N.D. Ohio 1992), the court permitted potential intervenors to intervene in an insurance declaratory judgment action. The St. Paul court found that the potential intervenors had a significant legal interest in the subject matter of the declaratory judgment stating:
It is undisputed that the insurance contract[s] at issue were obtained pursuant to the lease provisions which form a basis for Ohio-Edison's third-party complaint against the Summit-Warren defendants. Those lease provisions obligated Summit-Warren to obtain insurance encompassing other lease provisions calling for indemnification from and defense to property claims. If the insurer prevails in the instant action, Ohio Edison, the proposed intervenor, may be left with a hollow judgment against a defunct corporation. Surely, Ohio Edison has "a direct, substantial interest in the litigation . . ." Myer Goldberg, Inc. of Lorain v. Goldberg, 717 F.2d 290, 292 (6th Cir. 1983).Id., 143 F.R.D. at 134.
Finally, in Liberty Mut. Ins. Co. v. Pacific Indem. Co., 76 F.R.D. 656 (W.D. Pa. 1977), the potential intervenors sought to intervene in a declaratory judgment brought by two insurers to determine if they were contractually obligated to defend the insured in the underlying state court action. The Liberty Mutual court denied intervention because the movant had "not recovered a judgment, and the possibility that he will not prevail in the state action reduces his interest to a mere 'provable claim.'" Id. at 659. Accordingly, the court found that "because [the potential intervenor] has not yet recovered a judgment and because contested issues of fact must be resolved in his favor before he recovers a judgment, his interest in intervention is contingent and not direct and . . . not the kind of interest courts have required for intervention under Rule 24(a)." Id. at 660.
In this instance, unlike the defendants in Greaves, and St. Paul cases, which are discussed supra, the defendant in this action and in the underlying action, Turner is not alleged to lack sufficient assets with which to satisfy anyjudgment in the underlying action. Undoubtedly, a finding of no coverage in these consolidated actions, will leave Turner with fewer assets from which to satisfy a judgment. However, Turner is and has been an ongoing business; and, there is no allegation in the record that Turner is insolvent.
Thus, the Court concludes that the situation presented by this action is distinguishable from the situations in Greaves and St. Paul, because the Court herein is not confronted with the same concerns about the ability of Turner to satisfy any judgment against it as were the courts in Greaves and St. Paul. The Movants — i.e., potential intervenors — to this action, who are approximately 90 in number, [Case No. 1:02-cv-231, Court File No. 38, Exhibit A], have nothing more than a hypothetical interest as they have not obtained a judgment on any of the myriad claims they presented against Turner in the underlying action. Accordingly, this action is undistinguishable from the situation presented by Redland and Liberty Mutual, where the courts denied intervention under Rule 24(a)(2) on the ground that the potential intervenors lacked a "significantly protectable interest" as their claims in the underlying action were all potential/contingent claims. Redland, 171 F.R.D. at 208; Liberty Mutual, 76 F.R.D. at 659.
Further, an examination of the factors identified by the court in Greaves militates against intervention in this situation. In Greaves, the court suggested certain factors a court should look to in determining whether there is an adequate "protectable interest" including "the basis of the movant's concert with the litigation, degree of interference with the pending litigation which may result, probable result on judicial process . . . right of original parties to control the destiny of their own suits vs. actual hardship to the parties created by permitting intervention." Greaves, 110 F.R.D. at 552.
In this instance, the Court is confronted by a significant number of potential intervenors none of whom were/are parties to the insurance contracts at issue and none of whom played any role in the application process for those insurance contracts. Hence, the relevant evidence in this case is in the hands of the original parties to the litigation, the insurers and the insured. Thus, any arguments made by the Movants, however vigorous, would essentially be duplicative of the arguments made by the original parties to these consolidated declaratory judgment actions. Furthermore, as the task before the court in this/these action(s) is one of contract interpretation, the Court will not necessarily be assisted in the performance of such task by duplicative or repetitive arguments on the issue.
Further, as is discussed more fully with regard to the issue of permissive intervention, infra, the Court is highly concerned that adding a significant number of intervenors, and their counsels, will complicate and delay the discovery process in this action well beyond the time frame needed by the original parties to this/these action(s). The addition of numerous other parties and counsel will surely lengthen discovery. It will increase the time spent and cost involved in depositions. It may also result in duplicative requests for production of documents and/or interrogatories. Lastly, the Court is concerned that time is of the essence with regard to the issues raised in this/these action(s). Certainly, the underlying action(s) involving Movants and Turner will be able to proceed more effectively, and in a more timely manner, once it is determined whether or not the plaintiffs in this/these action(s) have a duty to defend Turner with regard to the claims raised by Movants in the underlying actions. Any delay with regard to the determination of the issues in this action may, therefore, impede the progress in the underlying actions. Yet, the Court is highly persuaded that this/these actions will reach a resolution far more quickly with only the original parties.
(4) Adequacy of the Representation
of the Parties Already Before the Court
Lastly, while the Court acknowledges that the interests of Turner and Movants are divergent in the underlying class action(s), the Court is unpersuaded that their interests are so divergent in this action that Turner will be unable to adequately represent the Movants' interest in this/these action(s). Certainly, Turner has every reason to want insurance coverage. A finding of no coverage in this/these action(s) will leave Turner's assets subject to any judgment obtained by the Movants' in the underlying action(s). In addition, a finding of no coverage would also result in Turner having to expend its own resources to defend the claims brought against it in the underlying action(s). Thus, Turner has every reason to vigorously argue for a finding of coverage in this/these actions(s).
Accordingly, the motion for intervention as of right under Fed.R.Civ.P. 24(a)(2) will be DENIED.
B. Permissive Intervention
Pursuant to Fed.R.Civ.P. 24(b)(2), a movant seeking to permissively intervene "must present (1) an independent ground for subject-matter jurisdiction; (2) a claim or defense that has a question of law or fact in common with the main action; and (3) a timely motion." Nationwide Mut. Ins. Co. v. National REO Management, Inc., 205 F.R.D. 1 (D.D.C. 2000) (citing EEOC v. National Children's Ctr., 146 F.3d 1042, 1046 (D.D.C. 1998). Once these have been established, the court "[i]n its discretion . . . 'shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.'" Id.
In its response to the motion to intervene, SAIC states in pertinent part:
Intervention by the movants would certainly cause delay of this action to the prejudice of the plaintiff. The four named movants . . . represent a class of persons who are represented by no less than sixteen attorneys, some located as distant as California. It will be impossible to efficiently conduct discovery, motions, and eventual trial of this case if the plaintiff is forced to coordinate with all of these parties. The addition of all of these parties and counsel will also significantly increase the cost of this litigation. This would defeat the purpose of the declaratory judgment action, which is to provide a means for the efficient determination of a particular question such as contractual rights and construction.
[Case No. 1:03-cv-83, Court File No. 9, p. 6].
The Court agrees. Here, the Court is confronted with potential intervention by the parties to the underlying action — a class action lawsuit — which encompasses approximately 90 plaintiffs [Case No. 1:02-cv-231, Court File No. 38, Exhibit A] and each of whom have asserted numerous claims against defendant Turner. Most importantly, none of the members of the class in the underlying class action lawsuit are or were parties to any of the various contracts of insurance issued by the named plaintiffs in these consolidated declaratory judgment actions to Turner. Nor were the members of the class part of the application process for the various insurance contracts at issue Thus, it is unclear what, if any, evidence movants would present that pertains to the interpretation of the various insurance contracts at issue in these consolidated declaratory judgment actions. And, it is equally unclear what arguments that counsel for the Movants would make that would not be wholly duplicative of any argument that Turner might make.
Furthermore, movants represent a class of approximately 90 members who have each asserted numerous claims, approximately ten, against Turner in the underlying class action. The majority, but not all of these claims are tort claims. As is stated more fully supra, all of these claims are contingent at this time, and the underlying class action(s) Movants may prevail on all, some, or none of their claims against Turner.
In Redland, the court stated with regard to that aspect of the potential intervenors' motion which sought permissive intervention under Rule 24(b)(2):
the motion to intervene is timely and there are questions of fact and law which are common to both the tort action and the declaratory judgment action. However, intervention will serve to complicate the declaratory judgment action by allowing issues of negligence and damages to surface. The present action seeks nothing more than a determination of whether or not Redland has an obligation to defendant and indemnify Chillingsworth and Stults. Allowing movants to intervene would only serve to complicate and delay this litigation. The movants were not parties to the insurance contract issued by Redland to Chillingsworth and they were not involved in the application process. Therefore, the Court finds that intervention can only complicate and delay the declaratory judgment process.Redland, 171 F.R.D. at 208.
Where as here, the movants were not parties to the insurance contracts at issue in this declaratory judgment action, were not part of the application process surrounding the issuance of the various insurance contract, there are a substantial number of movants who have asserted numerous claims against Turner, and allowing permissive intervention would allow the various issues surrounding those claims to arise in this action, the Court finds that granting that aspect of the motion to intervene which seeks permissive intervention under Rule 24(b)(2) would unduly complicate and delay these consolidated declaratoryjudgment actions. Accordingly, the motion for permissive intervention under Fed.R.Civ.P. 24(b)(2) will be DENIED. C. Lack of Objection by NGMIC and TUIC to the Motions to Intervene.
Finally, the Court would note that in Case No. 1:02-cv-231 and Case No. 1:02-cv-298, neither NGMIC and TUIC have filed objections to the motions to intervene. Despite the lack of objections, however, applying the case law set forth above, the Court has determined that neither intervention as a matter of right under Fed.R.Civ.P.24(a)(2) nor permissive intervention under Fed R. Civ. P. 24(b)(2) would be warranted in this action.
Further, given the similarity between these three consolidated actions, the Court sees no reason to differentiate between the motions to intervene based upon the presence or absence of an objection to the motion to intervene. Where, as here, the claims of the potential intervenors are contingent, the absence of an objection to the motion to intervene has no effect upon the existence of a significant legal interest in the subject matter of the litigation. A potential or contingent interest in the subject matter of the litigation is not rendered any less contingent due the absence of an objection to the potential intervenors' motion to intervene. Likewise, the absence of an objection to the motion to intervene does not mean that Turner will less any adequately or vigorously represent the interests of the potential intervenors in those two actions where there was no objection than it would in the one action where there was an objection.
For the reasons set forth above, that aspect of the Movants' motion to intervene, which seeks to intervene as a matter of right pursuant to Fed.R.Civ.P. 24(a)(2) [Case No. 1:02-cv-231, Court File No. 23, 38]; [Case No. 1:02-cv-298, Court File No. 21]; [Case No. 1:03-cv-38, Court File No. 6] will be DENIED; and, that aspect of the Movants' motion to intervene, which seeks permissive intervention pursuant to Fed.R.Civ.P. 24(b)(2) [Case No. 1:02-cv-231, Court File No. 23, 38]; [Case No. 1:02-cv-298, Court File No. 21]; [Case No. 1:03-cv-38, Court File No. 6] will also be DENIED.
A separate order will enter.
ORDER
In accordance with the accompanying memorandum opinion, that aspect of the Movants' motion to intervene, which seeks to intervene as a matter of right pursuant to Fed.R.Civ.P. 24(a)(2) [Case No. 1:02-cv-231, Court File No. 23, 38]; [Case No. 1:02-cv-298, Court File No. 21]; [Case No. 1:03-cv-38, Court File No. 6] is hereby DENIED; and, that aspect of the Movants' motion to intervene, which seeks permissive intervention under Fed.R.Civ.P. 24(b)(2) [Case No. 1:02-cv-231, Court File No. 23, 38]; [Case No. 1:02-cv-298, Court File No. 21]; [Case No. 1:03-cv-38, Court File No. 6] is also hereby DENIED.SO ORDERED.