United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
Andrew
P. Rodovich United States Magistrate Judge
This
matter is before the court on the Petition to Intervene [DE
5] filed by the intervenor, Property & Casualty Insurance
Company of the Hartford, on February 4, 2019. For the
following reasons, the motion is DENIED.
Background
This
matter arose from injuries that the plaintiff, Michael
Montgomery, Jr., sustained on March 7, 2017. Montgomery
alleges that he suffered serious and permanent injuries
during the course and scope of his employment at Chicago
Steel Holdings, LLC. Intervenor, Property & Casualty
Insurance Company of the Hartford, insured and provided
workers' compensation coverage to Chicago Steel,
Montgomery's employer. As a result of his injuries,
Montgomery filed a claim for workers' compensation
benefits. The Hartford has indicated that it has paid
benefits to and on behalf of Montgomery.
The
Hartford asserts that it holds a lien against any recoveries
made by Montgomery against the defendants. Therefore, it has
requested that the court permit it to intervene in the
instant matter to protect its right to recover the
workers' compensation benefits paid to and/or on behalf
of Montgomery. Montgomery has filed a response in opposition
contending that the Hartford has neither a right nor a basis
to intervene, and that I.C. § 22-3-2-13 precludes
intervention under the circumstances of this matter. The
Hartford filed a reply on February 8, 2019.
Discussion
Indiana
Code § 22-3-2-13 provides that:
[i]f the injured employee or the employee's dependents
shall agree to receive compensation from the employer or the
employer's compensation insurance carrier or to accept
from the employer or the employer's compensation
insurance carrier, by loan or otherwise, any payment on
account of the compensation, or institute proceedings to
recover the same, the employer or the employer's
compensation insurance carrier shall have a lien upon any
settlement award, judgment or fund out of which the employee
might be compensated from the third party;
[t]he employer may, within ninety (90) days after receipt of
notice of suit from the employee or the employee's
dependents, join in the action upon the employee's motion
so that all orders of court after hearing and judgment shall
be made for the employee's protection;
[n]o release or settlement of claim for damages by reason of
injury or death, and no satisfaction of judgment in the
proceedings, shall be valid without the written consent of
both employer or the employer's compensation insurance
carrier and employee or the employee's dependents, except
in the case of the employer or the employer's
compensation insurance carrier, consent shall not be
required where the employer or the employer's
compensation insurance carrier has been fully indemnified or
protected by court order.
Federal
Rule of Civil Procedure 24 provides for intervention
both as of right and permissively. On a timely motion, the
court must permit anyone to intervene who: (1) is given an
unconditional right to intervene by federal statute; or (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.
Federal Rule of Civil Procedure 24(a).
Permissive intervention is allowed so long as the motion is
timely, and the petitioner “has a claim or defense that
shares with the main action a common question of law or
fact.” Federal Rule of Civil Procedure
24(b).
The
Hartford represents that it has paid a total of $336, 788.25
to date, to and on behalf of Montgomery as compensation for
the injuries he allegedly suffered. Thus, it seeks to
intervene to monitor this litigation and protect its
interests in seeking reimbursement for its lien if Montgomery
should recover from the defendants through settlement or
verdict.
Indiana
Code § 22-3-2-13 does not permit the Hartford to
intervene in this action. The instant motion has not
requested leave to intervene pursuant to Rule 24. However,
the court will address whether the Hartford is entitled to
intervene in this case pursuant to Rule 24. The Hartford has
not asserted a right upon a federal statute. Therefore, under
Rule 24(a)(2), a proposed intervenor must satisfy four
requirements to obtain intervention of right: (1) a timely
application for leave to intervene; (2) a claim of interest
relating to the property or transaction that is the subject
of the action; (3) a danger that disposition of the action
may as a practical matter diminish the applicant's
ability to protect that interest; and (4) existing parties to
a case will not adequately represent the applicant's
interest. Sokaogon Chippewa Cmty. v. Babbitt, 214
F.3d 941, 945-46 (7th Cir. 2000). An applicant must meet all
four requirements before intervention as of right is allowed.
See Reid L. v. Illinois State Bd. of Educ., 289 F.3d
1009, 1017 (7th Cir. 2002). The burden is on the party
seeking to intervene of right to show that all four criteria
are met. Keith v. Daley, 764 F.2d 1265, 1268 (7th
Cir. 1985).
The
Hartford filed its petition to intervene within three weeks
after Montgomery filed his complaint, and therefore it was
timely. However, the Hartford has not indicated that the
outcome of the instant matter will affect its ability to
enforce its lien. Additionally, the Hartford has not
indicated that its interest will not be adequately protected
by the parties. “Where a prospective intervenor has the
same goal as the party to a suit, there is a presumption that
the representation in the suit is adequate. . . In such
circumstances, the proposed intervenor ‘must
demonstrate, at the very least, that some conflict
exists.'” Shea v. Angulo,19 F.3d 343, 347 (7th Cir. 1994). Montgomery has acknowledged
that should he prevail in settlement or verdict, he is
required to seek consent from the Hartford or procure an
order of court protecting the Hartford's lien. Therefore,
the court has no reason to presume and the Hartford has not
suggested that its interest is not adequately protected. The
court, in its discretion and for the same reasons, also
declines to allow permissive intervention. See
Ebersohl v. Bechtel Corp., 2010 WL
2266736, at *3 (S.D. Ill. 2010) (denying a workers'
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