Boettcher v. Loosier
| Decision Date | 04 May 2016 |
| Docket Number | No. 2:14-cv-02796-JPM-dkv,2:14-cv-02796-JPM-dkv |
| Parties | PAUL RAYMOND BOETTCHER and JOYCE DIANE BOETTCHER, Husband and Wife, Plaintiffs, v. HOUSTYN NICOLE LOOSIER and JAMES LOOSIER, Defendants. |
| Court | U.S. District Court — Western District of Tennessee |
Before the Court is Shelter Mutual Insurance Company's ("Shelter") Motion to Intervene, filed April 8, 2016. (ECF No. 74.) Also before the Court is Shelter Mutual Insurance Company's Motion for Pretrial/Status Conference, filed March 29, 2016. (ECF No. 69.)
For the following reasons, Shelter's Motion to Intervene and Motion for Pretrial/Status Conference are GRANTED.
This case concerns a motor vehicle accident that allegedly occurred on October 21, 2013, at 7:35 a.m. at S. Third Street and Horn Lake Road in Shelby County, Tennessee. (Compl. ¶ 1, ECF No. 1.) Plaintiffs allege that Defendant Houstyn Nicole Loosier crashed a 2006 Ford F150, owned by Defendant James Loosier, into a third party's vehicle, which in turn was pushed into the rear of a 2007 Ford Focus driven by Plaintiff Paul Raymond Boettcher. (Id. ¶ 3.) Plaintiffs resolved their claims with Houstyn Nicole Loosier and James Loosier ("the Loosier Defendants"), and all claims against the Loosier Defendants were dismissed. (See ECF Nos. 39, 40.) Plaintiffs' only remaining claims involve their own underinsured motorist ("UIM") carrier, Shelter Mutual Insurance Company. (See Compl. ¶ 6.)
Plaintiffs filed a Complaint against the Loosier Defendants on October 17, 2014, and thereby gave notice of the filing of the suit to Shelter under section 56-7-1206(a) of the Tennessee Code and section 40-284(d) of the Kansas Statutes. (See Compl. ¶ 6.) The Loosier Defendants filed an Answer on November 17, 2014. (ECF No. 9.) Shelter filed an Answer on December 15, 2014. (ECF No. 12.)
On August 28, 2015, Shelter filed a Motion to Sever, seeking to try the insurance issues separately from the tort issues in this case. (ECF No. 37.) On October 9, 2015, Plaintiffs and the Loosier Defendants filed a Joint Motion for Dismissal with Prejudice. (ECF No. 39.) On the same day, the Court granted the Joint Motion for Dismissal (ECF No. 40) and denied as moot Shelter's Motion to Sever (ECF No. 41).
On October 21, 2015, Shelter moved for an independent medical exam. (ECF No. 42.) After a hearing, Magistrate Judge Vescovo denied as moot the motion without prejudice. (ECF Nos. 45, 46.) On February 9, 2016, Shelter filed a Motion for Permission to Identify Dr. Riley Jones for Purposes of an Independent Medical Examination of Plaintiff Joyce Boettcher and Permission to Take Dr. Jones' Evidentiary Deposition Prior to Trial. (ECF No. 51.) Magistrate Judge Vescovo granted the motion on March 29, 2016. (ECF No. 70.)
On February 9, 2016, Shelter also filed a Motion in Limine to Exclude Gross Medical Billings. (ECF No. 52.) On March 25, 2016, Plaintiffs responded in opposition. (ECF No. 66.) Plaintiffs filed a Notice of Supplemental Authority on April 13, 2016. (ECF No. 76.) This motion is still pending before the Court.
On March 1, 2016, Plaintiffs filed a Motion to Dismiss Without Prejudice, seeking dismissal of this action under Rule 41(a)(2) of the Federal Rules of Civil Procedure so that they may re-file the case against Shelter in Kansas. (ECF No. 55.) Shelter responded in opposition on March 7, 2016. (ECF No. 56.) On March 17, 2016, the Court held a telephonic hearing on the motion, during which Plaintiffs challenged the Court's subject matter jurisdiction. (Min. Entry, ECF No. 58.) The Court ordered supplemental briefing on the jurisdictional issue. (ECFNo. 59.) Plaintiffs filed their supplemental Memorandum Brief in Support of Plaintiffs' Motion to Dismiss on March 18, 2016. (ECF No. 60.) Shelter filed its Supplemental Response in Opposition to Plaintiffs' Motion to Dismiss on March 21, 2016. (ECF No. 61.) The Court denied Plaintiffs' Motion to Dismiss on March 22, 2016. (ECF No. 62.)
On March 25, 2016, Plaintiffs filed a Notice of Proof of Relevant Kansas Law, asserting that Kansas law governs the instant action. (ECF No. 67.) On March 29, 2016, Shelter filed a Motion for Pretrial/Status Conference, asserting that "under Kansas law, which controls in this case, Shelter is not currently a defendant in this lawsuit and the lawsuit is subject to dismissal on this basis." (ECF No. 69 at 1.) The Court held a telephonic status conference on April 5, 2016. (Min. Entry, ECF No. 72.)1 At the status conference, Shelter expressed its desire to permissively intervene in the instant action so that it may proceed before the Court. Plaintiffs maintained that this action should be dismissed and argued that intervention is not appropriate.
On April 8, 2016, Shelter filed the instant Motion to Intervene, arguing that it has a right to intervene under Rule 24(a)(2) and that it should be permitted to do so to correct anyprocedural discrepancy. (ECF No. 74.) Plaintiffs did not file a response.
Pursuant to Rule 24(a)(2), a third party may intervene as of right when it:
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)(2). A party seeking to intervene as of right must establish four elements: "(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." Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997).
In determining whether a motion to intervene is timely, a court must consider all relevant circumstances, including:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case; (4) the prejudice to the original parties due to the proposed intervenors' failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention.
Stupak-Thrall v. Glickman, 226 F.3d 467, 473 (6th Cir 2000) (quoting Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990)).
In the Complaint, Plaintiffs aver that they "hereby give notice of the filing of this suit upon their UIM Carrier [Shelter Mutual Insurance Company] under T.C.A. § 56-7-1206(a), and under K.S.A. § 40-284(d)." (Compl. ¶ 6, ECF No. 1.) Throughout the case, Plaintiffs and Shelter have consistently referenced Tennessee law, which permits a UIM carrier to "file pleadings and take other action allowable by law in the name of the owner and operator of the uninsured motor vehicle or in its own name," without formal intervention. Tenn. Code Ann. § 56-7-1206(a). Following Plaintiffs' Notice of Proof of Relevant Kansas Law, however, Shelter filed a Motion for Pretrial/Status Conference and agreed that Kansas law controls the insurance issues in the instant matter. (ECF No. 69.)
Under Kansas law, the UIM carrier has the option to intervene in the liability action. Loucks v. Farm Bureau Mut. Ins. Co., 101 P.3d 1271, 1276-77 (Kan. Ct. App. 2004). If the insurer elects to intervene, it is named as a party to the action and "gains a voice in the outcome of the case." Id. If the insurer elects not to intervene, the trier of fact will nothear evidence of liability insurance coverage, but the insurer is nonetheless bound by any judgment in the liability action. Id.
Although Plaintiffs have resolved their claims against the Loosier Defendants, the Court, having heard argument only referring to Tennessee law, did not enter a final judgment in this action. Now that the parties agree that Kansas law controls the insurance issues, the Court must determine whether the action may proceed. First, the Court considers whether a Motion to Intervene by a UIM carrier, filed after the claims against the tortfeasor have been resolved but before the entry of judgment, is timely. Second, the Court considers whether Shelter may intervene as a matter of right pursuant to Rule 24(a)(2). Third, the Court addresses the effect of intervention on the Court's subject matter jurisdiction.
As an initial matter, a motion to intervene is not per se untimely merely because it is filed after the claims between the original parties have been resolved. In Penick v. Columbus Education Association, 574 F.2d 889 (6th Cir. 1978) (per curiam), the Columbus Education Association ("CEA") "sought to intervene after the District Court had determined that the Columbus and Ohio State Boards of Education should be held liable for unconstitutional segregation of the Columbus publicschools, but before a desegregation plan had been submitted and approved by the court." Penick, 574 F.2d at 890. The United States District Court for the Southern District of Ohio denied intervention as untimely. Id. at 890-91. Although the Sixth Circuit found that the district court did not abuse its discretion in denying the CEA's motion to intervene, the Sixth Circuit specifically noted that the "decision [was] reached without prejudice to the right of the CEA to seek intervention at a later date should it become apparent that CEA interests are not being adequately represented in further proceedings before the District Court." Id. at 891. Thus, the Sixth Circuit allowed for the possibility of intervention at an even later date. See id.; see also ...
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