Houston General Ins. v. Moore

• Decision Date: 19 October 1999
• Docket Number: CA-96-375,No. 97-1967,97-1967
• Parties: Page 838 193 F.3d 838 (4th Cir. 1999) HOUSTON GENERAL INSURANCE COMPANY, Plaintiff-Appellee, v. CLIFFORD MOORE, SR., d/b/a Pro-Tech Termite & Pest Control; ESTATE OF CLIFFORD MOORE, SR.; CLIFFORD THOMAS MOORE, JR., Defendants, v. BEAUMONT TOWNHOMES, LIMITED PARTNERSHIP, Movant-Appellant. (
• Court: U.S. Court of Appeals — Fourth Circuit

Page 838

193 F.3d 838 (4th Cir. 1999)

HOUSTON GENERAL INSURANCE COMPANY, Plaintiff-Appellee v CLIFFORD MOORE, SR., d/b/a Pro-Tech Termite & Pest Control; ESTATE OF CLIFFORD MOORE, SR.; CLIFFORD

THOMAS MOORE, JR., Defendants v BEAUMONT TOWNHOMES, LIMITED PARTNERSHIP, Movant-Appellant.

No. 97-1967 (CA-96-3757-2-21).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: March 5, 1998.

Decided: October 19, 1999.

Appeal from the United States District Court for the District of South Carolina, at Charleston.

William B. Traxler, Jr., District Judge.

COUNSEL ARGUED: H. Brewton Hagood, ROSEN, ROSEN & HAGOOD, P.A., Charleston, South Carolina, for Appellant. Stephen Lynwood Brown, YOUNG, CLEMENT, RIVERS & TISDALE, L.L.P., Charleston, South Carolina, for Appellee. ON BRIEF: Daniel F. Blanchard, III, ROSEN, ROSEN & HAGOOD, P.A., Charleston, South Carolina, for Appellant. Stephen P. Groves, Sr., Edward D. Buckley, Jr., Duke R. Highfield, YOUNG, CLEMENT, RIVERS & TISDALE, L.L.P., Charleston, South Carolina, for Appellee.

Before WILKINSON, Chief Judge, and WIDENER and NIEMEYER, Circuit Judges.

Affirmed by published opinion. Judge Widener wrote the opinion, in which Chief Judge Wilkinson and Judge Niemeyer concurred.

OPINION

WIDENER, Circuit Judge:

Pursuant to Fed. R. Civ. P. 24(a)(2),¹ Beaumont Town-homes, Limited Partnership (Beaumont) moved to intervene as of right in a declaratory judgment action brought in district court by Houston General Insurance Company (Houston General) against Pro-Tech Termite & Pest Control Company (Pro-Tech), the Estate of Clifford Moore, Sr., and Clifford Thomas Moore, Jr. Beaumont also sought to set aside the underlying default judgment pursuant to Fed. R. Civ. Proc. 60(b). The district court denied Beaumont's motion to intervene, thus rendering the motion to vacate the underlying judgment moot. Denial of these motions is the sole issue on appeal, and we affirm.

I.

On August 10, 1993, Houston General issued a commercial liability insurance policy to Pro-Tech, a defendant in the underlying action. The policy was effective for 12 months. On August 10, 1994, the policy was renewed with identical coverage, but the renewed policy changed the named insured from Pro-Tech to "Pro-Tech Termite and Pest Control/Clifford Moore, Sr. d/b/a/." Moore Sr. passed away in January 1995, and the policy lapsed for nonpayment of premiums.

Moore Jr. then assumed control of Pro-Tech and continued to operate the business under his father's name. Moore Jr. renewed the policy on March 11, 1995, but kept the named insured the same as in the August 1994 policy. While operating Pro-Tech under his father's name, Moore Jr. issued numerous termite letters to customers indicating that he had rid their property of pests, specifically termites. As a result of these termite letters, Houston General received several claims against Pro-Tech and Moore Jr., including Beaumont's claim. During the investigation of these claims, Houston General discovered that Moore Jr. had been operating Pro-Tech under his deceased father's name. Moore Jr. had not provided this information to Houston General. Thus, Houston General advised Moore Jr. that it would assert various defenses against the customers' claims. Houston General also filed a declaratory judgment action in federal district court, seeking a declaration that it would not be liable for the customers' claims. The defendants named in the suit were Pro-Tech, Moore Sr.'s estate, and Moore Jr. After none of the defendants answered the complaint, the district court entered a default judgment in favor of Houston General on February 12, 1997. Although not legally significant to this decision, we take note of the fact that Houston General did not make Beaumont a party to the declaratory judgment action even though it was aware of Beaumont's claims against the defendants.

II.

Applicants to intervene as of right must meet all four of the following requirements: (1) the application to intervene must be timely; (2) the applicant must have an interest in the subject matter of the underlying action; (3) the denial of the motion to intervene would impair or impede the applicant's ability to protect its interest; and (4) the applicant's interest is not adequately represented by the existing parties to the litigation. Fed. R. Civ. Proc. 24(a); Newport News Ship-building & Drydock Co. v. Peninsula Shipbuilders' Ass'n, 646 F.2d 117, 120 (4th Cir. 1981).

As timeliness is a "cardinal consideration" of whether to permit intervention, we first consider the timeliness of Beaumont's motion to intervene. Brink v. DaLesio, 667 F.2d 420, 428 (4th Cir. 1981). The determination of timeliness is committed to the discretion of the district court and will not be disturbed on appeal except for an abuse of that discretion. NAACP v. New York, 413 U.S. 345, 365-66 (1973); Gould v. Alleco, Inc., 883 F.2d 281, 284-86 (4th Cir. 1989), cert. denied, 493 U.S. 1058 (1990).

Beaumont filed its motion to intervene on April 17, 1997, more than two months after the district court entered the Final Order of Judgment for plaintiffs on February 16, 1997. Pursuant to 28 U.S.C. § 1291 and Fed. R. App. P. 4, the time for appeal had expired by this date.² Although entry of final judgment is not an absolute bar to filing a motion to intervene, the authorities note that:"There is considerable reluctance on the part of the courts to allow intervention after the action has gone to judgment and a strong showing will be required of the applicant." 7C Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d §...