Tursom v. United States

• Decision Date: 09 August 2021
• Docket Number: 20-cv-20811-BLOOM/Louis
• Citation: Tursom v. United States, 20-cv-20811-BLOOM/Louis (S.D. Fla. Aug 09, 2021)
• Parties: RIM M. TURSOM, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Southern District of Florida

RIM M. TURSOM, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 20-cv-20811-BLOOM/Louis

United States District Court, S.D. Florida

August 9, 2021

ORDER ON MOTION FOR INTERVENTION

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon IntervenorProgressive Express Insurance Company's (“Intervenor”)Motion for Intervention.ECF No [37](“Motion”).The United States filed a response in opposition to the Motion, ECF No. [39](“Response”), to which the Intervenor replied ECF No. [45](“Reply”).The Court has carefully reviewed the Motion, all opposing and supporting submissions the record in this case, the applicable law, and is otherwise fully advised.For the reasons set forth below, the Motion is denied.

I.BACKGROUND

On February 25, 2020, Plaintiff initiated this action against the United States, asserting a claim under the Federal Tort Claims Act (“FTCA”).See ECF No.[1].One year later, on February 23, 2021, the discovery period closed.See ECF No. [12].On February 24, 2021, the United States filed a Notice of Settlement, ECF No. [28], and the Court administratively closed the case that same day, see ECF No. [29].On March 4, 2021, the Intervenor filed a motion seeking to reopen the case so that it could intervene and pursue its subrogation claim against the United States.See ECF No. [31].On April 27, 2021, the Court denied the request to reopen this case, explaining that the Intervenor had not submitted “any supporting legal authority for its request, as a non-party, to reopen the case in order to intervene in a matter that ha[d] been litigated by the parties for a year, especially where the discovery period ha[d][] closed and the parties ha[d] settled their dispute.”ECF No. [34]at 3(footnote omitted).On May 12, 2021, the parties filed a Joint Motion to Reopen, ECF No. [35], which sought to reopen this case because they were unable to resolve their disputes.On May 13, 2021, the Court granted the Joint Motion to Reopen and rescheduled the remaining pre-trial deadlines and trial dates.See ECF No. [36].

The Intervenor now files the instant Motion, which seeks to intervene in this case so that it may pursue its subrogation claim against the United States.The Intervenor explains that, at the time of the accident in this case, it issued an insurance policy that provided uninsured motorist benefits in the amount of $1, 000, 000.00 combined single limit.See ECF Nos. [37-3] & [37-4].The Intervenor moves to intervene in this case in order to recover the subrogated amounts paid to Plaintiff pursuant to the uninsured motorist policy.The United States opposes the intervention, arguing that this Court lacks jurisdiction to entertain the Intervenor's claims.It argues that the United States is not an uninsured motorist and it has not waived sovereign immunity under the FTCA for subrogation claims by non-party insurers to recover uninsured motorist payments.

II.LEGAL STANDARD

Federal Rule of Civil Procedure 24 sets forth two types of intervention: (1) intervention of right, and (2) permissive intervention.

(a) Intervention of Right.On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a 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.

(b) Permissive Intervention.

(1)In General.On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact.

. . . .

(3)Delay or Prejudice.In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.

Fed. R. Civ. P. 24(a)-(b).

In this Circuit,

[a]party seeking to intervene as of right under Rule 24(a)(2) must show that: (1) his application to intervene is timely; (2)he has an interest relating to the property or transaction which is the subject of the action; (3)he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit.

Chiles v. Thornburgh, 865 F.2d 1197, 1213(11th Cir.1989).“If [the intervenor] establishes each of the four requirements, the district court must allow him to intervene.”Id.;see alsoPurcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512(11th Cir.1996)(“Once a party establishes all the prerequisites to intervention, the district court has no discretion to deny the motion.”(quotingUnited States v. State of Ga., 19 F.3d 1388, 1393(11th Cir.1994))).

“The [United States]Supreme Court has held that the timeliness of a motion to intervene is a threshold factor that must be satisfied before the other factors should be considered.”Hollywood Cmty. Synagogue, Inc. v. City of Hollywood, Fla., 254 Fed.Appx. 769, 771(11th Cir.2007)(citingNAACP v. New York, 413 U.S. 345, 365(1973)(“If [a motion to intervene] is untimely, intervention must be denied.Thus, the court where the action is pending must first be satisfied as to timeliness.”)).A district court, whether considering intervention as of right or by permission, must consider four factors in assessing the timeliness of the intervention:

(1) the length of time during which the would-be intervenor knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the extent of prejudice to the existing parties as a result of the would-be intervenor's failure to apply as soon as he knew or reasonably should have known of his interest; (3) the extent of prejudice to the would-be intervenor if his petition is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely.

United States v. Jefferson Cnty., 720 F.2d 1511, 1516(11th Cir.1983).

“Intervention of right is only available if the interest asserted is ‘direct, substantial, [and] legally protectable.'”Huff v. Comm'r of IRS, 743 F.3d 790, 796(11th Cir.2014)(quotingAthens Lumber Co. v. Fed. Election Comm'n, 690 F.2d 1364, 1366(11th Cir.1982)).In other words, “the intervenor must be at least a real party in interest in the transaction which is the subject of the proceeding.”Id.The Court of Appeals for the Eleventh Circuit has held that a legally protectable interest “is something more than an economic interest.”United States v. S. Fla. Water Mgmt. Dist., 922 F.2d 704, 710(11th Cir.1991)(citation omitted).“What is required is that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant.”Id.(internal quotation marks omitted)(citation omitted).“Thus, a legally protectable interest is an interest that derives from a legal right.”Mt. Hawley Ins. Co. v. Sandy Lake Props., Inc., 425 F.3d 1308, 1311(11th Cir.2005).

Moreover, to permissibly intervene under Rule 24(b)(1)(B), an intervenor must show that “(1) his application to intervene is timely; and (2) his claim or defense and the main action have a question of law or fact in common.”Chiles, 865 F.2d at 1213.“The ‘claim or defense' portion of the rule has been construed liberally, and indeed the Supreme Court has said that it ‘plainly dispenses with any requirement that the intervenor shall have a direct personal or pecuniary interest in the subject of the litigation.'”In re Estelle, 516 F.2d 480, 485(5th Cir.1975)^[1](quotingSec. & Exch. Comm'n v. U.S. Realty & Imp. Co., 310 U.S. 434, 459(1940)).The intervening party, however, “must demonstrate more than a general interest in the subject matter of the litigation before intervention should be allowed.”Alexander v. Hall, 64 F.R.D. 152, 157(D.S.C.1974).When exercising its discretion, a district court“can consider almost any factor rationally relevant but enjoys very broad discretion in granting or denying the motion [to intervene].”Daggett v. Comm'n on Governmental Ethics & Election Prac., 172 F.3d 104, 113(1st Cir.1999).

III.DISCUSSION

The Intervenor now moves for mandatory and permissive intervention to protect and prosecute its subrogation claim relating to uninsured motorist payments it made to its insured.Specifically, the Intervenor argues that it is the real party in interest in this case because it paid off Plaintiff's entire debt and ultimately perfected its subrogation rights.The Intervenor also contends that the United States is an uninsured motorist under § 627.727(1), Fla. Stat., ^[2] and that it may properly intervene in this case to recover all sums paid to the insured under the uninsured motorist insurance policy.The United States responds and argues that this Court lacks subject-matter jurisdiction to hear the Intervenor's claims.The United States notes that it has not waived sovereign immunity from suit for claims filed by an insurer which seek to litigate its subrogation rights pursuant to an uninsured motorist policy after issuing payments to the insured under this policy.Absent a clear waiver of sovereign immunity, the United States argues that the Intervenor's Motion must be denied for lack of jurisdiction.

“[T]he United States, as sovereign, ‘is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'”Hercules Inc. v United States, 516...