Weimer v. Ypparila
| Citation | 504 N.W.2d 333 |
| Decision Date | 26 May 1993 |
| Docket Number | No. 18205,18205 |
| Parties | Debra Jean WEIMER, formerly Debra Jean Barton, Plaintiff and Appellee, v. John Wilbert YPPARILA, Defendant, and American Concept Insurance Company, Intervenor and Appellant. . Considered on Briefs |
| Court | Supreme Court of South Dakota |
Glen H. Johnson, Johnson, Huffman, Rapid City, for plaintiff and appellee.
Thomas E. Simmons, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for intervenor and appellant.
American Concept appeals the trial court's order denying its motion to intervene as untimely. We reverse.
Debra Barton Weimer (Weimer) filed suit against John Ypparila (Ypparila) seeking damages for bodily injury arising from a 1988 auto accident.
In 1992, Weimer first notified her underinsurance carrier, American Concept, of the accident and the pending lawsuit. American Concept acknowledged the letter and requested Weimer's medical records and documents relating to the suit. American Concept also reserved its rights due to late notice from Weimer. American Concept requested an interview with Weimer, additional medical records and information concerning her employment. Most of the requested information was provided to American Concept. On July 6, 1992, Weimer's counsel notified American Concept that Ypparila's insurer, American Family, had offered its liability policy limit of $50,000 and if American Concept wished to preserve its right of subrogation it should substitute its $50,000. When Weimer's counsel received no response from American Concept concerning the offer, he wrote another letter on July 13, 1992, followed by a certified letter on August 4, 1992. In August and on September 1, 1992, Weimer's attorney provided additional materials to American Concept documenting Weimer's damages.
On September 2, 1992, Weimer executed a release and settlement agreement with Ypparila; Ypparila admitted liability and, in return for payment of his American Family policy limit of $50,000, Weimer signed an agreement to release him from any further liability. Weimer neither notified American Concept of the signing nor sent a copy of the completed document. On September 4, 1992, American Concept phoned Weimer's counsel regarding an independent medical exam of Weimer in Denver; the release and settlement were not mentioned. On September 18, 1992, Weimer's counsel wrote to American Concept concerning the medical examination in Denver; again, the release and settlement were not mentioned. On that very day, Weimer's counsel also served Ypparila's attorney with a pretrial checklist noting that trial was scheduled for October 6, 1992. Neither the pretrial checklist nor other notice of the trial date were sent to American Concept.
On October 6, 1992, a trial was held at which Weimer testified and presented expert witnesses and evidence concerning her damages. Ypparila made no appearance and the court was informed he had received notice of the trial date and had acknowledged liability in the release and settlement agreement. In a trial where no adversarial party appeared, Weimer was awarded $468,462.64 in damages.
Ten days after the trial, on October 19, 1992, Weimer's counsel wrote to American Concept, enclosed a certified copy of the judgment and demanded the company pay the difference between the $50,000 received from Ypparila and the $300,000 limit of Weimer's underinsured motorist policy--some $250,000. On November 20, 1992, American Concept filed a motion to intervene and a motion to vacate the judgment. A hearing was held on November 30, 1992. An order denying the motion to intervene upon the grounds it was untimely was entered in December.
We first clarify our standard of review when intervention of right is sought under SDCL 15-6-24(a). In Larson we stated: Larson v. All-American Transport, Inc., 83 S.D. 622, 626-27, 164 N.W.2d 603, 605-06 (1969). In Baldridge a quote from Wright & Miller may have suggested a different standard would be applied if intervention of right rather than permissive intervention was sought:
Even though the requirement of timeliness applies to both intervention of right and permissive intervention, a different standard is used, depending on the type of intervention sought, in determining what is timely. Since in situations in which intervention is of right the would-be intervenor may be seriously harmed if he is not permitted to intervene, courts should be reluctant to dismiss a request for intervention as untimely, even though they might deny the request if the intervention were permissive.
Wright & Miller, Federal Practice and Procedure: Civil Sec. 1916, p. 573.
Baldridge v. Reid, 88 S.D. 374, 377, 220 N.W.2d 532, 534 (1974). However, this quote must be read in conjunction with the sentence preceding it in Wright & Miller:
Since the requirement of timeliness is a flexible one, much must necessarily be left to the sound discretion of the court and the trial judge's decision of the question will be reviewed only for an abuse of discretion.
7C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure Sec. 1916 (1986). Therefore, the language quoted in Baldridge applies to the standard applicable to the trial court's determination, not the appellate court's standard of review. This Court's standard of review is whether the trial court abused its discretion in denying intervention as of right.
SDCL 15-6-24(a) permits intervention of right upon timely application when the applicant's interest is not being adequately protected. 1 It is here our inquiry lies--did American Concept intervene in a timely manner once it had notice its interests were no longer being protected by Ypparila?
This Court previously determined a respondent's motion to set aside a judgment was timely where, even though the respondent did not inquire, the court file did not contain sufficient information to put him on notice as to a judgment against him. Weber v. Tschetter, 1 S.D. 205, 214, 46 N.W. 201, 204 (1890). In this case, there was no information in the court file noting the trial date of October 6, 1992, until Weimer filed a pretrial checklist on September 21, 1992. Short of checking the court file weekly, American Concept could not have received notice from the file.
Until American Concept was notified the release had actually been completed, it had reason to believe its interests were being adequately protected by Ypparila. Even though American Family had offered its policy limits, it had the continuing duty to defend Ypparila. 2 SDCL 58-11-9.6. Once the settlement and release of its insured was signed, American Family had discharged its duty. After that point, no one represented American Concept's interests. In effect, Weimer had no opposition at trial--her testimony and evidence were uncontroverted and unquestioned.
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