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Certain Underwriters at Lloyds, London v. Tbarre, LLC

United States District Court, E.D. Louisiana

February 8, 2017

CERTAIN UNDERWRITERS AT LLOYDS, LONDON
v.
TBARRE, LLC ET AL.

         SECTION “F” (2)

          ORDER AND REASONS ON MOTION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         The Motion for Leave to Intervene of Tina Maurice, Angelica Douglas, Quian Williams and Courtney Miller, as administrators of the estates of their minor children, is pending before me. Record Doc. No. 47. Plaintiff, Certain Underwriters at Lloyds, London (“Underwriters”), filed a timely opposition memorandum. Record Doc. No. 49. Having considered the record, the applicable law and the written submissions of the parties, IT IS ORDERED that the motion is DENIED.

         On March 24, 2015, the proposed intervenors filed a petition in the Civil District Court for the Parish of Orleans, asserting wrongful death and survival actions seeking to recover monetary damages against the same defendants who are also defendants in the captioned declaratory judgment action. The proposed intervenors “are the mothers and administrators of the estates of seven minor children whose father, Gregory Journee, was killed” in a shooting in the Spice Bar & Grill on March 29, 2015. Record Doc. No. 47-1 at p. 1.

         On June 13, 2016, Underwriters filed the captioned complaint in this court seeking a declaratory judgment that its policy of insurance issued to defendants provided no coverage for the claims asserted by the proposed intervenors as plaintiffs in their state court action. On October 31, 2016, this court entered both a default judgment against defendants and an order granting Underwriters' unopposed motion for summary judgment. Record Doc. Nos. 40, 41. Both this court's order and the judgment unequivocally held that Underwriters “is entitled to judgment as a matter of law that the policy does not afford coverage for the claims in the [proposed intervenors' state court] underlying lawsuit and that the plaintiff [Underwriters] owes no duty to defend or indemnify the defendants.” Record Doc. No. 40 at p. 2; accord Record Doc. No. 41 at p. 2. The court's order and judgment were based on clear and unambiguous assault and battery and firearms exclusions contained in the subject commercial general liability policy issued by Underwriters to defendants.

         The proposed intervenors filed this motion on December 14, 2016, two weeks after the entry of judgment. Citing a single Fifth Circuit precedent, Ranger Ins. Co. v. United Housing of N.M., Inc., 488 F.2d 682 (5th Cir. 1974), the proposed intervenors argue that they are entitled to intervene of right and because they are “indispensable parties” to this declaratory action concerning coverage under a contract of insurance to which they are not parties. Record Doc. No. 47-1 at pp. 2-4. Thus, two separate procedural rules - Rule 24 addressing intervention and Rule 19 concerning indispensable parties - apply to this motion.

         As to intervention of right, Fed.R.Civ.P. 24(a) states:

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.

         Fed. R. Civ. P. 24(a). Therefore, a party is entitled to an intervention of right if (1) the motion to intervene is timely; (2) the potential intervenor asserts a direct, substantial and legally protectable interest that is related to the property or transaction that forms the basis of the controversy in the case into which it seeks to intervene; (3) the disposition of that case may impair or impede the potential intervenor's ability to protect its interest; and (4) the existing parties do not adequately represent the potential intervenor's interest. In re Lease Oil Antitrust Litig., 570 F.3d 244, 247, 250 (5th Cir. 2009) (quotation omitted); accord Entergy Gulf States La., L.L.C. v. U.S. EPA, 817 F.3d 198, 203 (5th Cir. 2016); Ross v. Marshall, 426 F.3d 745, 753 (5th Cir. 2005); Heaton v. Monogram Credit Card Bank, 297 F.3d 416, 422 (5th Cir. 2002).

Although failure to satisfy any one element precludes the applicant's right to intervene, we have noted that the inquiry under subsection (a)(2) is a flexible one, which focuses on the particular facts and circumstances surrounding each application, and concluded that intervention of right must be measured by a practical rather than technical yardstick. Intervention should generally be allowed where no one would be hurt and greater justice could be attained.

Ross, 426 F.3d at 753 (quotations and citations omitted) (emphasis added); accord Entergy Gulf States, 817 F.3d at 203.

         As to permissive intervention, Fed.R.Civ.P. 24(b) provides in pertinent part:

         (1) In General. On timely motion, the court may permit ...


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