United States District Court, M.D. Louisiana
RICHARD LEJEUNE, JR.
SANY AMERICA, INC.
RULING AND ORDER ON EX PARTE MOTION TO
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.
the Court is an Ex Parte Motion to Intervene (the
“Motion to Intervene”),  filed by Louisiana
Workers' Compensation Corporation (“LWCC”).
LWCC seeks to intervene in this suit pursuant to Fed.R.Civ.P.
24(a). The deadline for filing an opposition to the Motion to
Intervene has passed and no party has opposed the motion.
reasons set forth herein, LWCC's Motion to Intervene is
January 31, 2017, Plaintiff filed suit in state court against
defendant, Sany America, Inc. (“Sany”). The
Petition for Damages alleges that Plaintiff was employed for
Deep South Crane Company as a crane oiler and rigger. On the
date of the incident, Plaintiff states that he was working as
part of a crew lifting and stacking crane counterweights when
a construction defect in one of the cranes being used cause
the lead of counterweights to “shift towards
Petitioner, strike Petitioner in the face and head, and
momentarily pin his head between the lead of counterweights
and the other stacked counterweights.” Plaintiff alleges
the crane at issue was manufactured by Sany. On March 8, 2017,
Sany removed this suit on the basis of diversity
LWCC's proposed Complaint of Intervention, LWCC was the
worker's compensation carrier for Deep South Crane and
Rigging, LLC, Plaintiff's employer at the time of the
accident.LWCC states that it “has paid
medical, and indemnity benefits and related expenses for the
injuries [Plaintiff] received in excess of Two Hundred
Thirty-Two Thousand Seven Hundred Twenty-Three and 76/100
($232, 723.76) Dollars to and on behalf of plaintiff at the
time of filing this intervention.” LWCC asserts its
right to reimbursement under La. R.S. 23:1021, et
seq., and seeks indemnification for all sums it has paid
and will continue to pay from the date of the accident
through the date of judgment.
Law and Analysis
seeks to intervene in this suit under Fed.R.Civ.P.
24(a). That section provides that on
“timely motion” the court must permit
intervention by anyone who is either (1) given an
unconditional right to intervene by 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.” LWCC does not assert that a federal
statute grants it an unconditional right to intervene;
instead, it moves for intervention under Fed.R.Civ.P.
Timeliness of the Motion to Intervene
leave to intervene is sought under section (a) or (b) of Rule
24, the application must be timely.” Stallworth v.
Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977). The
timeliness of a motion to intervene is a matter committed to
the sound discretion of the trial court. McDonald v. E.J.
Lavino, 430 F.2d 1065, 1071 (5th Cir. 1970). Timeliness
“is not limited to chronological considerations but
‘is to be determined from all the
circumstances.'” Stallworth v. Monsanto
Co., 558 F.2d 257, 263 (5th Cir. 1977). The Fifth
Circuit has set forth four factors to consider when
evaluating whether a motion to intervene is timely: (1) the
length of time during which the proposed intervenor should
have known of his interest in the case before he petitioned
to intervene; (2) the extent of prejudice that those parties
already in the litigation would suffer “as a result of
the would-be intervenor's failure to apply for
intervention as soon as he actually knew or reasonably should
have known of his interest in the case;” (3) the extent
of prejudice to the proposed intervenor if he is not allowed
to intervene; and (4) the existence of “unusual
circumstances militating either for or against a
determination that the application is timely.” Ross
v. Marshall, 426 F.3d 745, 754 (5th Cir. 2005) (citing
Stall worth v. Monsanto Co., 558 F.2d 257, 264-266
(5th Cir. 1977)).
Plaintiff filed his initial suit on January 31,
2017. The case was removed to this court on
March 8, 2017. LWCC first sought leave to intervene in
this matter on May 4, 2017.No party has asserted the
Motion to Intervene is untimely. Most importantly, this suit
is still in its early stages. A Scheduling Order was issued
on May 3, 2017, however, the deadline for completion of fact
discovery is not until March 15, 2018. Further, the
trial in this matter is not set until February 25, 2019.
Under these circumstances, LWCC's Motion to Intervene is
Intervention of Right
to Fed.R.Civ.P. 24(a)(2), a party is entitled to intervene in
a pending lawsuit when: (1) the motion to intervene is
timely; (2) the potential intervenor asserts an interest that
is related to the property or transaction that is the subject
of the action in which he seeks to intervene; (3) the
potential intervenor is so situated that disposition of the
case may as a practical matter impair or impede his ability
to protect his interest; and (4) the parties already in the
action do not adequately protect the potential
intervenor's interest. Ford v. City of
Huntsville, 242 F.3d 235, 239 (5th Cir. 2001). As
discussed above LWCC's Motion to Intervene is timely.
to the Louisiana Workers' Compensation Act, “[i]f
either the employee…or the employer or insurer bring
suits against a third person…he shall forthwith notify
the other in writing of such fact and of the name of the
court in which the suit is filed, and such other may
intervene as party plaintiff in the suit.” La. R.S.
§23:1102(A). “Although the statute provides that
the other may intervene as a party plaintiff if
either the employee or the employer brings suit against a
third person (tortfeasor), Louisiana jurisprudence holds that
an employer's failure to intervene in a suit filed by the
employee, after proper notice, bars the employer from
bringing a separate suit against a third party
tortfeasor.” Houston General Ins. Co. v. Commercial
Union Ins. Co., 649 So.2d 776, 782 (La.App. 1 Cir. 1994)
(citing Roche v. Big Moose Oil Field Truck Service,
381 So.2d 396, 401 (La. 1980) (“If an employee files
suit for damages from a third party tortfeasor, an employer
seeking reimbursement of compensation paid must intervene in
the pending lawsuit….”)) (emphasis in original).
See also, Senac v. Sandefer, 418 So.2d 543,
545 n. 1 (La. 1982) (“The employer's compensation
insurer failed to intervene in this action and is thus barred
from claiming reimbursement of the benefits paid to the
plaintiff.”); Chevalier v. Reliance Ins. Co. of
Illinois, 953 F.2d 877, 883 (5th Cir. 1992)
(“There is no doubt that, under Louisiana law, a
compensation carrier or employer must generally be a party to
the suit between a tortfeasor's carrier and tort
plaintiff in order to collect reimbursement for workers'
compensation from the successful tort plaintiff's
judgment.”); Allstate Indem. Co. v. Knighten,
705 So.2d 240, ...