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finding that no adequate representation where, inter alia, other parties entered into a settlement agreement without giving credence to claims of third party
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CIVIL ACTION NO: 01-1339, SECTION: "C" (4)
November 15, 2002
ORDER AND REASONS
On June 6, 2002, the movant, Louisiana Workers' Compensation Corporation ("LWCC"), filed a Motion to File Intervention (doc. # 43) seeking to intervene in the instant matter and assert its rights to indemnification. The defendant, Naviera Celta, Inc. ("Naviera"), and the plaintiff, Felipe Campos, oppose the motion.
I. Factual Background
On January 10, 2000, the plaintiff filed suit in the Civil District Court for the Parish of Orleans seeking to recover for injuries sustained during the course and scope of his employment. The plaintiff contends that on January 12, 1999, the harbor tug Angus R. Cooper, which is owned and operated by the defendant, Crescent Towing Salvage Company, Inc. ("Crescent"), collided with Red Fox Industries' dry docking facility. The plaintiff, an employee of Red Fox Industries, claims that he was injured when he fell several feet onto the floor from a scaffold which collapsed as a result of the collision.
The plaintiff filed a worker's compensation claim with Red Fox Industries and began receiving disability payments on March 16, 1999. He alleges that a number of his medical bills, including an operation on his left knee, were paid for by Red Fox Industries' workers' compensation insurance carrier, LWCC. The plaintiff further alleges that on May 14, 1999, LWCC suspended his medical bill payments and disability payments. He thereafter filed the instant suit in the Civil District Court for the Parish of Orleans. The defendants removed the case to this Court on May 1, 2001, pursuant to the diversity jurisdiction statute, Title 28 U.S.C. § 1332.
During a Preliminary Conference held on September 13, 2001, District Judge Helen G. Berrigan established the trial of this matter for April 22, 2002. On April 4, 2002, a settlement conference was held before the undersigned but the parties were unable to reach an agreement. The parties, however, indicated that they would continue settlement negotiations by phone. On April 11, 2002, settlement discussion continued by phone and the parties reached an agreement.
Rec. Doc. No. 9.
Rec. Doc. No. 34.
Rec. Doc. No. 35.
Five days later, LWCC wrote a letter to the parties informing them of its intention to intervene in the case in order to be reimbursed for the workers' compensation benefits it provided to the plaintiff. On April 19, 2002, a Status Conference was held to discuss the letter. During the conference, the undersigned ordered the parties to deposit the settlement proceeds into the Registry of the Court. The parties were also ordered to submit the issue of LWCC's intervention to the Court in the proper form for resolution.
Rec. Doc. No. 39.
Id.
One month later, the plaintiff filed a Memorandum of Law in which he claimed that LWCC's demand for reimbursement was untimely. The plaintiff also claimed that as his worker's compensation insurance benefits flowed to him through his coverage with LWCC, he never had direct contact with LWCC and should not be held to honor their reimbursement or indemnification demands.
Rec. Doc. No. 40.
On May 31, 2002, LWCC filed a Memorandum in Support of its Right to Reimbursement. LWCC sought reimbursement from the settlement proceeds contending that it made weekly workers' compensation benefit payments including medical benefits to, or on behalf of, the plaintiff. LWCC claims that it made payments totaling $16,493.74. LWCC also contends that it is entitled to reimbursement as provided by Title 33 U.S.C. § 901. LWCC further contends that pursuant to Title 33 U.S.C. § 901, it is legally subrogated to the rights of the plaintiff and is legally and contractually subrogated to the rights of Red Fox Industries to the extent of the amounts paid.
Rec. Doc. No. 42.
Title 33 U.S.C. § 901 is cited as the "Longshoremen's and Harbor Workers' Compensation Act.". 33 U.S.C. § 901.
II. The Instant Motion
On June 6, 2002, LWCC filed the instant motion contending that counsel for the plaintiff never informed it of the settlement. As a result, LWCC seeks to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure. LWCC contends that as the compensation insurer for the injured plaintiff, it is entitled to receive complete indemnification with preference and priority for all sums which it paid pursuant to the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA") or the Louisiana Workers' Compensation Act.
The plaintiff opposes the motion contending that LWCC's request to intervene should be denied as untimely as LWCC was aware in 1999 that the plaintiff had obtained counsel. In support of this contention the plaintiff directs the Court to notes compiled by an LWCC adjuster which allegedly indicate that LWCC was aware of the fact that he retained counsel to represent him in bringing a third party claim.
The Court notes that these notes were compiled prior to the plaintiff having filed suit in Civil District Court for the Parish of Orleans on January 10, 2000. As discussed infra, these notes indicate that LWCC was uncertain as to who was serving as counsel for the plaintiff. See Rec. Doc. No. 12, Memorandum in Support of Louisiana Workers' Compensation Corporation Right to Reimbursement, Exhibit B.
The plaintiff contends that he had no contact with LWCC after LWCC terminated his disability payments on May 14, 1999. He also claims that his employer, Red Fox Industries, went out of business on April 29, 1999. Thus, he contends that he had no duty to inform LWCC that he had obtained counsel and was filing a third party suit, and should not be obligated to reimburse LWCC.
Relying on Bosh v. Cummings, 520 So.2d 721 (1988) and Pitard v. Davis, 599 So.2d 398 (La.App. 5 Cir. 1992), the plaintiff further contends that LWCC should not be allowed reimbursement from the plaintiffs settlement after such settlement has been finalized. The plaintiff also contends that LWCC, as a state insurance company, has no subject matter jurisdiction to intervene in this case and demand reimbursement. In the alternative, the plaintiff suggests that the Court declare the settlement invalid and require LWCC to be reimbursed separately.
These cases are not relevant to LWCC's request to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure.
Relying on Masinter v. Tenneco Oil Co., 867 F.2d 892, 900 (5th Cir. 1989), the plaintiff further contends that even if LWCC is allowed to intervene under the Longshoremen's and Harbor Workers' Compensation Act, the law in this jurisdiction does not expressly provide that a compensation carrier may recoup its disbursement from judgment proceeds. The plaintiff contends that if LWCC is entitled to a recovery, it is only entitled to recover from the net recovery after expenses and attorneys fees have been deducted.
The defendant, Naviera Celta, Inc. ("Naviera"), also opposes the motion. Naviera contends that prior to agreeing on the settlement, the plaintiff filed pleadings listing a representative from LWCC on its witness list. Naviera contends that as a result, when entering the settlement, it assumed that the plaintiff and LWCC had independently agreed upon a split of the settlement funds. Naviera further contends that as a result of the settlement, the case has been dismissed and LWCC should not be entitled to intervene at this date. It also contends that if LWCC is allowed to intervene, LWCC's recovery should be limited to an appropriate division of the proceeds currently in the Registry of the Court. III. Analysis
The Court notes that amount to be recovered is not to be decided at this stage in the proceedings. That issue is to be decided by District Judge Helen G. Berrigan.
Rule 24 of the Federal Rules of Civil Procedure governs a party's right to intervention. Rule 24 allows for interventions of right and permissive intervention. Rule 24(a)(2) of the Federal Rules of Civil Procedure governs interventions of right. It states in pertinent part:
Upon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
The inquiry under Rule 24(a)(2) is a flexible one, which focuses on the particular facts and circumstances surrounding each application. Ceres Gulf and ESIS/INA v. Cooper, 957 F.2d 1199, 1202 (5th Cir. 1992). Further, intervention of right must be measured by a practical rather than technical yardstick. Id. "Federal courts should allow intervention where no one would be hurt and the greater justice could be attained." Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994).
Thus, a party is entitled to an intervention of right if (1) the motion to intervene is timely; (2) the potential intervenor asserts an interest that is related to the property or transaction that forms the basis of the controversy in the case into which she seeks to intervene; (3) the disposition of that case may impair or impede the potential intervenor's ability to protect her interest; and (4) the existing parties do not adequately represent the potential intervenor's interest. Ford v. City of Huntsville, 242 F.3d 235, 239 (5th Cir. 2001). The failure of the proposed intervenors to fulfill any one of these prerequisites forecloses their ability to intervene as of right under Rule 24(a)(2). See Bush v. Viterna, 740 F.2d 350, 354 (5th Cir. 1984); Securities and Exchange Commission v. Homa, 2000 WL 1468726, * 2 (N.D.Ill 2000).
Here, the parties do not dispute issues two, three, or four. The only disputed question is whether the motion to intervene, filed after settlement had been reached, was `timely' within the meaning of Rule 24. Nonetheless, the Court will address each factor in turn.
A. LWCC's Interest in the Settlement
1. Standard
LWCC contends that it has an interest in the settlement proceeds because it is subrogated legally and contractually to the rights of the plaintiffs employer, Red Fox Industries. A potential intervenor asserts an interest that is related to the property or transaction that forms the basis of the controversy in the case into which she seeks to intervene, if the potential intervenor has a "direct, substantial, and legally protectable" interest in the property or transaction that forms the basis of the controversy in the case into which she seeks to intervene. Doe v. Glickman, 256 F.3d 371, 379 (5th Cir. 2001).
An economic interest alone is insufficient to fulfill this requirement. New Orleans Public Service, Inc. v. United Gas Pipeline Co., 732 F.2d 452, 464 (5th Cir.) (en banc), cert. denied, 469 U.S. 1019 (1984). The interest must be one which the substantive law recognizes as belonging to or owned by the applicant. Id. The claim that the applicant seeks to assert through the intervention must be a claim as to which the applicant is the real party in interest Id.
B. LWCC's Interest Under LHWCA
LWCC has an interest in this case as provided by the Longshoremen's and Harbor Worker's Compensation Act ("LHWCA"). The LHWCA allocates the costs of industrial accidents between employees and employers. Injured workers receive "prompt and certain" compensation benefits, even if the employer is not to blame for the accident. Speaks v. Tikora Lloyd P.T., 838 F.2d 1436, 1438 (5th Cir. 1988) (citing Louviere v. Shell Oil Co., 509 F.2d 278, 283 (5th Cir. 1975). Although these benefits are the employer's exclusive liability for the longshoreman's injuries, 33 U.S.C. § 905 (a), the LHWCA does allow injured workers to recover damages from negligent third parties. Id. (citing 33 U.S.C. § 933 (a)). When an injured worker recovers from a negligent third party, the employer (or the employer's compensation carrier) has a subrogation right to be reimbursed in the amount of the compensation payments from the worker's recovery. Id. (citing Peters v. North River Ins. Co., 764 F.2d 306, 312 (5th Cir. 1985)). This "lien" prevents double recovery by injured longshoreman. Taylor v. Bunge Corp., 845 F.2d 1323, 1326-27 (5th Cir. 1988).
As a matter of federal law, it is well established that the LHWCA entitles an employer to full reimbursement from any recovery by the compensated employee from a third party tortfeasor. See Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74, 86 (1980). An employer's subrogation right is derived from the worker's claim against the third party. Peters, 764 F.2d at 316. As a result, the employer's subrogation rights and the worker's third party action form a unitary cause of action. Peters, 764 F.2d at 316-17. Thus, it is usual for an employer or the carrier to intervene in the worker's suit and assert a lien on the worker's recovery. Allen v. Texaco, Inc., 510 F.2d 977, 979-80 (5th Cir. 1975).
When such a lien exists, an injured worker and the defendant third party may allocate between themselves responsibility for paying off the compensation lien. Peters, 764 F.2d at 321. The injured worker and the alleged third party tortfeasor may also confect any settlement that does not violate the LHWCA or public policy. Speaks, 838 F.2d 1438. Because the carrier's rights to compensation automatically attach, the defendant and the third party may not, however, barter away the compensation lien rights of the compensation carrier without the carrier's knowing consent or participation. See id.
Therefore, the Court finds that LWCC's subrogation right to be reimbursed for the payments it made to the plaintiff as provided by the LHCWA, provides it with sufficient interests to intervene in the instant matter.
C. Impairment of Ability to Protect Interest
The potential intervenor must be situated so that the disposition of the case into which he seeks to intervene may impair or impede his ability to protect his interest. See id at 379. In 1966 the Supreme Court amended the rule to eliminate a requirement that the proposed intervenor "is or may be bound by the judgment in the action" in favor of the requirement that "the disposition of the action may as a practical matter impair or impede the applicant's ability to protect [its] interest." Kansas Pub. Employees Retirement Sys. v. Reimer Koger Associates, Inc., 60 F.3d 1304, 1307 (8th Cir. 1995).
Here, it is clear that the interests of LWCC are not adequately protected by the parties in this action. LWCC's interest is its subrogation right to be reimbursed for the benefits it provided the plaintiff. The plaintiff's interest in bringing this action, however, are directly opposed to LWCC's interest in receiving reimbursement. Further, the record indicates a complete disregard for the interests of LWCC as the parties entered a settlement agreement without giving credence to LWCC's subrogation claim. It is apparent that as a part of the settlement of the case the plaintiff and his attorney was to pay no part of the compensation lien. Thus, the Court finds that the existing parties do not adequately represent LWCC's interests in receiving reimbursement and LWCC's interests will be impaired if it is not granted an opportunity to intervene in this matter.
The Court has not been provided with the settlement agreement, however, neither party contends that the settlement agreement makes mention of the compensation lien. In fact, LWCC states that it believes that the plaintiff was attempting to settle around its lien.
D. Timeliness
The next condition to consider, and the condition in dispute here, is the timeliness of the motion to intervene. Timeliness is a threshold question addressed to the sound discretion of the court. See Corley v. Jackson Police Dept., 755 F.2d 1207, 1209 (5th Cir. 1985). The Fifth Circuit has established four factors the district court should consider in determining whether the application for intervention was timely. The Court should consider the following: (1) how long the potential intervenor knew or reasonably should have known of her stake in the case into which she seeks to intervene; (2) the prejudice, if any, the existing parties may suffer because the potential intervenor failed to intervene when he knew or reasonably should have known of his stake in that case; (3) the prejudice, if any, the potential intervenor may suffer if the court does not let his intervene; and (4) any unusual circumstances that weigh in favor of or against a finding of timeliness. Ford v. City of Huntsville, 242 F.3d 235, 239 (5th Cir. 2001).
"The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties by the failure to apply sooner." Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). "A motion to intervene's timeliness is to be determined from all the circumstances." Doe v. Glickman, 256 F.3d 371, 376 (5th Cir. 2001). "This analysis is contextual and absolute measures of timeliness should be ignored." Id.
1. LWCC's Knowledge of the Plaintiff's Third-Party Claim
This matter was removed to this Court on May 1, 2001 and a settlement was reached on April 11, 2002. LWCC contends that it did not learn of the pendency of this action until April 9, 2002, when an adjuster of LWCC, Sean Daigle, was served with a subpoena to appear at trial. However, a review of the record suggests otherwise.
The Court notes that the plaintiff listed Sean Daigle on his witness list submitted on March 11, 2002. However, the parties indicate that Daigle was not served until one month later.
LWCC has provided the Court with several notes compiled by an its adjuster between 1999 and 2002. These notes reflect that LWCC was uncertain as to who represented the plaintiff. LWCC contends that it made several attempts to determine whether the plaintiff was in fact represented by counsel. In an effort to ascertain who represented the plaintiff, LWCC sent a letter to the plaintiff's counsel, Pius Obioha, requesting that he provide a letter of representation confirming that he was representing the plaintiff. Mr. Obioha, however, never complied.
See Rec. Doc. No. 12, Memorandum in Support of Louisiana Workers' Compensation Corporation Right to Reimbursement, Exhibit B.
Id.
On May 2, 2000, after contacting the Civil District Court for the Parish of Orleans and not finding a suit in the plaintiff's name, LWCC closed its subrogation file. LWCC contends that because Mr. Obioha did not indicate that he represented the plaintiff in his third party claim, its request to intervene is not untimely. The Court, however, disagrees.
The notes prepared by the LWCC adjuster indicate that LWCC was informed on April 22 and April 23, 1999, that the plaintiff had obtained an attorney and intended to file a third party claim. Thus, LWCC was aware of the fact that the plaintiff intended to file a claim for three years prior to the time it sought intervention. Further, the Court notes that the statute of limitations on maritime personal injury claims in this Court is three years. See Title 46 App. U.S.C.A. § 763a. Thus, LWCC's decision to close its file on the plaintiff claim on May 2, 2000, was premature as the plaintiff had an additional two years to file suit within the limitations period.
46 U.S.C. app. § 763a provides: "Unless otherwise specified by law, a suit for recovery of damages for personal injury or death, arising out of a maritime tort, shall not be maintained unless commenced within three years from the date of the cause of action accrued."
The Court also notes that LWCC contends that prior to closing its file, it contacted the Civil District Court for the Parish of Orleans on May 2, 2000, to determine if the plaintiff had filed suit. However, the Court questions the accuracy of this contention considering that the record indicates that the plaintiff filed suit in Civil District Court on January 10, 2000. Moreover, LWCC does not indicate that it contacted this Court to determine if suit had been filed. Thus, there is no question that LWCC actually knew, or at least, should have known of their interest in this case. 2. McDonald v. E.J. Lavino Company
LWCC also contends that its request is not untimely because the plaintiff failed to notify it that it had filed a third party claim. However, the Court notes that because this was a third party claim, the plaintiff was under no duty to notify LWCC of its claim.
430 F.2d 1065 (5th Cir. 1970).
Although LWCC's request is untimely, the Fifth Circuit has noted that 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). Applying this standard to the instant case, the Court finds that LWCC's request to intervene should be granted. of particular significance is the fact that LWCC is not attempting to reopen or relitigate any issue which had previously been determined. On the contrary, LWCC is only attempting to protect its subrogation interest in a fund which had not yet been distributed.
The Fifth Circuit opinion in McDonald v. E.J. Lavino Company contains facts very similar to that of the instant matter and provides the Court with guidance in reaching its decision. See McDonald v. E.J. Lavino Company, 430 F.2d 1065 (5th Cir. 1970). McDonald involved an action by an injured employee against a third-party tortfeasor. The plaintiff in McDonald, Curtis McDonald, sustained injuries in the course of his employment. As a result of his injuries, McDonald's workmen's compensation carrier, United States Fidelity Guaranty Company ("USFG"), paid McDonald several thousand dollars in benefits. McDonald thereafter filed a third party claim in state court which was subsequently removed to federal court. Id. at 1066.
McDonald informed USFG of his intention to file a lawsuit and correspondence between the two took place up until the time of trial. USFG, however, did not intervene because it did not believe that doing so was necessary to protect its subrogation interest. Id. at 1067. Prior to trial, McDonald entered into a settlement with the defendant and a judgment was entered for the amount of the settlement. Despite being present at the settlement, USFG did not intervene and did not inform the Court of its subrogation interest. The following day, after determining that its interests were not protected, USFG sought to intervene. After considering the request, the District Court denied USFG's intervention as untimely. McDonald, 430 F.2d at 1069. USFG appealed.
The District Court also denied the request because it believed USFG attempted to get a "free ride" by deliberately sitting on the sideline waiting for McDonald to expend the cost of winning the lawsuit and then came on the scene after judgment to reap the fruits of McDonald's victory. The District Court believed that USFG took a calculated risk in deciding to not bear its share of the cost of litigation. McDonald, 430 F.2d at 1069. On appeal, the Fifth Circuit noted this argument but stated that it was "not concerned about the free ride argument" because the Court could come up with solutions to prevent a plaintiff from suffering any prejudice from such actions. Id. at 1073 n. 7.
The Circuit Court reversed and held that the District Court abused its discretion in denying the motion to intervene where, one day after judgment against the third party, the compensation carrier filed the motion for the purpose of asserting an interest in a fund before the fund had been distributed. The Circuit Court held that the carrier had a valid claim to a portion of the fund and intervention would not prejudice any party or interfere with the orderly processes of the court. Id.
In so holding, the Circuit Court cited with approval the holding of Lalic v. Chicago, Burlington Quincy Railroad Co., 263 F. Supp. 987 (N.D.Ill. 1967) which held that a motion to intervene to assert a subrogation interest, filed after the parties to the litigation had agreed on a settlement, was timely within the meaning of Rule 24. McDonald, 430 F.2d at 1072; see generally Peters v. North River Insurance Comp., 764 F.2d 306 (5th Cir. 1985) (holding that while worker and third-party tort-feasor could allocate responsibility for reimbursement between themselves, settlement of worker's claim necessarily settled employer's subrogation claim and entitled employer to reimbursement to extent of funds that third party has agreed to pay in settlement).
In the instant case, on April 19, 2002, the undersigned Ordered that the settlement funds be placed in the registry of the Court. Because LWCC sought to intervene for the limited purpose of protecting its subrogation interest in a fund which had not yet been distributed, the Court cannot conclude that the motion to intervene was untimely merely because it came shortly after settlement. See id. at 1072 (request to intervene filed one day after judgment entered).
Rec. Doc. No. 39.
It is true that an attempt to intervene after final judgment is ordinarily looked upon with a jaundiced eye. Id. However, this is only because allowing intervention after judgment will either (1) prejudice the rights of the existing parties to the litigation or (2) substantially interfere with the orderly processes of the court. Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977); McDonald, 430 F.2d at 1072; Rapp v. Cameron, 2001 WL 1295606, *2 (E.D.Pa. 2001). In the present case, neither of these results would ensue if the intervention is allowed because the timing of LWCC's motion to intervene does not substantially interfere with the orderly processes of the court, for LWCC does not seek to reopen or relitigate any issue which has previously been determined. See id.
Another important consideration in determining timeliness is whether any existing party to the litigation will be harmed or prejudiced by the proposed intervenor's delay in moving to intervene. Ford v. City of Huntsville, 242 F.3d 235, 239 (5th Cir. 2001); McDonald, 430 F.2d at 1073. In fact, this may well be the only significant consideration when the proposed intervenor seeks intervention of right. McDonald, 430 F.2d at 1073; see Ghazarian v. Wheeler, 177 F.R.D. 482, 485 (C.D.Cal. 1997); but see New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 153 F.R.D. 69, 72 n. 4 (S.D.N.Y. 1994) (stating that the proposition that the "current view of the courts" allows intervention as of right unless the parties opposing intervention will be prejudiced may not be reconciled with the evolution of Second Circuit case law).
LWCC's proposed intervention is for the limited purpose of staking a claim to a portion of proceeds not yet distributed, rather than an attempt to litigate any pre-judgment issue. Thus, the existing parties will suffer no prejudice from LWCC's request to intervene. Id.; see Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 (5th Cir. 1992) (noting that this Circuit has allowed post-judgment interest in other cases); Thurman v. Federal Deposit Ins. Corp., 889 F.2d 1441, 1446 (5th Cir. 1989); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022 (1986); see also Stallworth v. Monsanto Co., 558 F.2d 257, 266 (5th Cir. 1997) (stating that whether intervention motion was filed before or after entry of final judgment is "of limited significance" as a measure of timeliness).
Moreover, the prejudice to be considered in ruling on an intervention of right is that created by the intervenor's delay in seeking to intervene after it has learned of its interest in the action, not the prejudice to existing parties if intervention is allowed. Ceres Gulf, 957 F.2d at 1203. Thus, it has been the traditional attitude of the federal courts to allow intervention where no one would be hurt and greater justice would be attained. Stallworth, 558 F.2d at 257; McDonald, 430 F.2d at 1074.
Such is the case here where the proposed intervenor has a valid claim to a portion of the fund and its intervention will not prejudice any party nor interfere with the orderly processes of the court. Moreover, denial of the motion to intervene will harm LWCC by hampering its efforts to satisfy its subrogation interest. In such instances, it is an abuse of discretion to deny a motion for intervention on the ground that the motion has not been timely filed. McDonald, 430 F.2d at 1074.
The Court notes that this Circuit has held that allowing intervention following a negotiated settlement could cause numerous problems. However, this proposition usually applies to cases involving more complex issues and linger delays by the intervenor. See e.g., Corley v. Jackson Police Dept., 755 F.2d 1207, 1210 (5th Cir. 1985) (stating that "a negotiated settlement of a difficult problem is put at risk, to the disadvantage of the named parties, the class, the police department and the City."); Jones v. Caddo Parish School Bd., 735 F.2d 923, 935 (5th Cir. 1984) (the multimonth long settlement here took longer and doubtless more effort than a trial would).
Therefore, applying the Stallworth factors and considering "all the circumstances", the Court finds that LWCC's motion was timely. When the Stallworth factors do not indicate that the motion is untimely, the crucial issues are whether the movants have a protectable interest in the lawsuit, whether that interest will be impaired or impeded by the settlement agreement and whether the movants' interest is adequately represented by the parties. Association of Professional Flight Attendants v. Gibbs, 804 F.2d 318, 321 (5th Cir. 1986).
The Court finds it important to note that if LWCC is not allowed to intervene, the plaintiff will have obtained double recovery, recovery from workers compensation benefits and recovery through the instant suit. Courts consistently stress that an injured plaintiff should not be entitled to double recovery. See Taylor v. Bunge Corp., 845 F.2d 1323, 1326-27 (5th Cir. 1988); Rohrbacker v. Jackson Jackson, Inc., 1991 WL 81726 at *2 (E.D.La. 1991).
Having determined infra that these factors weigh in favor of intervention, the Court finds that LWCC has satisfied the test for intervention as of right. As a result, it is not necessary for the Court to evaluate whether LWCC has satisfied the requirements for permissive intervention.
The plaintiff claims that the Court does not have jurisdiction over LWCC. However, because intervention is granted as of right pursuant to Fed.R.Civ.P. 24(a)(2), LWCC is not required to establish an independent ground of federal jurisdiction. See Mutual Fire, Marine and Inland Ins. Co. v. Adler, 726 F. Supp. 478, 481 (S.D.N.Y. 1989) (holding that when the court's jurisdictional requirements are met with regard to the original parties, a party who subsequently intervenes "as of right" pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure need not have an independent ground of federal jurisdiction, and will not destroy diversity regardless of its citizenship).
Rule 24(b) of the Federal Rules of Civil Procedure allows for permissive intervention. That rule provides in part that:
Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law and fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Fed R. Civ. P. 24(b).
Accordingly,
IT IS ORDERED that the Motion to File Intervention (doc. # 43) is GRANTED.