Opinion
No. CV 07-5010093 S
March 5, 2010
MEMORANDUM OF DECISION RE MOTION TO INTERVENE
Procedural and Factual Background
This motion to intervene arises from the infamous accident that occurred on Avon Mountain on July 29, 2005. In the present action, the plaintiffs, David Wilcox, Shaun Wilcox and Donna Wilcox, seek damages from their insurer, the defendants, Webster Insurance, Incorporated (Webster) and Acadia Insurance Company (Acadia), for their alleged failure to defend and indemnify the plaintiffs in suits associated with the accident. The plaintiffs are the owners of American Crushing Recycling (ACR), the limited liability company that owned the dump truck, which caused the accident. Their ten-count complaint alleges breach of contract, promissory estoppel, negligence, recklessness, negligent misrepresentation, defamation and violations of CUIPA and CUTPA.
On January 6, 2010, Frank Juan, who was severely injured and eventually died from injuries that he sustained in the accident, filed a motion to intervene. Frank Juan has moved to intervene as of right and in support of his motion, claims that the Supreme Court's decision in Wilcox v. Webster Ins., Inc., 294 Conn. 206, 982 A.2d 1053 (2009), allows the court to determine that the plaintiffs were insured on the date of the accident. Thus, Juan argues that this would affect his ability to recover damages that he sustained in the accident and as such, he should be permitted to intervene. Both the plaintiffs and the defendants oppose this motion. The court heard oral argument on the motion on February 16, 2010.
Discussion
"It is well established that there are two forms of intervention: (1) intervention as of right and (2) permissive intervention . . . Intervention as of right gives the person the legal right to be a party to the proceeding that may not be properly denied by the exercise of judicial discretion. Permissive intervention means that, although the person may not have the legal right to intervene, the court may, in its discretion, permit her to intervene, depending on the circumstances." Commission on Human Rights Opportunities v. Litchfield Housing Authority, 117 Conn.App. 30, 43-44, 978 A.2d 136, cert. granted, 294 Conn. 909, 982 A.2d 1081 (2009). In Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn.App. 134, 140, 758 A.2d 916 (2000), the Appellate Court discussed the four requirements that an intervenor must show to obtain intervention as of right. "The motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant's interest must be impaired by disposition of the litigation without the movant's involvement and the movant's interest must not be represented adequately by any party to the litigation." Id.
"One of the ways that a proposed intervenor may establish a right to intervene is by showing that she has such a right derived from statute. See, e.g., King v. Sultar, 253 Conn. 429, 435, 754 A.2d 782 (2000) (in workers' compensation appeal, right to appeal based on statutory right to intervene in trial court)." Id., 44.
Thus, this court must determine whether Juan has a legal right to intervene in this action or whether under the circumstances, he should be permitted to intervene in this action. This court begins its analysis by first, noting that in Acadia Ins. Co. v. American Crushing Recycling, LLC, 475 F.Sup.2d 168, 172-74 (D.Conn. 2007), the federal district court granted Acadia's motion for summary judgment, concluding that: ACR's policy did not cover all autos, but clearly excluded the vehicle involved in the accident; the endorsement and the umbrella policy reflected the suspension of liability coverage over the vehicle involved in the accident; and finally that ACR failed to show that its request for suspension of liability coverage was invalid. In sum, the court ordered and adjudged that Acadia was not obligated to defend or indemnify ACR under either the Auto Policy or the Umbrella Policy for claims arising, or to arise, out of the July 29, 2005 accident. See id., 174.
Next, the court notes that the present action was remanded to this court after the Supreme Court's decision in Wilcox v. Webster Ins., Inc., 294 Conn. 206, 982 A.2d 1053 (2009), in which it reversed the trial court's decision that the plaintiffs lacked standing. The court found that the plaintiffs showed a personal and legal interest in the policies given that David Wilcox was a named insured under both policies, and Shaun Wilcox was insured under the umbrella policy and made a colorable claim that he was insured under the auto policy. See id., 215-19. The plaintiffs' allegations that the insurer's breach of contract caused them to lose business income and exposed them to civil liability established the possibility that some legally protected interest was adversely affected. See id. Further, the court held that General Statutes § 34-134, barring a member of a LLC from filing suit on its behalf, was inapplicable because the LLC was not a party to the action. See id., 219-21.
Additionally, the Supreme Court also addressed the defendant's arguments as to the effect of the federal court's ruling in Acadia Ins. Co. v. American Crushing Recycling, LLC, supra, 475 F.Sup.2d 172-74. The court disagreed with the defendant's argument that the plaintiffs' claims were moot given that no practical relief can be afforded to the plaintiffs because the federal court determined that no liability coverage existed under the policies at issue for ACR's dump truck at the time of the accident. See id., 221. After discussing the differences between mootness and collateral estoppel, the court was convinced that "[the defendant's argument] is a collateral estoppel claim, not a mootness claim," and further stated that: "We are unable to adjudicate whether collateral estoppel applies in this case, however, because the record is devoid of the factual findings that are essential to the resolution of this claim . . . For example, factual findings regarding the following issues would be relevant in this case: (1) whether the plaintiffs had sufficient notice of the federal court action; (2) whether the plaintiffs could have intervened in that action; and (3) whether the plaintiffs' interests were adequately represented in that action. We can conclude, however, on the basis of the current state of the record before us, that the plaintiffs' claims are not moot because a determination of the controversy in the plaintiffs' favor could result in practical relief to the plaintiffs." (Citations omitted.) Id., 223-25.
In regard to whether plaintiffs had sufficient notice of the federal court action, the court stated: "Notice is disputed because, although American Crushing was a party to the federal court action, the plaintiffs were not individual parties to that action. The plaintiffs claim that this is significant because a receiver was in control of American Crushing when the federal action was initiated and pending, and the plaintiffs had no power or control over the company. Accordingly, the plaintiffs claim that any notice sent to American Crushing's address was insufficient to apprise them of the federal action." Id., 224 n. 21.
In regard to whether the plaintiffs could have intervened in that action and whether their interests were adequately represented in that action, the court noted: "[T]he plaintiffs claim that they were not adequately represented because American Crushing was represented and controlled by its receiver during the pendency of the federal action and did not oppose the motion for summary judgment filed by Acadia Insurance Company in that action. The plaintiffs claim, therefore, that the District Court, in ruling on the summary judgment motion, had no evidence before it as to the numerous certificates of liability insurance issued by the defendant and was not aware of the plaintiffs' allegation in the present case that the plaintiffs contacted Webster to reinstate coverage on or before March 17, 2005." Id., 224-25 n. 22.
This action represents the plaintiffs' individual claims against Acadia and Webster in connection with their coverage, or lack thereof, at the time of the accident. As such, the court finds that Juan cannot satisfy the requirements of an intervention as of right.
"In discussing `interest' in the context of intervention as of right, the Supreme Court has stated that the interest must be `significantly protectable.' . . . Moreover, it is said that such an interest must be direct as opposed to remote or contingent . . . An interest that is remote from the subject matter of the proceeding, or that is contingent upon the occurrence of a sequence of events before it becomes colorable, will not satisfy the rule . . . Similarly, interests that are collateral or contingent on the future occurrence of an event are insufficient to satisfy the requirements for intervention." (Citations omitted; internal quotation marks omitted.) Seaco Ins. Co. v. Devine Bros., Inc., Superior Court, judicial district of Fairfield, Docket No. CV 00 0374721 (July 30, 2003, Doherty, J.) ( 35 Conn. L. Rptr. 235, 236-37). Here, Juan's interest in this litigation is contingent on several factors including: whether the plaintiffs are insureds under the defendants' policies; whether the plaintiffs are covered under the policies for the claims Juan seeks to assert against them; whether the plaintiffs were negligent; and finally, the effect of the ruling in Acadia Ins. Co. v. American Crushing Recycling, LLC, supra, 475 F.Sup.2d 174, which concluded that the dump truck involved in the accident was uninsured.
Furthermore, the court notes that Juan has actions pending against his insurer for uninsured motorist coverage; see Juan v. Lancer Ins. Co., Superior Court, judicial district of Litchfield, Docket No. CV 07 5002597 (November 24, 2009, Pickard, J.) [ 48 Conn. L. Rptr. 789] (addressing defendant's motion to strike counts of Ann Juan's, Frank Juan's administrator and widow, complaint seeking uninsured motorist benefits for the severe injuries suffered by Juan prior to his death in 2008, and for her own loss of consortium); and against ACR and David Wilcox; see Juan v. American Crushing Recycling, LLC, Superior Court, judicial district of Hartford, Docket No. CV 07 5012548 (filed August 21, 2007). Thus, the court is satisfied that Juan's interests would not be impaired by disposition of this action without his involvement and that his interests are adequately represented in other actions pending within the state. Finally, this court finds that under the circumstances presented by this action, Juan should not be permitted to intervene.
Conclusion
Accordingly, Frank Juan's motion to intervene in this action is hereby denied.