purpose of somehow litigating the employer's "lack of fault") in order to protect its lien.
Second, Security contends that in the event the parties to this action reach a settlement without a concession of liability on the part of the defendant, and then subsequently fail to satisfy Security's compensation lien, Security will be forced to sue the plaintiff and defendant, and prove that the defendant "caused" the plaintiff's injuries, in order to collect the lien. See City of Pittsburgh v. Rue, 38 Pa. Cmwlth. 187, 393 A.2d 1066 (1977). This contention fails to support intervention for two reasons. First, it has been held that an intervenor's interest will not be "impaired or impeded" within the meaning of Rule 24(a) if the disposition of the present action will not preclude the intervenor from bringing suit in another forum to enforce its claim. See e.g., Shorb v. Airco, Inc., No. 82-1983, slip op. at 5-6 (E.D. Pa. June 21, 1985). More important, however, is the fact that Security has not demonstrated that its interest is not adequately protected by the plaintiff in this action. Security has alleged no specific facts showing "such factors as proof of collusion between [a representative party] and the opposing party, any adverse interest between the [intervenor] and the representative, and whether there is any indication that the representative has been less than diligent in prosecuting the litigation." Olden v. Hagerstown Cash Register, Inc., 619 F.2d 271, 275 (3d Cir. 1980). Security does not contend that the plaintiff (or the defendant) in this case has indicated in any way that in the event of a settlement they will fail to honor Security's statutory subrogation claim. Furthermore, Security does not specify how its suggestion of a "potential conflict of interest" between itself and plaintiffs' counsel might arise. In Olden v. Hagerstown Cash Register, Inc., supra, the Third Circuit upheld the district court's denial of a workmen's compensation carrier's petition to intervene in the underlying tort action. The court observed that no conflict of interest could exist between the plaintiff and the carrier prior to a recovery by the plaintiff, and that in the (unlikely) event a conflict should arise after a verdict or settlement is reached, the carrier has "ample opportunities to protect its interests" at that time, e.g., by moving to intervene prior to distribution of the fund created by the settlement or judgment. Olden, 619 F.2d at 275. Accordingly, Security's petition to intervene as of right in this matter pursuant to Fed. R. Civ. P. 24(a) will be denied at this time.
Finally, it does not appear that Security seeks to intervene permissively in this action pursuant to Rule 24(b), which states in pertinent part that intervention may be permitted "(2) when an applicant's claim or defense and the main action have a question of law or fact in common." However, in the event Security is seeking permissive intervention the Court would, in its discretion, decline to permit it for the following reasons. First, as the Olden court observed, the presence of an insurance carrier as a party at trial might lead to the prejudicial disclosure of the existence of workmen's compensation. 619 F.2d at 273. Furthermore, accepting Security's observation that the presence of the compensation carrier might facilitate settlement negotiations, there is no reason that Security must become a party to participate in such discussions, and indeed as a general rule the compensation carrier participates in settlement negotiations in the underlying tort suit without attempting to formally intervene. Security does not contend that any of the parties to this action have impeded in any way its efforts to keep informed of the status of this litigation and/or any negotiations concerning settlement. Accordingly, to the extent Security seeks leave of court to intervene in this action pursuant to Rule 24(b), the Court will, in its discretion, decline to permit such intervention.
AND NOW, this 3 day of July, 1985, upon consideration of the motion for leave to intervene as a party-plaintiff filed by Security Insurance Co., for the reasons stated in this Court's Memorandum of July 3, 1985,
IT IS HEREBY ORDERED that the motion for leave to intervene as a party-plaintiff filed by Security Insurance Co. is DENIED.
© 1992-2004 VersusLaw Inc.