United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge
NOW, this 19th day of July, 2018, upon consideration of the
Complaint (Docket No. ); the Stipulation to Amend the
Complaint (Docket No. ), wherein the parties agreed the
instant case would proceed on the issue contained in Count
One of the Complaint, namely that Douglas Himes is not an
insured; this Court's Order granting the Stipulation to
Amend the Complaint (Docket No. ); Rockingham Casualty
Company's reservation of rights letter (Docket No.
[1-4]), wherein it advised Douglas Himes of Rockingham's
defense against coverage, specifically:
. . .
b. ‘your' relatives if residents of
As used in the definition stated above, the word
‘your' ‘mean[s] the person or persons named
as the insured on the declarations'. (AAIS Form 3 Ed 2.0,
Page 2 of 29). The persons so designated on the declarations
of the policy are your parents, Michael Himes and Melanie E.
Thus, for you to qualify as an ‘insured' under the
definition quoted above, you must be a resident of the
household of Michael Himes and Melanie E. Himes.
It has come to our attention that, at the time of Ms.
Courtney's accident, you may not have been a resident of
the household of Michael Himes and Melanie E. Himes. If it is
established that you were not residing in your parents'
household, then you would not be an insured and the Company
would have no obligations to you under the policy and it
could withdraw from your defense and refuse to pay any
damages that may be imposed upon you;
the Answer of Miranda Courtney (Docket No. ); Rider
Insurance Company's Motion to Intervene and Brief in
Support (Docket No. ); Rockingham's Response to the
Motion to Intervene (Docket No. ); Miranda Courtney's
Response to the Motion to Intervene (Docket No. );
Rider's Reply Brief and its proposed Answer to the
Complaint (Docket Nos. , [38-1]); and having heard
argument thereon (Docket No. ), IT IS HEREBY ORDERED that
Rider's Motion to Intervene is DENIED, as Rider has not
established that it meets the requirements to intervene.
“A putative intervenor seeking to intervene under
Fed.R.Civ.P. 24(a)(2) must establish that: ‘(1) the
application for intervention is timely; (2) the applicant has
a sufficient interest in the litigation; (3) the interest may
be affected or impaired, as a practical matter by the
disposition of the action; and (4) the interest is not
adequately represented by an existing party in the
litigation.'” Choike v. Slippery Rock
Univ., 297 Fed.Appx. 138, 140 (3d Cir. 2008) (citing
Harris v. Pernsley, 820 F.2d 592, 596 (3d Cir.
1987). Although these requirements are intertwined, each must
be met to intervene as of right. Harris, 820 F.2d at
596 (citations omitted). To that end, the Court finds that
Rider has not met each of these requirements, as it would
appear to the Court that Defendant Miranda Courtney can
adequately represent the interests of Rider in pursuing
coverage against Rockingham.
case, Rider, as the putative intervenor, has the burden to
show that its interests are not adequately represented by the
existing parties. See United States ex rel. Frank M.
Sheesley Co. v. St. Paul Fire & Marine Insurance
Co., 239 F.R.D. 404, 409 (W.D. Pa. 2006).
The extent of that burden is not concretely established, but
varies according to the circumstances. Kleissler v.
United States Forest Serv., 157 F.3d 964, 972 (3d Cir.
1998). Though often minimal, the burden can rise when the
interests of an existing party are presumed coincident with
those of the potential intervenor. ‘[W]hen the party
seeking intervention has the same ultimate objective as a
party to the suit, a presumption arises that its interests
are adequately represented.' In re Cmty. Bank of N.
Va. & Guar. Nat'l Bank of Tallahassee Second Mortgage
Loan Litig., 418 F.3d 277, 315 (3d Cir. 2005) (citing
with approval Virginia v. Westinghouse Elec. Corp.,
542 F.2d 214, 216 (4th Cir. 1976)). ‘To overcome the
presumption of adequate representation, the proposed
intervenor must ordinarily demonstrate adversity of interest,
collusion, or nonfeasance on the part of a party to the
suit.' Id. (citing Int'l Tank Terminals,
Ltd. v. M/V Acadia Forest, 579 F.2d 964, 967 (5th Cir.
1978)). See also Brody, 957 F.2d at 1123 (holding
that the presumption of adequacy is defeated if the movant
shows a sufficient divergence between its interests and those
of the existing party, collusion between the existing
parties, or "that the representative party is not
diligently prosecuting the suit").
Rider has not overcome the above described presumption.
Rather, in its brief, it concedes that Miranda Courtney may
have an interest in establishing coverage by Rockingham.
(Docket No. 38, at 5). This Court agrees that Ms. Courtney,
as the injured party, does have a keen interest in finding
coverage for her losses. Indeed, during oral argument,
counsel for Ms. Courtney argued that coverage exists under
the Rockingham policy if the Court determines that Mr. Himes
lived with his parents. Counsel for Ms. Courtney further
asserted that the language seems clear that the Rockingham
policy covers an insured party driving an ATV that he or she
does not own and that is not on the premises.
argument therefore rests on the assertion that Rider's
interests diverge with Ms. Courtney as it relates to recovery
of defense costs. (Docket No. 38, at 5). However, the Court
finds that recovery of Rider's defense costs is not at
issue in this declaratory judgment case as it is now
framed. Thus, to the extent that Rider maintains
it is entitled to reimbursement in whole or in part for