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In re Dick6/2/2003
Submitted: May 20, 2003
DECISION AND ORDER PERMITTING INTERVENTION
Summary: Employer seeks to intervene in a death benefits case being defended by its insurer on the basis that the decedent's death did not arise "out of her employment."
Held: Where the beneficiaries of the decedent are pursuing both death benefits under the Workers' Compensation Act and a civil action against the employer, the employer will be allowed to intervene where it alleges that the beneficiaries are using the Workers' Compensation Court action for discovery in the civil matter without the participation of the employer, the employer's defense in the civil action may rely on facts and law common in the Workers' Compensation Court case, and the insurer is doubtful it can adequately protect the employer's interests in light of its own independent duties to injured workers.
Topics:
Procedure: Intervention. Where the beneficiaries of the decedent are pursuing both death benefits under the Workers' Compensation Act and a civil action against the employer, the employer will be allowed to intervene where it alleges that the beneficiaries are using the Workers' Compensation Court action for discovery in the civil matter without the participation of the employer, the employer's defense in the civil action may rely on facts and law common in the Workers' Compensation Court case, and the insurer is doubtful it can adequately protect the employer's interests in light of its own independent duties to injured workers.
This is a death action brought on behalf of the beneficiaries of Kimberly Baarson, who was killed at work by her estranged husband. The State Fund insured the employer, Town Pump, however, it denies liability on the ground that the claimant's death did not arise out of her employment.
Town Pump moves to intervene in this action. It acknowledges that under Rule 24.5.309(2) its motion is late but urges that there is good cause to waive the time limits set out in the rule. Specifically, it argues that the ground for intervention arose only recently.
The ground urged as good cause for intervention is an alleged discovery abuse by the petitioner, who is the guardian ad litem for the Baarson children. Petitioner has filed a separate civil action on their behalf in district court. The action is against Town Pump and it argues that petitioner is attempting to use discovery in this case to build evidence in the civil case. The State Fund agrees that " ased on recent discovery requests, it is apparent Petitioner seeks to make a record relevant to issues outside the narrow question before the Court." (State Fund's Response to Motion to Intervene at 2.) It supports Town Pumps motion, urging that it "should be allowed to protect its interests." (Id.)
Discussion
The permissible grounds for intervention are spelled out in Rule 24(a) and (b) of the Montana Rules of Civil Procedure, as incorporated by reference into the Workers' Compensation Court Rules, Rule 24.5.309(a). Rule 24, Mont.R.Civ.P. provides in relevant part:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) 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.
(b) Permissive Intervention. Upon timely applica
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