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In re Dick6/2/2003
tion anyone may be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. 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.
Town Pump points out that if the claimant's death arose "out of and in the course of" her employment, ยง 39-71-407(1), MCA, then it is entitled to pursue an exclusivity defense based on section 39-71-411, MCA, which provides in relevant part: " Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the Workers' Compensation Act, an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers' Compensation Act . . . ." It, therefore, clearly has an interest in the outcome of the present litigation and in the development of facts pertaining to that issue. Thus, under subsection (b), it has established a sufficient interest for permissive intervention. The State Fund is doubtful that it can protect Town Pump's interests even in the discovery process since it has a direct duty to injured workers and must make its decisions based on its own independent analysis rather than the wishes of the employer. (State Fund's Brief in Response to Town Pump's Motion to Intervene at 2.) I am therefore persuaded that whether or not Town Pump has a right to intervene it should be permitted to do so under subsection (b) of Rule 24, Mont.R.Civ.P. I further find good cause for permitting the late filing of the motion. The grounds giving rise to the motion have only recently become evident.
The parties shall continue to adhere to the scheduling order presently in effect in order that the intervention will not unduly delay an adjudication in this case. The Court also perceives no prejudice to the rights of the claimant in allowing Town Pump to intervene.
ORDER
Finding good cause, Town Pump's motion to intervene is granted. The parties, including intervenors, shall adhere to the scheduling order presently in effect.
I further find good cause for permitting the late filing of the motion. The discovery giving rise to the motion has only recently become evident.
DATED in Helena, Montana, this 2nd day of June, 2003.
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