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Estate of Schwenke3/3/1992
49 St.Rep. 180
Submitted on Briefs October 31, 1991.
State Farm Fire and Casualty Company appeals from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, denying its motion to intervene in a personal injury action brought by the estate of David Schwenke against John Becktold. We affirm.
The issues on appeal are:
1. Is the denial of the motion to intervene appealable?
2. Did the District Court err in denying the motion to intervene?
On October 8, 1989, David Schwenke received severe, disabling and permanent head injuries in an automobile accident southwest of Winnett, Montana. David was a passenger in a vehicle driven by John Becktold.
The estate of David Schwenke, by and through its guardian, Diana Hudson (Schwenke), filed a personal injury action on January 16, 1990 against John Becktold alleging that he was negligent in operating the vehicle involved in the accident and that his negligence was the proximate cause of David's injuries. On February 5, 1990, attorney Kenneth Strong entered an appearance and subsequently filed an answer to the complaint on behalf of John Becktold.
In order to determine whether insurance coverage existed for John Becktold, Schwenke's counsel took two depositions. John was deposed on February 19, 1990. He testified that he had been a permanent resident of his parents' household since his graduation from high school in 1982.
Ralph Becktold, John's father, was deposed on March 2, 1990. The purpose of the deposition was to obtain copies of all insurance policies which might provide coverage for Ralph Becktold and members of his household. Ken Amrein, a representative of State Farm, and attorney Dane Schofield of the law firm of Peterson and Schofield attended the deposition. Mr. Schofield is the partner of Kenneth Peterson, counsel for State Farm in this action.
One of the policies obtained as a result of Ralph Becktold's deposition was a State Farm personal liability umbrella policy that provided certain coverage for members of Ralph Becktold's household. Schwenke's counsel believed that policy provided insurance coverage for the accident in which David Schwenke was injured and, on March 27, 1990, sent a letter to State Farm demanding payment of the policy limit. State Farm apparently never responded to the letter.
Trial on the personal injury action in the District Court was set for May 13, 1991. On April 19, 1991, John Becktold filed a notice of appearance in which he advised the court and counsel that he was substituting himself, pro se, in place of attorney Strong. The District Court issued an order allowing Mr. Strong to withdraw as counsel on April 25, 1991.
Schwenke had filed a declaratory judgment action in federal court on April 27, 1990 on the question of whether John Becktold was covered under the umbrella policy. The federal district court granted summary judgment in favor of State Farm on May 8, 1991, ruling that there was no coverage under the policy. That same day, Schwenke appealed to the Ninth Circuit Court of Appeals.
On May 6, 1991, two days before the federal district court granted summary judgment to State Farm in the declaratory judgment action, State Farm filed a motion to intervene in the personal injury action. The stated purpose of the motion was limited to "obtaining continuance of the Trial presently set and a stay of the proceedings in this case pending final resolution of the Plaintiff's Declaratory Judgment action pending in the Federal District Court." State Farm specifically requested that it not be made
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