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Lopez v. Merit Ins. Co.6/9/1993
Per Curiam:
Appellants Eric Lopez and Erwin Lopez (Eric and Erwin) were injured in an automobile accident and brought suit against the driver of the automobile that struck them. After Eric and Erwin were awarded two judgments against the opposing driver, respondent Merit Insurance Company (Merit), who had issued an uninsured/underinsured motorist insurance policy to Eric and Erwin's mother, Gina, attempted to intervene in the action and set aside the two judgments. The district court granted Merit's motions to intervene and to set aside the judgments, and this appeal ensued. Because Merit was permitted to intervene subsequent to the entry of final judgment in the case, and because Merit was not a party to the action and could therefore not have the judgments set aside pursuant to NRCP 60(b)(1), we reverse and remand to the district court with instructions.
Facts
Eric and Erwin Lopez brought suit against Ted Leone (Leone) for injuries sustained when a car in which Eric and Erwin were riding was struck by a vehicle driven by Leone. Prior to filing their complaint against Leone, in a letter dated June 16, 1989, Eric and Erwin notified Merit that they might have a claim against Merit based upon an uninsured/underinsured motorist policy issued by Merit to Eric and Erwin's mother, Gina. After significant pretrial development, Leone and his insurer, Allstate, agreed to settle Eric and Erwin's claims for Allstate's policy limits of $25,000.00 for each claimant. At the same time, Eric and Erwin entered into a covenant not to execute with Leone whereby they agreed not to seek any recovery in excess of the $25,000.00 policy limits from Leone's personal assets. Eric and Erwin instead sought to recover from Merit on their mother's uninsured/underinsured motorist policy.
In a letter dated December 7, 1990, Eric and Erwin notified Merit of their settlement with Leone, and they demanded pay
[109 Nev. 553, Page 555]
ment of the policy limits of their coverage with Merit, which were $15,000.00 per person and $30,000.00 per occurrence. In a letter dated January 10, 1991, Eric and Erwin informed Merit that a trial date for the case was set for March 18, 1991. Further correspondence between Merit and Eric and Erwin included an offer of settlement proposed by Merit, which was rejected by Eric and Erwin in a letter that advised Merit of their intention to proceed to trial.
Following settlement between Eric and Erwin and Leone for Leone's policy limits, the district court allowed Eric and Erwin to “prove up” damages against Leone. Because of the prior settlement, neither Leone nor Allstate contested the prove up. The district court entered judgment in favor of Eric in the amount of $108,263.75, plus interest and costs, and in favor of Erwin in the amount of $105,562.35, plus interest and costs. No appeal was taken from these judgments, and they became final.
Facing potential liability arising out of these judgments on its uninsured/underinsured motorist policy with Eric and Erwin's mother, Merit, on October 28, 1991, filed a “Motion To Set Aside Default Judgments And To Intervene.” The district court granted both motions, finding that Eric and Erwin “did not give proper notice of the action and its trial to MERIT INSURANCE COMPANY.”
Discussion
Eric and Erwin contend the district court erred in granting Merit's motion to intervene subsequent to the entry of final judgment in the case. NRS 12.130(1) provides that “before the trial, any person may intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both.”
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