Hartford Insurance v. Birdsong

KARWACKI, Judge. This appeal arises from a personal injury action instituted by the appellees, Victor W. Birdsong and his wife, Elaine Birdsong, against multiple defendants, including companies insured by the appellants, the Hartford Insurance Company (Hartford) and Liberty Mutual Insurance Company (Liberty Mutual). After their named insureds were voluntarily dismissed as parties defendant, Hartford and Liberty Mutual separately sought to intervene as of right in the action on grounds that they might be found liable for a judgment obtained against another defendant. Both appellants challenge the trial court’s denial of their motions to intervene.

FACTS On May 14, 1980, Victor Birdsong was stopped at a toll booth for the Baltimore Harbor Tunnel when his vehicle ⁶¹⁸ was struck in the rear by a truck driven by Jake Spurlin and owned by K.D. Jalousie of New Jersey, Inc. (Jalousie). At the time of the accident, the truck operated by Spurlin was en route from Elizabeth, New Jersey to Baltimore to be fitted with a new body by Duralite Truck Bodies and Container Corporation (Duralite), a division of Warner Fruehauf Trailer Company, Inc. (Warner Fruehauf). Duralite had contracted with T.R. Transport, Inc., to have Jalousie’s truck picked up in New Jersey and driven to Baltimore. Spurlin was the T.R. Transport employee assigned to accomplish that task.

On the date of the accident, Jalousie was covered by a policy of liability insurance issued by Hartford, while Liberty Mutual similarly insured Duralite and Warner Fruehauf under a single policy. On April 29, 1983, the Birdsongs filed suit in the Circuit Court for Baltimore City seeking damages for injuries allegedly resulting from the May 14, 1980 accident. 1 Among the defendants named in the suit were Jake Spurlin, Jalousie, Warner Fruehauf, and Duralite. 2 Liberty Mutual provided counsel for Warner Fruehauf and Duralite pursuant to the terms of their liability policy. An answer to the Birdsongs’ complaint was filed on behalf of those two defendants on July 12, 1983. Jalousie answered the complaint on September 2, 1983, through counsel provided by its insurer, Hartford.

Although the record discloses that Spurlin was served with process on September 22, 1984, he never filed an answer or any other response to the suit. Both Hartford and Liberty Mutual took the position that they owed Spurlin no coverage under their policies. Due to Spurlin’s failure to plead, the Birdsongs requested, and the court granted, an order of default against Spurlin on March 12, 1985. On April 15, 1985, Jalousie moved to vacate the default, but the motion was denied on ⁶¹⁹ July 1, 1985, based on Jalousie’s lack of standing. 3 In that motion, which sought in the alternative to stay entry of a default judgment pending resolution of the issue of insurance coverage for Spurlin, counsel for Jalousie stated an intention to file a declaratory judgment action within 30 days in order to resolve the question of whether Spurlin was entitled to coverage by Hartford or Liberty Mutual.

Nevertheless, no declaratory judgment action was ever instituted. Subsequently, trial was scheduled for March 31, 1986. Warner Fruehauf, Duralite, and Jalousie had been active participants in discovery and were preparing to go to trial. On February 18, 1986, however, the Birdsongs moved to dismiss the claims against those three defendants pursuant to Rule 2-506(b).

The court granted that motion for voluntary dismissal with the consent of counsel for the parties involved. Seventeen days later, on March 7, 1986, Hartford moved to intervene as a defendant in the case pursuant to Rule 2-214(a). The motion was filed by the same attorney who had been counsel for Jalousie. Hartford asserted that counsel for the Birdsongs had taken the position that Jalousie’s liability policy with Hartford afforded coverage to Spurlin, a position with which Hartford continued to disagree.

While Jalousie was a defendant, Hartford felt that its interests were adequately protected since it had provided Jalousie’s counsel. With Jalousie dismissed from the case, along with every other defendant represented by counsel (i.e., Warner Fruehauf and Duralite), 4 Hartford feared that the Birdsongs would present a case for damages against Spurlin unopposed and then seek to enforce the judgment against Hartford pursuant to Md.Code (1957, 1986 Repl. ⁶²⁰ Vol.), Art. 48A, § 481. 5 Hartford sought to assure the court that its intervention in the action would not require postponement of the trial, representing that its counsel was familiar with the case due to his prior involvement as counsel for Jalousie. Nevertheless, after hearing argument the same day the motion was filed, Judge Elsbeth L. Bothe denied Hartford’s motion to intervene. 6 On March 19, 1986, Liberty Mutual filed a motion to intervene based essentially on the same grounds as were advanced in Hartford's motion. In addition to its motion to intervene, however, Liberty Mutual filed a motion for continuance of the trial date, asserting a need to conduct additional discovery as well as a conflict in its counsel's schedule. 7 Like Hartford, Liberty Mutual continued to deny coverage for Spurlin.

On March 21, 1986, Judge Bothe denied Liberty Mutual’s motion to intervene, thereby rendering moot its accompanying motion for a continuance. 8 MOTION TO DISMISS APPEAL We first consider the appellees’ motion to dismiss the appeal on grounds of mootness. In support of their motion, ⁶²¹ the appellees assert that the sole purpose of the appellants’ motions to intervene was to permit the appellants to participate in a hearing which had been scheduled pursuant to Rule 2-613(e) for March 31, 1986 to determine the amount of Mr. and Mrs. Birdsong’s damages. Because that hearing was held as scheduled and resulted in a judgment in favor of Victor Birdsong in the amount of $3,000,000 plus costs, the appellees contend that the issue presented in this appeal is now moot. “A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Koontz v. Ass’n of Classified Employees, 297 Md. 521, 529 , 467 A.2d 753 (1983); Attorney General v. Anne Arundel County School Bus Contractors Ass’n, 286 Md. 324, 327 , 407 A.2d 749 (1979). Here, if the appellants’ motions to intervene were improperly denied, we could reverse those orders, vacate the judgment entered in favor of Mr. Birdsong, and remand the case for a new trial on the issue of damages.

Rule 1074a. See Maryland-Nat’l Capital Park and Planning Comm’n v. Washington Nat’l Arena, 30 Md.App. 712, 714 , 354 A.2d 459 (1976). Accordingly, the issue raised by the appellants is not moot, and we deny the appellees’ motion to dismiss the appeal. 9 INTERVENTION Rule 2-214 is the successor to former Rule 208. With respect to intervention as of right, Rule 2-214 states: (a) Of Right.—Upon timely motion, a person shall be permitted to intervene in an action: (1) when the person ⁶²² has an unconditional right to intervene as a matter of law; or (2) when the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented by existing parties.

The language of section (a) is taken almost verbatim from Fed.R.Civ.P. 24(a). Even under the language of former Rule 208a., which differed from the federal rule following amendment of the federal rule in 1966, the Court of Appeals relied on the federal cases construing Rule 24 as an interpretive guide. Citizens Coordinating Committee on Friendship Heights, Inc. v. TKU Associates, 276 Md. 705, 712 , 351 A.2d 133 (1976). Therefore, in interpreting the new rule, we shall look for guidance to federal case law interpreting Fed. Rule 24(a) as well as to Maryland case law interpreting former Md. Rule 208a.

The appellants in the case sub judice claim “an interest relating to the property or transaction that is the subject of the action” under Rule 2-214(a)(2). The federal appellate courts have imposed four requirements for intervention as of right under Fed. Rule 24(a)(2): (1) the application for intervention must be timely; (2) the applicant must have an interest in the subject matter of the action; (3) disposition of the action would at least potentially impair the applicant’s ability to protect its interest; and (4) the applicant’s interest must be inadequately represented by existing parties. Texas v. United States Dep’t of Energy, 754 F.2d 550, 552 (5th Cir.1985); Commodity Futures Trading Comm ’n v. Heritage Capital Advisory Services, Ltd., 736 F.2d 384 , 386 (7th Cir.1984); United States Postal Service v. Brennan, 579 F.2d 188, 191 (2d Cir.1978). Failure to satisfy any one of the four requirements is sufficient to warrant denial of a motion to intervene as of right.

Commodity Futures ⁶²³ Trading Comm’n v. Heritage Capital Advisory Services, Ltd., supra, 736 F.2d at 386. The appellants in their briefs and at argument attempted to focus attention on the necessity of protecting their interests and on the inadequate (or lack of) representation by existing parties, i.e., the third and fourth requirements for intervention as of right. Before even reaching those considerations, however, the appellants must overcome the obstacles presented by the first and second requirements (timeliness and existence of an interest in the litigation). We shall discuss those requirements seriatim.

Timeliness Rule 2-214(a) clearly requires a “timely motion” as a prerequisite to intervention as of right. Thus, the timeliness of a motion to intervene is a threshold issue to be resolved before reaching the substantive merits of the motion. Maryland Radiological Soc’y, Inc. v. Health Services Cost Review Comm’n, 285 Md. 383, 388 , 402 A.2d 907 (1979); Montgomery County v. Ian Corp., 282 Md. 459, 465 , 385 A.2d 80 (1978) (quoting NAACP v. New York, 413 U.S. 345, 365-66 , 93 S.Ct. 2591, 2602-03 , 37 L.Ed.2d 648, 662-63 (1973)). Resolution of the timeliness question “is dependent upon the individual circumstances of each case and rests in the sound discretion of the trial court, which, unless abused, will not be disturbed on appellate review.” Maryland Radiological Soc’y, Inc. v. Health Services Cost Review Comm’n, supra, 285 Md. at 388 , 402 A.2d 907 .

The Court of Appeals, while cautioning that “all relevant circumstances should be taken into account,” id., has identified four factors in particular as a general guide for assessing the timeliness of an intervention motion: one, the purpose for which intervention is sought; two, the probability of prejudice to the parties already in the case; three, the extent to which the proceedings have progressed when the movant applies to intervene; and ⁶²⁴ four, the reason or reasons for the delay in seeking intervention. Id. at 389, 402 A.2d 907 . The record does not reflect to what extent, if at all, the hearing judge relied on untimeliness as the basis for denial of the appellants’ motions to intervene. 10 We are convinced, however, that if untimeliness was the basis for denial of the motions, those rulings do not constitute an abuse of discretion. Hartford filed its motion to intervene on March 7, 1986, 24 days prior to the scheduled start of the hearing on damages.

Although Hartford asserted that its intervention would not result in a delay of the proceedings, such a position seems unrealistic to us. With little more than three weeks remaining until trial, intervention of a new party, even one whose counsel was totally familiar with the case, almost certainly would have caused delay. As an intervening party, Hartford not only would have been entitled to conduct discovery but would have been subject to discovery requests by the appellees as well. 11 Despite Hartford’s assertion to the contrary, it is unlikely that such discovery could have been completed within the time remaining prior to the scheduled trial date. Liberty Mutual, which filed its motion to intervene on March 19, 1986, readily conceded that it could not go to trial on March 31 by filing a motion for a continuance in conjunction with its motion to intervene.

Therefore, intervention at the point requested by the appellants entailed likely, if not inevitable, delay in the proceedings, with the attendant disruption in ⁶²⁵ witness scheduling, availability of experts, and the calendars of the court and counsel. Moreover, the appellants concede that they knew at least several months before attempting to intervene that the appellees’ counsel was of the view that one or both of the appellants might be liable for any judgment against Jake Spurlin. In spite of this awareness, they waited until the last few weeks prior to trial to file their motions to intervene. The appellants take the position that their interests were protected while their named insureds remained in the case as defendants and