United States District Court, D. Massachusetts
ORDER AND ORDER
A. O'TOOLE, JR. SENIOR UNITED STATES DISTRICT JUDGE
Patriot Insurance Company filed this action against
defendants Susan Ingham and William Ingham as subrogree of
its insured, Ansley Dunbar. The matter arises out of a motor
vehicle accident on January 6, 2016. A vehicle driven by
Susan and owned by William struck a vehicle driven by Dunbar.
The vehicle driven by Dunbar was covered by a Patriot
insurance policy. Patriot's complaint alleges that
Susan's negligence and William's negligent
entrustment was a direct and proximate cause of the injuries
Dunbar sustained as a result of the motor vehicle accident.
Patriot has made payments to or on behalf of Dunbar as a
result of the injuries Dunbar sustained, and anticipates
making additional payments.
pending before this Court is Progressive Direct Insurance
Company's motion to intervene as of right or by
permission of the court pursuant to Federal Rules of Civil
Procedure 24(a) and 24(b). Progressive insured the vehicle
driven by Susan and owned by William at the time of the
accident. Progressive is seeking intervention “for the
purpose of securing a coverage determination as to the limits
available under Progressive's policy of insurance in the
instant under-insured motorist subrogation action.”
(Progressive Direct Ins. Co.'s Mot. to Intervene 1 (dkt.
first argues it is entitled to intervention as of right under
Rule 24(a)(2). A party seeking to intervene as of right must
demonstrate an “interest relating to the property or
transaction that forms the basis of the ongoing
action.” Pub. Serv. Co. of N.H. v. Patch, 136
F.3d 197, 204 (1st Cir. 1998). The interest must be direct
and not contingent. See Travelers Indem. Co. v.
Dingwell, 884 F.2d 629, 638 (1st Cir. 1989). Here,
Progressive is defending William and Susan Ingham under a
reservation of rights to disclaim and/or void coverage under
the policy. Because its insureds' liability for
Dunbar's injury has yet to be determined,
Progressive's interest is at this point contingent, and
accordingly Rule 24(a)(2)'s requirement for intervention
as of right is not met. See id.
argues in the alternative that it be permitted to intervene
pursuant to Rule 24(b)(1)(B). “On timely motion, the
court may permit anyone who . . . has a claim or defense that
shares with the main action a common question of law or
fact” to intervene. Fed.R.Civ.P. 24(b)(1)(B). “In
exercising its discretion, the court must consider whether
the intervention will unduly delay or prejudice the
adjudication of the original parties' rights.”
Fed.R.Civ.P. 24(b)(3). “The discretion afforded to the
district court under Rule 24, substantial in any event, is
even broader when the issue is one of permissive
intervention.” R & G Mortg. Corp. v. Fed. Home
Loan Mortg. Corp., 584 F.3d 1, 11 (1st Cir. 2009).
Additionally, “permissive intervention ordinarily must
be supported by independent jurisdictional grounds.”
Int'l Paper Co. v. Inhabitants of Jay, Me., 887
F.2d 338, 346 (1st Cir. 1989) (quotations and citation
proposed complaint (dkt. no. 12-1) asserts that this Court
has diversity jurisdiction pursuant to 28 U.S.C. § 1332
and alternatively ancillary jurisdiction because of the
underlying subrogation action. However, Progressive
characterizes its potential participation as that of a
plaintiff-intervenor, and this implicates 28 U.S.C. §
1367(b) which strictly limits supplemental jurisdiction in
certain cases that would otherwise be allowed under 28 U.S.C.
In any civil action of which the district courts have
original jurisdiction founded solely on section 1332 of this
title, the district courts shall not have supplemental
jurisdiction under subsection (a) . . . over claims by
persons . . . seeking to intervene as plaintiffs under Rule
24 of such rules, when exercising supplemental jurisdiction
over such claims would be inconsistent with the
jurisdictional requirements of section 1332.
28 U.S.C. § 1367(b). Progressive's claim therefore
“must meet all requirements for diversity
jurisdiction.” Glob. NAPs, Inc. v. Verizon New Eng.
Inc., 603 F.3d 71, 87 n.20 (1st Cir. 2010). While
Progressive's intervention would not destroy complete
diversity, its claim does not meet the amount in controversy
requirement of § 1332. Progressive's proposed
complaint asserts that the matter in controversy exceeds the
sum or value of $75, 000, but at the status conference
recently held, Progressive acknowledged that its
indemnification exposure is limited to only $20, 000. Its
claim does not exceed the jurisdictional limit for diversity
jurisdiction, as required by § 1367(b).
the denial of intervention will not cause Progressive
significant prejudice, as Progressive has an adequate
alternative remedy. Progressive may bring a separate action
for a declaratory judgment. See R & G Mortg.,
584 F.3d at 10 (“The availability of an adequate
alternative remedy softens any plausible claim of
prejudice.”). Progressive's request for a stay in
the instant action to allow it to file its declaratory
judgment action is also denied.
reasons stated, Progressive's Motion to Intervene ...