United States District Court, D. Nebraska
MAIDS ON CALL, LLC, a Connecticut limited liability company; MAIDS ON CALL II, LLC, a Massachusetts limited liability company; TIMOTHY SCUSSEL, an individual; MARYANN SCUSSEL, an individual; SARA ROCK, an individual; and STACEY GARON, an individual; Plaintiffs,
OHIO SECURITY INSURANCE COMPANY, a New Hampshire corporation; Defendant.
Michael D. Nelson United States Magistrate Judge
matter is before the Court on the Motion for Leave to
Intervene (Filing No. 22) filed by The Ohio Casualty
Insurance Company (“Ohio Casualty”). Plaintiffs,
Maids on Call, LLC, Maids on Call II, LLC, Timothy Scussel,
Maryann Scussel, Sara Rock, and Stacey Garon (collectively,
“Maids on Call”), oppose the motion. (Filing
No. 28). For the following reasons, the Court will grant
on Call filed this action against Ohio Security Insurance
Company (“Ohio Security”) on July 12, 2017,
seeking a declaratory judgment establishing that Ohio
Security has a duty to defend and pay the defense costs of
Maids on Call in a separate lawsuit pending in this district,
The Maids International, Inc. v. Maids on Call, LLC, et
al., Case No. 8:17CV208 (June 16, 2017)(“The
Maids International action”), pursuant to a
commercial general liability policy (“Ohio Security
Policy”). (Filing No. 1). Ohio Security filed
a Counterclaim seeking a declaratory judgment that (1) Ohio
Security does not have a duty to defend or indemnify Maids on
Call because the type of damages sought by the plaintiff in
The Maids International action is not covered by the
Ohio Security Policy, or alternatively, (2) coverage is
barred by one or more exclusions contained in the Ohio
Security Policy. (Filing No. 21).
Casualty is an underwriting company that issued a commercial
umbrella insurance policy (“Ohio Casualty
Policy”) to Maids on Call that “follows
form” to the Ohio Security Policy at issue in this
case. According to Ohio Casualty, the Court's resolution
of the scope of coverage under the Ohio Security Policy will
impact the scope of coverage under the Ohio Casualty Policy,
such that “if there is no coverage under the Ohio
Security Policy, there likewise will be no coverage under the
Ohio Casualty Policy.” (Filing No. 23).
Therefore, Ohio Casualty requests leave to intervene and
permission to file a Third Party Complaint to establish that
the Ohio Casualty Policy does not give rise to duty to defend
or indemnify Maids on Call in the separate The Maids
Casualty asserts it should be permitted to intervene in this
action as a matter of right pursuant to Rule 24(a)(2) of the
Federal Rules of Civil Procedure. Under Fed.R.Civ.P.
24(a)(2), the court must permit anyone to intervene who files
a “timely motion . . . claim[ing] an interest relating
to the property or transaction that is the subject of the
action, and is so situated that disposing of the action may
as a practical matter impair or impede the movant's
ability to protect its interest, unless existing parties
adequately represent that interest.” Fed.R.Civ.P.
24(a)(2). The Eighth Circuit Court of Appeals also requires
that prospective Rule 24(a) intervenors demonstrate the
existence of an Article III case or controversy. See
Mausolf v. Babbitt, 85 F.3d 1295, 1300-01 (8th Cir.
on Call opposes intervention as a matter of right because
Ohio Security can adequately represent Ohio Casualty's
interests. (Filing No. 28 at pp. 6-8). A proposed
intervenor must demonstrate “that the representation of
its interests by the current party or parties to the action
‘may be' inadequate.” Sierra Club v.
Robertson, 960 F.2d 83, 85-86 (8th Cir. 1992)(citing
Trbovich v. United Mine Workers, 404 U.S. 528, 538
n.10 (1972)). Although this burden is “minimal, ”
the Court agrees with Maids on Call that Ohio Casualty has
not met its burden.
of representation is determined by “comparing the
interests of the proposed intervenor with the interests of
the current parties to the action.” Sierra
Club, 960 F.2d at 86 (citing Planned Parenthood of
Minnesota, Inc. v. Citizens for Cmty. Action, 558 F.2d
861, 870 (8th Cir. 1977). Intervention is appropriate if
these interests are disparate, even if they share the same
legal goal. See id. The only reason offered by Ohio
Casualty as to why Ohio Security may not be able to
adequately represent Ohio Casualty's interests is that
they are separate corporate entities. (Filing No. 29 at
p. 2). Although they are separate entities, both
corporations are part of Liberty Mutual Group, making it
unlikely that their interests are meaningfully disparate.
(Filing No. 23 at p. 1). Moreover, review
of Ohio Casualty's proposed Third Party Complaint and
Ohio Security's Counterclaim demonstrate they seek
“identical relief” premised upon identical legal
theories. (Filing No. 21 at p. 2). Both Ohio
Casualty and Ohio Security allege that the type of damages
sought by the plaintiff in The Maids International
action is not covered by the Ohio Security Policy (and is
consequently not covered by the Ohio Casualty Policy), as
Maids on Call relies on the “repeatedly rejected”
“implied disparagement” theory of insurance
coverage. (Filing No. 21 at p. 1; Filing No.
23-1 at p. 2). Both Ohio Security and Ohio Casualty
alternatively argue Maids on Call is barred from coverage by
one or more exclusions contained in the Ohio Security Policy.
In consideration of the above, the Court concludes Ohio
Casualty has not demonstrated Ohio Security may not
adequately represent its interests, and therefore the Court
will not grant Ohio Casualty leave to intervene as a matter
Ohio Casualty seeks permissive intervention under
Fed.R.Civ.P. 24(b)(1)(B), which provides, “On timely
motion, the court may permit anyone to intervene who . . .
has a claim or defense that shares with the main action a
common question of law or fact.” Fed.R.Civ.P.
24(b)(1)(B). “The decision to grant or deny a motion
for permissive intervention is wholly discretionary.”
S.D. ex rel. Barnett v. U.S. Dep't of Interior,
317 F.3d 783, 787 (8th Cir. 2003). “Rule 24 should be
liberally construed with all doubts resolved in favor of the
proposed intervenor.” Tweedle v. State Farm Fire
& Cas. Co., 527 F.3d 664, 671 (8th Cir. 2008)
(quoting South Dakota v. U.S. Dept. of Interior, 317
F.3d 783, 785 (8th Cir. 2003)). Maids on Call opposes
permissive intervention because Ohio Security can adequately
represent Ohio Casualty's interests and because
intervention will result in undue delay and prejudice.
(Filing No. 28 at pp. 10-11).
Court finds Ohio Casualty should be permitted to intervene
pursuant to Fed.R.Civ.P. 24(b)(1)(B). There is no dispute
that Ohio Casualty's motion is timely, as it was filed
only twenty-three days after Maids on Call commenced this
action and before pleadings closed. (Filing No. 1;
Filing No. 22). As discussed above, Ohio
Casualty's proposed Third Party Complaint shares common
questions of law and fact with the main action, and Ohio
Casualty and Ohio Security seek “identical
relief” premised upon identical legal theories. The
Court's determination of the scope of coverage under the
Ohio Security Policy will determine scope of coverage
available under the Ohio Casualty Policy, and thus granting
the instant motion will prevent future piecemeal litigation.
Allowing Ohio Casualty to intervene will not cause undue
delay or prejudice to Maids on Call, and Ohio Casualty
represents it “would likely submit joint briefs with
Ohio Security” going forward. (Fili ...