Livingston et.al. v. VIWAPA

• Court: District Court, Virgin Islands
• Decided: February 18, 2020
• Docket: 1:19-cv-00012
• Status: Unknown

Opinion

DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX ║ MILES LIVINGSTON, ║ ANNA LIVINGSTON, and CHRISTOPHER ║ GLAVACH, ║ 1:19-cv-00012 ║ Plaintiffs, ║ ║ v. ║ ║ LOUIS BERGER f/k/a LOUIS BERGER ║ GROUP and VIRGIN ISLANDS WATER ║ AND POWER AUTHORITY, ║ ║ Defendants. ║ ________________________________________________ ║

TO: Lee J. Rohn, Esq. Eugenio W.A. Géigel-Simounet, Esq. Lorelei M. Farrington, Esq. Mark A. Kragel, Esq. Gerald D. Siegel, Esq. Warren B. Cole, Esq. Scott F. McChain, Esq.

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court upon the Motion to Intervene of Louisiana Workers’ Compensation Corporation (“LWCC”) (ECF No. 28). None of the other parties have responded, and the time do so has now passed. The Court will, therefore, issue this order without necessity of response. I. BACKGROUND Plaintiffs Miles Livingston and Christopher Glavach (“Employee-Plaintiffs”) are employees of ACP, LLC, which was subcontracted by Defendant Louis Berger (“Berger”) to perform storm repair and rehabilitation at the Virgin Islands Department of Health facility. Livingston et. al. v. Berger, et. al.

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(ECF. No. 1-1 at ¶ 8). At the time, Plaintiff Miles LivIidn.g ston was working as an electrician, and Plaintiff Glavach was an electrician’s helper. at ¶ 10. Employee-Plaintiffs were requested by Berger to perform an inspectIido.n of a damaged generator and a transfer switch to ensure a new one could be installed. at ¶ 13. Defendant Virgin Islands Water and Power Authority’s (“WAPA”) 13,800-volt power line was connected to the hospital through the generator and switchbox by underground wiring, and unbeknownst to Employee- PlaintiIfdfs. , WAPA was circulating power on and off with no notice to persons working in the area. at ¶¶ 14-15. The switch area had no signage as to dangers or voltage, no warning iIndf. ormation, and there was no indicator of high voltage at the site other than the transformer. at ¶¶ 21-22. Berger did not inspectId t.h e job site, including the switchbox and generator, prior to assigning the job to Plaintiffs. at ¶ 26. As Plaintiff Miles LivingIsdt.o n was checking the voltage, there was a massive explosion, injuring Employee-Plaintiffs. at ¶ 35. The equipment Employee-Plaintiffs were assigned to work on was not properIldy. labeled and was inadequate, as it had no proper test meters rated to the correct voltage. at ¶¶ 36-37. Prior to the explosion, Employee-Plaintiffs were told by Defendants that the building had no power and that were no genIde.r ators running, and Plaintiff Miles Livingston verified that no generators were running. at ¶ 39. However, Berger failed to provide Employee-Plaintiffs with proper safety equipment, failed to pIrdo. vide required warnings, and failed to properly inform Employee-Plaintiffs of the dangers. at ¶¶ 42-43. WAPA had line Livingston et. al. v. Berger, et. al.

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crews in the arIeda. , and, upon information, was energizing and deenergizing lines without proper notice. at ¶ 46. Plaintiffs then filed suit in the Superior Court of the Virgin Islands, alleging that, as a result of Defendants’ negligence, Employee-Plaintiffs suffered electrical shock injuries, physical and mental injuries, medical expenses, loss of income, loss of Icda. pacity to earn income, mental anguish, pain and suffering and loss of enjoyment of life. at ¶ 51. They further allegIedd. that Plaintiff Anna Livingston suffered loss of companionship and consortium. The case was removed to this Court on April 23, 2019. (ECF No. 1). On January 22, 2020, LWCC filed the immediate motion seeking to intervene in the lawsuit. (ECF No. 28). LWCC is the workers’ compensation carrier Ifdo. r ACP and has provided workers’ compensation benefits to the Employee-Plaintiffs. at 1. AccoIrdd. ingly, it seeks intervention in this action so that it canII .a ssertA iPtsP rLiIgChAtsB tLoE i nLdEeGmAnLi fPicRaItNioCnI.P LESa t 1-2. The party seeking to intervene, whether as a matter of right or permissively under Rule 24 of the Federal RuleUs noitf eCdi Svtila tPerso vc. eAdlcuarne, A bluemarisn uthme, Ibnucr.den of demonstrating that intervention is appropriate. , 25 F.3d 1174, 1181 n.9 (3d Cir. 1994) (nsoeteing that the burden of proving the elements under Rule 24(a) “falls on the applicant”); 6 James W. Moore et al., 6-24 Moore’s Federal Practice, § 24.03 (3d ed.) (stating that the applicant bears the burden of establishing its right to intervene and failure Livingston et. al. v. Berger, et. al.

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tIno erset Babuldisehp rainoyn oXnLe M ofk tthge. &cr Sitaelreisa Luintidge.r Rule 24(a) is sufficient grounds to deny the motion); , No. 09-MD-2107, 2012 WL 4322012, at *5 (E.D. Pa. Sept. 21, 2012) (“Whether to allow permissive intervention is left to the discretioHn oooft st hve. tPreinaln scyoluvartn iwaith the burden resting on the entity seeking to intervene.”) (citing , 672 F.2d 1133, 1135-36 (3d Cir. 1982)). Regardless of whether a non-party utilizes the mandatory or permissive mechanism for intervention, “[a] motion to intervene . . . must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” Fed. R. Civ. P. 24(c). Further, the court must Saecec eOplty masp itcr uSep otrhtes nDoanta-c oSenrcvlus.s vo.r My aaslleelgliations made in support of a motion to intervene. , No. 07-117, 2008 WL 5377626, at *5 (E.D. Pa. Dec. 22, 2008) (“The court is to accept the movant’s motions and pleadings as true to the extent they are nonconclusory and well-pleaded.”) (collecting cases). Finally, “[a]n application tIon i nret eFrivneen Pea, pwehre Atnhteirt roufs rti Lgihttig o.r by permission, must be timely under the terms of Rule 24.” , 695 F.2d 494, 500 (3d Cir. 1982). Intervention as of right is governed by Rule 24(a)(2), which provides that a court must permit intervention where a movant, upon timely motion, claims 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). Thus, in addition to timeliness, the following elements must be met Livingston et. al. v. Berger, et. al.

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litigation;” (2) “the interest may be affected or impaired, as a practical matter by the disposition of the action;G” eann. dS t(a3r) I“nthdee min. tCeore. st is not adequately representedB rboyd ayn v e. xSipsatinngg party in the litigation.” accord, 2H2a4r rFi.sR v.D. P. aetr n3s7le4y-75 (quoting , 957 F.2d 1108, 1115 (3d Cir. 1992)); , 820 F.2d 592, 596 (3d Cir. 1987) (stating that each factor “must be met to intervene as of right”). Permissive intervention is governed by Rule 24(b), which provides that the Court may permit anyone to intervene, upon timely motion, who has “a conditional right to intervene by a federal statute” or “a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(A)-(B). Determining whether a mSeoet Pioan. Pforirs opne rSmocis’ys ivv.e C ionrtteersvention should be granted is withinH tohoet dsiscretion of the court. , 622 F.3d 215, 232 (3d Cir. 2010); , 672 F.2d at 1135. In evaluating the applicability of permissive intervention, couKrittsz mshiolluerld v .c Donovsiedre Arr weah Secthhe. Dr itshte. proposed intervenors “will add anything to the litigation,” , 388 F. Supp. 2d 484, 486 (M.D. Pa. 2005), and whethSeere tHhoeo ptsroposed intervenors’ interests are already adequately represented in the litigation. , 672 F.2d at 1136 (noting that “where . . . the interests of the applicant in every manner match those of an existing party and the party’s representation is deemed adequate, the district court is well within its discretion in deciding that the applicant’s contributions to the proceedings would be superfluous and that any resulting delay would be ‘undue’”). Furthermore, “the court must Livingston et. al. v. Berger, et. al.

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consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. IPI.I .2 4(bD)(I3S)C. USSION A. LWCC’s Motion is Timely “[T]imeliness is measured Gfreonm. S tthaer pInodinetm a. tC woh. vic. hV itrhgei na pIspllaincadns tP konret wA uotrh s.hould have known, of the risk to its rsiegeh tasl.s”o Alcan Aluminum, Inc. , 224 F.R.D. 372, 375 (D.V.I. 2004); , 25 F.3d at 1182 (explaining that timeliness should be “measured from the point which an applicant knows, or should know, its rights are directlSyi earffreac tCeldu bb yv t. hEes pliytigation” and “not . . . from the time the applicant learns of the litigation”); , 18 F.3d 1202, 1206 (5th Cir. 1994) (to determine whether an applicant acted promptly, courts consider “the speed with which the would-be intervenor acted when it became aware that its interests would no longer be protected by the original parties”). G Heonw. Setvaerr ,I nadne amp. pClioc.ation to intervene is not made untimely by “the mere lapse of time.” , 224 F.R.D. at 375 (citing Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, 7C Federal Practice & Procedure Civil 2d § 1916 (1986) (internal quotation marks omAiltctaend )A).l u mRainthuemr,, Itnicm.eliness is determined by looking at the totality of the circumstances. NAAC, 2P5 v .F N.3edw a Yt o1r1k81 (stating that “timeliness is not just a function of counting days”) (citing , 413 U.S. 345, 366 (1973)). In deciding whether a motion to intervene is timely, the following factors are considered: “(1) the stage of the proceedings reached when the movant seeks to intervene, Livingston et. al. v. Berger, et. al.

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(2) the prejuGdoicve’t tohfa tt hthe eV r.Ie. svu. ltLianngs ddeallaey might cause to other parties, and (3) the reason for the delay.” , Civ.C Nhooisk. e2 v0. 0S1li-p1p5e7r,y 1R9o9c8k- U24n3iv,. 1o9f 9P2a-.79, 2010 WL 2991053, at *2 (D.V.I. July 26, 2010) (citing , 297 F. App’x 138, 140 (3d Cir. 2008)). Here, this case was removed to this Court on April 23, 2019, and the Scheduling Order was produced on October 21, 2019. While not submitted at the earliest stages of the proceedSieneg sC,i LtiWzeCnCs ’fso mr oBtaiolann ccoedm Uess ea tv a. Mtimonet .s uWffiilcdieernnte tsos aAvsos’ind any prejudice, disruption, or delay. , 647 F.3d 893, 897 (9th Cir. 2011) (holding that a motion to intervene as of right was timely and would not cause prejudice, disruption, or delay in the proceedings when the applicants filed their motion less than three months after the complaint was filed and less than two weeks after the answer was filed). B. LWCC’s Motion Satisfies Rule 24(a)(2) 1. LWCC’s Interest in the Litigation Rule 24 does not detail what kind of interest a party must have to intervene as a matter of right, but the Supreme CDoounrat ldhsaosn h ve. lUdn tihteadt S“[twat]ehsat is obviously meant . . . isse ae sailgson iKfilceaisnstlleyr pv.r Uot.Se.c Ftaobreles ti nSetervre.st.” , 400 U.S. 517, 531 (1971); , 157 F.3d 964, 969 (3d Cir. 1998) (noting that no “precise and authoritative definition of the interest that satisfies Rule 24(a)(2)” exists) (internal quotation marks omitted). “Nonetheless, the polestar for evaluating a claim for intervention Livingston et. al. v. Berger, et. al.

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is always whether the proposed intervenor’s interest is direct or remote.” , 157 F.3d at 972. Accordingly, to establish a sufficient interest for intervention, “the applicant must demonstrate thHaat rtrhiesre is a tangible threat to a legally cognizable interest to have the right to intervene.” , 820 F.2d at 601. “This iMnoteurnetsati nis Treocpo Cgnonizdeod. aAss so’nne belonging to or being owned by the proposed intervenor.” , 72 F.3d at 366. Furthermore, the proposed intervenor should have an interest that “is capable of deKflieniistsiloenr, and will be directly affected in a substantially concrete fashion by the relief sought.” , 157 F.3d at 972. Finally, the Third Circuit has noted: In general, a mere economic interest in the outcome of the litigation is insufficient to support a motion to intervene. Thus, the mere fact that a lawsuit may impede a third party’s ability to recover in a separate suit Mountaoinrd Tinoapr Ciloyn ddooe. sA snso’nt give the third party a right to intervene.

, 72 F.3d at 366 (internal citations omitted). Here, LWCC has a significant interest in this action based on its subrogation lien for the workers’ compensation benefits it paid to Employee-Plaintiffs after they suffered injuries. Under Louisiana law, a compensation insurer is entitled to receive complete indemnification or reimbursement with preference and priority for all sums it has paid or to be paid to or on behalf of Plaintiffs, out of Saeney judgment or §settlement eitn s feaqvor of Plaintiffs, including a dollar-for-dollar future credit. LaS.e Re ev. Stat. 23:1101, § . Virgin Islands law permits a similar reimbursement scheme. V.I. Code Ann., tit. 24, 263. Therefore, the Court finds that LWCC has a sufficient interest related to the subject matter of this action Livingston et. al. v. Berger, et. al.

1:19-cv-00012 Memorandum Opinion and Order Page 9 2. Potential Impairment of Interest by Disposition of Action in LWCC’s Absence

Once an applicant for intervention has established that he or she has a sufficient legal interest in the underlying dispute, the applicant must also show that the interest may be jeopardized in the applicant’s absence. In making this determination, the court must assess “the practical consequenceBsr oofd tyhe litigation, and may consider any significant legal effect on the applicant’s interest.” , 957 F.2d at 1122 (internal quotation marks and citations omitted). It is not sufficient that the claim is inciIdde. ntally affected; rather, there must be “a tangible threat” to the applicant’s legal interest. at 1123. This factor may be satisfied if, for example, a disposition of the present action in the applicant’s absence will have a stare decisis, res judicata or collateral estoppel effect on any action whiScehe tUhneiyt ebdr iSntag tseesp va. rSamteitlhy, or if the applicant’s rights may be affected by a proposed remedy. , 48 V.I. 544, 550 (D.V.I. 2006). Here, the third factor for intervention is met, because, if it fails to intervene in the present Saecet,i oen.g, .,L CWanCaCl mInasy. Cboe. vb. aLrirbeedr tfyr oMmu ta. sInses.r tCion.g its subrogation lien in a subsequent action. , 570 S.E.2d 60, 62 (Ga. Ct. App. 2002) (finding that, without a carrier’s intervention in a tort suit to protect its subrogation right, the carrier “could never carry its burden to prove that the employee had been fully compensated for his injuries and damages, thus barring any right of subrogation”). Many tort claims of this sort settle prior to trial. If LWCC is not allowed to intervene, it will have Livingston et. al. v. Berger, et. al.

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settlement proceeds are allocated. Therefore, LWCC satisfies this element for intervention as of right. 3. Adequacy of Representation of LWCC’s Interest By Existing Parties

To satisfy the third element, the applicant must demonstrate that the reKplreeissselnetration of its interest in the existing litigation by existing parties may be inadequate. , 157 F.3d at 969. The applicant satisfies this burden by a showing that: (1) “the interest of the applicant so diverges from those of the representative party that the representative party cannot devote proper attention to the applicant’s interest; (2) there is collusion betweeAnl ctahne Aexluismtiinngu mpa, rItniecs.; or (3) the representative party is not diligently prosecuting its suit.” , 25 F.3d at 1185 n.15. Further, “[a]n intervenKoleri snsleeerd only show that representation may be inadequate, not that it is inadequate.” , 157 F.3d at 974 (internal quotation marks and citation omitted). Finally, “[t]here is a presumption that if one party is a government entity charged by law with representinBgr tohdey interests of the applicant fDoerl .i nVtaelrlevye nCtiitoizne,n tsh’ eCno tuhnicsi lr efoprr eCsleeannta Atiiorn v .w Pielln bnes yaldvaeqniuaate.” , 957 F.2d at 1123 (citing , 674 F.2d 970, 973 (3d Cir. 1982)). “[T]he presumption notwithstanding, when an agency’s views are necessarily colored by its view of the public welfare rather than the more parochial views of a proposed intervenor whose interest is personal to it, the Kbleuirsdsleenr [of establishing the inadequacy of the representation] is comparatively light.” , 157 F.3d at 972. Livingston et. al. v. Berger, et. al.

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Here, there are no arguments that the existing parties to the action adequately represent LWCC’s interests in this action. Accordingly, the Court finds that this factor is met and that intervCe. ntLioWnC bCy’ sL MWoCtCi osnh oAullsdo b Sea atilslofiweesd R ausl eo f2 r4ig(bht). In an exercise of discretion, the Court finds that even if LWCC had not satisfied the elements for intervention as of right, it has met the requirements for permissive intervention under Rule 24(b). Not only is LWCC’s motion timely, but there exists a common question of law as to whether Defendants are liable for Plaintiffs’ injuries. For the reasons explained above, the Court also finds that intervention will not “unduly delay or prejudice the adjudication of the original parties’ IrVig. hts”C uOnNdeCrL RUuSlIeO 2N4 (b)(3). ORDERED: Fo r the foregoing reasons, it is GRANTED 1. LWCC’s Motion to Intervene (ECF No. 28) is . 2. LWCC shall file forthwith its Complaint, as required by Fed. R. Civ. P. 24.

ENTER:

Dated: February 18, 2020 /s/ George W. Cannon, Jr. GEORGE W. CANNON, JR. MAGISTRATE JUDGE