Tig Specialty Insurance v. Financial Web.Com, Inc.

208 F.R.D. 336, 2002 WL 1257065
CourtDistrict Court, M.D. Florida
DecidedMay 20, 2002
DocketNo. 8:01-CV-2026-T-17EAJ
StatusPublished
Cited by5 cases

This text of 208 F.R.D. 336 (Tig Specialty Insurance v. Financial Web.Com, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tig Specialty Insurance v. Financial Web.Com, Inc., 208 F.R.D. 336, 2002 WL 1257065 (M.D. Fla. 2002).

Opinion

ORDER

KOVACHEVICH, Chief Judge.

THIS CAUSE is before the Court on Motion to Intervene of Tort Claimants Benjamin Mobasseri, Samuel Garre, III, and Milano Manhattan, LTD., and Memorandum of Law in Support thereof (Docket Nos. 26-27, filed March 18, 2002); and Plaintiffs Response in Opposition to Motion to Intervene and Incorporated Memorandum of Law (Docket No. 37, filed April 16, 2002).

Background

TIG Specialty Insurance Company (Plaintiff) filed suit against Financial Web.com (Financial Web), Kevin A. Lichtman (Defendant Lichtman), James Gagel (Defendant Gagel), Kevin Leininger (Defendant Leininger), Andrew Hobbs (Defendant Hobbs), Edward Mullen (Defendant Mullen), Martin Averbuch (Defendant Averbuch), John Bergen (Defendant Bergen), and Leonard von Vital (Defendant von Vital) in this Court on October 26, 2001, seeking rescission of a director and officer liability policy and renewal policy issued to Financial Web on the grounds that Financial Web made material misrepresentations and/or omissions in connection with the application and renewal application for these policies. Alternatively, Plaintiff is seeking a declaration that coverage will not be afforded under the renewal policy for any claims as[337]*337serted against the directors and officers of Financial Web.

In March 2001, Benjamin Mobasseri and Samuel Garre, III (Intervenors) brought suit against Defendant Lichtman, Defendant Ga-gel and others for violations of the Securities Exchange Act resulting from Defendants’ misrepresentations on behalf of their work for/with Financial Web. This case, Mobasseri v. Lichtman, et al, Case No. 6:01-CV-324-Orl-31KRS, is currently pending in the Orlando division of this Court. Additionally, a third Intervenor, First American, brought suit against Financial Web, Defendant Gagel, Defendant Leininger, and Defendant von Vital, as well as other former directors and officers of Financial Web, for violations of Florida’s securities law and other state law causes of action. This case, First American Investment Banking Corporation v. Financial Web.com Incorporated, No. 01-3776, also is still pending in the Thirteenth Judicial Circuit in and for Hillsbourgh County.

Intervenors now move to intervene in the case at hand because they claim an interest in the insurance policy that Plaintiff seeks to invalidate. Plaintiff opposes the intervention on the grounds that the Intervenors’ interest in the insurance policy does not satisfy the requirements of a legally protectable interest under Federal Rule of Civil Procedure 24.

Discussion

I. Intervention as of Right

Federal Rule of Civil Procedure 24(a) provides, in pertinent part, that:

[ujpon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest unless the applicant’s interest is adequately represented by existing parties.

Fed.R.Civ.P. 24(a)(2). In this Circuit, a party seeking to intervene under Rule 24(a)(2) must show: “(1) that the intervention application is timely; (2) that an interest exists relating to the property or transaction which is the subject of the action; (3) that disposition of the action, as a practical matter, may impede or impair the ability to protect that interest; and (4) the existing parties to the lawsuit inadequately represent the interests.” Fed. Savings & Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 215 (11th Cir.1993) (citing Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989)). If each of these four requirements are met, the court must allow the party to intervene in the action. Id. Because there has not been a claim opposing the timeliness of the intervention application, the focus here shall be on the latter requirements, which Plaintiff contends that Intervenors have failed to satisfy.

Here, Intervenors ask this Court to allow them to intervene under Rule 24(a)(2) on the grounds that they have an interest in the insurance policy at issue; that their ability to protect their interest would be impaired if the action was disposed in Plaintiffs favor because they may not be able to effectuate recovery against Defendants; and, finally, that Defendants do not adequately represent their interest. Conversely, Plaintiff argues that this Court should not allow Intervenors to intervene in the case at hand because the Intervenors’ interest in an insurance fund is hypothetical and speculative; and the Defendants adequately represent the Intervenors’ interest.

Interest Relating to Property or Transaction which is the Subject Matter of the Action

The Supreme Court of the United States has defined “interest” under Rule 24 as a “significantly protectable interest.” Donaldson v. U.S., 400 U.S. 517, 531, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). In determining the sufficiency of the interest, this Circuit requires that the intervenor “must be at least a real party in interest in the transaction which is the subject of the proceeding” and “must have a direct, substantial, legally protectable interest in the proceeding.” Worlds v. Dept, of Health and Rehabilitative Servs., 929 F.2d 591, 594 (11th Cir.1991) (quoting Athens Lumber Co. v. Fed. Election Commission, 690 F.2d 1364, 1366 (11th Cir.1982)). How[338]*338ever, the Intervenors’ interest does not have to “be of a legal nature identical to that of the claims asserted in the main action.” Chiles, 865 F.2d at 1214.

Here, Intervenors claim that they have an interest in the insurance policy that Plaintiff is asking this Court to rescind. They argue that the insurance policy is their means of recovery, should they prevail in the other two lawsuits that they have pending against some of the Defendants. Plaintiff asserts that the Intervenors’ interest in the insurance policy is merely speculative and, therefore, is not a legally protectable interest.

The Eleventh Circuit has not yet addressed the issue of whether an interest contingent upon the outcome of other pending litigation constitutes “a significantly protecta-ble interest.” Among the courts that have wrestled with the issue, there is disagreement as to whether the intervenor must demonstrate more than “a mere provable claim” or whether the intervention of right is appropriate although the interest in the action is contingent on pending litigation. This issue seems to be a source of disagreement between the parties to this motion as well.

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208 F.R.D. 336, 2002 WL 1257065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tig-specialty-insurance-v-financial-webcom-inc-flmd-2002.