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Uninsured Employers' Fund v. American International Group

Court of Workers Compensation of Montana

August 14, 2000

UNINSURED EMPLOYERS' FUND Petitioner
v.
AMERICAN INTERNATIONAL GROUP Respondent/Insurer for PAYLESS SHOESOURCE, INCORPORATED Employer.

          Submitted: July 26, 2000

          ORDER GRANTING MOTION TO INTERVENE

          MIKE MCCARTER JUDGE

         Summary: Claimant seeks to intervene in action brought by Uninsured Employers' Fund (UEF) against his employer for benefits paid by the UEF to him. The motion for intervention was filed more than 30 days after the petition and is untimely under Rule 24.5.309(2).

         Held: The time for filing the motion is extended to the date the motion was filed and the motion is granted. The motion demonstrate good cause for both the extension and for intervention. The employer's response to the petition denies that claimant's injuries were covered under the Montana Workers' Compensation Act and claimant did not learn until recently that if the employer prevails the UEF may ask him to repay benefits. Therefore, his interest in the litigation did not arise until after the expiration of the 30 days allowed for a motion to intervene. Rule 24.5.309(2). However, the rule gives the Court discretion to permit later filing.

         Topics:

ARM 24.5.309(2). Injured employee who received benefits from Uninsured Employers' Fund allowed to intervene in action filed by UEF against employer even though his motion to intervene was filed more than 30 days after the petition and was thus not timely under ARM 24.5.309(2). Motion to intervene demonstrated good cause for both intervention and extension of time where employee's interest in intervention arose only after employer answered petition denying that claimant's injuries were covered by the WCA, leading to claimant's discovery he might be asked to repay benefits already received if employer's position prevailed.
Procedure: Intervention. Injured employee who received benefits from Uninsured Employers' Fund allowed to intervene in action filed by UEF against employer even though his motion to intervene was filed more than 30 days after the petition and was thus not timely under ARM 24.5.309(2). Motion to intervene demonstrated good cause for both intervention and extension of time where employee's interest in intervention arose only after employer answered petition denying that claimant's injuries were covered by the WCA, leading to claimant's discovery he might be asked to repay benefits already received if employer's position prevailed.
1 Donald Revell (Revell) was injured on June 20, 1996, while working on a Payless Shoe Store (Payless) remodeling project in Salt Lake City, Utah. According to the petition, Payless had contracted with Revell's employer, which is a Montana contractor, to perform the work. The employer was uninsured and the claim was therefore submitted to the Uninsured Employers' Fund (UEF), which accepted liability and began paying benefits. Through its present petition, the UEF seeks indemnification pursuant to section 39-71-405, MCA, from Payless' insurer, American International Group (American International).
2 The petition was filed March 30, 2000. A copy was forwarded to Revell at that time.
3 On July 11, 2000, Revell moved to intervene. Payless and American International acquiesce to the motion, however, the UEF objects on the ground the motion is untimely.
4 Rule 24.5.309 governs intervention, including the time for filing a motion to intervene, providing:
(1) Intervention in a pending proceeding shall be governed by the considerations set forth in Rule 24(a) and (b) of the Mont.R.Civ.P.
(2) Unless otherwise permitted by order of the court, a motion to intervene must be served within 30 days of the service of the petition by the court. The motion shall state the grounds upon which intervention is sought. A copy of the motion, supporting brief and any affidavits shall be served upon all parties. Any party to the dispute shall have 10 days following service to serve an answering brief. The court, in its discretion, will determine whether or not to allow intervention.
(3) I f intervention results in the trial being vacated and good cause is shown, the court may order the insurance company alleged to be at risk at the time of the accident to pay benefits pending the trial. Such insurer has a right to seek indemnity from the ...

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