Thomas v. Cook Drilling Corp.

Pfeifer, J. This case is less about choice of law regarding subrogation rights than it is about how an eleventh-hour filing of a motion to intervene can affect the merit of the motion. When viewing the situation as a whole, we find that the trial court did not abuse its discretion in denying Hartford’s motion to intervene. Civ.R. 24(A)(2) states: “(A) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” The lack of timeliness of Hartford’s motion, while not a factor referred to by the trial court in denying the motion, is a factor which did, in fact, work against Hartford in this case. Thomas’s personal representative filed the underlying claim in September 1992. As indicated in materials submitted by Hartford with its motion to intervene, it knew of the lawsuit by February 1994. The case moved forward and the parties performed discovery — all with no attempt at intervention by Hartford. When Cook Drilling succeeded on a motion for summary judgment in June 1994, Hartford still had taken no formal action to protect its interest. Trial had originally been set for July 11, 1994, but by July 8, [550] 1994, when the trial date was moved to November 7, 1994, Hartford had not yet attempted to intervene. Not until four weeks remained until the rescheduled trial, over one hundred weeks after the filing of the complaint, did Hartford finally file its motion to intervene. Hartford’s late filing set the stage for the motion’s ultimate denial. Hartford made it known in its memorandum supporting its motion that it did not expect to be actively involved in the trial against the remaining defendants. Hartford' wrote: “It should further be noted that granting this motion to intervene will not interfere with the upcoming trial date. In the event of settlement or judgment, the rights of intervening plaintiff to any portion of the proceeds can be determined by the court after settlement or judgment.” In other words, Hartford did not wish to interfere in, or be involved with, the trial of the matter. It would, however, like to be around afterward to collect part of the judgment. Hartford’s request to have its right to the proceeds of an award or settlement determined after the case was tried or settled runs contrary to any claim that Hartford’s interest was not adequately represented by the existing parties. The court, in effect, honored Hartford’s request to have its rights determined after settlement. The case, with two years of momentum behind it, rolled on without Hartford. While Hartford’s motion was pending, settlement was reached with Stephens Construction. The trial began a few days after the last memorandum regarding Hartford’s motion was filed, and soon thereafter settlement was reached with Otis Elevator, the lone remaining defendant. Hartford’s late filing allowed the trial judge to rule on the motion based not on a theoretical consideration of Hartford’s subrogation rights, but on the fact of whether Hartford had any interest in the settlement actually reached. While the trial court stated in its opinion that Hartford had no subrogation rights under Ohio law, it still went on to determine whether Hartford could recover if it did have a right to subrogation. The court held that Hartford’s only claim was against Thomas’s estate. Thomas’s estate received his workers’ compensation benefits in Pennsylvania. A claim against the estate was not necessarily an empty claim. Funeral and burial expenses, pursuant to R.C. 2125.03, go to the party that paid those expenses. Damages for injuries suffered by Thomas after the accident, but before his death, would be paid to his estate. The court simply found that none of the settlement monies belonged to the estate, but instead would go to Thomas’s next of kin to compensate them for their losses. There was no evidence that any of the settlement money was designated to pay the decedent’s funeral and burial expenses or for his pain or suffering prior to death. Had there been some part of the settlement awarded to Thomas’s [551] estate, the trial court presumably would have granted Hartford’s motion to intervene. However, we do not require courts to allow motions to intervene after settlement where it has been determined that there has been no settlement which is reachable by the potential intervening party. Comment c to Section 185 of the Restatement of the Law of Conflicts actually supports the finding of the trial court. Comment c recognizes that choice of law on subrogation is different.in wrongful death actions than in simple injury cases. In wrongful death cases where there are multiple beneficiaries, only a person who has received the workers’ compensation award is subject to the subrogation laws of the payor’s state. “The interests of the other persons in the wrongful death damages are not affected by the fact that one of their number has obtained a workers’ compensation award.” Id. at 553. In this case, there is no claim that anyone other than Thomas’s estate received the workers’ compensation benefits in Pennsylvania. Therefore, under the Restatement view, Pennsylvania law would apply only against monies awarded to the estate. There were simply no settlement proceeds to go to the estate that would justify allowance of a motion to intervene after settlement of the case. This is a rare instance where the case was over before the motion to intervene was ruled on, with the acquiescence of the potential intervenor. In sum then, given the standard enunciated by Civ.R. 24, the trial court was well within its discretion in denying Hartford’s motion to intervene. The motion’s lack of timeliness, while not a factor cited by the trial court, affected the motion’s merit. First, in an attempt to keep the trial on schedule, Hartford in effect assured the court that through trial or settlement its interests would be adequately represented by the existing parties. Second, the late filing allowed the court first to determine whether any of the settlement monies belonged to the estate and were therefore reachable by Hartford. Since none of the settlement belonged to the estate, the trial court found that Hartford had no interest in the action. Accordingly, we reverse the judgment of the court of appeals. Judgment reversed. Moyer, C.J., Douglas, Resnick and F.E. Sweeney, JJ., concur. Douglas, J., concurs separately. Cook and Lundberg Stratton, JJ., dissent.