Alabama Supreme Court Clarifies Rules for Permissive Intervention

Last week, the Alabama Supreme Court upheld a trial court’s denial of a carrier’s motion for permissive intervention in a Mobile construction defect lawsuit.  As is common, the carrier had asked the trial court for permission to participate in discovery and issue special verdict forms to the jury in the event of a verdict in favor of the plaintiff.

In affirming the trial court’s denial, the Court, in QBE Insurance Corp. v. Austin Co., Inc., ___ So.2d ___ (Ala. 2009), held that the decision whether to grant or deny a motion to intervene was within the discretion of the trial judge, and adopted the 11th Circuit’s factors for making that determination:

(1) The length of time during which the would-be intervenor knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the extent of prejudice to the existing parties as a result of the would-be intervenor’s failure to apply as soon as he knew or reasonably should have known of his interest; (3) the extent of prejudice to the would-be intervenor if his petition is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely.  U.S. v. Jefferson County, 720 F.2d 1511 (11th Cir. 1983).

In QBE, the Court noted that the motion was not filed until 16 months after the complaint was filed, that 17 parties were already involved in the litigation, and that discovery had nearly been completed.  Further, the Court held that QBE’s rights would not be prejudiced by the denial, as it could file a declaratory judgment action to determine any coverage issues.

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