United States District Court, D. Colorado
EARLENE F. CORBISHLEY, Plaintiff,
PEP BOYS - MANNY, MOE & JACK OF DELAWARE, INC., Defendant.
T. BABCOCK, JUDGE
case is before me on Walmart Stores, Incorporated's
(“Walmart”) Motion to Intervene [Doc # 40].
Walmart's motion in unopposed by Plaintiff Earlene F.
Corbishley but opposed by Defendant Pep Boys - Manny, Moe
& Jack of Delaware, Inc. (“Pep Boys”). After
consideration of the motion, all related pleadings, and the
case file, I deny Walmart's motion for the reasons set
case arises out of a July 27, 2014 fall by Ms. Corbishley in
the parking lot of a Pep Boys retail store after she
allegedly slipped on a large oil and grease spot. Ms.
Corbishley has asserted a single claim for relief against Pep
Boys under Colorado's premises liability statute, C.R.S.
§ 13-21-115. Ms. Corbishley's claim against Pep Boys
was first filed in state court on April 18, 2016 and removed
to this court on January 6, 2017. See Doc # 1.
Discovery was completed in this case in December of 2017, and
a 5-day jury trial is scheduled to commence on June 25, 2018.
Pep Boys has a pending motion for summary judgment that has
been fully briefed by the current parties to the case.
Corbishley, an employee of Walmart acting within the course
and scope of her employment at the time of her fall,
submitted a claim for workers' compensation benefits
related to this indcident. In March of 2016, Ms.
Corbishley's counsel provided notice of her third-party
claim against Pep Boys to Walmart's workers'
compensation administrator. See Doc # 49, Exs. C
& D. Walmart's current counsel filed an entry of
appearance in Ms. Corbishley's workers' compensation
case in October of 2016. See Doc # 49, Ex. D. On
October 26, 2016, Walmart notified Plaintiff's counsel of
its ongoing lien for workers' compensation benefits of
approximately $150, 000 paid to Ms. Corbishley and requested
notice prior to any settlement of Ms. Corbishley's claim
against Pep Boys. Id., Ex. H.
December 16, 2016, Ms. Corbishley's treating physician
opined that she reached maximum medical improvement on
October 26, 2016. Id., Ex. F. Ms. Corbishley
appealed this finding and underwent an independent medical
examination with Dr. James Regan, who concluded that Ms.
Corbishley was not at maximum medical improvement as of June
20, 2017. Doc #40, p.2. Walmart is currently challenging Dr.
Regan's conclusion. Id. Based on the current
posture of the case then, there is a possibility that Ms.
Corbishley may recover additional workers' compensation
filed its motion to intervene pursuant to Fed.R.Civ.P. 24(a)
& (b) on January 19, 2018. Walmart's proposed
complaint in intervention adds an additional claim for
negligence against Pep Boys.
Standard of Review
Civ. P. 24(a) provides that, on timely motion, the court must
permit a party to intervene if that party either is given an
unconditional right to intervene by a federal statute or
claims an interest relating to the subject of the action
“and is so situated that disposing of the action may as
a practical matter impair or impede the [party's] ability
to protect its interest, unless existing parties adequately
protect that interest.” Fed.R.Civ.P. 24(b) provides
that, on timely motion, a court may permit a party to
intervene if that party is either given a conditional right
to intervene by a federal statute or has a claim or defense
that shares a common question of fact or law with the main
action. In exercising its discretion under Rule 24(b), the
court must consider whether the intervention will unduly
delay or prejudice the adjudication of the original
parties' rights. Fed.R.Civ.P. 24(b)(3).
argues that it satisfies the standard for both intervention
as of right under Rule 24(a) and permissive intervention
under Rule 24(b) because of its interest in recovering
workers' compensation benefits paid to Ms. Corbishley.
Pep Boys doesn't dispute that Walmart has an interest in
recovering these amounts but argues that Walmart's motion
is untimely and therefore properly denied under Rule 24(a)
& (b). I agree.
timeliness of a motion to intervene is assessed in light of
all of the circumstances, including the length of time since
the applicant knew of its interest in the case, prejudice to
the existing parties, prejudice to the applicant, and the
existence of any unusual circumstances.” Elliott
Indus. Ltd. P'ship v. BP Am. Prod. Co., 407 F.3d
1091, 1103 (10th Cir. 2005) (quoting Utah Ass'n of
Counties v. Clinton, 255 F.3d 1246, 1250 (10th Cir.
clear from the background set forth above that Walmart has
known of its interest in this case for well over a year prior
to filing its motion to intervene. Although Walmart
emphasizes the current posture of Ms. Corbishley's
workers' compensation claim, the fact remains that it has
known that it had an interest in collecting significant
benefits paid or to be paid to Ms. Corbishley for an
inordinate amount of time prior to the filing of its motion
if Walmart is permitted to intervene in this case at this
late stage, Pep Boys will undoubtedly be prejudiced. Walmart
argues that because it only intends to call one additional
witness at trial, any additional discovery necessitated by
its entry into the case would be minimal. It is entirely
possible, however, that Pep Boys will need to conduct
significant additional discovery based both on the testimony
that this new witness plans to offer at trial and the fact
that all discovery has been conducted to date based on the
current posture of the case. In addition, Walmart seeks to
add a common law negligence claim which Pep Boys will have to
address though this claim appears to be futile. See Vigil
v. Franklin,103 P.3d 322, 328 (Colo. 2004)