Judge Deirdre Hill, Case 20STCV37442 2023-04-26 Tentative Ruling

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The motion is GRANTED. Berkshire Hathaway Homestate Insurance Company is ordered to file its complaint-in-intervention within five days.

On September 20, 2020, plaintiff Paull Quiroa filed a complaint against Prime Wheel Corporation for general negligence and products liability as to a bed bunk incident on October 5, 2018.

On October 5, 2020, plaintiff filed a FAC adding IKEA North America Services, LLC, IKEA Distribution Services, Inc., and Dorel Asia dba Dorel Asia, Inc. as defendants.

Berkshire Hathaway requests leave to file a complaint-in-intervention pursuant to CCP §387.

CCP §387(d) states: “(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:

(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.

(2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.”

To establish a direct and immediate interest in the litigation for purposes of permissive intervention, a non-party seeking intervention must show that he or she stands to gain or lose by direct operation of the judgment, even if no specific interest in the property or transaction at issue exists. Simpson Redwood Co. v. State of California (1987) 196 Cal. App. 3d 1192, 1201. “Whether the intervener’s interest is sufficiently direct must be decided on the facts of each case . . . . And section 387 should be liberally construed in favor of intervention.” Id. at 1200. “In order that a party may be permitted to intervene it is not necessary that his interest in the action be such that he will inevitably be affected by the judgment. It is enough that there be a substantial probability that his interests will also be so affected. 'The purposes of intervention are to protect the interests of those who may be affected by the judgment . . . .'" Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal. App. 3d 873, 881-82 (citations and italics omitted). An insurance carrier with a right of subrogation has a direct pecuniary interest in its insured’s action against a responsible third party, and may be permitted to intervene. Deutschmann v. Sears, Roebuck & Co. (1982) 132 Cal. App. 3d 912, 915.

The insurer “may choose how to try to recoup payments it has made. It may: (1) intervene in an injured worker’s action, (2) file an independent action, or (3) assert a lien in an injured worker’s action. This ensures the employee does not get a double recovery, the third party does not have to defend two lawsuits, and compensation insurance rates are minimized.” Fremont Comp. Ins. Co. v. Sierra Pine, Ltd. (2014) 121 Cal. App. 4th 389, 396 (citations omitted).

Labor Code § 3852 provides that, “[a]ny employer who pays, or becomes obligated to pay compensation . . . may likewise make a claim or bring an action against the third person. In the latter event the employer may recover in the same suit, in addition to the total amount of compensation, damage for which he or she was liable including all salary, wage, pension, or other emolument paid to the employee or to his or her dependents.” “If the employer is insured against workmen’s compensation liability, the insurer has the same right of action as the employer, or is subrogated to the employer’s right. In enforcing its cause of action the insurer may . . . join as party plaintiff in the suit previously filed by the employee.” Burum v. State Compensation Ins. Fund (1947) 30 Cal. 2d 575, 580-81.

Labor Code § 3853 provides that, “If the action is brought by either the employer or employee, the other may, at any time before trial on the facts, join as party plaintiff or shall consolidate his action, if brought independently.”

Berkshire Hathaway asserts that it insured plaintiff’s employer and defendant Prime Wheel Corporation against liability to its employees for medical payments and compensation benefits under the Workers’ Compensation Act. It contends that it is subrogated to any and all rights which plaintiff might have to recover from defendants.

Berkshire Hathaway has a direct pecuniary interest in the success of plaintiff and has an interest in protecting its right to recover from potentially liable third parties. Further, “[u]nder the doctrine of subrogation, when an insurer pays money to its insured for a loss caused by a third party, the insurer succeeds to its insured’s rights against the third party in the amount the insurer paid.” Hodge v. Kirkpatrick Dev., Inc. (2005) 130 Cal. App. 4th 540, 548 (citation omitted). “Subrogation is the insurer’s right to be put in the position of the insured, in order to recover from third parties who are legally responsible to the insured for a loss paid by the insurer.” Id. (citation omitted).

The court therefore finds that insurer Berkshire Hathaway has met its burden under CCP §387(d).