[TENTATIVE] ORDER RE MOTION TO INTERVENE

Plaintiffs allege that Rodolfo Sotomayor was exposed to asbestos based on the negligence of Defendants, including Kondor Plastic Corp. (“Kondor”).  Kondor is currently suspended by both the California Franchise Tax Board and the Secretary of State.  (RJN, Exs. A-B).  Intervenor Sentry Insurance (“Sentry”) seeks leave to file a complaint in intervention because its insured, Kondor, is suspended and to contest Kondor’s alleged liability and amount of damages alleged by Plaintiffs.  The motion is unopposed.

The request for judicial notice is granted.

Under California law, an insurance carrier who is not a party to an action can intervene on behalf of its insured when the insurance carrier could be subject to a subsequent action under Insurance Code section 11580.  (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.)  “Section 11580 provides that a judgment creditor may proceed directly against any liability insurance covering the defendant and obtain satisfaction of the judgment up to the amount of the policy limits.  Thus, where the insurer may be subject to a direct action under Insurance Code section 11580 by a judgment creditor who has or will obtain a default judgment in a third party action against the insured, intervention is appropriate.”  (Ibid.)  “‘Intervention may . . . be allowed in the insurance context, where third party claimants are involved, when the insurer is allowed to take over in litigation if its insured is not defending an action, to avoid harm to the insurer.’”  (Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 1205 (quoting Royal Indemnity Co. v. United Enterprises, Inc. (2008) 162 Cal.App.4th 194, 206).)

As a suspended corporation, Kondor cannot file an answer and defend itself in this action.  (Rev. & Tax Code, § 23301; Cal-Western Business Services, Inc. v. Corning Capital Group (2013) 221 Cal.App.4th 304, 310.)  Sentry may therefore be exposed to liability for any judgment taken against Kondor and has a sufficient interest to intervene in this action to protect its interest.

Additionally, Revenue and Taxation Code section 19719 specifically permits an insurer or counsel retained by an insurer on behalf of a suspended corporation to provide a defense for a suspended corporation in a civil action based upon a claim for personal injury, property damage, or economic losses against the suspended corporation.  (Rev. & Tax Code, § 19719(b).)

As Sentry is asserting a defense on behalf of its insured, the “Complaint-in-Intervention” attached to the moving declaration of Alexandra Sologub as Exhibit A should be captioned as an Answer-in-Intervention.  Sentry is to file its Answer-in-Intervention within ten days.

The motion for leave to intervene is GRANTED.  The moving party is to give notice.