LOBSTER 207 LLC v. PETTEGROW et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LOBSTER 207, LLC, 	)
)
Plaintiff 	)
)
v. 	) 	No. 1:19-CV-00552-LEW
)
WARREN B. PETTEGROW, et al., 	)
)
Defendants 	)
ORDER ON MOTION TO INTERVENE
Citizens 	Insurance 	Company 	of 	America 	and 	Hanover 	Insurance 	Company
(“Movants”) seek to intervene in this action “for the limited purpose of submitting special
jury questions that pertain to insurance coverage issues.” 	Motion to Intervene (ECF No.
473).
Background
Movants were intervenor plaintiffs in a related action addressed to the existence of
insurance providing coverage to Defendants Warren Pettegrow, Anthony Pettegrow,
Josette Pettegrow and the Trenton Bridge Lobster Pound, Inc. (“Pettegrow Defendants”),
based on claims advanced in this action by Plaintiff Lobster 207, LLC. 	In the related
matter, the Court ruled that the Movants had the duty to defend the Pettegrow Defendants
in this action.1 	The ruling rested on the fact that the Pettegrow Defendants’ liability on
1 See Am. Fire & Cas. Co. v. Pettegrow, No. 1:20-cv-00250-JDL (See ECF Nos. 77/78); see also Pettegrow
v. Ohio Sec. Ins. Co., No. 1:21-cv-00147-JDL (related, consolidated action).
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Lobster 207’s inventory conversion claim could be established with proof of accidental
rather than intentional injury to or destruction of the inventory at issue.
Discussion
The Movants request the opportunity to intervene so that they can propose a special
verdict question to resolve the issue of whether liability for conversion, if found by the
jury, is based on intentional or accidental conduct and the amount of damages awarded for
conversion, thereby efficiently resolving the material issue that underlies their coverage
dispute, without the need for duplicative fact finding in a later civil action.
“On timely motion, the court must permit anyone to intervene who . . . claims an
interest relating to the property or transaction” if the person “is so situated that disposing
of the action may as a practical matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2).
Known as “intervention as of right,” this avenue for intervention in a lawsuit requires that
the moving party satisfy every requirement (timeliness, interest, threat of impairment, and
inadequate representation by existing parties). Victim Rights Law Ctr. v. Rosenfelt, 988
F.3d 556, 560 (1st Cir. 2021); Students for Fair Admissions, Inc. v. President & Fellows
of Harvard Coll., 807 F.3d 472, 474 (1st Cir. 2015).
Intervention as of right is not the proper avenue for intervention here. The Movants’
interest in the coverage question is not a direct interest; nor would its contingent interest in
a liability finding impair or impede a later coverage contest. See Travelers Indem. Co. v.
Dingwell, 884 F.2d 629, 640 (1st Cir. 1989) (insurer’s interest in coverage question does
not justify intervention as of right in action that will determine insured’s liability since the
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coverage question “is not related to the subject matter of the action”); Secure Our City, Inc.
v. ECI Sys., LLC, 594 F. Supp. 3d 96, 102 (D. Mass. 2022) (“Courts have repeatedly
declined to find that an insurer’s interest satisfies that second requirement because such an
interest is contingent rather than direct.”).
Although intervention as of right is not a good fit here, on a timely motion a movant
may be permitted to intervene when the movant “has a claim or defense that shares with
the main action a common question of law or fact.” 	Fed. R. Civ. P. 24(b)(1)(B). 	When
considering whether to grant a motion for “permissive intervention” the court enjoys “very
broad discretion” and “may consider almost any factor rationally relevant.” T-Mobile Ne.
LLC v. Town of Barnstable, 969 F.3d 33, 40 (1st Cir. 2020) (internal quotation marks
omitted). 	“In exercising its discretion, 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).
Permissive intervention is an appropriate avenue for Movants to intervene in this
case. 	See, e.g., Morra v. Casey, 960 F. Supp. 2d 335, 338 (D. Mass. 2013) (allowing
permissive intervention under analogous circumstances); Secure Our City, Inc. v. ECI Sys.,
LLC, 594 F. Supp. 3d 96, 103 (D. Mass. 2022) (same). The timing of the Movants’ request,
given the nature of their proposed, very limited participation, should not disrupt the
progress of the case or prejudice the existing parties. Furthermore, the Movants’ coverage-
related defense shares with this action common questions of fact associated with their
insureds’ conduct and potential indemnification liability to their insureds. 	It, therefore,
meets the core requirement of Rule 24(b)(1)(B). 	Finally, in regard to the exercise of
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discretion, the resolution of one or more questions by the jury that can resolve the coverage
dispute—the jury being in the best position to resolve the factual dispute over intentional
versus accidental conduct and the question(s) being posed at the conclusion of the trial
without undermining or interfering with the conduct of the trial—will likely allow the
Movants, the parties, and the Court to avoid any duplicative and wasteful proceedings in
another action. It will also be possible to allow the Movants’ participation in this matter
without informing the jury of the Movants’ participation or interest. I recognize that details
remain to be ironed out, but I have confidence that such a limited degree of participation
can be achieved without adding unnecessary complexity, distracting the jury from the
primary dispute between the existing parties, or prejudicing the jury against a particular
party.
Conclusion
For the foregoing reasons, the Motion to Intervene (ECF No. 473) is allowed for the
limited purpose of submitting special jury questions.
SO ORDERED.
Dated this 21st day of July, 2023.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE
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