Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1954 _____________________________ LEXINGTON INSURANCE COMPANY, Appellant, v. TOWANNA JAMES, as Personal Representative of the Estate of Naomi James, SEATRUCK, INC., SEAFREIGHT LINE, LTD., SEAFREIGHT AGENCIES (USA), INC., NORTON LILLY INTERNATIONAL, INC., and CROWDERS FLEET MAINTENANCE, LLC, Appellees. _____________________________ On appeal from the Circuit Court for Duval County. Robert M. Dees, Judge. May 8, 2020 LEWIS, J. Appellant, Lexington Insurance Company, challenges the trial court’s order denying its motion to intervene in an action brought by Appellee Towanna James, as the personal representative of the estate of Naomi James, against Appellees Seatruck, Inc., Seafreight Line, Ltd., Seafreight Agencies (USA), Inc., Norton Lilly International, Inc., and Crowders Fleet Maintenance, LLC, for the wrongful death of Naomi James that arose out of a tractor-trailer crash. We affirm because Appellant has failed to show that the trial court abused its discretion. BACKGROUND In her wrongful death action, James alleged that on April 11, 2014, Naomi’s car was stopped behind a school bus when it was rear-ended by a tractor-trailer that was recklessly operated by Joseph Pickett, Sr., within the course and scope of his employment with Seatruck and was carrying a load arranged by Norton Lilly and/or Seafreight Agencies. Naomi and her passenger were killed in the crash. James asserted claims for negligence, negligent entrustment, strict vicarious liability, and negligent hiring and retention. * In December 2016, Seatruck filed a notice of bankruptcy. In October 2017, the bankruptcy court granted James’s motion for relief from the automatic stay put in place by the bankruptcy filing, allowing her to continue her wrongful death litigation. The bankruptcy court’s order provided in part as follows: 2. Accordingly, the automatic stay is modified for cause . . . to permit Creditor Towanna James, as Personal Representative of Naomi James (“Creditor”) to continue proceedings in . . . the . . . Wrongful Death Case . . . against debtor Seatruck, Inc. (“Debtor”) and the non- debtor defendants therein, and to pursue all rights, remedies, recovery and settlement against the non-debtor defendants and against the insurance coverage of debtor, provided that Creditor shall not seek recovery against Debtor or Debtor’s estate beyond the extent of insurance coverage outside of this bankruptcy case. 3. Upon entry of final judgment . . . in the Wrongful Death Case, and expiration of the time to appeal from it, * Pickett was named as a defendant in the original complaint, but was later dropped as a party with prejudice. 2 Creditor’s claim against Debtor will be allowed in the amount of the judgment against Debtor, less amounts recovered from Debtor’s insurance coverage, but the remaining unpaid amount of the judgment against Debtor shall be enforceable against Debtor or Debtor’s estate only by means of a claim herein; notwithstanding that restriction, however, the judgment shall be fully enforceable against the Wrongful Death Case Defendants other than Debtor, and the automatic stay and any bankruptcy discharge shall have no effect upon Creditor’s rights and remedies as to the defendants other than the Debtor. In December 2018, Appellant filed a motion to intervene in the wrongful death action, wherein it asserted as follows. The tractor- trailer accident at issue involved multiple vehicles and resulted in several bodily injury claims, in addition to two wrongful death claims. Two global mediations led to the settlement of several of the bodily injury claims and the other wrongful death claim, but Seatruck was unable to resolve James’s claim. Seatruck had an insurance coverage of $2,000,000 that was comprised of $1,000,000 through a Great West policy and $1,000,000 through a Lexington excess coverage policy. Following settlements with various claimants, $1,999,990 was tendered out of the insurance proceeds, leaving $10 of available insurance coverage through Appellant. Seatruck is being administratively dissolved, is ceasing operations, and its remaining assets are being liquidated. The bankruptcy court’s October 2017 order constitutes res judicia and caps James’s recovery against Seatruck at the extent of its available insurance coverage of $10. Given the foregoing, Appellant “hereby moves to intervene in this action for the purpose of distributing its remaining ten dollars in available insurance proceeds in an effort to promote judicial economy.” At the hearing on the motion to intervene, Appellant reiterated its arguments that James’s claim against Seatruck is capped at $10, “no matter what happens from here forward, Lexington’s involvement is capped at exactly $10,” and it was seeking to intervene “for the sole purpose of distributing that $10.” In opposing intervention, Appellees argued that Appellant was seeking to intervene to pay the $10 in order to discharge its 3 obligation to defend its insured, Seatruck, whose attorney was getting paid by Appellant pursuant to the terms of their insurance policy. Appellees asserted that intervention would provide “zero judicial economy” because the case would proceed to trial irrespective of whether Appellant paid the $10. Appellees also contended that the bankruptcy court’s order does not limit James’s recovery to $10; rather, it simply requires her to return to the bankruptcy court with regard to Seatruck upon the entry of a judgment. The trial court noted that it did not know what Appellant’s insurance policy says about the duty to defend, and it denied the motion as follows: [I]t’s not up to me today to decide what Lexington’s rights and duties are under its policy, but I don’t think that it can -- the way to figure that out is not to intervene in this case and do anything to alter the course of this case. I’m not sure what the right path is, but I don’t think that that’s the right path to determine Lexington’s rights to the extent that they can even be determined at this point in time, so I’m going to deny the motion to intervene. This appeal followed. ANALYSIS We review a trial court’s denial of a motion to intervene for an abuse of discretion. Fla. House of Representatives v. Florigrown, LLC, 278 So. 3d 935, 938 (Fla. 1st DCA 2019). Florida Rule of Civil Procedure 1.230 governs interventions and provides that “[a]nyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.” Rule 1.230 “may be utilized by the omitted party if the plaintiff has left out a necessary or proper party.” Fla. House of Representatives, 278 So. 3d at 938. Florida courts must apply a two-step analysis in ruling on a motion to intervene: 4 First, the trial court must determine that the interest asserted is appropriate to support intervention. . . . Once the trial court determines that the requisite interest exists, it must exercise its sound discretion to determine whether to permit intervention. In deciding this question the court should consider a number of factors, including the derivation of the interest, any pertinent contractual language, the size of the interest, the potential for conflicts or new issues, and any other relevant circumstance. Second, the court must determine the parameters of the intervention. . . . Thus, intervention should be limited to the extent necessary to protect the interests of all parties. Union Cent. Life Ins. Co. v. Carlisle, 593 So. 2d 505, 507–08 (Fla. 1992) (concluding that Union Central/insurer demonstrated the requisite interest to intervene given the contractual language entitling it to a refund of the medical benefits it had paid to the Carlisles/insureds which they subsequently recover in their malpractice action against the third-party tortfeasor, but “[b]ecause the right to intervene is limited only to the extent of that interest, Union Central may monitor the trial as a spectator, but it cannot participate in any way other than to make appropriate motions to protect its interests”). “[T]he interest which will entitle a person to intervene . . . must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.” Id. at 507 (internal citation omitted). “In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation.” Id. (internal citation omitted); see also In re Estate of Arroyo v. Infinity Indemnity Ins. Co., 211 So. 3d 240, 245–46 (Fla. 3d DCA 2017) (stating the same). That is, “[a] party’s asserted interest must already be at issue in the proceedings when the party seeks to intervene.” In re Estate of Arroyo, 211 So. 3d at 245 (finding that it was an abuse of discretion to allow Infinity to intervene because its claimed interest was not already at issue and it was, thus, improperly 5 seeking to inject a new issue into the proceedings); see also Fla. House of Representatives, 278 So. 3d at 936 (“Intervention is a dependent remedy in the sense that an intervenor may not inject a new issue into the case.” (citation omitted)); Envtl. Confederation of Sw. Fla., Inc. v. IMC Phosphates, Inc., 857 So. 2d 207, 211 (Fla. 1st DCA 2003) (stating the same and explaining, “Confederation and Manasota–88 might be able to make an argument that would persuade the Department to deny the permit, but that would not be of any benefit to them if the argument did not fit within an issue raised by one of the parties.”). Cf. Providence Washington Ins. Co. v. S. Guarantee Ins. Co., 667 So. 2d 323, 323–24 (Fla. 1st DCA 1995) (holding that the trial court abused its discretion by denying Providence’s motion to intervene in the declaratory judgment action brought by Southern, where Providence was the excess insurance carrier and Southern was the primary insurer of their mutual insured and Southern sought a declaration that its duty to defend their insured had terminated because its policy limits had been exhausted; concluding that although Providence did not have a right to intervene as a matter of law, its interest was sufficient for intervention because as an excess carrier it had a substantial interest in whether the primary carrier continued to defend the underlying negligence claims and the mutual insured might not have the same incentive to defend the declaratory judgment action; and noting that Providence was limited to litigating the issue raised by Southern in its complaint, i.e., whether Southern had a duty to defend). Further, “a contingent interest in the proceedings, as opposed to a direct and immediate interest, will not justify a party’s intervention.” In re Estate of Arroyo, 211 So. 3d at 246; see also Houston Specialty Ins. Co. v. Vaughn, 261 So. 3d 607, 608–12 (Fla. 2d DCA 2018) (affirming the denial of Houston’s request to intervene because it did not have a direct and immediate interest in the tort lawsuit brought against its insured, and noting that the cases discussed in Carlisle “involved health insurers whose subrogation rights were directly impacted by the outcome of the underlying litigation” and no such right was at issue in the case before it). The Second District noted that “[i]f the possibility of owing up to the policy limits based upon entry of an adverse judgment was itself a sufficient basis to allow intervention, insurers would be permitted the unhindered and unfettered 6 opportunity to intervene in innumerable tort cases,” which would eviscerate section 627.4136(2), Florida Statutes, Florida’s nonjoinder statute, which “dictates that an injured person lacks an interest in the tortfeasor’s liability policy until a judgment is entered against the insured” and is intended “to ensure that the availability of insurance has no influence on the jury’s determination of the insured’s liability and damages.” 261 So. 3d at 612 (citations omitted). Here, Appellant contends that the trial court applied the wrong standard in denying the motion to intervene because instead of determining whether intervention was appropriate, it improperly focused on what would happen after intervention. We disagree. The trial court properly examined whether Appellant’s asserted interest was appropriate for intervention, and it concluded that it was not. The trial court explained that the issue of what Appellant’s rights and duties are under its policy was not before it and intervention was not the means to determine it. The trial court did not err by considering that Appellant would tender the remaining insurance policy limit of $10 upon intervention because that was the interest Appellant asserted for intervention. Appellant repeatedly stated in its motion and at the hearing that it was seeking to intervene for the sole purpose of distributing its remaining $10 in insurance proceeds. Appellant’s asserted interest of distributing its remaining insurance proceeds is not appropriate to support intervention because it is not an interest in the matter of litigation and is not of such a direct and immediate character that Appellant would gain or lose by the direct operation of the judgment. Appellant’s interest is not created by the claim that is the subject of litigation; instead, Appellant is improperly attempting to inject a new issue into the case, i.e., whether it has the right to distribute the remaining insurance proceeds and thereby cease its obligation to defend Seatruck. Nor is Appellant’s asserted interest such that Appellant would gain or lose by the direct operation of the judgment because as Appellant itself argued at the motion hearing, “no matter what happens from here forward, [Appellant’s] involvement is capped at exactly $10.” It is undisputed that any judgment entered will have no effect on Appellant. The record makes it clear that it is only the continuation of the proceeding 7 that affects Appellant because it is paying for Seatruck’s defense pursuant to their insurance policy agreement. We find Appellant’s arguments of judicial economy and res judicata to be likewise lacking in merit. An argument for judicial economy cannot overcome a finding that the prospective intervenor’s asserted interest is not appropriate to support intervention. Regardless, Appellant has not shown how intervention would promote judicial economy, as opposed to merely saving money to Appellant by arguably allowing it to cease defending its insured and thereby save on litigation costs. Appellant’s res judicata argument also does not alter the applicable analysis. Additionally, the bankruptcy court’s order specifically states that the final judgment in this case shall be fully enforceable against the defendants besides debtor-Seatruck. The only limitation the order places on this case is that if James obtains a judgment against Seatruck beyond the insurance coverage, she shall seek recovery for that excess amount in the bankruptcy court. The order places no further limit on James’s recovery against Seatruck and places absolutely no limit on her recovery against Seafreight Line, Seafreight Agencies, Norton Lilly, or Crowders. CONCLUSION In light of the interest asserted by Appellant, we hold that the trial court did not abuse its discretion in denying the motion to intervene. AFFIRMED. JAY, J., concurs; ROWE, J., concurs in result only. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michael R. D'Lugo of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for Appellant. 8 Guy Bennett Rubin of Rubin & Rubin, Stuart, for Appellee Towanna James. Samuel B. Spinner and Hinda Klein of Conroy Simberg, Hollywood, for Appellees Seatruck, Inc., Seafreight Line, Ltd., and Seafreight Agencies (USA), Inc. 9