United States District Court, D. Maryland
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Plaintiff,
BENJAMIN L. KIRSON and KAREN L. KIRSON, Defendants.
THEODORE D. CHUANU UNITED STATES DISTRICT
Benjamin L. Kirson and Karen L. Kirson ("the
Kirsons") have been found liable by the Circuit Court
for Baltimore County, Maryland to Brionna Heckstall, the
proposed Intervenor in this case, for $2, 177, 250 stemming
from lead-paint exposure that Heckstall suffered while a
tenant at the Kirsons' properties located at 2311 Harford
Road and 1121 East 20th Street in Baltimore, Maryland.
See Heckstall v. Kirson, No. 24-C-15-000776 (Cir.
Ct. Bait. Cty. 2015). The Kirsons had an insurance policy
("the Policy") with Plaintiff Pennsylvania National
Mutual Casualty Insurance Company ("Perm National")
that covered at least one of the properties at issue in
Heckstall for some portion of the time that
Heckstall lived at that property. Perm National has filed
this declaratory judgment action against the Kirsons seeking
a court determination of the extent of its obligations under
the Policy. Brionna Heckstall has filed a Motion to
Intervene, in which she seeks intervention as of right or, in
the alternative, permissive intervention. Penn National
opposes the Motion. For the reasons set forth below, the
Motion will be GRANTED, and Heckstall will be added as an
Intervenor Defendant in this action.
may intervene as of right when it "claims an interest
relating to the property or transaction that is the subject
of the action, and 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). The United States Court of Appeals for
the Fourth Circuit has interpreted this language to require a
party seeking to intervene as of right to meet four
requirements: "(1) the application to intervene must be
timely; (2) the applicant must have an interest in the
subject matter of the underlying action; (3) the denial of
the motion to intervene would impair or impede the
applicant's ability to protect its interest; and (4) the
applicant's interest is not adequately represented by the
existing parties to the litigation." Houston Gen.
Ins. Co v. Moore, 193 F.3d 838, 839 (4th Cir. 1999). The
third factor requires a showing that denial of the motion
would result in the "[p]ractical impairment" of the
movant's ability to protect its interest. Feller v.
Brock, 802 F.2d 722, 730 (4th Cir. 1986). As to the
fourth factor, a movant must demonstrate "adversity of
interest, collusion, or nonfeasance." Commonwealth
of Va. v. Westinghouse Elec. Co., 542 F.2d 214, 216 (4th
Cir. 1976). The "burden of showing an inadequacy of
representation is minimal." Id.
there is no dispute that the first two factors are satisfied.
The dispute relates to the last two factors, with Perm
National asserting that HeckstalPs interest in this
declaratory judgment action would not be impeded if her
Motion were denied because her interests are adequately
represented by the Kirsons. Perm National asserts that while
the Kirsons and Heckstall were adverse in the state court
proceedings, in this action they share the same goal: to
maximize Perm National's indemnification obligation.
Heckstall, however, notes that while she and the Kirsons
might have the same objective, they do not have the same
resources. Specifically, Heckstall provides with her Reply an
Affidavit from Benjamin Kirson in which he states that he and
his wife lack the financial resources to put on a "full
defense." Kirson Aff. ¶ 6, Reply Ex. 1, ECF No.
21-1. Specifically, Kirson states that he and his wife have
multiple lead-paint judgments against them, as well as
several pending lead-paint cases for which they are
uninsured, that his earnings are already being garnished to
pay the outstanding judgments, and that he is 71 and his wife
is 62 and undergoing cancer treatment. As a result of these
debts and circumstances, the Kirsons are considering
Court finds that on these facts, Heckstall has satisfied the
third and fourth factors for intervention as of right.
Benjamin Kirson's Affidavit establishes that the Kirsons
are unlikely to be able to satisfy Heckstall's state
court judgment against them and are also unlikely to be able
to finance this lawsuit. Because the scope of Perm
National's indemnification obligation will very likely
define the scope of Heckstall's recovery, and because the
Kirsons are likely, by their own admission, to be unable to
mount a vigorous defense in this action, denial of
Heckstall's Motion to Intervene would result in the
practical impairment of her ability to collect on her state
court judgment. See Feller, 802 F.2d at 730. The
Court concludes that the third factor is satisfied. Likewise,
where these facts create the possibility, because of strained
financial circumstances, of nonfeasance on the part of the
Kirsons, the Court concludes that the fourth factor is
satisfied. See league v. Bakker, 931 F.2d 259, 262
(4th Cir. 1991) (in concluding that the movant was entitled
to intervention as of right, finding that inadequacy of
representation was satisfactorily established in part because
it was "undisputed that the insureds in this case have
limited financial resources"); see also Maxum Indem.
Co. v. Biddle Law Firm, PA, 329 F.R.D. 550, 556 (D.S.C.
2019) (finding the fourth factor satisfied where one of the
non-intervenor defendants had declared bankruptcy because, as
a result, the "defense may be less vigorous than
the Court finds that Heckstall has satisfied the elements of
permissive intervention. Permissive intervention is warranted
where the movant "has a claim or defense that shares
with the main action a common question of law or fact"
and where intervention will not "unduly delay or
prejudice the adjudication of the original parties'
rights." Fed.R.Civ.P. 24(b)(1)(B), (3). Perm National
does not dispute that Heckstall's claim shares common
questions of law and fact with its action against the
Kirsons, but instead asserts that allowing Heckstall to
intervene will unduly delay this action. On this point, Penn
National asserts that Heckstall, if permitted to intervene,
will move to stay this matter pending a decision by the
Maryland Court of Special Appeals on the issue of how
indemnification obligations are to be computed under Maryland
law, which currently requires that such obligations be
determined on a pro rata basis. That question is
relevant here because Heckstall was exposed to lead paint in
the Kirsons' property for over 2000 days, but Penn
National contends that its insurance coverage-and thus
indemnification obligation-extends to only 42 of those days.
stay would delay this matter, because the stay would be in
place while a relevant, indeed crucial, question of Maryland
law is before the Maryland courts, this Court is not
persuaded that such a delay would be an undue one. Nor does
the Court find that such a delay would unduly prejudice the
adjudication of the original parties' rights, as a
favorable ruling by the Maryland could would also advance the
Kirsons' interest in maximizing Penn National's
obligation. The Court thus finds that even if Heckstall were
unable to establish that she is entitled to intervene as of
right, she should be permitted to intervene.
it is hereby ORDERED that:
Intervenor Brionna Heckstall's Motion to Intervene, ECF
No. 19, is GRANTED.
Heckstall must separately file her Answer within 14 days of
the date of this Order.
Clerk is directed to amend the docket to add Heckstall as ...