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Defendant's Attorney: Timothy J. Finnerty

Description: Wichita, Kansas personal injury lawyer represented Plaintiff, who sued Defendant on a general negligence theory claiming to have suffered more than $75,000 in damages and/or injuries as a direct result of the accident.


Plaintiff alleges that he suffered injuries on December 19, 2019 while he was servicing forklifts at Defendants' warehouse through their negligence. Plaintiff filed this action on December 17, 2020. The Court denied Defendants' motion for summary judgment, and a three-day trial on Plaintiff's claims was scheduled to begin June 22, 2022.

On May 20, 2022, counsel for Plaintiff moved to continue the trial, stating he had been diagnosed with a heart condition, that a delay of surgery was not possible, and that “[a]ccordingly, surgery has been scheduled for March 3, 2022 [sic].” Counsel stated that the surgery would preclude him from working for two to thee months.

On June 3, 2022, Plaintiff submitted a Notice of Settlement, stating “this matters [sic] had been settled . . . through informal negotiations between the parties.” Plaintiff further stated that he anticipated filing a motion to allocate all of the settlement proceeds to his claim for loss of consortium. The motion to allocate, filed on June 6, seeks to designate 100% of the settlement proceeds to the loss of consortium claim alone. The motion states that “[a]s a material part of the settlement, Plaintiff requested Defendant's to not object” to the allocation.

The next day, on June 7, Mitsui moved to intervene in the action, arguing that the proposed allocation was incorrect, and would have the effect of avoiding its lien on Plaintiff's recovery under Kansas law. Mitsui states that, as the workers compensation carrier for his employer, it has paid Plaintiff $198,968.50 in total benefits, including $104,063.50 for medical expenses, and $94,905.00 for wage indemnity.

II. Legal Standard

Mitsui seeks both mandatory intervention under Rule 24(a)(2), arguing it has an interest in the action which the existing parties do not adequately represent, and permissive intervention under Rule 24(b)(1)(B), because it has a claim which shares a common question of law or fact with the present case. For both forms of relief, Mitsui notes that Kansas workers compensation law, as set forth in K.S.A. § 44-504(b), grants it a lien on any recovery Plaintiff obtains (other
than for loss of consortium) against a non-employer, and further grants a right to intervene to protect that interest.[1]

Intervention as of right is authorized where a movant “[1] claims an interest relating to the property or transaction that is the subject of the action, and [2] 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 [3] existing parties adequately represent that interest.”[2] “Representation is adequate when the objective of the applicant for intervention is identical to that of one of the parties.”[3]Representation is not adequate if the movant demonstrates a possible “divergence of interest.”[4] The burden is on the movant to show the potential for a divergence of interests, but that divergence “need not be great.”[5] Tenth Circuit “generally follows a liberal view in allowing intervention under Fed.R.Civ.P. 24(a).”[6]

Permissive intervention may be allowed if the court finds that (1) the party seeking relief has filed a timely motion, (2) the movant has a claim or defense that shares common questions of law or fact with the main action, and (3) that intervention will not unduly delay or prejudice the original parties' rights.[7] Intervention under Rule 24(b) is within the discretion of the Court.[8]When presented with a motion for permissive intervention, “the court must consider whether the intervention will unduly delay or prejudice adjudication of the original parties' rights.”[9]...
Curtis v. Viega, Inc. (D. Kan. 2022)

Outcome: Motion to intervene granted.

Plaintiff's Experts:

Defendant's Experts:

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