Tursom v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-20811-BLOOM/Louis

RIM M. TURSOM,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.

______________________________/

ORDER ON MOTION FOR INTERVENTION

THIS CAUSE is before the Court upon Intervenor Progressive Express Insurance

Company’s (“Intervenor”) Motion for Intervention. ECF No. [37] (“Motion”). The United States

filed a response in opposition to the Motion, ECF No. [39] (“Response”), to which the Intervenor

replied, ECF No. [45] (“Reply”). The Court has carefully reviewed the Motion, all opposing and

supporting submissions, the record in this case, the applicable law, and is otherwise fully advised.

For the reasons set forth below, the Motion is denied.

I. BACKGROUND

On February 25, 2020, Plaintiff initiated this action against the United States, asserting a

claim under the Federal Tort Claims Act (“FTCA”). See ECF No. [1]. One year later, on February

23, 2021, the discovery period closed. See ECF No. [12]. On February 24, 2021, the United States

filed a Notice of Settlement, ECF No. [28], and the Court administratively closed the case that

same day, see ECF No. [29]. On March 4, 2021, the Intervenor filed a motion seeking to reopen

the case so that it could intervene and pursue its subrogation claim against the United States. See

ECF No. [31]. On April 27, 2021, the Court denied the request to reopen this case, explaining that

the Intervenor had not submitted “any supporting legal authority for its request, as a non-party, to

reopen the case in order to intervene in a matter that ha[d] been litigated by the parties for a year,

especially where the discovery period ha[d] [] closed and the parties ha[d] settled their dispute.”

ECF No. [34] at 3 (footnote omitted). On May 12, 2021, the parties filed a Joint Motion to Reopen,

ECF No. [35], which sought to reopen this case because they were unable to resolve their disputes.

On May 13, 2021, the Court granted the Joint Motion to Reopen and rescheduled the remaining

pre-trial deadlines and trial dates. See ECF No. [36].

The Intervenor now files the instant Motion, which seeks to intervene in this case so that it

may pursue its subrogation claim against the United States. The Intervenor explains that, at the

time of the accident in this case, it issued an insurance policy that provided uninsured motorist

benefits in the amount of $1,000,000.00 combined single limit. See ECF Nos. [37-3] & [37-4].

The Intervenor moves to intervene in this case in order to recover the subrogated amounts paid to

Plaintiff pursuant to the uninsured motorist policy. The United States opposes the intervention,

arguing that this Court lacks jurisdiction to entertain the Intervenor’s claims. It argues that the

United States is not an uninsured motorist and it has not waived sovereign immunity under the

FTCA for subrogation claims by non-party insurers to recover uninsured motorist payments.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 24 sets forth two types of intervention: (1) intervention of

right, and (2) permissive intervention.

(a) Intervention of Right. On timely motion, the court must permit anyone to

intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) 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.

(b) Permissive Intervention.

(1) In General. On timely motion, the court may permit anyone to intervene

who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common

question of law or fact.

. . . .

(3) Delay or Prejudice. 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(a)-(b).

In this Circuit,

[a] party seeking to intervene as of right under Rule 24(a)(2) must show that: (1)

his application to intervene is timely; (2) he has an interest relating to the property

or transaction which is the subject of the action; (3) he is so situated that disposition

of the action, as a practical matter, may impede or impair his ability to protect that

interest; and (4) his interest is represented inadequately by the existing parties to

the suit.

Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989). “If [the intervenor] establishes each

of the four requirements, the district court must allow him to intervene.” Id.; see also Purcell v.

BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 1996) (“Once a party establishes all the

prerequisites to intervention, the district court has no discretion to deny the motion.” (quoting

United States v. State of Ga., 19 F.3d 1388, 1393 (11th Cir. 1994))).

“The [United States] Supreme Court has held that the timeliness of a motion to intervene

is a threshold factor that must be satisfied before the other factors should be considered.”

Hollywood Cmty. Synagogue, Inc. v. City of Hollywood, Fla., 254 F. App’x 769, 771 (11th Cir.

2007) (citing NAACP v. New York, 413 U.S. 345, 365 (1973) (“If [a motion to intervene] is

untimely, intervention must be denied. Thus, the court where the action is pending must first be

satisfied as to timeliness.”)). A district court, whether considering intervention as of right or by

permission, must consider four factors in assessing the timeliness of the intervention:

(1) the length of time during which the would-be intervenor knew or reasonably

should have known of his interest in the case before he petitioned for leave to

intervene; (2) the extent of prejudice to the existing parties as a result of the would-

be intervenor’s failure to apply as soon as he knew or reasonably should have

known of his interest; (3) the extent of prejudice to the would-be intervenor if his

petition is denied; and (4) the existence of unusual circumstances militating either

for or against a determination that the application is timely.

United States v. Jefferson Cnty., 720 F.2d 1511, 1516 (11th Cir. 1983).

“Intervention of right is only available if the interest asserted is ‘direct, substantial, [and]

legally protectable.’” Huff v. Comm’r of IRS, 743 F.3d 790, 796 (11th Cir. 2014) (quoting Athens

Lumber Co. v. Fed. Election Comm’n, 690 F.2d 1364, 1366 (11th Cir. 1982)). In other words, “the

intervenor must be at least a real party in interest in the transaction which is the subject of the

proceeding.” Id. The Court of Appeals for the Eleventh Circuit has held that a legally protectable

interest “is something more than an economic interest.” United States v. S. Fla. Water Mgmt. Dist.,

922 F.2d 704, 710 (11th Cir. 1991) (citation omitted). “What is required is that the interest be one

which the substantive law recognizes as belonging to or being owned by the applicant.” Id.

(internal quotation marks omitted) (citation omitted). “Thus, a legally protectable interest is an

interest that derives from a legal right.” Mt. Hawley Ins. Co. v. Sandy Lake Props., Inc., 425 F.3d

1308, 1311 (11th Cir. 2005).

Moreover, to permissibly intervene under Rule 24(b)(1)(B), an intervenor must show that

“(1) his application to intervene is timely; and (2) his claim or defense and the main action have a

question of law or fact in common.” Chiles, 865 F.2d at 1213. “The ‘claim or defense’ portion of

the rule has been construed liberally, and indeed the Supreme Court has said that it ‘plainly

dispenses with any requirement that the intervenor shall have a direct personal or pecuniary interest

in the subject of the litigation.’” In re Estelle, 516 F.2d 480, 485 (5th Cir. 1975)1 (quoting Sec. &

Exch. Comm’n v. U.S. Realty & Imp. Co., 310 U.S. 434, 459 (1940)). The intervening party,

however, “must demonstrate more than a general interest in the subject matter of the litigation

before intervention should be allowed.” Alexander v. Hall, 64 F.R.D. 152, 157 (D.S.C. 1974).

When exercising its discretion, a district court “can consider almost any factor rationally relevant

but enjoys very broad discretion in granting or denying the motion [to intervene].” Daggett v.

Comm’n on Governmental Ethics & Election Prac., 172 F.3d 104, 113 (1st Cir. 1999).

III. DISCUSSION

The Intervenor now moves for mandatory and permissive intervention to protect and

prosecute its subrogation claim relating to uninsured motorist payments it made to its insured.

Specifically, the Intervenor argues that it is the real party in interest in this case because it paid off

Plaintiff’s entire debt and ultimately perfected its subrogation rights. The Intervenor also contends

that the United States is an uninsured motorist under § 627.727(1), Fla. Stat.,2 and that it may

properly intervene in this case to recover all sums paid to the insured under the uninsured motorist

insurance policy. The United States responds and argues that this Court lacks subject-matter

jurisdiction to hear the Intervenor’s claims. The United States notes that it has not waived

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as

binding precedent all decisions of the Court of Appeals for the Fifth Circuit issued prior to October 1, 1981.

2 The uninsured motorist statute states that

No motor vehicle liability insurance policy which provides bodily injury liability coverage

shall be delivered or issued for delivery in this state with respect to any specifically insured

or identified motor vehicle registered or principally garaged in this state unless uninsured

motor vehicle coverage is provided therein or supplemental thereto for the protection of

persons insured thereunder who are legally entitled to recover damages from owners or

operators of uninsured motor vehicles because of bodily injury, sickness, or disease,

including death, resulting therefrom.

Fla. Stat. § 627.727(1).

sovereign immunity from suit for claims filed by an insurer which seek to litigate its subrogation

rights pursuant to an uninsured motorist policy after issuing payments to the insured under this

policy. Absent a clear waiver of sovereign immunity, the United States argues that the Intervenor’s

Motion must be denied for lack of jurisdiction.

“[T]he United States, as sovereign, ‘is immune from suit save as it consents to be

sued . . . and the terms of its consent to be sued in any court define that court’s jurisdiction to

entertain the suit.’” Hercules Inc. v. United States, 516 U.S. 417, 422-23 (1996) (quoting United

States v. Testan, 424 U.S. 392, 399 (1976)). Indeed, “the United States may condition its consent

to waive sovereign immunity ‘as broadly or narrowly as it wishes, and according to whatever terms

it chooses to impose.’” Ill. Metro. Inv. Fund v. United States, 773 F. App’x 540, 541-42 (11th Cir.

2019) (quoting Zelaya v. United States, 781 F.3d 1315, 1321-22 (11th Cir. 2015)). Courts “must

strictly observe the ‘limitations and conditions upon which the Government consents to be sued’

and cannot imply exceptions not present within the terms of the waiver.” Zelaya, 781 F.3d at 1322

(quoting Soriano v. United States, 352 U.S. 270, 276 (1957)). “If there is no specific waiver of

sovereign immunity as to a particular claim filed against the Government, the court lacks subject

matter jurisdiction over the suit.” Id. (citing F.D.I.C. v. Meyer, 510 U.S. 471, 475-76 (1994)).

The Federal Tort Claims Act “is a specific, congressional exception to the general rule of

sovereign immunity[.]” Maradiaga v. United States, 679 F.3d 1286, 1292 (11th Cir. 2012).

With respect to certain tort claims, the FTCA waives this “traditional all-

encompassing immunity” under particular circumstances. Douglas v. United States,

814 F.3d 1268, 1280 (11th Cir. 2016) (Tjoflat, J., concurring) (quoting Rayonier

Inc. v. United States, 352 U.S. 315, 319 (1957)). As relevant [here,] . . . § 2674 of

the FTCA provides that “[t]he United States shall be liable, respecting the

provisions of this title relating to tort claims, in the same manner and to the same

extent as a private individual under like circumstances.” 28 U.S.C. § 2674

(emphasis added). A related jurisdictional statute grants the district

courts . . . “exclusive jurisdiction of civil actions on claims against the United

States . . . for personal injury or death . . . under circumstances where the United

States, if a private person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1)

(emphasis added) . . . . In other words, two relevant provisions of federal law work

together to “preclude liability of the federal government absent a showing by the

plaintiff that a private individual . . . in like circumstances[] would be liable for the

particular tort under governing state law where the tort occurred.” Zelaya, 781 F.3d

at 1323.[3]

Hurst v. U.S. by & through Dep’t of the Agric. U.S. Forest Serv., 782 F. App’x 978, 980-81 (11th

Cir. 2019); see also Hunter v. United States, 825 F. App’x 699, 701 (11th Cir. 2020) (“In the

absence of a cause of action under the FTCA, however, the United States preserves its sovereign

immunity, and the district court lacks jurisdiction to adjudicate the case.”); Ochran v. United

States, 273 F.3d 1315, 1317 (11th Cir. 2001) (explaining “that unless the facts support liability

under state law, the district court lacks subject matter jurisdiction to decide an FTCA claim”);

Lawrence v. Dunbar, 919 F.2d 1525, 1528 (11th Cir. 1990) (“Unless, according to the law of

Florida, the United States could be liable for this alleged tort . . . if it were a private person, then

not only is the sovereign’s immunity intact, but the district court is without subject matter

jurisdiction and must dismiss the suit.”).

The party asserting the FTCA claim bears the burden of demonstrating that a private

individual in like circumstances would be liable for the tort at issue under governing state law.

Zelaya, 781 F.3d at 1323. “In FTCA actions, liability is determined under the law of the state in

which the alleged negligence occurred.” Robinson v. United States, 462 F. App’x 885, 886 (11th

Cir. 2012).4 Nonetheless, “state law cannot expand the waiver of sovereign immunity in the

Federal Tort Claims Act[.]” Maradiaga, 679 F.3d at 1292-93.

3 As the Eleventh Circuit has explained, “[t]he FTCA was not intended to create new causes of action; nor

was it intended as a means to enforce federal statutory duties. Instead, Congress’s chief intent in drafting

the FTCA was simply to provide redress for ordinary torts recognized by state law.” Howell v. United

States, 932 F.2d 915, 917 (11th Cir. 1991) (citation omitted).

4 “As the alleged tort here occurred in Florida, Florida tort law applies.” Stone v. United States, 373 F.3d

1129, 1130 (11th Cir. 2004).

In addressing the instant Motion, the Court must determine whether the United States is

akin to an uninsured motorist under Florida law such that it has waived sovereign immunity on the

Intervenor’s subrogation claims to recover uninsured motorist benefits. As the question of whether

the United States has waived sovereign immunity implicates this Court’s subject-matter

jurisdiction, it must be resolved first before the Court can proceed to the merits of the request to

intervene and the validity of the Intervenor’s subrogation rights.

The Court has previously addressed whether, under the FTCA, the United States is akin to

an uninsured motorist such that it is liable for reimbursement of uninsured motorist benefits that

the Intervenor paid to Plaintiff. See State Farm Fla. Ins. Co. v. United States, No. 17-cv-60369,

2017 WL 3115747, at *2-3 (S.D. Fla. July 21, 2017) (“State Farm”). In State Farm, “the Court

[found] that the United States [was] more like an owner or operator of an insured vehicle, rather

than self-insured, because . . . the United States provides unlimited coverage to injured tort victims

through the FTCA.” Id. at *3. In reaching this conclusion, the Court looked to the reasoning of the

Supreme Court of Florida in Young v. Progressive Southeastern Insurance Company, 753 So. 2d

80, 85 (Fla. 2000), and to Rogers v. United States, No. 14-21474-CIV, 2016 WL 4805920, at *1

(S.D. Fla. Feb. 24, 2016).

In Young, the Supreme Court of Florida explained that, “[p]ursuant to Florida’s uninsured

motorist statutory scheme, motorists are considered uninsured when they lack liability insurance

or possess liability insurance with limits of liability lower than the damages sustained by the

policy-holder.” Young, 753 So. 2d at 87; see also Brown v. Progressive Mut. Ins. Co., 249 So. 2d

429, 430 (Fla. 1971) (“The purpose of the uninsured motorist statute is to protect persons who are

injured or damaged by other motorists who in turn are not insured and cannot make whole the

injured party. The statute is designed for the protection of injured persons, not for the benefit of

insurance companies or motorists who cause damage to others.”). Thus, the central inquiry when

determining a party’s status as an uninsured motorist is whether the liability insurance coverage is

sufficient to fully compensate an injured party for the damages sustained. See Young, 753 So. 2d

at 86; see also Fla. Stat. § 627.727(3).

Moreover, this inquiry is consistent with the reasoning in American Fire & Casualty

Company v. Boyd, 357 So. 2d 768, 769 (Fla. 1st DCA 1978), which the Intervenor argues is

dispositive here. Boyd involved a liability insurance policy that excluded coverage under certain

circumstances, and this exclusion applied to the car accident at issue. In concluding that the

tortfeasor’s vehicle was an “uninsured vehicle,” the court in Boyd explained that,

Although [the tortfeasor] had procured a policy of insurance, that policy afforded

no coverage because of the exclusionary clause; and the mere fact that [the

tortfeasor] was in such a position as to cause to be invoked by his negligence the

provisions of the Federal Tort Claims Act does not mean that he is thereby

“insured” within the meaning of the statute.

Id. The holding in Boyd does not stand for the proposition, as the Intervenor argues, that the United

States is an uninsured motorist in all circumstances. Rather, consistent with the holdings in Young

and State Farm, the reasoning in Boyd further confirms that “an insurer only owes uninsured

motorist benefits for damages exceeding the limits of self-insurer’s liability.” Rogers, 2016 WL

4805920, at *4 n.4 (emphasis in original); see also State Farm, 2017 WL 3115747, at *3. The

United States cannot be described as an uninsured motorist because “the FTCA provides unlimited

liability coverage to injured tort victims.” Rogers, 2016 WL 4805920, at *4 n.4 (emphasis in

original); see also State Farm, 2017 WL 3115747, at *3.

Moreover, this conclusion was recently reaffirmed by a Florida appellate court, which

explained:

Because the tortfeasor’s liability limits would cover the amount of damages claimed

by [the injured party], the tortfeasor does not qualify as an uninsured or

underinsured motorist under the clear language of the statute . . . . This conclusion

is consistent with prior decisions from this court in which we have reversed

judgments entered against UM insurers because the damages did not exceed the

amounts available under the tortfeasors’ liability coverages. See State Farm Mut.

Auto. Ins. Co. v. Vecchio, 744 So. 2d 570, 570 (Fla. 2d DCA 1999) (holding “that

the trial court erred in entering a judgment for the plaintiffs [under their UM policy]

when they failed to prove that their damages exceeded the tortfeasor’s policy

limits”); State Farm Mut. Auto. Ins. Co. v. Moher, 734 So. 2d 1088, 1088 (Fla. 2d

DCA 1999) (“Because [insured’s] settlement with the second [tortfeasor] exceeded

the amount of damages found by the jury, UM coverage is not applicable in this

case.”); State Farm Mut. Auto. Ins. Co. v. Ferro, 581 So. 2d 605, 606 (Fla. 2d DCA

1991) (holding that “once it was established that the [insureds’] damages were less

than the policy limits of the tortfeasors’ primary insurance coverage, and this is

uncontested, it was also established that the [insurer] had no liability to the

[insureds]”).

. . . . [This] holding is consistent with the purpose of the UM statute, which

is to compensate an insured “for a deficiency in the tortfeasor’s personal liability

insurance coverage.” Allstate Ins. Co. v. Morales, 533 So. 2d 952, 953 (Fla. 5th

DCA 1988) (citing Dewberry v. Auto-Owners Ins. Co., 363 So. 2d 1077 (Fla.

1978)); see Moher, 734 So. 2d at 1088 (“UM coverage is excess coverage and ‘pays

over and above the tortfeasor’s liability coverage should said coverage be

inadequate to fully compensate the injured insured.’” (quoting Gov’t Emps. Ins. Co.

v. Brewton, 538 So. 2d 1375, 1376 (Fla. 4th DCA 1989)); Meadows v. Progressive

Cas. Ins. Co., 601 So. 2d 1285, 1286 (Fla. 5th DCA 1992) (noting that UM

“coverage is over and above and does not duplicate the benefits available to the

insured”)).

Neff v. Prop. & Cas. Ins. Co. of Hartford, 133 So. 3d 530, 532-33 (Fla. 2d DCA 2013).

As the Intervenor cannot establish that the United States was an uninsured or underinsured

motorist, the Court concludes that it cannot properly pursue its subrogation claims because the

United States remains immune from suit under the FTCA. See Allstate Ins. Co. v. Boynton, 486

So. 2d 552, 557 (Fla. 1986) (noting that in making a “claim against his UM carrier instead of suing

the tortfeasor,” the insured “has a policy prerequisite, namely, proof that the tortfeasor is

uninsured”); Vigilant Ins. Co. v. Kelps, 372 So. 2d 207, 208 (Fla. 3d DCA 1979) (“[N]o UM

coverage exists if the offending motorist is not actually un-or underinsured.” (citing Hayston v.

Allstate Ins. Co., 290 So. 2d 67 (Fla. 3d DCA 1974))). As a result, this Court lacks subject-matter

jurisdiction to hear the Intervenor’s claims and the Motion must be denied.

Case No. 20-cv-20811-BLOOM/Louis

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Progressive Express Insurance

Company’s Motion for Intervention, ECF No. [37], is DENIED. The Intervenor’s Motion for

Final Summary Judgment, ECF No. [57], is DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, on August 9, 2021.

BE KL

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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