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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Thomas Coleman et al vs James Nigro et al

Case No: 1413984
Hearing Date: Mon Jan 27, 2014 9:30

Nature of Proceedings: Motion for Leave to Intervene in Action

CASE: Thomas Coleman, et al. v. James Nigro, et al., Case No. 1413984 MATTER: Motion for Leave to Intervene in Action TENTATIVE RULING: AIG’s motion for leave to intervene in the action is granted. AIG shall file and serve its complaint-in-intervention on or before February 5, 2014. DISCUSSION: This is a construction defect case. In 2009, plaintiffs Thomas Coleman and Polly Coleman purchased a single family residence in Montecito that had recently been remodeled. After moving into the residence, plaintiffs discovered significant water and moisture intrusion damage to the structure due to various construction defects. In 2012, plaintiffs filed suit for negligence and fraud against the developers, contractors, and subcontractors responsible for the remodel, claiming that defendants misrepresented that the remodel had been built in compliance with the plans and specifications and the building code. Plaintiff-in-intervention AIG Property Casualty Company (“AIG”) issued a policy of insurance to plaintiffs. Pursuant to the policy, plaintiffs made a claim seeking reimbursement for property damage caused by the remodel. AIG subsequently issued payments to plaintiffs in excess of $100,000. AIG now seeks to intervene in the action, as the subrogated insurer of plaintiffs, to recover the payments it made. AIG seeks recovery against the same developer and contractor defendants named in the original action. There is no filed opposition to the motion. ANALYSIS: The right of a party to intervene in an action is governed by Code of Civil Procedure Section 387, which provides: “(a) Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons . . . and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties . . . . Section 387 further provides: “(b) If any provision of law confers an unconditional right to intervene or if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene.” In Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, the court held that a subrogated insurer has the right to intervene in its insured’s lawsuit against the responsible third party. There, plaintiff homeowners filed a construction defect suit against the developer and general contractor who constructed their house, alleging that defendants caused water and mold damage by performing defective work, violating building codes, and negligently supervising construction of the house. Plaintiffs’ insurer paid part of the water damage claim and thereafter sought to intervene in the case. The trial court denied the insurer’s motion for leave to intervene, but the court of appeal reversed, holding that the insurer had a statutory right to intervene under Code of Civil Procedure Section 387. The court found that the insurer had a direct pecuniary interest in the construction defect case and that neither a separate lawsuit against the tortfeasors nor a lawsuit for reimbursement against the insureds was a viable means for the insurer to protect those interests. Id., at 550, 554. The court will grant AIG’s motion for leave to intervene in the case. The court finds that the motion is timely (no trial date has been set), that AIG has an interest relating to the property that is the subject of the underlying lawsuit, and that disposition of the action in AIG’s absence may impair or impede its ability to protect its subrogation rights. AIG’s intervention will not add any substantive issues to the case as it seeks recovery against the same defendants named by plaintiffs in their complaint. AIG is ordered to file and serve its complaint-in-intervention on or before February 5, 2014.
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