O'BRIEN et al.
MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
MCFADDEN, PRESIDING JUDGE.
appeal challenges a trial court order granting a motion to
intervene in the underlying action. Because the movant has an
independent remedy to protect its interests, it should not
have been allowed to intervene over the appellants'
objections. So we reverse.
Facts and procedural posture.
August 8, 2014, Robert O'Brien and others filed a
complaint against Duerk Construction, Inc., and James Duerk
(collectively "the Duerk defendants"), seeking to
recover damages for alleged defective construction of
property on Sea Island, Georgia. The complaint included
claims for breach of contracts, breach of warranties, and
negligent construction. The Duerk defendants filed an answer
and a third party complaint naming various subcontractors who
had performed work on the property as third-party defendants.
14, 2017, nearly three years after the complaint had been
filed, Builders Insurance, the insurer for the Duerk
defendants, filed a motion to intervene. In the motion,
Builders sought to participate in discovery and propose a
special verdict form in order to determine whether it is
obligated to provide insurance coverage for the damages
claimed against the Duerk defendants. After a hearing, the
trial court, without explaining the basis for its ruling,
summarily granted the motion and allowed Builders to
intervene for the purposes of participating in discovery and
proposing a special verdict form. The trial court certified
its order for immediate review, this court granted the
application for interlocutory review filed by O'Brien and
others, and this appeal followed.
to lawsuits ordinarily are not allowed to intervene. [But
t]here are some exception to the general rule disallowing
intervention by strangers." Potter's Properties
v. VNS Corp., 306 Ga.App. 621, 623 (703 S.E.2d 79)
(2010) (citations and punctuation omitted). Accord Todd
v. Conner, 220 Ga. 173, 179 (2) (137 S.E.2d 614) (1964);
Gregory v. Tench, 138 Ga.App. 219, 220 (1) (a) (225
S.E.2d 753) (1976).
We have defined intervention as the procedure by which a
third person, not originally a party to a suit, but claiming
an interest in the subject matter, comes into the case, in
order to protect his right or interpose his claim. A true
intervenor takes the case as he finds it and cannot expand
the litigation; he or she merely stakes a claim to a share in
the result of the pending litigation.
AC Corp. v. Myree, 221 Ga.App. 513, 515 (1) (471
S.E.2d 922) (1996) (citations and punctuation omitted). See
also Underclofer v. Seaboard A. L. R. Co., 222 Ga.
822, 829 (7) (152 S.E.2d 878) (1966) (fundamental rule is
that an intervenor takes the case as he finds it and cannot
inject new issues). "Intervention does not occur until
the court enters an order permitting it. One who is allowed
by a court order to intervene acquires the status of a party
and may file any pleading in the case that the original
parties could have filed." Andrews v. Ford Motor
Co., 310 Ga.App. 449, 454 (3) (713 S.E.2d 474) (2011)
(citations and punctuation omitted) (physical precedent).
case, Builders sought to intervene pursuant to OCGA
§§ 9-11-24 (a) (2) and (b) (2), which provide
grounds for intervention of right and permissive intervention
upon a timely application. But "[e]ven so, it is the
rule in this [s]tate that a party may not intervene where he
has a remedy which may be asserted in a proper
proceeding." Potter's Properties, supra
(citations and punctuation omitted). "[I]f the one who
seeks to intervene will still be left with his right to
pursue his own independent remedy against the parties,
regardless of the outcome of the pending case, then he has no
interest that needs protecting by intervention and should not
be allowed to intervene over objection"
O'Brien and others objected to intervention by Builders,
asserting, among other things, that the motion was untimely,
that intervention would improperly expand the scope of the
litigation from one involving issues of liability to one
involving issues of insurance coverage, and that Builders has
the independent remedy of a declaratory judgment action to
determine those issues of insurance coverage. Builders
acknowledges that it could bring a declaratory judgment
action to determine coverage after the underlying action is
completed. Indeed, it is well-settled that a declaratory
judgment action is a proper proceeding for determining issues
of insurance coverage. See Atlanta Cas. Co. v.
Fountain, 262 Ga. 16, 17-18 (413 S.E.2d 450) (1992)
(when a claim for insurance has been made, and a legitimate
question exists as to the propriety of denying coverage, the
insurance company may file a declaratory judgment action);
Barclay v. Stephenson, 337 Ga.App. 365, 371 (3) (a)
(787 S.E.2d 322) (2016) (accord); Marchant v. Travelers
Indem. Co., 286 Ga.App. 370, 371 (650 S.E.2d 316) (2007)
(insurance company brought declaratory judgment action
against named insured who had been sued in a separate lawsuit
for defective construction).
review a trial court's decision under either portion of
the statute[, OCGA § 9-11-24 (a) & (b), ] for an
abuse of discretion." Stephens v. McGarrity,
290 Ga.App. 755, 758 (1) (660 S.E.2d 770) (2008) (citations
omitted). After "the outcome of the [underlying] case,
[Builders] is still left with its right to pursue its own
independent [declaratory judgment] action against [the Duerk
defendants in order to determine insurance coverage]. Under
these circumstances, the trial court abused its discretion by
granting the appellee's motion to intervene in this
action." Zinser v. Tormenta, 213 Ga.App. 824,
825 (1) (446 S.E.2d 249) (1994) (citation omitted). See also
Sirmans v. Board of Trustees &c., 295 Ga.App.
378, 381 (2) (672 S.E.2d 423) (2008) (movant had no interest
that required protection by intervention where independent
claims could still be pursued); Rynerson v. Schat,
215 Ga.App. 250, 252 (449 S.E.2d 901) (1994) (intervention
denied where motion was untimely and movant still had
independent remedies available); Sloan v. ...