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In Earlene F. Corbishley, v. Pep Boys — Manny, Moe & Jack of Delaware, Inc., the United States District Court of Colorado considered Walmart’s motion to intervene in a third-party claim.

In July 2014, Earlene Corbishley (the plaintiff) suffered injuries after slipping and falling on an oil and grease spill in the parking lot of a Pep Boys, a national chain of auto parts and service stores. Ms. Corbishley was acting within the scope of her job duties as a Walmart employee when the fall occurred. After the fall, Ms. Corbishley submitted a claim for workers’ compensation benefits. In March 2016, Ms. Corbishley’s attorney informed Walmart’s workers’ compensation administrator of her third-party claim against Pep Boys.

Shortly afterwards on April 18, 2016, Ms. Corbishley filed a claim for relief against Pep Boys under Colorado’s premises liability statute. In late October 2016, Walmart’s counsel notified Ms. Corbishley’s attorney of an ongoing lien for $150,000 in workers’ comp benefits paid to her after the accident. Walmart’s counsel requested to be notified prior to any settlement with Pep Boys.

On December 16, 2016, Ms. Corbishley’s treating physician said that she had reached maximum medical improvement on October 26, 2016. She appealed this finding and hired an independent medical examiner, who said she had not reached maximum medical improvement. Walmart is challenging the findings. Due to the circumstances in the case, there is a possibility that Ms. Corbishley could recover additional workers’ compensation benefits. The claim was moved to the United States District Court of Colorado on January 6, 2017.

Walmart filed its motion to intervene on January 19, 2018, arguing that it met the standards for intervention due to its interest in recovering workers’ compensation benefits paid to Ms. Corbishley. While Pep Boys did not dispute Walmart’s interest in recovering these benefits, it did argue that the intervention is untimely and therefore denied under Rule 24 (a) and (b).

In the opinion of the court, Walmart knew that it had an interest in the claim one year prior to filing its motion to intervene. The court also determined that if Walmart intervened at this point in the case, that Pep Boys would be prejudiced. Walmart opined that it would only call one additional witness and that any discovery would be minimal. However, the possibility remains that Pep Boys will be forced to conduct significant discovery due to the circumstances of the case and by calling an additional witness. In addition, Walmart is seeking to add a common law negligence claim against Pep Boys.

The court is also not convinced that Walmart would be prejudiced if it were not permitted to intervene in the case because the bulk of damages Ms. Corbishley seeks to recover in the case are subject to Walmart’s subrogation rights under the Colorado’s Workers’ Compensation Act. However, if Ms. Corbishley seeks to characterize settlement proceeds as noneconomic damages, then Walmart would have recourse to intervene. Walmart’s motion to intervene is denied.

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