NO. 91-391 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

THE ESTATE OF DAVID SCHWENKE, by and 

through its Guardian DIANA HUDSON, 

Plaintiff and Respondent, 

-vs- D 

JOHN CARL BECKTOLD, \d.riffp. 3 - 1993, 

Defendant, 

and 

CLEH< OF SSPI~EIME COURT 

STATE FARM FIRE AND CASUALTY COMPANY, STATEOFMONTANA 

Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

K. D. Peterson; Peterson & Schofield, Billings, 

Montana 

For Respondent: 

Christopher P. Thimsen and Charles A. Murray, Jr., 

Billings, Montana 

Filed: 

Submitted on Briefs: October 31, 1991 

Decided: March 3, 1992 
Justice Karla M. Gray delivered the Opinion of the Court. 

State Farm Fire and Casualty Company appeals from an order of 

the District Court of the Thirteenth Judicial District, Yellowstone 

County, denying its motion to intervene in a personal injury action 

brought by the estate of y avid Schwenke against John Becktold. We 

affirm. 

The issues on appeal are: 

1. Is the denial of the motion to intervene appealable? 

2. Did the District Court err in denying the motion to 

intervene? 

On October 8, 1989, avid Schwenke received severe, disabling 

and permanent head injuries in an automobile accident southwest of 

Winnett, Montana. David was a passenger in a vehicle driven by 

John Becktold. 

The estate of David Schwenke, by and through its guardian, 

Diana Hudson (Schwenke), filed a personal injury action on January 

16, 1990 against John Becktold alleging that he was negligent in 

operating the vehicle involved in the accident and that his 

negligence was the proximate cause of David s in juries. On 

February 5, 1990, attorney Kenneth Strong entered an appearance and 

subsequently filed an answer to the complaint on behalf of John 

Becktold . 

In order to determine whether insurance coverage existed for 

John Becktold, Schwenkels counsel took two depositions. John was 
deposed on February 19, 1990. He testified that he had been a 

permanent resident of his parents' household since his graduation 

from high school in 1982. 

Ralph Becktold, John's father, was deposed on March 2, 1990. 

The purpose of the deposition was to obtain copies of all insurance 

policies which might provide coverage for Ralph Becktold and 

members of his household. Ken Amrein, a representative of State 

Farm, and attorney Dane Schofield of the law firm of Peterson and 

Schofield attended the deposition. Mr. Schofield is the partner of 

Kenneth Peterson, counsel for State Farm in this action. 

One of the policies obtained as a result of Ralph Becktold's 

deposition was a State Farm personal liability umbrella policy that: 

provided certain coverage for members of Ralph Becktold's 

household. Schwenke's counsel believed that policy provided 

insurance coverage for the accident in which David Schwenke was 

injured and, on March 27, 1990, sent a letter to State Farm 

demanding payment of the policy limit. State Farm apparently never 

responded to the letter. 

Trial on the personal injury action in the District Court was 

set for May 13, 1991. On April 19, 1991, John Becktold filed a 

notice of appearance in which he advised the court and counsel that 

he was substituting himself, pro se, in place of attorney Strong. 

The District Court issued an order allowing Mr. Strong to withdraw 

as counsel on April 25, 1991. 

Schwenke had filed a declaratory judgment action in federal 
court on April 27, 1990 on the question of whether John Becktold 

was covered under the umbrella policy. The federal district court 

granted summary judgment in favor of State Farm on May 8, 1991, 

ruling that there was no coverage under the policy. That same day, 

Schwenke appealed to the Ninth Circuit Court of Appeals. 

On May 6, 1991, two days before the federal district court 

granted summary judgment to State Farm in the declaratory judgment: 

action, State Farm filed a motion to intervene in the personal 

injury action. The stated purpose of the motion was limited to 

"obtaining [a] continuance of the Trial presently set and a stay of 

the proceedings in this case pending final resolution of the 

Plaintiff's Declaratory Judgment action pending in the Federal 

District Court." State Farm specifically requested that it not be 

made a party to the action. The District Court denied the motion 

to intervene on May 10, 1991, stating: 

Given the action in Federal Court, movant has been 

aware of this case for a long time. Not only are the 

motions not timely but also the Court is not aware of any 

basis that allows one not willing to be a party to an 

action to intervene for the sole purpose of postponing a 

trial between those who are parties to the action. 

The case proceeded to trial as scheduled on May 13, 1991. 

John Becktold was not present and a jury trial was waived. 

Evidence was received by the court in the form of deposition and 

live testimony. On June 6, 1991, the District Court entered its 

findings of fact and conclusions of law. The court found in favor 

of Schwenke and awarded damages in the amount of $3,642,685.32. 

Judgment was entered on the same day. Thereafter, State Farm filed 
this appeal of the denial of its motion to intervene. 

I 

Is the denial of the motion to intervene appealable? 

Schwenke, citing Continental Insurance Co. v. Bottomly (1988), 

233 Mont. 277, 760 P.2d 73, contends that the District Court's 

denial of State Farm's motion to intervene is not appealable 

pursuant to Rule 1, M.R.App.P. In Bottomlv, we held that in 

accordance with Rule 1, M.R.App.P., a party who unsuccessfully 

sought to intervene in a district court action could not appeal 

prior to the entry of final judgment. We have already addressed 

the appealability of the District Court's order in this action. In 

an order dated September 17, 1991 denying Schwenke's motion to 

dismiss the appeal, we ruled that Bottomly is not controlling and 

that the order denying the motion to intervene is appealable 

because in this case there has been a final judgment. If State 

Farm were denied the opportunity to appeal the District Court's 

order, even though a final judgment has been entered, there would 

be no procedure by which to challenge the propriety of that order. 

I1 

Did the District Court err in denying the motion to intervene? 

State Farm first asserts that it was entitled to intervene as 

a matter of right in the personal injury action between Schwenke 

and John Becktold. Rule 24 (a) , M.R. Civ.P., governs intervention as 

of right and provides in pertinent part: 

Intervention of right. Upon timely application anyone 

shall be permitted to intervene in an action: . . . (2) 
when the applicant claims an interest relating to the 

property or transaction which is the subject of the 

action and the applicant is so situated that the 

disposition of the action may as a practical matter 

impair or impede the applicant's ability to protect that 

interest, unless the applicant's interest is adequately 

represented by existing parties. 

Rule 24(a), M.R.Civ.P., is almost identical to Federal Rule 

24 (a). As noted in 3B Moore's Federal Practice, 24.07 [I], at 24- 

50 (2d ed. 1987), an application for intervention as a matter of 

right under Rule 24(a) must: (1) be timely; (2) show an interest in 

the subject matter of the action; (3) show that the protection of 

the interest may be impaired by the disposition of the action; and 

(4) show that the interest is not adequately represented by an 

existing party. The applicant must satisfy each of the four 

criteria to be entitled to intervene as a matter of right. Keith 

v. Daley (7th Cir. 1985), 764 F.2d 1265, 1268, &. denied, 

(1985), 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336. 

The District Court's denial of the motion to intervene was 

based primarily on its determination that State Farm's motion was 

not timely. Timeliness is determined from the particular 

circumstances surrounding the action and such a determination is 

within the sound discretion of the trial court. NAACP v. New York 

(1973), 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648, 

663. 

State Farm cites Johnson v. Cape Industries, Limited (Ill. 

App. Ct. 1981), 414 N.E.2d 470, in support of its position that it 

was entitled to intervene. In Johnson, a personal injury action 
was filed against Cape Industries, Limited (Cape), on February 4, 

1980. Cape, an English corporation, was sued as the agent and 

shareholder of another corporation which was the direct insured. 

Both corporations instructed the insurer's counsel not to make an 

appearance on Cape's behalf, fearing certain adverse consequences 

of an appearance under English law. On March 28, 1980, a default 

judgment was entered against Cape and the cause was set for the 

presentation of evidence of damages on May 8, 1980. On April 7, 

1980, the insurer filed a declaratory judgment action on the 

question of insurance coverage and also filed a petition to 

intervene in the underlying personal injury action. The trial 

court denied the petition to intervene. The appellate court 

reversed, ruling that the motion to intervene was timely in view of 

the difficulty between Cape and the insurer and the less than twomonth period between the filing of the complaint and the entry of 

default. 

Johnson is distinguishable from the case at bar. Here, State 

Farm's motion to intervene was filed more than fifteen months after 

the personal injury action was initiated and only one week before 

the date of trial. More critically, State Farm was aware of the 

litigation for more than one year before trial. An attorney for 

State Farm and a representative of the company were present at the 

March 2, 1990 discovery deposition of its insured, Ralph Becktold. 

It was aware that John Becktold was being sued, that John Becktold 

was related to its insured, that an insurance policy existed which 
Schwenke maintained provided coverage for John Becktold, and that 

Schwenke was looking to State Farm to pay any judgment. Despite 

all of this, State Farm did nothing until one week before trial. 

State Farm further argues that its motion was timely because 

it was filed shortly after John Becktold's attorney of choice was 

permitted to withdraw as counsel, leaving him unrepresented. This 

argument might be persuasive if the purpose of State Farm's motion 

to intervene was to provide a defense for John Becktold. Such is 

not the case here. The motion's only purpose was to delay the 

trial in state court until the declaratory judgment action was 

finally resolved in the federal courts. We have stated previously 

that "[tlhe intervention rule is a discretionary judicial 

efficiency rule used to avoid delay, circuity and multiplicity of 

suits." Grenfell v. Duffy (1982), 198 Mont. 90, 95, 643 P.2d 1184, 

1187. We cannot conclude under the circumstances of this case that 

the District Court abused its discretion in finding the motion to 

intervene untimely where to allow intervention would have created 

that which the intervention rule seeks to avoid---undue delay of 

the trial for an undetermined period of time. 

Moreover, State Farm sought to intervene based on its 

assertion that if insurance coverage exists it should be allowed to 

pursue vigorously all available defenses. Interestingly, however, 

State Farm justifies its inaction until the week before trial by 

asserting that it has never had any duty to defend John Becktold. 

In our view, State Farm failed to protect its interest in a timely 
fashion after it first became aware of the action. If State Farm 

believed it had no duty to defend but desired to protect its 

interest, it could have hired an attorney to defend John Becktold 

under a reservation of rights, rather than waiting until one week 

before trial to move to intervene for the sole purpose of delaying 

the trial. 

Having determined that State Farm's motion was not timely, it 

is unnecessary to consider whether the other requirements for 

intervention as a matter of right under Rule 24(a), M.R.Civ.P., 

were satisfied. Accordingly, we hold that the District Court did 

not abuse its discretion in denying State Farm's motion to 

intervene as a matter of right. 

State Farm next contends that the District Court erred in 

denying permissive intervention under Rule 24 (b) , M.R. Civ . P. This 

rule provides in relevant part: 

Permissive intervention. Upon timely application anyone 

may be permitted to intervene in an action: . . . (2) 

when an applicant's claim or defense and the main action 

have a question of law or fact in common. . . . In 

exercising its discretion the court shall consider 

whether the intervention will unduly delay or prejudice 

the adjudication of the rights of the original parties. 

As the language of each subsection of Rule 24, M.R.Civ.P., 

indicates, a motion to intervene must be timely regardless of 

whether intervention is sought as of right under 24(a) or by 

permission under 24(b). Because we have already concluded that 

Sta 

sat 

te Farm's motion to intervene was not timely, State Farm did not 

isfy the threshold prerequisite for permissive intervention. We 
hold that the District Court did not abuse its discretion in 

denying State Farm's motion to intervene. 

Affirmed. 

We concur: ,$?.?/' 

Chief Justice 
March 3, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

K.D. Peterson, Esq. 

PETERSON & SCHOFIELD 

2906 Third Avenue North 

Billings, MT 59101 

Christopher Thimsen 

Charles A. Murray, Jr. 

Attorneys at Law 

2812 First Avenue North, Suite 210 

Billings, MT 59101 

John Carl Becktold 

C/O Top Gun 

P.O. Box 3072 

Roundup, MT 59072 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA