UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

BARBARA ESSELTINE and

JACK ESSELTINE,

Plaintiffs,

-andBLUE CROSS BLUE SHIELD,

Plaintiff-Intervenor,

Case Number 08-14542

v. Honorable Thomas L. Ludington

T.J. MAXX and TJX COMPANIES,

Defendants.

_________________________________________/

ORDER GRANTING BLUE CROSS BLUE SHIELD’S MOTION TO INTERVENE AND

DENYING BLUE CROSS BLUE SHIELDS MOTION FOR SEPARATE TRIAL

On October 24, 2008, Defendants T.J. Maxx and TJX Companies removed Plaintiffs Barbara

(“Plaintiff”) and Jack Esseltine’s complaint to this Court. The complaint alleges that Defendant’s

negligence caused Plaintiff to injure herself while shopping at Defendant’s retail location. On May

29, 2009, Intervenor Blue Cross Blue Shield (“BCBS”) moved to intervene as a plaintiff pursuant

to Fed. R. Civ. P. 24(a). Dkt. # 11. BCBS seeks reimbursement for payments it made for medical

care resulting from Plaintiff’s injuries if Plaintiff successfully establishes Defendants’ liability to

her for those expenses. BCBS also requests that it be able to proceed in a separate bench trial

pursuant to Fed. R. Civ. P. 42(b). No parties have responded to the motion. 

A

A party has the right to intervene when it “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

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the action may as a practical matter impair or impede the applicant’s ability to protect that interest

. . . .” Fed. R. Civ. P. 24(a)(2). To determine if a party has the right of intervention, a court

considers the following factors: “(1) timeliness of the application to intervene, (2) the applicant’s

substantial legal interest in the case, (3) impairment of the applicant’s ability to protect that interest

in the absence of intervention, and (4) inadequate representation of that interest by parties already

before the court.” Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (citation

omitted). Regarding the substance of the legal interest, courts should construe Rule 24 broadly in

favor of proposed intervenors. See Michigan State AFL-CIO, 103 F.3d at 1245-1246 (citations

omitted); see also Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir. 1999), rev’d on other grounds

at 539 U.S. 244 (2003) (reiterating the “rather expansive notion” of interest sufficient for

intervention). Regarding the element of impairment, the “burden is minimal” to show impairment

of a proposed intervenor’s interests. Id. at 1247. Even the precedential effect of an adverse decision

on future possible litigation will suffice. Id. Finally, as to inadequate representation, the burden

is again minimal – showing that the current parties would not make all of a proposed intervenor’s

arguments or that they have not appealed can suffice. Id. at 1247 (citations omitted). A proposed

intervenor need show only the potential for inadequate representation. Trbovich v. United Mine

Workers of America, 404 U.S. 528, 539 n.10 (1972); Linton v. Commissioner of Health and

Environment, 973 F.3d 1311, 1319 (6th Cir. 1992). 

Here, the BCBS’s request to intervene is not untimely. The parties recently requested an

extension of the scheduling order and intervention of BCBS will not cause undue delay. In addition,

BCBS asserts that it has a financial stake in the outcome of the litigation and intervention will assist

in the reimbursement of those costs. Finally, intervention will assist in the efficient resolution of

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claim between the three parties. The Court will grant the motion.

B

BCBS also requests that the Court order separate trials. “For convenience, to avoid

prejudice, or to expedite and economize, the court may order a separate trial of one or more separate

issues, claims, crossclaims, counterclaims, or third-party claims.” Fed. R. Civ. P. 42(b). A district

court retains broad discretion in determining whether separate trials are warranted. Helmac Prod.

Corp. v. Roth (Plastics) Corp., 814 F.Supp. 581, 591-92 (E.D. Mich. 1993) (citing In re Bendectin

Litig., 857 F.2d 290, 308 (6th Cir. 1988)). 

Here, BCBS contends that separate trials would be convenient for the parties and its

participation in a jury trial may prejudice Plaintiff without further explanation of how either of those

two propositions are or may be true. BCBS merely seeks reimbursement from a third party

tortfeasor to the extent that Plaintiffs and their counsel are successful in the pending action.

Convenience to the parties and potential prejudice are minimal in this circumstance in comparison

to the efficient allocation of judicial resources. The Court will deny the request.

C 

Accordingly, it is ORDERED that Blue Cross Blue Shield’s motion to intervene and for

separate trial is [Dkt. # 11] is GRANTED in part and DENIED in part. Blue Cross Blue Shield is

permitted to intervene as a plaintiff pursuant to Fed. R. Civ. P. 24(a). 

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

The United States District Judge

Dated: July 9, 2009

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PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on July 9, 2009.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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