|FROM:||The Legal Taxi|
|RE:||Right to Intervene in the Competency Proceedings|
Right to Intervene in the Competency Proceedings
Waiver of Defendant’s Right to Intervention
My client suffered trauma in 2 motor vehicle accidents within a span of 2 years. After the 2nd motor vehicle accident, her mental condition deteriorated to the point where she was declared incompetent by the Superior Court. Before she was declared incompetent, we gave the defense attorney in the civil action notice of her treating doctors’ reports declaring her incompetent, and notice that we would be seeking a 90 day stay of discovery in the civil matter, and notice of the hearing to declare her incompetent. The defense attorney in the civil matter did not intervene in the competency proceedings, and an order was entered declaring her incompetent.
We need you to research the law in N.J. and across the country on whether the defendant in the civil motor vehicle accident case would have:
- 1) Had the Right to Intervene in the Competency Proceedings?
- 2) Waived His Right to Challenge the Competency Ruling by Failing to Intervene?
- 3) Is the finding of incapacity to testify by the Superior Court Res Judicata to the defense in the civil matter?
Originating Jurisdiction only
Standard Research Memo
Whether the defendant in the civil motor vehicle accident case, where the defendant attorney was duly noticed:
- 1. Had the Right to Intervene in the Competency Proceedings?
- 2. Waived His Right to Challenge the Competency Ruling by Failing to Intervene?
- 3. Is the finding of incapacity to testify by the Superior Court Res Judicata to the defense in the civil matter?
Statutes and Case laws.
As per the client instruction, the area of research is New Jersey State laws and Federal laws.
The issue here is whether in a civil motor vehicle accident case, where plaintiff declared incompetent, defendant has the right to intervene and whether failure in using its right, he waived such right and barred to initiate another action on the same issue due to enforcement of res judicata. Further, before declaring incompetency the defendant was served notice containing treating doctors’ reports declaring plaintiff incompetent, a notice that plaintiff would be seeking a 90 day stay of discovery in the civil matter, and notice of the hearing to declare incompetent. But, defendant did not intervene in the competency proceedings. The underlying discussion, with the help of relevant provisions of “FRCP” and “NJCR” and case laws will help to answer the query.
In every civil action, parties have the right to intervene. This right is given Under FRCP Rule 24 (a), (b) and (c),
- (a) Intervention Of Right.
On timely motion, the court must permit anyone to intervene who:
- 1) is given an unconditional right to intervene by a federal statute; or
2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
- (b) Permissive Intervention.
1) In General, on timely motion, the court may permit anyone to intervene who:
(A) is given a conditional right to intervene by a federal statute; or
(B) has a claim or defense that shares with the main action a common question of law or fact.
- 2) Delay or Prejudice.
In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.
- (c) Notice And Pleading Required.
A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.
Same provisions are mentioned under N.J. Court Rules, R. 4:33, as:
- 4:33-1 Intervention as of Right
- Upon timely application, anyone shall be permitted to intervene in an action if the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest, unless the applicant's interest is adequately represented by existing parties…
- R. 4:33-3 Procedure
- A person desiring to intervene shall file and serve on all parties a motion to intervene stating the grounds therefore and accompanied by a pleading setting forth the claim or defense for which intervention is sought along with a Case Information Statement pursuant to R. 4:5-1(b)(1). The appropriate filing fee for the proposed pleading shall be paid at the time of filing the motion to intervene but shall be returned if that motion is denied.
The above discussed provisions of Federal and New Jersey State statutes makes it apparent that rules and procedures of the courts similarly grant the parties of any case right to protect their interests. The defendant has the right to challenge any proceeding using the right of intervention as well as plaintiff has right to initiate action against defendant. Also, defendant may be precluded from this right in case court found that intervention will lead to delay and prejudice the adjudication.
In the following case, the Supreme Court of New Jersey has decided that the defendant has the right to intervene in the proceedings which affects its interest.
- Where the company is given notice of the action, has the opportunity to intervene, and judgment is thereafter obtained against the uninsured motorist in an adversary proceeding, we hold that the company should be bound thereby despite the contrary policy provision
- The doctrine of collateral estoppel, or issue preclusion, "bars re-litigation of any issue [that] was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action.
- The UM carrier, given the opportunity to intervene or otherwise protect its interests, would then properly be bound by the jury's determination of that issue. These approaches would certainly further the salutary goals of consolidating the litigation of related controversies and avoiding inconsistent results.
As the Supreme Court of Nebraska observed in, Heisner v. Jones, 184 Neb. 602, 169 N.W.2d 606, 609 (1969):
- We therefore hold that an uninsured motorist's carrier may intervene in an action between its insured and the uninsured tortfeasor in order to protect itself on the issues of liability and damages arising under the uninsured motorist's provisions of its insurance policy. It is further clear that our holding herein is conditioned upon and rests upon the compliance by the insured with the fundamentals of procedural due process. The carrier would not be bound unless given full notice and adequate opportunity to intervene and defend when the insured litigates the issues of liability and damages with the uninsured motorist tortfeasor. To give the uninsured motorist's carrier the right to intervene is to give assurance that it may litigate the issues and at the same time avoid the multiplicity of suits and the harassment of the insured by the necessity to litigate his rights twice.”
It is apparent from the above case laws that, when a person is given notice and adequate opportunity to intervene and defend himself, he shall be bound by the decision of the court. After receiving such opportunity if the defendant fails to use the same, he can be barred from re-litigating on the same issue.
From the verdict of above discussed cases and provision of statutes, we conclude that neither any act of plaintiff nor any court proceeding can deprived defendant from his right of intervene. However, it is sufficient that:
- i. A notice of the action, which is initiated against defendant; and
ii. Adequate opportunity to intervene was given to the defendant to use his right.
After getting adequate notice of the action and opportunity to intervene in such action, defendant will be bound by the decision of the Court. It will be immaterial that defendant did not use his right. He will be deemed as he waived his right to intervene by failing to use it. Doctrine of collateral estoppel and res judicata bars the defendant for re-litigation on the issue that was determined in a prior action, between the same parties. However, the defense attorney did not challenge the incompetency proceedings and failed to use his right to intervene and court ordered for declaring the plaintiff incompetent. Here, to prevent the multiplicity of the suits, doctrine of res judicata applies, which precludes the defendant from re-litigating on the same issue between the same parties which is decided by the Superior Court.
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