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Mergen v. Northern States Power Co.1/31/2001
public policy addressed in SDCL 15-6-24(a) is clear.
[ .] We agree with City's argument that "it is not legally permissible to deny or condition an intervenor's right to enter an action." According to SDCL 15-6-24(a), a party "shall be permitted to intervene." Although SDCL 15-6-24 (a) is a court rule rather than a statute enacted by the legislature, the general rules of construction still apply. "When the language of the [rule] is clear, certain, and unambiguous, there is no occasion for construction, and the court's only function is to declare the meaning of the [court rule] as clearly expressed in the [rule]." State v. Sorenson 1999 SD 84, , 597 NW2d 682 (internal citations omitted). "When 'shall' is the operative verb in a [rule], it is given 'obligatory or mandatory' meaning." Fritz v. Howard Twp., 1997 SD 122, , 570 NW2d 240, 242 (citations omitted). City has an absolute right to intervene, and the trial court had no discretion to condition. "The fact that intervenor may have protected his right by pursuing another remedy is no reason for denying him the right to intervene." Taylor v. Bank of Volga, 9 SD 572, 70 NW 834 (1897). SDCL 15-6-24(a) provides the option to intervene without condition. There appears to be no countervailing reason why the claim of City should not be adjudicated in this action.
[ .] Mergen agrees the general rule allows an employer, in the context of workers' compensation, the right to intervene in a subsequent tort claim against a third-party tortfeasor in order to recover those expenses incurred by the employer. See Miller's Mut. Ins. Assoc. v. Young, 601 So2d 962 (Ala 1992); Mar v. Sakti Int'l. Corp., 12 Cal Rptr2d 388 (CalApp4th 1992); Hankee v. Wilkes-Barre/Scranton Int'l. Airport, 616 A2d 614 (Pa 1992); Tucker v. Clare Bro. Ltd, 493 NW2d 918 (MichCtApp 1992); Uva v. Alonzy, 163 A 612 (Conn 1933). Rather, Mergen argues that the general rule does not apply because City's motion was untimely. See Weimer v. Ypparila, 504 NW2d 333 (SD 1993). In Weimer, we held "the most important factor is whether the delay in moving for intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Id. at 336 (citing Larson v. All-American Transport, Inc., 164 NW2d 603, 606 (SD 1969)). We agree with the trial court that City's intervention was not untimely as Mergen failed to show any prejudice. As such, we hold that the trial court did not abuse its discretion.
[ .] Our holding today, however, does not limit nor hinder a trial court's discretion in imposing reasonable costs and fees between parties. Under our workers' compensation law an employer must pay the reasonable expense of litigating its claim. SDCL 62-4-39 provides:
If compensation has been awarded and paid under this title and the employee has recovered damages from another person, the employer having paid the compensation may recover from the employee an amount equal to the amount of compensation paid by the employer to the employee, less the necessary and reasonable expense of collecting the same, which expenses may include an attorney's fee not in excess of thirty-five percent of compensation paid, subject to ยง 62-7-36. (emphasis added).
This statute, in cases of this nature, certainly allows trial courts discretion so that an intervenor pays its fair share. The statutory authority is clear. South Dakota law permits the trial court to impose reasonable costs and expenses of litigation upon an intervenor. See Zoss v. Dakota Truck Underwriters, 1998 SD 23, , 575 NW2d 258, 263 (determining that when there is a third party recovery, "the expenses and attorney's fee will be assessed on a pro rata basis"). It is clear that this Court has held t
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