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Declaratory Judgments when Rule 24 (Motion to Intervene) has been denied

In a recent SC Supreme Court case, Builders Mutual v. Island Pointe, LLC, a property association filed suit against the construction companies who developed the property, for damage to the property. The construction companies (insured) had CGL (commercial general liability) policies with their insurers:

After approximately three years, the insurers filed a motion to intervene in the action so that they could file a special verdict form or general verdict form with questions so that the jury could determine the apportionment of damages. This would help the insurers determine the amount of damages, if any, that they were responsible for under the CGL.

Under SCRCP Rule 24, a party may motion to intervene in a pending case. There are two types of intervention, 24(a) and 24(b), intervention as a matter of right and permissive intervention. These are the requirements for each:


As you can see, 24(a) has a higher threshold. In this case, the Circuit Court denied intervention under both permissive and as a matter of right.

The big issue that arises in this case though, is what comes next for the insurers after the motion is denied? The problem they see is that once the general verdict comes back, assuming it's against the defendants, then what happens if the verdict covers items that are both in the CGL policy and outside of it?

From the Supreme Court: The insurers are allowed to file a declaratory judgment action against the insured after the verdict, so that the Circuit Court, or special referee, can determine the appropriate amount:


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