United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI CHIEF UNITED STATES DISTRICT JUDGE
the Court is a Motion to Reconsider [Doc. No. 45] by Twin
City Fire Insurance Company (“Twin City”), which
seeks relief from the Court's Order denying intervention
[Doc. No. 44]. Plaintiffs have filed a response in opposition
[Doc. No. 47]. The matter is fully briefed and at issue.
action arises out of injuries sustained by Plaintiff Glenn
Sinclair on October 2, 2017, during the course of his
employment with Professional Safety Solutions, LLC
(“Professional Safety Solutions”). Twin City, the
workers' compensation insurance carrier for Professional
Safety Solutions, sought to intervene to protect its
subrogation rights. [Doc. No. 30]. The Court entered an Order
denying intervention [Doc. No. 44]. Specifically, the Court
found that Twin City had failed to show that its interest may
be impaired or impeded or that its interest was not
adequately represented by Plaintiffs. Twin City now asks the
Court to revisit its ruling, asserting for the first time
that it will lose its first-lien status if it is not allowed
to join in the third-party action. [Doc. No. 45 at 2].
Federal Rules of Civil Procedure do not recognize a
‘motion to reconsider.'” Van Skiver v.
United States, 952 F.2d 1241, 1243 (10th Cir.
1991). A litigant seeking reconsideration must file either a
motion to alter or amend a judgment pursuant to Fed.R.Civ.P.
59(e) or a motion seeking relief from a judgment or order
pursuant to Fed.R.Civ.P. 60(b). Id. “These two
rules are distinct; they serve different purposes and produce
different consequences. Which rule applies to a motion
depends essentially on the time a motion is served.”
Id. Because Twin City's motion was filed within
28 days after the Order denying intervention was entered, the
Court finds that Rule 59(e) governs its decision.
See Fed. R. Civ. P. 59(e).
under Rule 59(e) may be warranted (1) when there has been a
change in the controlling law, (2) when there is new evidence
that was previously unavailable, or (3) when necessary to
correct clear error or prevent manifest injustice. See
Somerlott v. Cherokee Nation Distrib., Inc., 686 F.3d
1144, 1153 (10th Cir. 2012); see also Barber
ex rel. Barber v. Colo. Dep't of Revenue, 562 F.3d
1222, 1228 (10th Cir. 2009) (Rule 59(e) relief is
appropriate where “the court has misapprehended the
facts, a party's position, or the controlling
law.”). It is not an appropriate use of such a motion
“to revisit issues already addressed or advance
arguments that could have been raised in prior
briefing.” Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000).
original motion, Twin City made only a passing, general
reference to the Oklahoma Workers' Compensation Act.
[Doc. No. 30]. Its reply brief generally referenced Okla.
Stat. tit. 85A, § 43(A) and Landrum v. Nat'l
Union Ins. Co., 912 P.2d 324, 328 (Okla. 1996). [Doc.
No. 40]. Twin City asserts for the first time in its motion
to reconsider that it will lose its first-lien status if it
is not allowed to intervene. [Doc. No. 45 at 2]. A closer
look at the relevant statute and its legislative history is
2011, the Oklahoma Legislature replaced the Oklahoma
Workers' Compensation Act with the Workers'
Compensation Code. In 2013, it repealed Title 85 and replaced
it with the current Administrative Workers' Compensation
Act, see Okla. Stat. tit. 85A, § 1 et
seq., which governs claims based on injuries occurring
after February 1, 2014. Thus, Okla. Stat. tit. 85A, § 43
is the operative statute. It provides in pertinent part:
A. Liability Unaffected.
1.a. The making of a claim for compensation against any
employer or carrier for the injury or death of an employee
shall not affect the right of the employee, or his or her
dependents, to make a claim or maintain an action in court
against any third party for the injury.
b. The employer or the employer's carrier shall be
entitled to reasonable notice and opportunity to join in the
c. If the employer or employer's carrier join in the
action against a third party for injury or death, they shall
be entitled to a first lien on two-thirds (2/3) of the net
proceeds recovered in the action that remain after the
payment of the reasonable costs of collection, for the
payment to them of the amount paid and to be ...