Chambers

The issue before us is whether the complaint in intervention of a workers’ compensation insurer was properly dismissed on the ground that the plaintiffs in the underlying third party tort action had failed to serve and return summons within the statutory three-year period. (Former Code Civ. Proc., § 581a, repealed by Stats. 1984, ch. 1705, § 3.)

The intervener argues that the order dismissing its complaint was erroneous because Labor Code section 3853 permits intervention at any time before trial, because the court improperly failed to make factual findings excusing the failure to serve defendants, and because defendants were es-topped from asserting the dismissal statute.

We hold that where the plaintiff has failed to make timely service and return, the insurer may not thereafter intervene to prosecute the action on its own behalf.

Facts

Since a lack of timeliness in pursuing remedies is the determinative factor in these proceedings, we set forth the following abbreviated chronology of events:

Plaintiffs filed a complaint for personal injuries against defendants Santa Cruz City School District (School District) and Cardiff Pest Control (Cardiff) on January 14, 1981,…