author: FREEDMAN, District Judge.

text:
    Debra A. ELLIS, Administratrix of the Estate of Robert Parker, Effie Parker, Administratrix of the Estate of Janet Parker for the use and benefit of Robin Parker and Penny Parker, both minors, Plaintiffs, v. FORD MOTOR COMPANY, Defendant.
    Civ. A. No. 85-0019-F.
    United States District Court, D. Massachusetts.
    Feb. 20, 1986.

      James P. Keane, Madan & Madan, Boston, Mass., for plaintiffs.
    Alice J. Klein, Charles F. Barrett, Martin C. Pentz, Nutter, McClennen & Fish, Boston, Mass., for defendant.
   MEMORANDUM

FREEDMAN, District Judge.

On August 18, 1973 Janet Parker died and Robert Parker was seriously injured in a one-vehicle accident. Robert Parker died of his injuries in 1983. Plaintiffs, as administratrices of the estates of Janet and Robert Parker,, bring this action to recover compensatory and punitive damages for personal injury, wrongful death and conscious pain and suffering against Ford Motor Company, the manufacturer of the vehicle involved in the 1973 accident.

Defendant has filed motions to dismiss or in the alternative for summary judgment. Defendant raises several grounds for relief:

(1) The Massachusetts wrongful death statute in effect at the time of the Parkers’ accident, Mass.Gen.Laws ch. 229, § 2 as amended through St.1972 ch. 440, § 1, provided that no recovery could be had for a death which did not occur within two years after the injury which caused the death. As Robert Parker did not die until 1983, defendant argues the wrongful death claims filed by his estate must be dismissed;
(2) The doctrines of collateral estoppel and res judicata bar the claims of Robert Parker’s estate for wrongful death and conscious pain and suffering;
(3) The claim of Janet Parker’s estate for wrongful death and conscious pain and suffering is barred by the statute of limitation; and
(4) The claims of the estates of Robert Parker and Janet Parker for breach of warranty are barred because of the absence of privity of contract.

The Court referred these motions to the Magistrate who, on September 25, 1985, entered a Report and Recommendation recommending that defendant’s motions be allowed in their entirety. Defendant filed a timely objection. The Court, having reviewed the matter de novo in light of plaintiffs’ objection and defendant’s response thereto, 28 U.S.C. § 636(b)(1)(B); Rule 3, Rules for United States Magistrates in the United States District Court for the District of Massachusetts, will adopt the recommendation in part and allow partial summary judgment in favor of the defendant.

I.

The relevant procedural and factual background, viewed in the light most favorable to the plaintiffs, as found by the Magistrate is as follows:

A. Facts.

Robert Parker and Janet Parker, driver and passenger, respectively, were involved in a one-car accident on Route 32 in Royalston, Massachusetts on August 18, 1973. Robert Parker was driving a 1966 Ford Econoline van when it left the road and struck a tree. Robert Parker sustained severe and permanent brain injuries with a resulting seizure disorder. Janet Parker was killed in the accident. On October 8, 1974, Effie Parker was appointed the Administratrix of the Estate of Janet Parker. Robert Parker was allegedly wearing a seat belt but no seat belt was available on the passenger side of the vehicle. Robert Parker died as a result of the seizure disorder on March 5, 1983.
B. Procedural Background.
The present action constitutes the Parkers’ third resort to a judicial forum seeking redress for injuries arising out of the August 18, 1973 accident.
1. The Personal Injury Action.
On November 1, 1974, by filing a complaint in Massachusetts Superior Court (Worcester, SS.), Robert Parker instituted a products liability action against Ford, seeking damages for personal injuries allegedly sustained by him in the August 18, 1973 accident, based on theories of negligence and breach of warranty. The sole plaintiff throughout the pendency of the action was Robert Parker.
Parker’s case — both as to negligence and breach of warranty — proceeded on the hypothesis that his injuries had been caused by the failure of his seat belt. Parker sought to establish that he had been wearing the belt on the evening of the accident, but that it had broken on impact, causing him to strike his head on the windshield or dashboard. To prove this, Parker called Bennett E. Gordon, Jr., whom Parker’s counsel sought to qualify as an expert on the properties of plastics in general, and nylon in particular, so that Gordon might be permitted to offer his opinion regarding the cause of the severing of the seat belt. It became evident, however, that Gordon had no experience with woven nylon and the trial judge did not allow Gordon to testify on the subject. Ford moved for a directed verdict on all causes of action asserted in the personal injury complaint. Ford’s motion was allowed and on May 16, 1977, judgment was entered in favor of Ford. A notice of appeal was not filed.
2. The Legal Malpractice Action.
On May 8, 1980 a complaint was filed alleging that Robert Parker’s claim for personal injury, and Janet Parker’s estate’s claims for her personal injury and death against Ford were lost as a result of the defendant law firm’s negligent prosecution of the personal injury action and its failure to bring an action on behalf of the estate of Janet Parker within the prescribed time. This action was called for trial on September 10,1984. A settlement was reached under the terms of which the plaintiffs released their various claims in consideration of payment by the defendant law firm of $530,000. The case was closed on January 3, 1985.

Report and Recommendation at 3-5.

II.

Defendant’s first ground for relief is that the estate of Robert Parker’s claim for wrongful death is barred by a two-year limitation in the wrongful death statute in effect prior to 1982.

At the time of Robert Parker’s injury, August 18, 1973, Massachusetts’ wrongful death statute contained the following provision:

No recovery shall be had under this section for a death which does not occur within two years after the injury which caused the death.

Mass.Gen.Laws ch. 229, § 2 as amended through St.1972 ch. 440, § 1. This provision was deleted by St.1981 ch. 493, § 1, made applicable to “causes of action arising on or after January 1, 1982. ” St. 1972 ch. 440, § 2 (emphasis added).

Because Robert Parker did not die until March 5, 1983, more than two years after his injuries were sustained, defendant contends, and the Magistrate agreed, that Robert Parker’s claim was barred by the above-quoted sentence from the wrongful death statute in effect in 1973. Plaintiffs argue that the Court should look to the form of the statute in effect at the time of Robert Parker’s death in 1983 which omits the two-year limitation period.

The essential inquiry is, therefore, whether to give effect to the amending statute or to apply the terms of the statute in effect in 1973. This depends, in turn, on whether Robert Parker’s cause of action “arose” in 1973 when he sustained his injury, or in 1983 when he died.

Defendant cites Beausoleil's Case, 321 Mass. 344, 73 N.E.2d 461 (1947) in support of the former position. In that case, the dependent husband of a deceased worker received a workman’s compensation award of $10.00 a week. The claimant contended that he should have been compensated at a much higher rate under the terms of a statute that became effective after the date of his wife’s injury but before her death. In holding that the husband could not benefit from the amending statute, the Court applied the traditional rules of statutory construction and determined that because the amending statute affected substantive rights rather than remedial or procedural matters, it had to be given only prospective effect. The Court stated:

It is true that the right of a dependent to compensation does not arise until the death of the employee, but it is also true that the right of a dependent to receive compensation originates in the injury because, unless it is shown that death resulted from an injury arising out and in the course of employment, there can be no award of compensation to dependents____ It is the compensable injury resulting in death that furnishes the basis for an award of compensation to dependents. It is such an injury rather than the death for which compensation is awarded. It has been held that there can be no recovery for the death of a person in accordance with a statute enacted after the injury but before the death. Slate v. Fort Worth, 193 S.W. 1143 (Tex.Civ.App.). Quinn v. Chicago, Milwaukee & St. Paul Railway, 141 Wis. 497 [124 N.W. 653]. . . .
A statute enacted after the injury cannot be applied to payments to dependents on account of the death of the employee resulting from the injury unless it is retroactively applied____ The rights of dependents are to be determined in effect at the time of injury and not by a subsequent statute which is effective at the time of the death of the employee.

Beausoleil’s Case, 321 Mass, at 346-47, 73 N.E.2d 461.

Quinn v. Chicago, Milwaukee & St. Paul Railway, 141 Wis. 497, 124 N.W. 653 (1910), which was cited with approval in Beausoleil’s Case, concerned a change in Wisconsin’s wrongful death statute that occurred between the time of plaintiff’s injury and his death. The Wisconsin court held that the right of action “does not come into existence till the death of the injured person occurs____ However, the right, inchoate in character as distinguished from the right of action, becomes fixed as soon as the injury occurs, but the right of action waits upon death occurring.” Quinn, 141 Wis. at 499, 124 N.W. 653. The holding of Quinn was reaffirmed in Bradley v. Knutson, 62 Wis.2d 432, 215 N.W.2d 369 (1974).

Plaintiffs contend that Beausoleil’s Case should be distinguished because at the time of that decision, Massachusetts had not yet recognized that the right of action for wrongful death was of common law action and not simply “the creature of a statute____” Beausoleil’s Case, 321 Mass, at 347, 73 N.E.2d 461. See Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222 (1972), overruling Carey v. Berkshire R.R., 1 Cush (55 Mass.) 475 (1848) and progeny. In Gaudette, the Supreme Judicial Court held that the right to recovery for wrongful death “is of common law origin.” Id. 284 N.E.2d at 229. Plaintiffs argue, “[i]nsofar as the court in Beausoleil’s Case was constrained by statutory rights and remedies, its approach is inappropriate here____ [U]nlike insurers in a worker’s compensation case, defendant can claim no reliance on the statutory provision in effect on the date of the injury.” Plaintiffs’ Opposition to Defendant’s Motion to Dismiss at 17.

The brief answer to this argument is that the Court is very much constrained by the wrongful death statute which, as characterized by Gaudette, continues to regulate and limit the cause of action in several respects. See n. 1 supra.

Nevertheless, it does appear that Beausoleil can be distinguished from the instant case in a more significant way. In Beausoleil’s Case, the amending statute, St.1945 ch. 572, did not expressly specify to which claims the new rates of recovery were applicable. By contrast, St. 1981 ch. 493 makes the deletion of the two-year limitation period applicable to “causes of action arising on or after January 1, 1982.” St. 1982 ch. 440, § 2. Without benefit of an express legislative intent as to which actions the amending statute should apply, the Supreme Judicial Court had no choice but to use the traditional rule of statutory construction and give St.1945 ch. 572 a prospective application.

While- it is probably true that the substantive standards against which defendant’s conduct must be measured is fixed as of the date of the injury, see Bradley, 62 Wis.2d at 439, 215 N.W.2d 369, the amending statute here clearly directs the Court to the time when plaintiff’s cause of action “arises.”

In several cases, Massachusetts courts have recognized that a cause of action “arises” on the date of death rather than the date of injury. Martinelli v. Burke, 298 Mass. 390, 391, 10 N.E.2d 113 (1937)(cases cited). (“It has been stated repeatedly that no cause of action arises until the actual occurrence of the death for which recovery is sought.”). See also, Hutchinson v. H.E. Shaw Co., 277 Mass. 115, 177 N.E. 813 (1931); Bickford v. Furber, 271 Mass. 94, 170 N.E. 796 (1930); Wall v. Massachusetts Northeastern Street Railway, 229 Mass. 506, 118 N.E. 864 (1918). Moreover, as plaintiffs correctly point out, “the language used by the Legislature in 1981 (‘applicable to all causes of action arising on and after’ the effective date) is silent as to the time when any injuries or accidents had to occur. In comparison certain prior amendments of the wrongful death statute have been made ‘only to actions for death resulting from injuries sustained or accidents occurring’ on or after the effective date (emphasis added). E.g., St.1958 c. 238 sec. 10; St. 1962 c. 306 sec. 2.” Plaintiffs’ Opposition to Defendant’s Motion at 13.

It is a familiar canon of statutory construction that where words used in a statute have been given a judicial construction, the legislature is considered to have used them according to that sense. Commonwealth v. Greenwood, 205 Mass. 124, 91 N.E. 141 (1910). Thus, when the legislature expressly provided the application of St.1981 ch. 493, § 1 to causes of action arising after January 1, 1982, the Court must interpret this to mean that where the plaintiffs’ decedent died after January 1, 1982, St.1981 ch. 493, § 1 must be given effect. In such cases, plaintiffs’ right of recovery is no longer barred by reason of the fact that Robert Parker’s death occurred more than two years after his injury.

The Court must, therefore, disagree with the Magistrate’s determination that the claims on behalf of the decedent Robert Parker should be dismissed on this ground.

III.

Defendant argues that the claims of Robert Parker’s estate for wrongful death and conscious pain and suffering should be dismissed nevertheless because they are precluded by the doctrines of res judicata and collateral estoppel.

It is well settled that these doctrines are substantive in nature and thus, under the principle of Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court sitting in diversity. must look to state law to determine what preclusive effect to accord to its judgments. Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).

Massachusetts applies the law of res judicata, or “claim preclusion,” as it is often called, in a manner that is generally consistent with the approach taken by the Restatement (Second) of Judgments (1982) (hereinafter “Restatement”). See Isaac v. Schwartz, 706 F.2d 15, 16 (1st Cir.1983); Boyd v. Jamaica Plain Co-op Bank, 7 Mass.App. 153, 386 N.E.2d 775 (1979). The general rule of res judicata, as expressed in the Restatement is that “[a] valid and final personal judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim.” Restatement § 19. The “bar” applies to subsequent claims that “grow[ ] out of the same transaction, act, or agreement, and seeks redress of the same wrong.” MacKintosh v. Chambers, 285 Mass. 594, 596, 190 N.E. 38 (1934). See also Restatement § 24(1) (“When a valid and final judgment in an action extinguishes the plaintiffs claim ... the claim extinguishes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions out of which the action arose.”).

In contrast to res judicata, collateral estoppel or “issue preclusion” prevents the relitigation of issues that were actually litigated in a prior case. The Restatement offers the following general rule:

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination in a subsequent action is conclusive in a subsequent action between the parties, whether on the same or a different claim.

Restatement § 26. The preclusion applies not only to the parties to the original suit, but also to their privies and those for whom the original party acted as a “virtual representative.” Boyd, 7 Mass.App. at 158, 386 N.E.2d at 779.

Both res judicata and collateral estoppel serve the salutory purpose of judicial finality. As aptly stated by Professor Moore, “the doctrine of res judicata prevents an encore.” IB J. Moore, J. Lucas & T. Currier, Moore’s Federal Practice, ¶ 0.405[1] (1984). See also, id. at ¶ 0.441[2] (the purpose of collateral estoppel “is to preclude the repeated controversy of matters judicially determined; it is a ‘reasonable measure calculated to save individuals and courts from the waste and burden of relitigating old issues.’ ” (footnote omitted)).

Despite these purposes, the Restatement and decisional law recognize some few exceptions to the policy of not relitigating issues or cases. See Restatement §§ 20, 26 & 28. Plaintiffs argue that neither res judicata nor collateral estoppel preclude this case, either because the claim does not fall within the general rules or because some exception is applicable.

A. Res Judicata

At common law, a right of action for tort did not survive the death of either the person injured or the wrongdoer. Harrison v. Loyal Protective Life Insurance Co., 379 Mass. 212, 396 N.E.2d 987, 989 (1979). This rule was expressed in the maxim, “actio personalis moritur cum persona.” To alleviate the often harsh results of this rule, legislatures adopted statutes by which the tort claims of a deceased person were permitted to be litigated by a successor of the deceased in what are referred to as “survival actions.” The claims that thus survive are for the recovery of losses sustained by the injured person himself during his lifetime. By contrast, in wrongful death claims, the family of the deceased has a distinct cause of action for the loss to them of the value of the deceased. See Mass.Gen.Laws ch. 228, § 1(2); Mass.Gen.Laws ch. 229, § 2; Restatement § 45, comment a.

Because Robert Parker brought an action to recover for his conscious pain and suffering during his lifetime which resulted in a directed verdict in favor of the defendant, Ford Motor Company contends that the principle of res judicata bars the plaintiffs’ present attempt to relitigate this issue.

This position is supported by the Restatement and Massachusetts case law. According to the Restatement:

When a person has been injured by an act that later causes his death and during his lifetime brought an action based on that act:
(1) If the action proceeded to judgment for or against the injured person before he died, the successor under a survival of claims statute is precluded by that judgment to the same extent as the injured person would have been.

Restatement § 45. See also, Rockford v. Atkins, 213 Mass. 368, 100 N.E. 669 (1913).

Plaintiffs recognize the validity of this rule, but argue that “equitable considerations” militate against the application of res judicata to plaintiffs’ claim. Plaintiffs’ Opposition to Defendant’s Motion at 33. In support of this argument, plaintiffs cite Restatement § 28(5)(c), the section of the Restatement concerned with exceptions to the general, rule of collateral estoppel. More apposite is Section 26(1) which provides in part:

(1) When any of the following circumstances exists, the general rule of § 24 [concerning splitting claims] does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:
(f) It is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason, such as the apparent invalidity of a continuing restraint or condition having a vital relation to personal liberty or the failure of the prior litigation to yield a coherent disposition of the controversy.

Restatement § 26(1).

The circumstances pointed to by the plaintiff, the defendant’s allegedly obstructive discovery practices in the prior lawsuit, simply do not rise to the level necessary to permit the res judicata bar to be evaded.

The Court, therefore, shall allow defendant’s motion to dismiss plaintiffs’ claim for Robert Parker’s conscious pain and suffering. Having reached this decision, it is not necessary to consider whether this claim is barred by the applicable statute of limitation.

B. Collateral Estoppel

Defendant argues that the judgment of the Massachusetts Superior Court in favor of the defendant in the prior litigation “necessarily determined all issues concerning Ford’s liability for damages arising out of the injuries sustained by Robert Parker in the August 18, 1973 accident.” Defendant’s Memorandum in Support of Its Motion at 19-20. The claims in the present litigation should, according to the defendant, therefore, be barred under the doctrine of collateral estoppel.

Defendant argues that collateral estoppel should not be applied because the issues in the first trial were not “fully and fairly litigated” and there is no identity of the parties in the first suit and this litigation.

(1) Lack of a Full and Fair Litigation

Plaintiffs contend that Robert Parker was denied a full and fair opportunity to litigate his claims in the first lawsuit because of the inadequacy of his counsel and the discovery misconduct. In support of this contention, plaintiffs rely on section 28(5)(e) of the Restatement which provides for an exception to the general rule of issue preclusion in circumstances where

[t]here is a clear and convincing need for a new determination of the issue ... (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.

The Court shall examine whether Ford’s alleged misconduct and the inadequacy of Robert Parker’s counsel demonstrates a clear and convincing need for a new determination of Ford’s liability.

(a) Defendant’s Alleged Discovery Misconduct in First Cause of Action

Comment j to section 28 of the Restatement includes, as illustrative of the exception provided for in section 28(5)(c), the situation in which one party concealed from the other information that would materially affect the outcome of the case. Plaintiffs contend that such was the case here. The Court disagrees.

The alleged discovery misconduct consisted of the defendant’s responses to plaintiff’s interrogatories concerning tests or inspections “used or employed” on the seat belt system in question. Defendant responded that it had “no records presently in existence that would report the tests or inspections utilized in the design of the seat belt system.” Plaintiff also queried whether the defendant was “ever aware of any danger of hazard or defect or defective condition in connection with the use, location, or design of the seat belt system prior to the time of the alleged occurrence.” Defendant replied that it was not. Exhibit No. 5, Plaintiff’s Opposition to Defendant’s Motion (Plaintiff’s Interrogatories No. 5,14 and defendant’s answers thereto).

Plaintiffs contend, however, that defendant produced, in response to plaintiffs’ request for production of documents filed in this action, documents describing Crash Test Nos. 140 and 776. While it is true that one of the results in Test No. 140 was that “passenger protection in the front seat of the forward control vehicle proved very limited,” there is no indication that this result was in any way related to a seat belt failure which was the substance of Robert Parker’s first lawsuit and the essence of his interrogatories. The results of Test No. 776 were even less relevant as the test dummies in that case were not even wearing seat belts.

In sum, the Court concurs with the Magistrate that “Plaintiff’s counsel in the prior proceeding seems to have asked the wrong questions; Ford’s responses were not overgenerous.” Report and Recommendation at 12, n. 3. Ford’s responses to plaintiff’s discovery requests did not, therefore, deprive plaintiff of a full and fair opportunity to litigate the issue of Ford’s liability in the first action.

(b) Inadequate Representation by Robert Parker’s Counsel in First Cause of Action

Plaintiffs also allege that Robert Parker was denied a full and fair opportunity to litigate the issue of defendant’s liability in the first cause of action because of the “woefully inadequate” representation he received by counsel in that case.

Even assuming this was the case, the Court believes that it would not be equitable to force the defendant to relitigate its case because Robert Parker’s counsel was arguably neglectful in the first action. To do so would be to permit civil litigants to attack collaterally an earlier judgment with what can be described as the functional equivalent of a Sixth Amendment habeas corpus motion. Moreover, the circumstances of this case, specifically the fact that Robert Parker recovered a substantial settlement against his attorney in a legal malpractice action, drains much force from plaintiffs’ argument that it would be unjust to apply the bar of collateral estoppel in light of the inadequacy of Robert Parker’s counsel’s performance.

The Court concludes, therefore, that Robert Parker was not denied a full and fair opportunity to litigate the issues of defendant’s negligence in the earlier action.

(2) Identity of the Parties in the Earlier Action and the Instant Proceeding

Central to the application of collateral estoppel is the principle that only parties or their privies can be bound by determinations of issues in the earlier case. Boyd, 7 Mass.App. at 158, 386 N.E.2d at 779. As a corollary to this rule, it is clear that strangers to the original action are not bound. 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, § 4449 (1981).

Applying these relatively straightforward principles to situations where a person was injured by an act which later caused his death and during his lifetime unsuccessfully brought an action based on that act, and after his death his beneficiaries attempt to relitigate liability questions in a wrongful death action, is anything but simple. Essential to this inquiry is the characterization of the family’s claim under the wrongful death statute as either “derivative” or “independent” of the injured person’s own personal injury claim.

If the family’s claim is characterized as “derivative,” according to the Restatement, “the beneficiaries of the death action can sue only if the decedent would still be in a position to sue. Accordingly ... issue preclusion applicable against the decedent is applicable also against the claimant in the wrongful death action.” Restatement § 46, comment c. By contrast, if the wrongful death claim is considered “wholly ‘independent,’ ” the Restatement’s comment suggests “the decedent’s disposition of his personal injury claim would have no effect on the wrongful death claim. The situation would be as though the injured person and his beneficiary each had a separate legal interest in his life, assertable by separate action.” Id.

At one time it was undisputed that Massachusetts’ wrongful death action was of the “independent” variety. McCarthy v. Wood Lumber Co., 219 Mass. 566, 567, 107 N.E. 439 (1914); Clare v. New York & New England Railway Co., 172 Mass. 211, 51 N.E. 1083 (1898). The designation flowed from the characterization of the wrongful death action as punitive rather than as compensatory. Id. In defendant’s view, however, various amendments to the wrongful death statute beginning in 1958 evidence the legislature’s intention to overrule this earlier view and to establish that a claim for wrongful death in Massachusetts is derivative from and not independent of the decedent’s personal injury claim.

While the Court finds defendant’s view persuasive, it is reluctant to endorse a wholesale reinterpretation of Massachusetts’ wrongful death statute from independent to derivative absent clearer guidance from the Supreme Judicial Court; nor is such a reinterpretation required to resolve the thorny collateral estoppel issues in this case.

This is so because, even assuming that a claim for wrongful death in Massachusetts is not derivative, it does not necessarily follow that it is wholly independent. In the small number of jurisdictions that consider their wrongful death statutes to authorize an independent cause of action, the Restatement suggests that the subsequent action be limited to permit a “second look” only at the question of damages when death has intervened after the first action for personal injuries went to judgment. Restatement § 46, comment c. The comment strongly disapproves of permitting relitigation of the question of liability even in jurisdictions that characterize their wrongful death actions as independent. Not only may inconsistent results be expected if this were not the practice, but “[i]t allows what seems worse than double recovery, an opportunity by one member of a family to recover a loss that was legally refused when sought by another.” Id. What underlies the Restatement’s view is its recognition of “the substantial coextensiveness of the social and economic interests in the two actions and the fact that the decedent had every opportunity to litigate effectively.” Id.

The concept of substantial coextensiveness was recently mentioned with approval by the Supreme Judicial Court in Fidler v. E.M. Parker, 394 Mass. 534, 476 N.E.2d 595 (Mass.1985). In Fidler, the court ruled that a husband bringing a claim for loss of consortium was collaterally estopped from relitigating the same statute of limitation issue which had been resolved against his wife in her earlier federal court action. The Court noted that, although it was not clear when collateral estoppel should apply to a nonparty in the original action, “the policy of repose is especially significant when the spouse of a nonprevailing litigant seeks to litigate a claim related to the spouse’s alleged injuries.” Id. 476 N.E.2d at 603. The court detected a trend in the law “against allowing suits for loss of consortium where the injured spouse would be collaterally estopped from litigating the same or similar issues.” Id. Even though the husband’s claim for loss of consortium was technically independent of his wife’s claims for personal injuries, see Feltch v. General Rental Co., 383 Mass. 603, 608, 421 N.E.2d 67, 70-71 (1981), it was

based upon the identical facts that lead the Federal Court to rule against his wife. Neither does it detract from the principle of independence to recognize the pervasive interrelationship between his claim for loss of consortium and the claims of his wife decided in the federal court. In such circumstances we look to see what circumstances exist to warrant relitigation of the issues. We conclude it would be contrary to the policies of judicial economy and of affording litigants repose, to allow Donald Fidler to circumvent the preclusive effect of the Federal Court judgment only because his claim was technically independent of hers.

Fidler, 493 Mass, at 548, 476 N.E.2d at 604-05.

Although plaintiffs are undoubtedly correct that the Supreme Judicial Court in Fidler was looking to the federal rule of collateral estoppel, id. 476 N.E.2d at 599; nevertheless, when one examines the Court’s opinion and the sharp partial dissent of Justice O’Connor, and the extensive citations to Massachusetts authorities throughout both, there can be little doubt that the Supreme Judicial Court would adopt what it thought to be the federal rule of collateral estoppel as the Massachusetts practice as well.

The Court concludes, therefore, that because of the extensive interrelationship between the personal injury claims of Robert Parker and the claims of his wrongful death beneficiaries, the latter are precluded from relitigating the defendant’s liability in this action.

IV.

Turning to the question of the statute of limitation, Janet Parker’s administratrix has brought suit under the wrongful death statute, Mass.Gen. Laws ch. 229, § 2, “for the use and benefit” of Janet Parker’s minor children more than eleven years after Janet Parker’s death. The defendant has moved to dismiss this portion of the suit on the ground that it is time-barred by the applicable Massachusetts statute of limitation. Mass.Gen. Laws ch. 229, § 2, as amended through St.1967 ch. 666, § 1. Relying on Gaudette v. Webb, supra, plaintiffs contend that the statute of limitations was tolled because of the minority of Janet Parker’s children. See Mass.Gen. Laws ch. 260, § 7.

In Gaudette, the plaintiff intestate died in an automobile accident on April 15,1967. The decedent’s widow was appointed administratrix of his estate on March 4, 1970. Two days later, the administratrix commenced a survival action for conscious pain and suffering and a wrongful death claim on behalf of herself and her minor children. The defendant successfully pleaded the two-year statute of limitation in superior court. The Supreme Judicial Court reversed the dismissal of the children’s wrongful death claim on the ground that the statute of limitations for their wrongful death claim was tolled by Mass.Gen.Laws ch. 260, § 7.

According to the defendant, Gaudette decided “only that the wrongful death limitation will be tolled for the benefit of minors where the action for wrongful death otherwise would have been barred before a personal representative was appointed.” Defendant’s Memorandum in Support of its Motion at 53 (emphasis in original). Where, as here, a personal representative of the estate was appointed within the two years after the death of the plaintiff’s decedent, defendant argues that Gaudette does not require the tolling provision to be applied despite the minority of the decedent’s children. In support of this view, defendant notes that the wrongful death statute does not vest any severable, personal right of action in a minor for the death of a parent as the action must be prosecuted by the personal representative of the decedent’s estate. Defendant distinguishes this situation from those in which a right of action is vested in a person suffering from a legal disability and where the mere appointment of a guardian or the availability of a next friend does not affect the running of a period of limitation. See Hervey v. Rawson, 164 Mass. 501, 504, 41 N.E. 682, 683 (1895). In short, defendant claims that if the Court declines to accept its interpretation of Gaudette, the legislature’s clear intent to vest the right to enforce a wrongful death action in the personal representative of the estate of a decedent will be “rendered] nugatory.” Defendant’s Brief in Support of Its Motion at 60.

Whatever merit there may be to these arguments, the holding in Gaudette seems to reject this approach. Contrary to defendant’s distinction between a minor’s wrongful death action and an action vested in a disabled person and prosecuted by a guardian, the Gaudette Court pointedly stated:

Recovery under the wrongful death statute by their mother is in part intended “to the use of” the children of the deceased. G.L. c. 229, § 1(3). As administratrix, she acts merely as a representative or conduit for the children’s recovery, much like a next friend for a minor plaintiff In a very real sense, therefore, it is the children’s cause of action. Accordingly, G.L. c. 260, § 7, would operate to toll the running of the statute as to their right to recovery through a representative just as it would toll its running if their right of action were direct.

Id. 284 N.E.2d at 230 (emphasis added).

The fact that there was available a personal representative who could have brought the wrongful death action within the two-year period does not detract from the essential holding of Gaudette — that Mass.Gen.Laws ch. 260, § 7 tolls the running of the statute of limitation for wrongful death actions just as in any other common law action. While the distinction advocated by the defendant — giving effect to the tolling statute only until a personal representative is appointed — is sensible, it is not authorized by Gaudette or Mass.Gen. Laws ch. 260, § 7.

In light of the above-quoted language from Gaudette, the Court must conclude that the period of limitation of ch. 229, § 2 has been effectively tolled because of the minority of the decedent’s children. Accordingly, the Court declines to follow the recommendation of the Magistrate to allow the dismissal of the wrongful death claim of Janet Parker’s estate for the benefit of the decedent’s minor children and will deny the instant motion.

The Court does, however, accept the Magistrate’s conclusion that “although any such claim would have passed to her estate upon Janet Parker’s death thus triggering the tolling'provision set forth in Mass.Gen. Laws ch. 260, § 10, the administratrix failed to bring the claim within the time period prescribed therein and is barred from asserting that claim as well.” Report and Recommendation at 16. Accordingly, the Court will allow defendant’s motion to dismiss the claim for Janet Parker’s conscious pain and suffering as barred by the statute of limitations.

V.

Finally, the Court rejects plaintiffs’ objection to the Magistrate’s conclusion that the breach of warranty claims of the estates of Robert and Janet Parker should be dismissed because of the absence of privity between the defendant and the decedents. As the Magistrate correctly noted, neither the 1971 nor the 1973 amendments to Mass.Gen. Laws ch. 106, § 2-318, which eliminated the requirement of privity, applies to the instant case.

The 1971 amendment, St.1971 ch. 670, § 1, applied to sales made on or after November 16, 1971. St.1971, ch. 670, § 2. The sale of the van involved in the accident, a 1966 Econoline, was clearly made before 1971. The Parkers did not own the van at the time of the accident. The van’s owner, Gordon Parker, purchased the vehicle used from Robert Ford Sales, Inc., prior to December 1, 1970. At the time of this sale, the van had approximately 55,000 on the odometer.

Similarly, the 1973 amendment, St.1973, ch. 750, § 1, eliminated the privity requirement in cases in which the injury occurred on or after the effective date of the amendment, December 16, 1973. Mrs. Parker died on August 18, 1973 and, although Mr. Parker did not die until 1983, he also suffered his injuries on August 18, 1973, prior to the effective date of the amendment.

Accordingly, the Court adopts this recommendation of the Magistrate and will dismiss both estates’ claims for breach of warranty.

VI.

In summary, with respect to the claims of Robert Parker’s estate, the Court has determined that the wrongful death claim is not barred by the two-year period of limitation of Mass.Gen. Laws ch. 229, § 2 as amended through St.1972, ch. 440, § 1. Nevertheless, Robert Parker’s unsuccessful personal injury action against the defendant is res judicata, barring relitigation of a claim for his conscious pain and suffering. In addition, the estate of Robert Parker is also collaterally estopped from relitigating the issue of defendant’s liability in a wrongful death action. Finally, Robert Parker’s estate cannot bring a claim for breach of warranty because of the absence of privity between Robert Parker and the defendant. Accordingly, with the exception of the Court’s determination with respect to the two-year period of limitation of ch. 229, § 2, the Court will adopt the recommendation of the Magistrate and allow defendant’s motion for summary judgment with respect to all of the claims of Robert Parker’s estate.

With respect to the claims of Janet Parker’s estate, the Court has determined that the statute of limitations for bringing a wrongful death action on behalf of Janet Parker’s minor children was tolled because of their minority. The Court, therefore, declines to adopt the recommendation of the Magistrate with respect to this claim. Accordingly, the Court will deny defendant’s motion to dismiss this portion of plaintiffs’ complaint. However, the Court adopts the recommendation of the Magistrate with respect to the balance of the claims of the estate of Janet Parker and will allow defendant’s motion for summary judgment with respect to those portions of the complaint.

An appropriate Order shall issue.

      . Even though Massachusetts now recognizes the common law origin of the cause of action, the wrongful death statute must still, of course, be consulted:
      [O]ur wrongful death statutes will no longer be regarded as “creating the right" to recovery for wrongful death. They will be viewed rather as: (a) requiring that damages for wrongful death be based upon the degree of the defendant’s culpability; (b) prescribing the range of the damages recoverable against each defendant; (c) requiring that an action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries; and (d) requiring that the action be commenced within the specified period of time, as a limitation upon the remedy and not upon the right.

        Id. 284 N.E.2d at 229. Gaudette is discussed more extensively in Section IV infra.

      . "A personal right of action dies with the person.”

      . See infra, for discussion of application of Section 28(5)(c) of the Restatement in the context of plaintiff’s argument that defendant’s fraudulent discovery practices and the incompetence of plaintiffs counsel during the first proceeding render collateral estoppel inappropriate.

      . Specifically, the defendant points to St.1958 ch. 238, § 1, which amended the wrongful death statute to insert a limitation of recovery to "such circumstances that the deceased could have recovered damages for personal injury if his death had not resulted,” as evidence that the legislature intended to transform an independent wrongful death statute into a derivative one. Defendant suggests that this conclusion is also supported by the comparative negligence statute, Mass.Gen.Laws ch. 231, § 85, which permits the assertion of comparative negligence as a defense to a wrongful death action commenced by the representative of the decedent’s beneficiaries.

      . Further complicating the question of whether wrongful death claims in Massachusetts should be considered independent or derivative is the fact that since 1972 the Supreme Judicial Court has held that the right to recover for wrongful death is of common law origin, though subject to the limitations of the wrongful death statute. Gaudette, 362 Mass, at 71, 284 N.E.2d at 229.

      . The final sentence of Mass.Gen. Laws ch. 229, § 2 states, "An action to recover damages under this section shall be commenced within one year from the date of death or within such time thereafter as is provided by sections four, four B, nine or ten of chapter two hundred and sixty.” Section 4 of Mass.Gen.Laws ch. 229 § 4, which is applicable to this case, Bickford v. Furber, 271 Mass, at 96, 170 N.E. at 796, requires the commencement of tort actions for personal injuries be commenced within two years after the cause of action accrues.

      . The Massachusetts' tolling statute for minors, Mass.Gen. Laws ch. 260, § 7, provides, "If the person entitled thereto is a minor, or is insane or imprisoned when a right to bring an action first accrues, the action may be commenced within the time hereinbefore limited after the disability is removed.”

      . In its answer defendant has asserted the equitable defense of laches, claiming it was prejudiced because of Janet Parker’s administratrix’ delay in bringing the wrongful death action. As has been requested, defendant will have the opportunity to advance this ground prior to trial, if it so desires. See Defendant’s Brief in Support of Its Motion at 59, n. 57.


source: Caselaw Access Project

author: BUA, District Judge.

license: Public Domain

text:
    Marvin M. WEINSTEIN, Plaintiff, v. UNIVERSITY OF ILLINOIS, Trustees of the University of Illinois, Henri R. Manasse, Jr., T. Donald Rucker, Elmore H. Taylor, David J. Belsheim, Richard A. Hutchinson and Jesse E. Stewart, Defendants.
    No. 85 C 7771.
    United States District Court, N.D. Illinois, E.D.
    Feb. 20, 1986.
    See also, D.C., 630 F.Supp. 635.
    Edward H. Salomon, Chicago, Ill., for plaintiff.
    Carla Rozycki, Keck, Mahin & Cate, Chicago, Ill., for defendants.
   ORDER

BUA, District Judge.

Before the Court is defendants’ motion to dismiss plaintiff's complaint under §§ 1983 and 1985, the First, Fifth and Fourteenth Amendments to the United States Constitution, and pendent state law theories. Defendants’ motion alternatively prays for summary judgment on plaintiff’s complaint. For the reasons stated herein, defendants’ motion to dismiss is granted.

I. FACTS

Plaintiff Marvin M. Weinstein is a former assistant professor in the Department of Pharmacy Administration, College of Pharmacy of the University of Illinois at Chicago. Defendant University of Illinois is a public corporation being a state supported institution of higher learning. Defendant Trustees of the University of Illinois are elected trustees of the University of Illinois. Additional defendants are as follows: Henri R. Manasse, Dean of the College of Pharmacy; T. Donald Rucker, Department Head of the Department of Pharmacy Administration; Elmore H. Taylor, Associate Dean for administrative services within the College of Pharmacy; David J. Belsheim, Director of Continuing Education within the College of Pharmacy; Richard A. Hutchinson, head of the Department of Pharmacy Practice and Director of Hospital Pharmacy Services of the University of Illinois Hospital; Jesse E. Stewart, faculty member of the College of Pharmacy and former Chairman of the Department of Pharmacy Administration.

From September 1973 to September 1980, plaintiff was employed by defendant trustees as an instructor in the then Department of Pharmacy. In September 1980, plaintiff received a promotion to the rank of assistant professor in the Department of Pharmacy Administration, and remained in that position until his termination in August 1985. The promotion commenced plaintiff’s position in the “tenure track,” a six-year probationary period at the end of which a faculty member is either denied or granted tenure. Plaintiff’s employment was at all times pursuant to a series of definite term contracts, which by their terms incorporated the University of Illinois Statutes and General Rules Concerning University Organization and Procedure.

In accordance with University of Illinois regulations, all tenure track employees are subject to departmental “mid-term” reviews, intended to gauge a tenure-candidate’s progress in teaching ability, research and public service. In the spring of 1983 and again in 1984, the results of plaintiff's mid-term reviews were negative. Following the 1984 evaluation, the University issued to plaintiff a terminal contract for the 1984-85 academic year, with notice that his contract would not be renewed following August 31, 1985.

Plaintiff alleges that both reviews were conducted in an arbitrary and capricious manner, in violation of University guidelines and procedures. The termination, plaintiff further alleges, interrupted his scholarly activities, thereby denying him “academic freedom.”

Additionally, plaintiff contends that from 1983 to 1985 defendants interfered with and misappropriated data and a report written by plaintiff concerning a continuing education program conducted by the Department of Pharmacy Administration. In support of this allegation, plaintiff states that the initial idea to institute the program was his, that he was primarily responsible for collecting data emanating from the program, and that plaintiff was to write a scholarly paper concerning the program and submit it for publication with plaintiff named as primary author. Plaintiff concludes that by using this same data to compose a paper with defendant Belsheim named as primary author, defendants misappropriated plaintiff’s work product and violated his “academic freedom.”

From these allegations, plaintiff sets forth two grounds for the denial of his civil rights: (1) violation of the due process clause of the Fifth and Fourteenth Amendments; and (2) violation of his Fir,st Amendment right to academic freedom. Plaintiff additionally sets forth two pendent state law theories: (1) breach of contract; and (2) violation of the Illinois Review of Personnel Records Act, Ill.Rev.Stat. ch. 48, Pars. 2001 et seq.

II. DISCUSSION

A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). As a corollary to this rule, a district court must take all well-pleaded facts in plaintiffs complaint as true.

A. Due Process Claims

1. Wrongful Termination

Plaintiff avers that the 1983 and 1984 mid-term reviews and the subsequent decision to terminate his position were conducted in contravention of stated University procedures. Defendants argue that the evaluation procedures were adequately applied. Moreover, defendants contend that plaintiffs nontenured status and employment pursuant to definite term contracts makes him ineligible for due process protection.

In order to state a due process violation, plaintiff must show a property or liberty interest in his employment. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). The existence of a property interest is determined by reference to state law. Id. at 577, 92 S.Ct. at 2709.

In a case factually similar to this case, the Seventh Circuit Court of Appeals held that a nontenured assistant professor lacked the requisite property interest in his position necessary to establish a claim for due process. McElearney v. University of Illinois at Chicago Circle Campus, 612 F.2d 285 (7th Cir.1979). In McEleamey, plaintiff sued the University for failure to grant him tenure despite oral assurances from his department head and other indicia that tenure would be forthcoming. The court noted that McElearney’s employment was pursuant to a series of definite term contracts which incorporated Article X of the University’s Statutes:

An appointment for a definite term does not carry any guarantee or implication that the Board of Trustees will renew the appointment even though the appointee may have discharged his duties satisfactorily. An appointment for a definite term, if accepted, must be accepted with this stipulation.

Id. at 290. Based on this provision, the court held that “[a]s a probationary faculty member, under § 1(b)(6) of Article X, plaintiff has no property interest in continued employment and no due process protections attach.” Id.

In the instant case, plaintiff was at all times a probationary staff member, employed pursuant to a series of definite term contracts. Both plaintiff and defendants stipulate that these contracts incorporated by their terms the University of Illinois Statutes and General Rules. Article X, § 1(b)(6) of the Statutes, identical to the provision cited in McEleamey, clearly defeats plaintiff’s property interest claim. Plaintiff is unable to show an expectation of continued employment with the University and hence no due process protections attach.

Nor does plaintiff possess a liberty interest in his position. The Supreme Court has constructed a four-part “stigma-plus” test which must be satisfied before a liberty interest in employment will be recognized. First, the plaintiff must show that the reasons offered for defendants’ decision to dismiss are so severe as to impose a “stigma” on plaintiff and thereby foreclose future employment opportunities. Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). Second, plaintiff must show that these reasons have been “publicized,” or disseminated to the general public by defendants. Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976). Third, plaintiff must have challenged the validity of defendants’ assertions and alleged that they are false. Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977). Finally, the stigma allegedly imposed upon plaintiff must be accompanied by a concurrent loss of a state-created right or status: Paul v. Davis, 424 U.S. 693, 708-09, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976).

In the present case, plaintiff fails the stigma-plus test on several grounds. Plaintiff does not contend, nor does the court find, that the mid-term reviews were publicized, that plaintiff alleged them to be false, or that plaintiff suffered a concurrent loss of a state-created status or right.

. 2. Continuing Education Data and Report

Plaintiff alleges that defendants violated his constitutional right to due process through their alleged misappropriation of the data, analysis and report compiled by plaintiff for the College of Pharmacy’s Continuing Education Clerkship program. Plaintiff contends that his position as a member of the academic faculty conferred upon him some special “scholarly” status which bestowed exclusive rights to all research projects in him alone. Defendants counter that plaintiff’s efforts surrounding the program were part of his regular duties in the College’s Continuing Education program and as such constituted property of the University.

Article II, § 9 of the General Rules Concerning University Organization and Procedure governs copyright policy within the University community. Pertinent provisions of the section state:

(b) Ownership: Ownership in copyrightable works produced by authors who are University staff members or students shall remain with the authors except in the following situations where ownership of all rights in copyrightable works produced shall belong to the University:
* # * * * *
(3) Works created as a specific requirement of employment or as an assigned University duty. Such requirements may be contained in a job description or an employment agreement which designates the content of the employee’s University work. If such requirements or duties are not so specified, such works will be those for which the topic or content is determined by the author’s employment duties and/or which are prepared at the University’s instance and expense, that is, when the University is the motivating factor in the preparation of the work.

Plaintiff contends that no reference to the program was contained in his job description and thus he should be considered “owner” of the data, analysis and report. However, defendants correctly argue that the “requirements or duties may ” be included in the job description. The provision is optional, not mandatory. Moreover, plaintiff’s work product appears to fall within the parameters of the second sentence of (b)(3). Plaintiff’s complaint, affidavit and dossiers submitted for the midterm reviews all refer to projects undertaken as part of his employment responsibilities with the Continuing Education department. The Clerkship program data and report are no different from these previous activities which clearly arose from his employment requirements. Finally, plaintiff does not refute that the material in question was produced at the University’s expense and upon the direction of his superiors. Plaintiff therefore possesses no ownership interest in the Clerkship program data, analysis or report and no due process rights attach. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

B. First Amendment Claims

Plaintiff alleges that the termination of his employment interrupted his progress in scholarly activity, including pursuit of his doctoral degree and the completion and publication of the Clerkship program report. The dismissal, plaintiff contends, interfered with his “academic freedom” and thus violated his First Amendment rights.

An individual may not be terminated from a position of public employment for the exercise of speech or activity protected by the First Amendment. Perry v. Sindermann, 408 U.S. 593, 598, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972). Essential to establishing a claim on these grounds is a showing that the activity pursued by the employee is worthy of constitutional safeguards and that it was the exercise of these rights which motivated the employer to terminate his position. See Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Mt. Healthy City School Dist. Bd. of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

In Mt. Healthy, the Supreme Court held that the employee bears the initial burden of showing that the speech or activity in which he was engaged was “protected” within the meaning of the First Amendment. The employee must further establish that this same activity motivated the employer to dismiss him. The burden then shifts to the employer to show, by a preponderance of the evidence, that the same decision to dismiss would have been reached even in the absence of the protected conduct. 429 U.S. at 287, 97 S.Ct. at 576.

In Mt. Healthy, a nontenured high school teacher sued the school board following his termination for relaying the contents of an intraschool memorandum to a local radio station. The court acknowledged that plaintiff’s phone call to the radio station constituted protected speech and that the call had, at least in part, prompted plaintiff’s dismissal. Nevertheless, the Court noted plaintiff’s history of objectionable behavior over the course of his employment at the school and remanded the case to the district court for a determination as to whether the defendant had shown by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. Id. at 287, 97 S.Ct. at 576. See also Knapp v. Whitaker, 757 F.2d 827 (7th Cir.1985).

In Connick, the Supreme Court set forth a test to determine when a public employee’s speech is worthy of First Amendment protection. In Connick, an assistant district attorney alleged that she had been fired for distributing a questionnaire among her fellow employees and that the questionnaire constituted constitutionally protected activity. The court held that the document, concerning office morale, transfer policy and the level of confidence in office superiors was not the work of a “citizen [speaking] upon matters of public concern,” but rather addressed “matters only of personal concern.” 461 U.S. at 147, 103 S.Ct. at 1690. Absent the identification of some “matter of public concern,” the court further held that “a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Id. See also Knapp v. Whitaker, 757 F.2d 827 (7th Cir.1985).

The Connick and Mt. Healthy tests both focus attention upon the content of the individual’s speech or other activity to determine whether it warrants First Amendment protection. In this case, plaintiff fails to establish that defendants’ decision to terminate him was in any way prompted by the content of plaintiff’s various projects. The mid-term reviews questioned only the quantity, not the quality, of plaintiff’s research. Similarly, criticisms of the Clerkship program report arose more from plaintiff’s inability to meet deadlines imposed by his superiors than from any opinion expressed in the text. In short, plaintiff fails to satisfy either test presented in Connick and Mt. Healthy which would entitle him to First Amendment protection.

Finally, plaintiff's vague “academic freedom” arguments fall short of stating a cause of action. Plaintiff apparently believes that the mere fact that his scholarly life was suspended by his dismissal entitles him to constitutional protection. Yet the cases cited by plaintiff to support this contention are wholly inapplicable to the present case. See e.g., Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (special admissions program designed to facilitate enrollment of minority students at state medical school held to violate equal protection clause of the Fourteenth Amendment); Keyishian v. Bd. of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (professors reinstated following termination for refusal to comply with state anti-subversive statutes); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959) (court upheld incarceration of professor for refusal to answer questions before congressional subcommittee concerning communist activity); Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (state’s inquiry into content of academic’s lectures and political associations violated First Amendment right to free speech); Holley v. Seminole County School District, 755 F.2d 1492 (11th Cir.1985) (teacher discharged for engaging in constitutionally protected activity entitled to de novo hearing in federal court).

C. Pendent State Claims

As plaintiff’s federal claims fail to state a cause of action, the Court will dismiss plaintiff’s state law claims for lack of pendent jurisdiction. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

III. CONCLUSION

Defendants’ motion to dismiss all eight counts of plaintiff’s complaint is granted.

IT IS SO ORDERED.


author: HASTINGS, District Judge.

text:
    GUARANTEE INSURANCE COMPANY, Plaintiff, v. GULF INSURANCE COMPANY, Defendant.
    No. 84-2638-Civ-HASTINGS.
    United States District Court, S.D. Florida, Miami Division.
    Feb. 20, 1986.

      Mark A. Cohen, Finley, Kumble, Wagner, Heine, et al., Miami, Fla., for plaintiff.
    Charles C. Papy, Jr., Papy, Poole, Weissenborn & Papy, Coral Gables, Fla., for defendant.
   FINAL SUMMARY JUDGMENT

HASTINGS, District Judge.

THIS CAUSE comes before the Court upon the parties’ cross-motions for Summary Judgment. The parties have agreed that there is no genuine issue of disputed fact and the cause is properly decided by summary judgment. This Court has jurisdiction pursuant to 28 U.S.C. § 1332.

UNDISPUTED FACTS

Count I of Guarantee’s Complaint seeks contribution/indemnification and attorneys' fees for Guarantee’s defense and payment of final judgment for its insured, Richard Marx.

Count II alleges bad faith on the part of Gulf for its failure to satisfy the above-cited judgment. The complaint derives from the following set of relevant circumstances:

(1) Richard B. Marx, an attorney, was insured for professional liability by the Defendant Gulf from January 28, 1974 to January 28, 1978 on an “occurrence” basis. That is, negligence which occurred during the above-cited dates was covered by this policy. Gulf also insured Marx from January 28, 1978 to January 28, 1980 under a “claims made” policy. That is, claims or suits made, filed and reported to Gulf during the effective dates were covered under this policy.

2. Guarantee insured Marx under a “claims made” policy from January 28, 1982 to January 28, 1983.

3. Marx was sued by former clients for professional malpractice in a lawsuit styled Dash v. Marx, Case No. 82-10042 CA 28 (11th Judicial Circuit, Dade County, Fla.). The allegations of that action are set forth in the Dashes’ amended complaint. They sought recovery against Marx for—

(a) negligent preparation in 1973 of a stock option agreement, and improper valuation of the stock.
(b) negligent representation of the Dashes in the case of Kohl v. Dash, a shareholders’ derivative action, Case No. 72-2436-Civ-Davis (S.D.Fla.) which was commenced in 1975 and amicably resolved prior to trial. Marx handled the lawsuit from October 31, 1975 until June 11, 1980, when he was discharged.

4. The malpractice suit, which is the subject matter of the instant cause was presented to the jury without specific interrogatories delineating the various acts of negligent conduct; rather a general verdict was submitted to the jury.

5. A verdict was returned finding Marx negligent.

6. The above-described malpractice suit was filed during 1982. Guarantee appointed counsel to represent Marx and represented Marx throughout the entire proceedings. During the pendency of the lawsuit Gulf paid 50% of Marx’s attorneys’ fees but has refused to pay any portion of the judgment or to' indemnify Guarantee for its expenditures for attorneys’ fees and costs in connection with its defense of Dash v. Marx.

ISSUES

1. Which insurance policy provided coverage for the malpractice action against Marx.

2. Whether Guarantee may recover indemnification upon a verdict rendered upon actions some of which were outside the scope of the Gulf policy.

I

Coverage by Guarantee

Upon detailed review of the insurance policy the court finds the coverage as follows: Guarantee argues Counts 1-V of the Dash v. Marx complaint (negligence in the preparation of stock options and valuation of the stock) are not covered by the Guarantee policy because of SEC exclusions.

Guarantee has failed to direct the Court to any portion of the policy which would exclude coverage for Marx’ negligence in regard to preparation of stock options and valuation of stock.

The only relevant portion of the policy appears to be the S.E.C. endorsement which, on its face, references Policy No. GMP-0751939 (1/28/82-1/28/83). This endorsement states:

It is understood and agreed that any claim made against the policy under S.E.C. activity defined as

(a) in relation to any security or to any activity or transactions covered or claimed to be covered in whole or in part by the Securities Act of 1933, the Securities Exchange Act of 1934, the Trust Indenture Act of 1939, the Investment Company Act of 1940, the Investure Advisors Act of 1940 or the Public Utility Holding Act of 1935 or
(b) in relation to any purchase, sale or offering of any security to or from the public which is covered or claimed to be covered by any State Blue Sky or Securities Law,

will be subject to a $10,000 deductible for each such claim presented and all other terms and conditions of the policy, including limits of liability provisions will remain unchanged.

Logical interpretation of the policy compels the conclusion that there can be no deductible for something which is not covered. Furthermore, the S.E.C. endorsement, as an attachment to the policy, supercedes other parts of the policy. (Endorsement No. 1.(5)).

In its reply brief, Guarantee argues that none of the Dash v. Marx Counts alleged a cause of action under the Acts or Blue Sky Laws and therefore the other provisions of the policy remain unchanged. Guarantee then makes the startling assertion that because Guarantee has asserted that it did not cover Marx for security matters and no evidence has been adduced to the contrary, Guarantee’s non-coverage for such matters must be accepted as an undisputed fact. The Court views the issue of non-coverage to be a matter of law requiring interpretation of the only competent evidence — the policy at issue.

The Court has reviewed the policy in detail, including all listed exclusions. Coverage is provided in the Guarantee policy as follows:

(1) Coverage

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as money damages because of any claim or claims just made against the insured and reported to the company during the policy period arising out of personal injury or any act or omission of the insured in rendering or failing to render professional services for others including notary public and title insurance agent services in the insured’s capacity as a lawyer, and caused by the insured or any other person for whose acts or omissions the insured is legally responsible except as excluded or limited by the terms of this policy.

The policy exclusions, numbered (a)-(k) are not relevant to the negligent acts of Marx. Accordingly the Court finds that the Guarantee policy covered the acts complained of in the Dash complaint, Counts I-V.

Furthermore, even if no coverage existed for Counts I-V, Guarantee would still have been obligated to defend Marx, since the allegations in the complaint included at least some theories of liability which were covered by the policy. See Aetna Insurance Co. v. Waco Scaffold & Shoring Co., Inc., 370 So.2d 1149 (4th DCA 1978).

Guarantee next asserts that as to Count VI of the Dash lawsuit, alleging Marx negligence in litigating the Kohl v. Dash shareholder's derivative suit, Guarantee was the secondary insurer and Gulf was the primary insurer, pursuant to the “other insurances” provisions of both policies. The Court agrees with Guarantee’s interpretation. See Deshman v. AAAcon Auto Transport, Inc. 337 So.2d 963 (Fla.1976).

However, as will be explained below, some of the Marx acts or omissions were excluded from the scope of the Gulf policy, and as to those Guarantee was the only insurer. As to those for which both companies’ policies included coverage, Gulf was the primary insurer, but that conclusion does not affect the outcome here.

Finally, the complaint alleging Marx’ malpractice was filed during Guarantee’s “claims made” policy in 1982 and was therefore in effect for all the acts and omissions alleged therein.

Coverage by Gulf

Gulf’s “occurrence” policies were in effect from 1974-1978. Marx’ negligence in connection with Counts I-V, relating to the stock options were all “occurrences” in 1973 (See Second Amended Complaint, Dash v. Marx) and as such are clearly outside the scope of Gulf’s policy.

Marx’ negligent litigation of the Kohl v. Dash lawsuit was an “occurrence” spanning 1975 until 1980. Those were “occurrences” after the policy expiration date in 1978 and also outside the policy coverage.

Furthermore, Gulf’s “claims made” policy, effective from January 28, 1978 to January 28, 1980 is irrelevant to this action as no claims were made against Mr. Marx during that time period.

Therefore, Gulf was liable only for Marx’ negligent acts in litigating the Kohl v. Dash lawsuit occurring from 1975-1978.

II

Having determined that Gulf was liable for some, but not all, of Marx negligence, the Court must determine if Guarantee may seek indemnity on this basis.

Florida law, which governs this diversity action, is well-settled on this issue. Where the judgment includes elements for which an insurer may be liable as well as elements beyond the coverage of the policy, the burden of apportioning the damages is on the party seeking to recover from the insurer. Universal Underwriters Insurance Corp. v. Reynold, 129 So.2d 689 (2d DCA 1961); Keller Industries, Inc. v. Employers Mutual Liability Insurance Co. of Wisconsin, 429 So.2d 779 (3d DCA 1983).

There is no question that the issue of Marx’ negligence is res judicata. The jury, however, returned a general verdict and no evidence now exists as to what portions, if any, of the verdict were based upon acts for which Gulf is liable. Guarantee, as the party seeking indemnity, has the burden of apportioning the damages and this it has failed to do.

The case of Jones v. Holiday Inns, Inc., 407 So.2d 1032 (Fla. 1st DCA 1982), involves the same predicament in which Guarantee now finds itself:

The Plaintiff ... sought to recover from appellee on an affirmative negligence theory as well as a vicarious liability theory. Although the jury was instructed on both theories, the general verdict against appellee did not indicate the basis upon which the jury found liability. However, since appellee, as the party seeking indemnification, had the burden of showing entitlement to indemni fication and failed to request the use of a special verdict, a general verdict should stand as a bar to indemnification. Id. at 1034 (emphasis added).

While Gulf was obligated to defend Marx, and contributed to his defense, see Aetna Insurance Co. v. Waco, supra, it does not necessarily mean it is obligated to pay a judgment. Aetna, supra 370 So.2d at 1151.

Rather, Guarantee having failed to meet its burden of showing the basis of the Dash jury’s verdict is barred from recovering indemnity. Jones, supra.

Guarantee asserts that Gulf failed to insist on the use of a special verdict and should therefore be estopped from benefit-ting thereby. While this argument must fail, because a general verdict is a bar to indemnity even where the insurance company actively seeks a special verdict but is precluded by the Court from using one, Aetna Insurance v. Waco, supra 370 So.2d at 1150, the Court notes that in this instance Guarantee had appointed an attorney and had undertaken the defense of Marx. Guarantee had every opportunity to request a special verdict and thereby avoid the unfortunate situation it is now in. Having failed to obtain a special verdict, Guarantee is precluded, pursuant to the Florida case law cited herein, from recovering any payments from Gulf.

The Court need not reach the bad faith claims. Accordingly, pursuant to Federal Rules of Civil Procedure 56, it is hereby

ORDERED AND ADJUDGED that Plaintiff Guarantee’s Motion for Summary Judgment is DENIED. It is further

ORDERED AND ADJUDGED that Defendant Gulfs Motion for Summary Judgment is GRANTED.

Final judgment is hereby entered in favor of the Defendant and Plaintiff shall take nothing by this action.

DONE AND ORDERED in Chambers in Miami, Florida, this 20 day of February, 1986.

      . Where [as here] two separate insurance policies cover a particular loss and each contains “other insurance” clauses which purport to restrict or limit liability, if one of the policies contains a ‘pro rata’ clause and the other contains an “excess insurance" clause, effect is given to the letter clause. Id. at 965.