author: ORINDA D. EVANS, District Judge.

text:
    Dennis WILSON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Hubert C. CRANFORD v. LEADER NATIONAL INSURANCE COMPANY. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Robert A. SNEED. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Robert A. SNEED, Jr.
    Civ. Nos. C84-1175, C82-1067, C81-2303 and C81-2319.
    United States District Court, N.D. Georgia, Atlanta Division.
    Feb. 1, 1985.

      Timothy A. Siler, Siler & Jonap, Decatur, Ga., for Wilson.
    Douglas E. Cobb, Oxedine & Assoc., Nor-cross, Ga., for Cranford.
    Allen Gordon, Walbert & Hermann, Atlanta, Ga., for Sneeds.
    Jerry Blackstock, James D. Meadows, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for State Farm.
    Roger Mills, Long, Weinberg, Ansley & Wheeler, Atlanta, Ga., for Leader National.
   ORDER

ORINDA D. EVANS, District Judge.

Each of the above-captioned Jones cases is currently before the court on motions for summary judgment filed by the insurer. Although each involves entirely different facts, all present a common issue, namely, how to treat — substantively and procedurally — the issue of the insured’s allegedly false signature on the insurance application. Is the matter of the allegedly false signature an element of the insured’s case? Or must the insurance company prove the validity of the insured’s signature? Where the insured is claiming that the signature is not his, but does not claim that he made no knowing rejection of optional coverages, can he collect based on Jones theory?

A. FACTS

The relevant facts in each case before the court are now outlined.

Wilson Case

In his complaint filed May 3, 1984, Mr. Wilson alleges that he was injured in an accident in August 1982 and that he then was insured under State Farm Policy No. 686 0282-C21-11A. The complaint further alleges that State Farm did not offer Mr. Wilson optional PIP coverage “in the manner required by Ga.Code Annotated Section 33-34-5.” Complaint, II8. The complaint states that on January 24, 1984, Plaintiff elected to accept the maximum PIP coverage of $50,000, through the vehicle of a letter from his attorney Timothy A. Siler.

After Defendant answered the complaint, it filed a motion for summary judgment. Appended to the motion is a copy of Mr. Wilson’s insurance application on Policy No. 686 0282-C21-11A. The insurance application reflects “X” marks in the “reject” boxes for the $10,000, $25,000 and $50,000 levels of personal injury protection. Immediately under that, following the statement “I made the acceptance/rejection of coverage” is the signature “Dennis Wilson.” Separate sections of the application dealt with collision, loss of use and comprehensive insurance, each section having its own “accept” and “reject” blocks with separate signature spaces. Each of these sections shows “X’s” in certain blocks and a signature “Dennis Wilson.” State Farm argues that this format complies with the Georgia Supreme Court’s ruling in Flewellen, supra at 711, 300 S.E.2d 673. Additionally, the motion for summary judgment appends an affidavit of State Farm’s resident claims superintendent, who states that at the time of Mr. Wilson’s accident, State Farm paid his claim up to $5,000 and that therefore his benefits have been exhausted.

In his response to the motion for summary judgment Plaintiff makes no argument that the aforesaid application fails to comply with Flewellen. Instead, Plaintiff has tendered his affidavit, stating “The signatures [shown on the insurance application] are not my signature.”

Cranford Case

In his complaint filed April 14, 1982, Mr. Cranford alleges that he was injured in June 1980 in an automobile accident. At the time of the accident, he was covered under a fleet policy issued to Superb Maintenance Service, Inc. by Defendant Leader National. Plaintiff Hubert Cranford is the president of Superb Maintenance Service, Inc.

The complaint further alleges that at no time prior to the accident did Leader National make optional coverage above the $5,000 minimum coverage available to Superb in accordance with the requirements of Ga.Code Ann. § 56-3403b. When Plaintiff made his claim in 1980 following the accident, it was paid in the sum of $5,000 only.

The complaint alleges that on October 12, 1981, February 11, 1982, and March 16, 1982, letters were sent to Defendant Leader National electing additional post-risk coverage of $45,000.

Defendant filed a motion for summary judgment on May 29, 1984. Defendant contends the insurance application, rejecting optional no-fault coverage, is in substantial compliance with the requirements of Ga.Code Ann. § 56-3404b(b). It argues that no further benefits are owing, per the Georgia Supreme Court’s decision in St. Paul Fire & Marine Insurance Company v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984) (holding that the two-signature requirement of Flewellen is not a rigid requirement; substantial compliance is sufficient).

Responding to the motion for summary judgment, Plaintiff does not dispute Leader’s argument that the format of the application complies with the Georgia no-fault act. Instead, Hubert Cranford argues for the first time that the signature of his brother Harold Cranford on the insurance application is not his brother’s signature, and that Harold never authorized anyone to sign his name. Harold Cranford is the vice-president of Superb Maintenance.

Sneed Cases

These cases began when Plaintiff State Farm filed complaints for a declaratory judgment in each case in December, 1981. In C81-2303A (hereinafter the “Sneed, Sr.” case) State Farm alleged that Sneed, Sr. had held a policy with State Farm for a number of years prior to 1975. The complaint does not allege what amount of coverage Sneed, Sr. had either before or after the no-fault act went into effect. However, it alleged that on or about October 6, 1978, Sneed, Sr. requested that his no-fault coverage be cut back to the statutory minimum of $5,000 and that this was done as requested. The complaint alleges that on or about September 11, 1979, Robert A. Sneed, Jr. was involved in an automobile accident. The complaint does not specifically allege, but appears to concede, that he was covered under the aforesaid Sneed, Sr. policy.

The complaint refers to and appends a copy of a November 11, 1981 letter on the letterhead of Robert A. Sneed Associates, PC, Attorneys at Law, addressed to a State Farm claims agent. The letter states that Sneed, Sr. desires to accept State Farm’s continuing offer of $50,000 maximum benefits. The letter states that Sneed, Jr.’s accident-related expenses are “far in excess of the ‘PIP’ coverage of $5,000 in force at the time of the 9/11/79 accident.”

State Farm’s complaint in C81-2319A (hereinafter the “Sneed, Jr.” case) is similar in format to that of the other case, but concerns a different policy and a different automobile accident which also happened to involve Sneed, Jr. This complaint alleges that in July 1976, Sneed, Jr. applied to State Farm for no-fault coverage. The complaint is silent as to what level of coverage Sneed, Jr. selected, but alleges that on or about October 4, 1978, Sneed, Jr. requested in writing that his coverage be reduced to the $5,000 minimum and that this reduction was effected in compliance with Sneed, Jr.’s request. Sneed, Jr. then was involved in an automobile accident on March 26, 1979 in which he sustained injuries. The complaint refers to and appends a copy of a letter dated November 11,1981, from Robert A. Sneed, Sr., stating that his office had been retained by Sneed, Jr. to represent him, and that he on behalf of Sneed, Jr. accepts the continuing offer of maximum optional personal injury protection benefits of $50,000.

In both the Sneed, Jr. and the Sneed, Sr. cases, State Farm asks the court to declare and adjudge that each Defendant is not entitled to any coverage in excess of the $5,000 statutory minimum.

In response to the complaints for declaratory relief, Sneed, Sr. and Sneed, Jr. each filed motions to dismiss for failure to state a claim. These were denied early in 1982. At that point, State Farm filed a motion for summary judgment in each case. These motions for summary judgment were supported by an affidavit of the service superintendent for one of State Farm’s divisions. These affidavits affirmed the essential averments of State Farm’s complaint in each case to the effect that the policies had been issued as alleged and that the relevant coverage amounts for each policy had been reduced to $5,000 by request of Sneed, Jr. or Sneed, Sr., as applicable. The Sneed filed no affidavits contesting these statements. However, their respective answers to the complaints (also filed in the spring of 1982) denied the averments that the insured had requested that coverage be reduced to the statutory minimum of $5,000.

On June 25, 1982, the court granted summary judgment to State Farm in both the Sneed, Jr. and the Sneed, Sr. case. The stated reason for granting summary judgment in the Sneed, Jr. case was this court’s decision in State Farm Fire & Casualty Co. v. Sweat, 547 F.Supp. 233 (N.D.Ga. 1982) (holding that the Georgia appellate courts would not apply Jones retroactively). Judgment was granted to State Farm in the Sneed, Sr. case based on the court’s reasoning in Heflin v. State Farm Mutual Automobile Insurance Co., 547 F.Supp. 247 (N.D.Ga.1982) (holding that a no-fault insured had an obligation to examine his policy to ascertain that it contained the level of coverage he requested). The judgments were appealed to the United States Court of Appeals for the Eleventh Circuit. After the appeals were taken, the Georgia appellate courts decided a number of important cases in the no-fault area. These decisions caused State Farm to ask that both cases be remanded to this court by the Eleventh Circuit. The remand in each case occurred on January 18, 1984. 723 F.2d 1518.

After the remand, the court entered an order setting a period of time for discovery and a deadline for the filing of any further motions for summary judgment. The parties requested and obtained an extension of this deadline in order to attempt to settle the cases. However, the cases were not settled. In July 1984, State Farm filed another motion for summary judgment in each case. The basis of each motion is that State Farm has now tendered funds to the Sneeds for the total amount of medical bills and lost wages for which they have submitted a claim. A letter appended to State Farm’s counsel’s affidavit filed in support of the motions states that the check (which was made payable to Sneed, Jr. in the sum of $6,619.64) was for the full amount demanded by the Sneeds’ then counsel, Don Keenan, at a settlement conference, and that this represented a tender in full of all expenses and lost wages shown on a worksheet prepared by Mr. Keenan and presented to State Farm. A copy of the itemized worksheet is also attached to State Farm’s counsel’s affidavit.

State Farm also offered in support of its motion in each case an affidavit of David E. Chandler, the agent who handled the Sneeds’ policies. Mr. Chandler states that around September 1978 he discussed the coverage under both policies with Sneed, Sr. by telephone. He says that Sneed, Sr. stated “he had two teenage sons and he wished to lower his premium expenses on the policies.” Chandler says that in the phone conversation, Sneed, Sr. asked him to send selection cards to sign so he could reduce the personal injury protection coverage on the two policies, one of which was in the name of Sneed, Jr. Chandler states he mailed the selection cards to Sneed, Sr. The Chandler affidavit does not relate how the selection cards came back into his possession, but he asserts that on October 4, 1978, Sneed, Sr. signed both cards. Chandler’s affidavit asserts that Sneed, Sr. requested that the coverage on each policy be adjusted as follows: “that the PIP limits be reduced to $5,000, that medical payments coverage be increased to $25,000 and that liability coverage for property damage be increased to $25,000.”

The signature cards are identified by the Chandler affidavit and are attached to each motion for summary judgment. Each is signed “Robert A. Sneed.” Each reflects notations, presumably made by Mr. Chandler, as follows: “C 5,000 to C25.000; B 10 to B 25; P to P 1.”

Sneed, Jr. and Sneed, Sr. argue in response to State Farm’s motion for summary judgment that State Farm is still liable to them because it did not honor their demands for excess coverage promptly enough. Therefore, penalties and attorneys’ fees are still owed under the no-fault act. The Sneeds have offered no affidavits contesting the fact that $6,619.64 was the proper amount of money owed, disregarding penalties and attorneys' fees. They have tendered the affidavit of Sneed, Sr., dated August 3, 1984, which states flatly that his “signature” on the selection cards is a forgery, and that he never authorized anyone to sign the cards for him. He states he was not authorized to act for Sneed, Jr. either. He states that he never asked for his PIP coverage or that of his son to be reduced.

State Farm’s response is that it reasonably awaited the Georgia Supreme Court’s decision in Tolison v. Georgia Farm Bureau Mutual Insurance Co., 253 Ga. 97, 317 S.E.2d 185 (1984) before deciding to pay the Sneeds’ claims for excess coverage. In Tolison, the Georgia Supreme Court made it clear that Jones claims, as modified by Flewellen, are not dependent in any way on whether or not the insured actually agreed to waive excess coverage. In so holding, the Georgia Supreme Court reversed the Georgia Court of Appeals. State Farm argues, then, that its tender of payment in full within 30 days following announcement of the Tolison decision means that it is not liable for any penalties under the no-fault act; therefore, it has fulfilled all its obligations to the Sneeds and is entitled to judgment in its favor in each ease as a matter of law.

The Sneeds’ rejoinder is that Tolison added nothing to the law not already made clear by the Georgia Supreme Court’s decision in Flewellen a year before Tolison.

At this point, the Sneeds do not merely seek imposition of bad faith penalties and attorneys’ fees under the specific provisions of the no-fault act. On October 31, 1984, each of the Sneeds filed a motion for leave to assert a counterclaim against State Farm. This proposed counterclaim asserts a fraud cause of action against State Farm based on the alleged forgery of the signatures of Sneed, Sr. on the coverage cards— the documents reducing the coverage on each policy to $5,000. The Sneeds seek “special damages in an amount as yet to be determined” and punitive damages in the sum of 27a million dollars. The motions for leave to file the counterclaims assert that the counterclaims did not mature until after the original answers were filed. Sneed, Sr. states, in an affidavit that he did not know until the spring of 1984 that his signature on the two cards had been forged. According to the affidavit, it was not until then that the Sneeds obtained copies of the coverage cards.

In summary, the Sneed cases are before the court on State Farm’s motions for summary judgment on its complaints for declaratory relief, and on the Sneeds’ motions for leave to file an amended answer and counterclaim in each case.

B. LEGAL DISCUSSION

In Jones v. State Farm, 156 Ga.App. 230, 274 S.E.2d 623 (1980) (cert. dismissed ), and in Flewellen v. Atlanta Casualty Company, 250 Ga. 709, 300 S.E.2d 673 (1983), the Georgia appellate courts implicitly held that O.C.G.A. § 33-34-5(b) (formerly Ga.Code Ann. § 56-3404b(b)) creates a private right of action. That code section provides:

Each application for a policy of motor vehicle liability insurance sold in this state must contain separate spaces for the insured to indicate his acceptance or rejection of each of the optional coverages listed in subsection (a) of this Code section and no such policy shall be issued in this state unless these spaces are completed and signed by the prospective insured.

Both Jones and Flewellen were cases in which the insured claimed that the defective format of the insurance application had resulted in defective rejection of the optional PIP coverage. In Flewellen, the Georgia Supreme Court held that:

The requirements of subsection (b) are satisfied by two signatures, one for acceptance or rejection of optional PIP and another to indicate acceptance or rejection of vehicle damage coverage.

Id. at 711, 300 S.E.2d 673. The court further held that

... The failure to reject the options in the manner provided in the statute results in acceptance of the minimum coverage required to be offered which is $50,000. The absence of a rejection forms a contract for $50,000 PIP from its inception.

Id. at 715, 300 S.E.2d 673. The Georgia Supreme Court observed in Flewellen:

The purpose of the statute is to resolve conflicts which arise when an insured contends that he was not informed of his statutory right to optional benefits. When this claim is made, the resolution of the issue will be to look to the policy to determine if there was reduction or rejection of those benefits in conformance with the statutory scheme.

Id. at 714, 300 S.E.2d 673.

In St. Paul Fire & Marine Insurance Company v. Nixon, 252 Ga. 469, 314 S.E.2d 215 (1984), the Georgia Supreme Court held that where it was clear from the form of the application that the intent of the insured was to reject optional PIP benefits and vehicle damage protection, there was substantial compliance with the statute and therefore the insured had no Jones claim.

Shortly after St. Paul was decided, the Georgia Supreme Court decided Tolison v. Georgia Farm Bureau Mutual Insurance Company, 253 Ga. 97, 317 S.E.2d 185 (1984). It held, in part, that the Georgia Court of Appeals had erred in ruling that conflicting testimony of the insured and the insurer concerning whether the insured had been informed of his right to optional coverage should be presented to the jury. In' so deciding, the court referred to Flewellen as establishing a “method of conflict resolution.” Id. at 101, 317 S.E.2d 185.

Although O.C.G.A. § 33-34-5(b) has been the subject of extensive interpretation by the Georgia appellate courts, as of this date there has been no decision listing the elements of a Jones cause of action, or specifically denominating the cause of action as lying in tort or contract. Based on Flewellen, St. Paul, and Tolison, it appears that Jones claims are not tort claims in which a private right of action is based on violation of a regulatory statute. The language of Flewellen strongly suggests that these are breach of contract cases. Secondly, the Georgia Supreme Court has not set forth any requirement that the insured prove private injury flowing from the insurer’s breach of the statute. In fact, Tolison excludes this from the trier of fact’s consideration. It is true that Flewellen, St. Paul, and Tolison all refer to Jones theory as a method of resolving disputes between insurers/insureds over coverage, but since a claim that the optional coverage was not offered is not an element of the Plaintiff’s cause of action, nor (apparently) a matter which may be addressed by way of defense, the insured need not be someone who claims that he was not offered optional coverage. Therefore, there is no requirement of private injury flowing from the insurer’s breach of duty. The absence of such injury requirement is inconsistent with categorizing these cases as tort cases.

Therefore, the court concludes that Flewellen and other application format cases are properly categorized as breach of contract cases. The contract is for $50,000 PIP benefits, i.e., $5,000 mandatory minimum PIP plus the maximum $45,000 optional PIP benefits, (hereinafter Jones contracts). As to policies purchased after the effective date of the no-fault act (March 1, 1975), Flewellen and St. Paul hold that where an insurer offers optional PIP coverage through an application that does not meet the format requirements of O.C.G.A. § 33-34-5(b), this triggers the creation of a Jones contract. In such cases, neither party’s intent as to what level of coverage was sought or desired is relevant; the insured need not claim there was a failure to offer optional coverage, or that he was unaware of this coverage; the $50,000 contract is formed by operation of law. Flewellen, supra 250 Ga. at 712, 714, 300 S.E.2d 673; Tolison, supra 253 Ga. at 100-101, 317 S.E.2d 185.

However, § 33-34-5(b) does not merely contain format requirements for the insurance application. Rather, that code section reads:

(b) Each application for a policy of motor vehicle liability insurance sold in this state must contain separate spaces for the insured to indicate his acceptance or rejection of each of the optional coverages listed in subsection (a) of this Code section and no such policy shall be issued in this state unless these spaces are completed and signed by the prospective insured. (Emphasis supplied).

The references in the statute to “completed” and “signed” are references to marking the blocks corresponding to various levels of coverage and to signing so as to indicate personal acceptance of the indicated levels of coverage. See St. Paul, supra; GEICO v. Mooney, 250 Ga. 760, 761, 300 S.E.2d 799 (1983); Flewellen; supra. The issue now before the court is whether the plaintiff insured’s allegation that the signature on the application is not his, if proven, triggers the automatic creation of a Jones contract as in the format cases. Or, must the insured allege and prove that he did not knowingly reject optional PIP coverages?

The parties have pointed out no Georgia Supreme Court decisions which deal with the faulty signature issue nor has the court been able to locate any. There are a number of decisions of the Georgia Court of Appeals which treat this issue, or a similar issue. In Holt v. International Indemnity Company, 171 Ga.App. 817, 321 S.E.2d 374 (1984) (cert. denied) and Miller v. State Farm Mutual Automobile Insurance Company, 155 Ga.App. 487, 271 S.E.2d 14 (1980) (cert. denied), the Georgia Court of Appeals considered faulty signature claims. In Miller, the court rejected plaintiff’s argument that she was entitled to a Jones recovery, based on faulty signature, where she had signed an insurance application on behalf of her husband (the insured), and had rejected optional PIP coverage pursuant to her husband’s express authorization. The court held that she was estopped to claim that she had signed her husband’s name without proper authority. In Holt, the court held that when the husband of the insured filled out the application, rejecting optional coverage, that a Jones contract was created, even though the husband acted in his wife’s presence and at her express direction. Holt distinguished Miller by noting that there, the plaintiff herself had signed the rejection of optional coverage, and admitted doing so. In Holt, the plaintiff was the insured’s son who had not been involved in obtaining the policy.

In Allstate Insurance Company v. O’Brien, 172 Ga.App. 693, 324 S.E.2d 498 Allstate Indemnity Company, 173 Ga. App. 114, 325 S.E.2d 599 (1984), the Georgia Court of Appeals has recently considered the effect of someone else’s marking the rejection blocks on the insurance application, with the insured signing the application. In both of these cases, the Georgia Court of Appeals held, by implication at least, that no Jones recovery is authorized when the insured has expressly stated a desire to reject certain coverage, and that election is accurately reflected in the “reject” boxes filled out by someone else. Therefore, at least as to the matter of marking the reject blocks, under O’Brien and Miller the key issue is authorization, not whether the insured personally marked the blocks.

Finally, the Georgia Court of Appeals has decided two cases, Morris v. Fidelity & Casualty Company of New York, 169 Ga. App. 883, 315 S.E.2d 451 (1984) and National Indemnity Company v. Smith, 172 Ga.App. 415, 323 S.E.2d 274 (1984) where authenticity of signature was questioned, but no Jones recovery was allowed because the insurance application was not accepted directly from the insured by the insurance company. Instead, the paperwork was handled by an independent party who was not an agent of the insurance company. In Morris and Smith, the Georgia Court of Appeals did not indicate what rule would be applied if the party handling the application form had been the agent of the company.

Because the Georgia Supreme Court has not ruled on the faulty signature issue, this court cannot predict with certainty whether it will choose to extend the automatic contract theory of “application format” cases such as Flewellen to faulty signature cases. The Georgia Court of Appeals decisions do not directly address this point. However, Holt and Miller v. State Farm are clearly contract theory cases; Morris and Smith implicitly recognize the relevance of the concept of fault, thereby suggesting tort theory. O’Brien and Miller v. Allstate seem more compatible with tort theory because they implicitly address the question whether the insured has sustained actual injury arising from the lack of a personal “marking” of the application.

The question whether a claim of actual injury should be an element of the cause of action can be argued both ways. On the one hand, anything less than the insured’s own signature on the application undercuts the statute’s purpose — making sure that the insured is truly informed of the availability of optional coverage. On the other hand, allowing recovery based only on faulty signature, with no requirement of actual injury, obviously gives a recovery to plaintiffs who are not injured. The justification for the “automatic contract” approach in the format cases is that it aids in speedy resolution of claims. But faulty signature cases generally involve issues of fact which must be resolved at trial, even if intent, knowledge and authorization are not relevant concepts. In any event, one must look outside the policy.

In the absence of a definitive ruling by the Georgia Supreme Court, the court applies the holdings of the Georgia Court of Appeals in these diversity cases. Although the decisions are not entirely harmonious, the court finds, especially in the Court of Appeals' more recent decisions in Miller and O’Brien recognition of a private injury requirement which makes the issue of whether the insured was actually informed of the optional coverage, and knowingly rejected it, relevant. Moreover, resolution of the issues once a faulty signature claim has been made requires looking outside the policy (unlike the format cases) and most often will require a trial in any event. Omitting inquiry into the issue of authorization will not materially speed resolution of these claims. Finally, in cases where the insured is a corporation (e.g., Cranford), the insured necessarily must act through an authorized agent. Therefore, the court holds that in the faulty signature cases now pending, each insured must plead and prove the precise manner in which the insurer breached its duty under the statute and in what respect Plaintiff was injured by the breach. The allegation that the insurer failed to offer the optional coverage “in the manner required” by Georgia Code Ann. § 56-3404b(b) (now O.C.G.A. § 33-34-5(b)) is insufficient to place the insurance company on notice of the relevant allegations.

The foregoing ruling is now applied in each of the cases before the court.

In Wilson, the court holds that State Farm’s insurance application complies with the Georgia Supreme Court’s ruling in Flewellen. A ruling on State Farm’s motion for summary judgment is DEFERRED for 20 days. If Plaintiff wishes to file a proposed amendment to his complaint in the interim, he may do so. The Clerk is DIRECTED to resubmit the file at the conclusion of the 20-day period.

In Cranford, the court finds that Leader National’s insurance application is in substantial compliance with the requirements of O.C.G.A. § 33-34-5(b). The application consists of two pages. The first page is a general application form, which elicits information from the applicant, and which ends with a signature space for the applicant. The second page is in three parts with heavy black lines separating the sections. The first section is an equipment schedule, wherein the company’s vehicles are listed, together with the names and certain information about each vehicle operator. The second section states, in large capital letter in the upper left hand area “PREMIUM FINANCE TERMS AND CONDITIONS READ BEFORE YOU SIGN! ” However, the second section also deals in part with the rejection of uninsured motorist coverage, and contains blocks to accept or reject such coverage. The third section deals with various types of no-fault coverage, namely, PIP, loss of use, and collision coverage. The section reads:

ADDITIONAL PIP COVERAGE INSTRUCTIONS — I understand that the company to whon I make this application has offered me the option to purchase; "ADDITIONAL PERSONAL INJURY PROTECTION” up to a limit of $50,000 total. "LOSS OF USE” Insurance covering certain expenses up to $10 per day, $300 total. "FULL COVERAGE COLLISION AND COMPREHENSIVE COVERAGE”. Understanding these coverages and having been advised of the premium for each, I hereby sign this acceptance or rejection, for this policy and any renewals thereof, and request the policy issued:
( ) WITH ADDITIONAL PERSONAL ( ) $10,000 LIMIT
INJURY PROTECTION ( ) $25,000 LIMIT
OR ( ) $50,000 LIMIT
( ) WITHOUT ADDITIONAL PERSONAL INJURY PROTECTION

Immediately under that is a space for the date and a space for the insured’s signature.

In Chief Justice Hill’s concurring opinion in St. Paul, he stressed a key factor for finding substantial compliance, namely, that the application contain a signature applicable only to the acceptance/rejection of optional no-fault coverage, as well as the usual signature for the application as a whole.

Cranford’s argument here is that the signature at the bottom of section three (the option no-fault section) is actually meant to relate to the uninsured motorist coverage in section two as well. Therefore, Cranford argues, the application does not meet Justice Hill’s stated test.

The court rejects Cranford’s claim. It is clear that the signature space in section three relates to the acceptance/rejection of optional no-fault coverage. The uninsured motorist accept/reject blocks simply do not have a signature space. No one could mark or sign section three without being on notice of the right to optional PIP coverage, and making an intentional election. Therefore, the format is in substantial compliance with O.C.G.A. § 33-34-5(b) under St. Paul.

The court therefore must turn to Plaintiff’s argument that the faulty signature of Harold Cranford deprives Defendant of the right to summary judgment. For the reasons set forth in this order, a ruling on Leader National’s motion for summary judgment is hereby DEFERRED. If Plaintiff wishes to file a proposed amendment to his complaint in the interim, he may do so. The Clerk is DIRECTED to resubmit the file at the conclusion of the 20-day period.

In the Sneed cases, State Farm’s motions for summary judgment are GRANTED; the Sneeds’ motions for leave to file an amended answer and counterclaim are DENIED.

At the outset, the court notes that that these cases may not be Jones cases at all, even though both sides have argued that they are. The Sneed, Sr. policy predated the no-fault act. Therefore, any Jones recovery would necessarily be based on State Farm’s failure to offer optional coverage to Sneed, Sr. in accordance with the requirements of O.C.G.A. § 33-34-5(c), as interpreted by the Georgia Supreme Court in Stafford v. Allstate Insurance Company, 252 Ga. 38, 311 S.E.2d 437 (1984). The Sneed, Jr. policy was issued after the effective date of the no-fault act, but neither side has addressed whether, when the policy was originally issued, State Farm obtained a proper rejection of optional no-fault coverage pursuant to O.C.G.A. § 33-34-5(b). If Sneed, Jr. has a Jones contract, it necessarily would have arisen at the time when he made application for his policy.

Instead, the stated claims of Sneed, Sr. and Sneed, Jr. arise from the reduction of their coverage in 1978. Both sides assert that immediately prior to this time frame, each of the Sneeds had $25,000 in optional PIP coverage. The issue is whether, when State Farm reduced the PIP coverage to $5,000 in 1978, such reduction was in accordance with the request of their insureds or rather was effected unilaterally by State Farm. The court is unable to see, assuming that such reduction was Unilateral, how this gives rise to a Jones cause of action as opposed to a garden variety breach of contract action. Perhaps this lack of clarity stems from the fact that these cases were initiated by declaratory judgment actions, which did not focus the issues very sharply.

It appears, however, that it is unnecessary to resolve this issue. Assuming that these are Jones cases, the court agrees with State Farm that it was reasonable for it to await the Georgia Supreme Court’s decision in Tolison before tendering a check for optional benefits. The mere fact that the Georgia Court of Appeals in Tolison initially ruled in favor of State Farm's position shows that Flewellen had not totally clarified the law. Accordingly, no penalties or attorney’s fees are owed due to State Farm’s failure to pay immediately after Flewellen was decided.

Assuming that the Sneeds never authorized reduction of their PIP benefits in 1978 from $25,000 to $5,000 per policy, the court still finds that State Farm is entitled to prevail on its motion. The affidavits tendered in favor of State Farm’s motions for summary judgment state that on Juné 21, 1984, the Sneeds’ counsel presented a list of medical expenses and lost wage items to State Farm. Immediately thereafter, a check was tendered to the Sneeds which represented payment of the expenses and losses which had been presented to State Farm (and not previously paid). The Sneeds did not contest this by counter-affidavit. Therefore, there is no evidence before the court of dilatory payment.

The remaining matter is the Sneeds’ request to amend their pleadings to assert a counterclaim. Two factors influence the court to deny the motions. First, and more importantly, they come very late in this litigation. These counterclaims could have been asserted much earlier. It should not have been necessary for the Sneeds to see the coverage cards to determine that any reduction of coverage was fraudulent. A faulty signature, alone, does not necessarily mean fraud or even lack of authorization. Secondly, it appears doubtful that the Sneeds could prevail on these counterclaims. Sneed, Sr.’s November 1981 letter to State - Farm stating his understanding that his policy contained only the $5,000 minimum PIP coverage is inconsistent with his current claim that he thought the policy had $25,000 PIP coverage.

      . “Jones" cases are cases where an insured seeks additional post-risk personal injury protection ("PIP”) no-fault coverage from his carrier. In such cases the claim is that the insurer failed to comply with certain requirements of Georgia’s no-fault act pertaining to the manner of offering optional no-fault coverage above the mandatory $5,000 minimum. A successful Jones case increases post-accident PIP coverage to $50,000. The first case recognizing such cause of action was Jones v. State Farm, 156 Ga.App. 230, 274 S.E.2d 623 (1980) (cert. dismissed). The guidelines set down in Jones were later substantially revised and clarified in Flewellen v. Atlanta Casualty Company, 250 Ga. 709, 300 S.E.2d 673 (1983) and in other decisions of the Georgia Supreme Court, but the reference “Jones cases" seems to have stuck. Therefore, the terms Jones cases, Jones theory, and Jones contract will be used descriptively in this order.

      . These cases have not been consolidated.

      . However, on January 9, 1985, Plaintiff filed a motion for leave to file a motion for partial summary judgment. Plaintiff argues by way of that motion that the application is not in substantial compliance.

      . The support for Plaintiff’s assertion is in the deposition of Harold Cranford taken May 23, 1984.

      . In 1978 Sneed, Jr. was still living at home with his parents.

        . Jones complaints involving policies issued after March 1, 1975, typically allege that the plaintiff insured purchased PIP coverage from the defendant insurer in the $5,000 minimum amount; that the insurer failed to offer the optional coverages "in the manner required” by Ga.Code Ann. § 56-3404b(b) (now O.C.G.A. § 33 — 34—5(b)); that the insured was subsequentIy injured in an accident covered by the policy; that the insured now has tendered the premium for maximum optional PIP coverage; that the expenses and losses covered by the accident exceed the $5,000 minimum coverage; and that the insurance company refuses to pay benefits above the $5,000 minimum.

      . This section of the policy is not arranged as compactly as appears herein. Also, the words appearing in capitalized letters are not as large as the "PREMIUM FINANCE," etc., heading of section two. Section three also contains accept/reject blocks for loss of use and collision coverage which are not shown here.

      . The court notes Leader National’s argument that there can be no Jones recovery because the application was not handled by its agent, per Morris. The facts regarding agency, or lack of agency, are not clear enough for summary judgment, however.


source: Caselaw Access Project

author: ALLEN SHARP, Chief Judge.

license: Public Domain

text:
    Bill WILLIAMS, Petitioner, v. Jack R. DUCKWORTH, Indiana Attorney General, Respondent.
    No. 84-368.
    United States District Court, N.D. Indiana, South Bend Division.
    Feb. 1, 1985.

      Bill Williams, pro se.
    Linley Pearson, Indiana Atty. Gen. by Robert B. Wente, Deputy Atty. Gen., Indianapolis, Ind., for respondent.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by Bill Williams, an inmate incarcerated at the Indiana State Prison, Michigan, City, Indiana. The matter is now before this court on respondents’ motion to dismiss, filed as part of their Return to Order to Show Cause. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court. Both sides having briefed their respective positions, this petition is now ripe for ruling.

Petitioner was convicted in a state court jury trial of rape, incest and sodomy in 1977. The Supreme Court of Indiana reversed and remanded on direct appeal because the state trial judge had handed the jury instructions to the foreman instead of reading them in open court. Williams v. State, 269 Ind. 430, 381 N.E.2d 458 (1978). Petitioner was retried by a jury and was again convicted on all three charges. He was sentenced in May of 1979 to life on the rape count, 2-14 years on the sodomy count, and 2-21 years for incest. On the second direct appeal to the Supreme Court of Indiana, the convictions were unanimously affirmed in a published opinion at Williams v. State, 273 Ind. 547, 406 N.E.2d 241 (1980).

Petitioner next filed a post-conviction relief petition on September 16, 1980. A hearing was held on December 30, 1980 and March 6, 1981. The petition was denied on March 11, 1981. Petitioner filed an appeal on the denial of the post-conviction petition with the Supreme Court of Indiana on December 21, 1983, the trial court was upheld on the denial of the post conviction petition, unanimously, in a published opinion at 442 N.E.2d 1063 (1982).

Petitioner raises the following issues in this application for habeas relief:

1. Fourth Amendment to the United States Constitution.
2. Fifth Amendment to the United States Constitution. Denied the right to a court hearing on D.D. or never was afforded a hearing on such charge.
3. Sixth Amendment to the United States Constitution.
4. Fourteenth Amendment to the United States Constitution. Petitioner’s rights to a fair trial has been violated by the warrantless arrest.

I.

In petitioner’s second direct appeal to the Supreme Court of Indiana, he raises the following issues as found in the Brief filed by his counsel.

1. Whether the jury’s verdict is contrary to law and is not sustained by sufficient evidence of a substantive nature to prove beyond a reasonable doubt every material element of the crimes of which he was convicted and because throughout the trial defendant Williams was denied his lawful presumption of innocence.
2. Whether the Court erred in allowing witnesses to testify as to certain events over defendant Williams’ objection that said testimony should be excluded as not complying with defendant’s alibi notice.

In his post-conviction relief petition the petitioner raised the following issues:

1. His arrest was unlawful, having been made without a warrant or probable cause.
2. His attorney on direct appeal was incompetent or uncooperative and ineffective in that he failed or refused to present certain issues.
3. He was denied the benefit of certain witnesses at the Post-Conviction Hearing.
4. He was denied the right to cross-examine the State’s witness, Miss Sunny Weed and others unnamed.
5. That he was twice placed in jeopardy for the same offenses.
6. That he was convicted under ex post facto law.
7. That he was wrongfully sentenced for rape by force whereas he was convicted of statutory rape.

II.

Petitioner has requested an evidentiary hearing on his habeas petition. The standard for determining the necessity of an evidentiary hearing have been well set forth in 28 U.S.C. § 2254 and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Essentially, the statute declares that an evidentiary hearing in federal habeas proceedings are necessary only when the petitioner establishes or the respondent admits, or it “otherwise appear[s], that the State court’s determinations of factual questions evidenced by written findings lack sufficient indicia of reliability.” Wickliffe v. Duckworth, 574 F.Supp. 979 (N.D.Ind.1983). In Rogers v. Israel, 746 F.2d 1288 (7th Cir.1984), the Seventh Circuit held:

Where material facts were not adequately developed at the state court hearing, the petitioner is entitled, under both 28 U.S.C. § 2254(d) (1982) and Townsend v. Sain, 372 U.S. 293 [83 S.Ct. 745, 9 L.Ed.2d 770] (1963), to an evidentiary hearing in federal district court, provided that the failure to develop the state court record was not due to inexcusable neglect or deliberate bypass. See Thomas v. Zant, 697 F.2d 977, 983-86 (11th Cir. 1983). See generally United States ex rel Jones v. Franzen, 676 F.2d 261, 268-70 (7th Cir.1982) (Posner, J., concurring). Thus, in order to obtain this federal hearing, a defendant must show the district court that the undeveloped facts were material and that there was no inexcusable neglect or deliberate bypass in failing to develop these facts. Thomas v. Zant, 697 F.2d at 988. (footnote omitted)

Here, the petitioner has failed to show that the State court’s determinations of factual questions evidenced by the well developed record lack sufficient indicia of reliability. Petitioner has further failed to show this court what facts are in dispute or what facts he would present to this court and for what purpose. Therefore, petitioner’s request for an evidentiary hearing is denied.

III.

Petitioner challenges his conviction because he claims that his arrest, the search of his home, and the removal of his children were all done without warrants and the evidence used at trial from these events was inadmissible. He also claims that he was arrested for a charge of D.D. and lodged in jail without ever being tried on said charge.

This court will address the claim of the charge of D.D. which allegedly was never brought to trial. This claim has nothing to do with his present incarceration. The claim is irrelevant to this proceeding. 28 U.S.C. § 2254. (They might afford some relief under 42 U.S.C. § 1983, a matter not here at issue).

With regard to petitioner’s claim of illegal arrest, search and removal of his children from his home, petitioner appears to have raised this issue in his post-conviction petition which was denied, and then affirmed on appeal. The Supreme Court of Indiana held that if any errors under this claim were meritorious, petitioner was required to claim them at trial and present them on appeal. These claims were not available to petitioner in a post-conviction petition. The Court further found that petitioner did not claim that any evidence came in at the trial by virtue of either his arrest or any search.

An oft-cited and well known requirement in the bringing of a habeas petition is that it is axiomatic that the petitioner exhaust his available state remedies. Exhaustion of state remedies is considered to be a procedural prerequisite to the consideration of a habeas corpus claim by a federal court. 28 U.S.C. § 2254(b) and (c); Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). Comity requires that prior to presentation of an issue to the federal courts by way of habeas corpus, that issue must first have been exhausted in the state courts to the extent that state court remedies are available. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). The Court in Picard v. Connor, supra, held:

We emphasize that the federal claim must be fairly presented to the state courts. If the exhaustion doctrine is to prevent “unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution,” Ex Parte Royall, supra, 117 U.S. [241] at 251, 6 S.Ct. [734] at 740 [29 L.Ed. 868], it is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal court.

For an issue to have been fairly presented to the state courts, that issue must be put before the state courts in a manner such that the constitutional issue is clear. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). There is no exception for a “clear” constitutional violation. Duckworth v. Serrano, supra.

Comity further cautions against a federal court interfering with a state court in a matter, absent an actual abuse or discrimination. O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

The objection is to unwarranted anticipatory interference in the state criminal process by means of continuous or piecemeal interruptions of the state proceedings by litigation in the federal courts; the object is to sustain “[t]he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138 (1951). (footnote and other citations omitted)
Id., at 500, 94 S.Ct. at 678.

The Supreme Court has extended the exhaustion doctrine to include the “complete exhaustion” rule which requires the petitioner in a habeas action to exhaust remedies on all issues presented in the petition for habeas relief. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In Rose, the Court held:

Where a petition containing exhausted and unexhausted claims is presented to a federal district court, that court must dismiss the petition, thus giving the prisoner the option of returning to state court to litigate his unexhausted claims or amending his district court petition to delete them.

See also, Petrucelli v. Coombe, 735 F.2d 684 (7th Cir.1984). The Rose Court, thus, held that the requirement [the exhaustion requirement] is inflexible, mandating that even “mixed” petitions, i.e., those presenting both exhausted and unexhausted claims be dismissed.

However, if a remedy is no longer available because of petitioner’s failure to comply with state procedural rules, then he has “procedurally defaulted” on said claims. United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983). The issue of the effect of a statute procedural default upon a federal habeas claim has been the focal point of much consideration by the federal courts. The Supreme Court of the United States has held: “We must determine, therefore, whether respondents may litigate, in a federal habeas proceeding, a constitutional claim that they forfeited before the state courts.” Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) when considering the affect of applying a procedural default as a bar to a constitutional claim stated: “We recognize that these costs are particularly high when a trial default has barred a prisoner from obtaining adjudication of his constitutional claim in the state courts. In that situation, the trial court has had no opportunity to correct the defect and avoid problematic retrials. The defendant’s counsel, for whatever reasons, has detracted from the trial’s significance by neglecting to raise a claim in that forum.” The Court also realized the consequences of the intervention of federal courts in the process of the state criminal proceedings and further stated, “The state appellate courts have not had a chance to mend their own fences and avoid federal intrusion. Issuance of a habeas writ, finally, exacts a charge by undercutting the State’s ability to enforce its procedural rules.” Id., at 129, 102 S.Ct. at 1572. Unless the petitioner can show “cause” for not advancing the arguments he now raises at the state level and the resulting “prejudice” he has procedurally defaulted on those claims. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1976). Failure to raise claims on direct appeal which could be raised, but are not, are considered waived for purposes of the Indiana post-conviction remedy. Greer v. State, 262 Ind. 622, 321 N.E.2d 842, 844 (1975).

In Engle v. Isaac, supra, the Court applying the Sykes test of “cause” and “prejudice” to a state procedural default in a federal habeas petition stated, “These considerations supported our Sykes ruling, that, when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and prejudice.

The Supreme Court of Indiana addressed petitioners’ claim of illegal arrest, search and usage of information garnered from said illegal acts in the appeal of the denial of petitioner’s Post-Conviction Petition and held, at 442 N.E.2d 1063 (1982):

His arrest was unlawful, having been made without a warrant or probable cause. Searches, if any, were also unlawful for the same reason. Errors, if any, under this claim were not available in the post conviction proceedings but, if meritorious, were required to be claimed at trial and presented on direct appeal.

Petitioner has defaulted on these claims because he has never afforded the State a fair opportunity to address these claims since he failed to comply with state procedural process. This court will not undercut the State’s procedural rules without a showing of cause and prejudice, which this petitioner has failed to do.

IV.

Petitioner claims that his Sixth Amendment right to counsel was violated when he was not appointed counsel during the time of his indictment until his arraignment. After a painstaking review of the entire record, nowhere does it show that the petitioner ever presented this argument to the Indiana courts. Petitioner did raise an issue of counsel competence during his appeal. However, the issue before this court, in particular was never fairly presented to the state courts. This court has addressed the issue of exhaustion above and will not reiterate the well known concept of exhaustion of State remedies. Petitioner has failed to exhaust his remedies as to this claim and thus, has presented a “mixed” petition under Rose v. Lundy, supra.

The Supreme Court of Indiana addressed petitioner’s issue regarding the incompetence, uncooperative and ineffective counsel issue in the post-conviction petition denial appeal. Therein the Court held:

His attorney on direct appeal was incompetent or uncooperative and ineffective in that he failed or refused to present the issues of “1. No probable cause for arrest. 2. Unlawful arrest without a warrant. 3. Unlawful search and seizure of my home without a search warrant, of probable cause and the kidnapping of my five children without a arrest warrant or search warrant. 4. All evidence used to convict me was a product of that illegal search and seizure, thus being ‘Fruits of the Poisoned Tree.’ ”
Again, there has been no showing that any evidence whatever was adduced by virtue of any arrest or search, which undoubtedly explains counsel’s reluctance to press the point. We also note Petitioner’s acknowledgment that such issue was presented in his first direct appeal, without success.

The burden of demonstrating ineffectiveness of counsel amount to a deprivation of constitutional rights is on the petitioner. Matthews v. United States, 518 F.2d 1245 (7th Cir.1975).

The petitioner has failed to carry his burden of proof. Further, the petitioner has failed to comply with state procedural rules and thus, has procedurally defaulted as to those claims.

Assuming arguendo, that petitioner has not procedurally defaulted on his claims of denial of counsel, the petitioner must show that he was denied counsel during a critical stage of the criminal process.

Petitioner’s indictment was submitted to the trial court on November 4, 1976, which was followed by an arrest warrant being issued. On November 16, 1976, attorney Rose filed his appearance on behalf of the petitioner. The arraignment was reset for November 22, 1976.

The Supreme Court in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970) has held that an accused has the right to counsel at every “critical stage” of the legal process:

This Court has held that a person accused of crime “requires the guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), and that that constitutional principle is not limited to the presence of counsel at trial. “It is central to that principle that in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused’s right to a fair trial.” United States v. Wade, supra, 388 U.S. [218] at 226, 87 S.Ct. [1926] at 1932 [18 L.Ed.2d 1149]. Accordingly, “the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” Id., 388 U.S. at 227, 87 S.Ct. at 1932. (Court’s emphasis.) (For a most recent application of these concepts see Evitts v. Lucey, — U.S. — , 105 S.Ct830, 83 L.Ed.2d 821 (1985) in different context)

The petitioner has not shown this court that he was denied the assistance of counsel at a "critical stage” of his criminal proceedings as established in Coleman v. Alabama, supra.

The Seventh Circuit Court of Appeals in Crisp v. Duckworth, 743 F.2d 580 (7th Cir.1984), held:

Strickland v. Washington, [— U.S. -], 104 S.Ct. 2052 [80 L.Ed.2d 674] (1984), established a two-prong test for determining whether a conviction must be set aside due to ineffective assistance of counsel. The defendant must show that his attorney’s representation “fell below an objective standard of reasonableness,” id. at 2065, and that there exists a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 2068.
Though we examine each example of incompetence individually, we must also consider their cumulative effect in light of the totality of circumstances. Strickland, supra, (cites omitted)

The Seventh Circuit has also held in United States of America ex rel. Huckstead v. Greer, 737 F.2d 673 (7th Cir.1984):

The Constitution guarantees a criminal defendant legal assistance which meets a minimum standard of professional representation. United States ex rel. Williams v. Twomey, 510 F.2d 634 (7th Cir. 1975), cert. denied, 423 U.S. 876 [96 S.Ct. 148, 46 L.Ed.2d 109]. This standard applies whether counsel is appointed or retained. Id. at 640. The mere fact that a lawyer makes errors in the course of a trial does not necessarily demonstrate a failure to meet minimum professional standards. Wade v. Franzen, 678 F.2d 56 (7th Cir.1982). Minimum professional competence guarantees reasonably effective counsel, not errorless counsel. United States v. Weston, 708 F.2d 302, 306 (7th Cir.1983). Even the best lawyers are not infallible. Wade, 678 F.2d at 58. There is no presumption of a deprivation of constitutional rights merely because defendant’s attorney makes egregious errors, tactical or strategic, in the preparation of actual trying of a case. Twomey, 510 F.2d at 640.
To prove a claim of ineffective assistance of counsel a defendant must demonstrate that counsel provided representation amounting to grossly incompetent professional conduct. Weston, 708 F.2d at 306. When reviewing an attorney’s performance we are not free to second guess legitimate tactical decisions, rather, we examine only those blunders not classifiable as attorneys’ tactics and determine whether they amount to grossly unprofessional conduct. Id. at 306.

Therefore, in light of the record here, this court finds that the petitioner was not denied assistance of counsel during a critical stage of his criminal proceedings. This court further finds that the petitioner has not met the standard hereinabove set forth regarding ineffectiveness of counsel as to either his trial counsel or his appellate counsel.

CONCLUSION

Accordingly, it is the order of this court based on the foregoing reasons that the respondent’s motion to dismiss be and is hereby GRANTED; that the writ is DENIED; and that the petition is hereby ordered DISMISSED.


author: EDWARD WEINFELD, District Judge.

text:
    O & L ASSOCIATES, Plaintiffs, v. Andrea DEL CONTE, Rebecca Sullivan, and Hope Rayman, Defendants.
    No. 83 Civ. 7939 (EW).
    United States District Court, S.D. New York.
    Feb. 1, 1985.
    Milgrim, Thomajan, Jacobs & Lee, P.C., New York City, for plaintiffs; Charles B. Ortner, Victoria A. Cundiff, New York City, of counsel.
    Murphy & O’Connell, New York City, for defendants; Patrick Murphy, New York City, of counsel.
    Weil, Gotshal & Manges, New York City, for Columbia Pictures Industries, Inc.; Robert G. Sugarman, New York City, of counsel.
   OPINION

EDWARD WEINFELD, District Judge.

On March 22, 1984, Columbia Pictures Industries, Inc. (“Columbia”), not a party to this action, entered into an agreement with the defendants with respect to the motion picture “The Karate Kid.” By that agreement, Columbia allegedly acquired the universal right, in perpetuity, to use and permit others to use the name “The Flirts” in connection with the motion picture and the soundtrack album derived from it. Thereafter, Columbia allegedly released the motion picture with a soundtrack that includes a song performed by defendants and with an end credit that attributes their performance to “The Flirts.” A similar credit allegedly appears on the soundtrack album and audio cassette, which are distributed by Polygram Records, Inc. under license from Columbia. The motion picture is currently being exhibited in sixty six theaters in the United States and Canada and an additional 900 theaters worldwide.

On December 3,1984, this Court issued a Preliminary Injunction Order (the “Order”), which provides in pertinent part that

pending final determination of this action, defendants and each of them, and their officers, agents, servants, employees, attorneys, and all others in concert or participation with any of them, on behalf of any of them, in privity with any of them, or acting under authority or license granted by any of them who receive actual notice of this order by personal service or otherwise, be and hereby are preliminarily enjoined from ... using the name “The Flirts” ... in connection with any entertainment services or entertainment products.

Columbia now moves to suspend and modify the Order so as to exclude from its scope the distribution and exploitation of the motion picture “The Karate Kid” and the soundtrack album in any medium using any device, including, but not limited to, theatrical exhibition, video disc, video cassette, phonograph record, audio cassette, and compact disc.

As already noted, Columbia is not a party to the action, nor has it been served as such. At oral argument, the Court questioned whether Columbia was proceeding properly in bringing the instant motion, but counsel for Columbia responded that the terms of the Order bind Columbia as one “acting under authority or license granted by any of [the defendants].” It is well established, however, that the terms of an injunction may not enlarge its scope beyond that defined in the Federal Rules of Civil Procedure. Rule 65(d) provides that

[e]very order granting an injunction ... is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Consequently, the Order does not bind Columbia unless and until Columbia is shown to have acted with actual notice of the Order and in “active concert or participation” with defendants in violating the Order.

Such a showing requires proof that Columbia either has abetted defendants in violating the Order or is legally identified with them. On the affidavits before the Court, however, the most that can be said is that Columbia and the defendants entered into their licensing agreement after the instant lawsuit had commenced and plaintiffs had filed their motion for preliminary injunctive relief but more than eight months before the injunction was issued. There is no allegation by Columbia or anyone else that defendants have violated the injunction, much less that Columbia has colluded with them in doing so. Unless the defendants were involved in a violation of the Order, Columbia cannot be held in contempt as an abettor. Nor is there any evidence that the licensing agreement is anything but an arm’s length transaction involving totally distinct entities. Columbia did not become legally identified with defendants simply by obtaining a license to use a service mark allegedly belonging to them. Moreover, while Columbia allegedly obtained a “universal right, in perpetuity,” to use the name “The Flirts,” that alleged right is limited to use in connection with the distribution and exploitation of “The Karate Kid.” Since there is no evidence that Columbia acquired defendants’ business enterprise, Columbia may not be regarded as the defendants’ successor in interest to property in litigation such that a decree issued in connection therewith is binding upon it.

The only arguably relevant fact issue that Columbia and the parties to this action have raised on this motion is whether Columbia had notice of the pending lawsuit and motion for preliminary injunctive relief when it entered into the licensing agreement with defendants. Columbia, in a sworn affidavit on personal knowledge, denies having had such notice, and the affidavit is uncontroverted by anyone having personal knowledge of the matter. Yet even if Columbia had known that an injunction had already been issued, it would not necessarily have become bound thereby. By itself, notice of an injunction does not bind a nonparty recipient; there must also be proof that the nonparty was in “active concert or participation” with defendants within the meaning of Rule 65(d). Broad language in a decree is no substitute for such proof. In the absence of any evidence that Columbia was in “concert or participation” with defendants, Columbia, as well as anyone else, has failed to raise an issue whether it is bound by the Court’s Order. Consequently, there is no need to consider Columbia’s application that the Order be vacated with respect to the distribution and exploitation of “The Karate Kid.”

The question remains whether the language of the Order should be made to conform to that of Rule 65(d). While an injunction is not invalid simply because its terms purport to broaden its scope beyond that defined in the Rules, there is no justification for using such terms when, as it appears in this case, the only effect they are likely to have is to threaten those who are not subject to the command of the Court. Accordingly, the first full paragraph on page two of the Order dated December 3, 1984 is modified by deleting the phrase “or acting under authority or license granted by any of them.” Also, defendants’ application to increase the amount of plaintiffs’ bond is denied. Any injury they may sustain if Columbia were held to be bound by the Order is speculative in view of the foregoing.

So ordered.

      . O & L Associates v. Del Conte, No. 83 Civ. 7939, Preliminary Injunction Order, (S.D.N.Y. Dec. 3, 1984) (emphasis added).

      . Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14, 65 S.Ct. 478, 481, 89 L.Ed. 661 (1945).

      . See Vuitton et Fils S.A v. Carousel Handbags, 592 F.2d 126, 129 (2d Cir.1979); Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (2d Cir.1930).

      . Vuitton et Fils, 592 F.2d at 130; Backo v. Local 281, United Bro. of Carpenters & Joiners, 438 F.2d 176, 180-81 (2d Cir.1970), cert. denied, 404 U.S. 858 (1971); Alemite Mfgr., 42 F.2d at 833.

      . See Herrlein v. Kanakis, 526 F.2d 252, 254 (7th Cir.1975); Heyman v. Kline, 444 F.2d 65, 66-67 (2d Cir.1971); United Pharmacal Corp. v. United States, 306 F.2d 515, 517-18 (1st Cir.1962); Alemite Mfg., 42 F.2d at 833.

      . See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 108-12, 89 S.Ct. 1562, 1568-70, 23 L.Ed.2d 129 (1969); Heyman, 444 F.2d 66-67; Petersen v. Fee Int'l, Ltd., 435 F.Supp. 938, 943-44 (W.D.Okla.1975).

      . See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 177-80, 94 S.Ct. 414, 421-23, 38 L.Ed.2d 388 (1973); Regal Knitwear, 324 U.S. at 14-15, 65 S.Ct. at 481; Computer Searching Serv. Corp. v. Ryan, 439 F.2d 6, 9 (2d Cir.), cert. denied, 404 U.S. 871, 92 S.Ct. 62, 30 L.Ed.2d 115 (1971).

      . Regal Knitwear, 324 U.S. at 14-16, 65 S.Ct. at 481-482; Chase Nat'l Bank v. City of Norwalk, 291 U.S. 431, 436-37, 54 S.Ct. 475, 477, 78 L.Ed. 894 (1934); Vuitton et Fils, 592 F.2d at 129; Alimente Mfg., 42 F.2d at 832-33.

      . Regal Knitwear, 324 U.S. at 15-16, 65 S.Ct. at 481-482.

      . See id. at 16-17, 65 S.Ct. at 482 (Stone, C.J., dissenting).


author: BUA, District Judge.

text:
    Glen LEHPAMER, Plaintiff, v. Stanley D. TROYER, Chief of the Police Department of the Village of Downers Grove, Illinois, Defendant.
    No. 84 C 3144.
    United States District Court, N.D. Illinois, E.D.
    Feb. 4, 1985.

      Stanley H. Jakala, Berwyn, 111., for plaintiff.
    David Lincoln Ader, Ancel, Glink, Diamond, Murphy & Cope, P.C., Chicago, 111., for defendant.
   ORDER

BUA, District Judge.

Before the Court is defendant’s motion to dismiss plaintiff’s amended complaint under § 1983 and the First and Fourteenth Amendments to the United States Constitution. For the reasons stated herein, defendant’s motion to dismiss is granted.

I. FACTS

Plaintiff Glen Lehpamer is a police officer currently employed by the Village of Downers Grove Police Department. Defendant Stanley D. Troyer is the Chief of the Downers Grove Police Department. Since 1978, plaintiff has been subject to various evaluations by the police department. Plaintiff has spoken out against some poor evaluations, which were eventually upgraded. Plaintiff was suspended on July 17 and 18, 1982, in connection with an alleged shouting match with one of his supervisors relating to plaintiff’s police performance. The suspension was subsequently reversed by the Downers Grove village manager.

In addition, plaintiff alleges that, due to the suspension’s reversal, the defendant referred the plaintiff for psychological testing which resulted in a report dated August 2, 1982. Further psychological testing and evaluations were conducted on the plaintiff. However, plaintiff does not allege that these evaluations were used to discontinue the plaintiff in testing for sergeant’s promotions. Plaintiff alleges only that the psychological testing was “prejudicial.”

Plaintiff also alleges that he was denied light duty police assignments, necessitated by an off-duty related incident, because he had spoken out against his poor evaluations. In support of this allegation, he states that he informed his supervisors of back pain which prevented him from driving a squad car, but that his supervisors would not assign him to other duty. However, plaintiff does not allege that any light duty assignments were available, even though he states that it was the custom and practice of the police department to assign light duty to persons with off-duty injuries.

Finally, plaintiff alleges that he took a written examination for promotion to sergeant, but he did not get the promotion. The examination was allegedly graded “in-house” and not by an outside testing center. Therefore, plaintiff concludes that he was denied his sergeant’s promotion on the basis of defendant’s bias and prejudice toward him for speaking out against poor evaluations and in defense of his performance as a police officer.

From these allegations, plaintiff sets forth four grounds for denial of his civil rights: (1) violation of his First Amendment right to speak out regarding personnel practices; (2) violation of the due process clause of the Fourteenth Amendment; (3) violation of the liberty interest clause of the Fourteenth Amendment; and (4) violation of the equal protection clause of the Fourteenth Amendment.

II. DISCUSSION

A complaint should not be dismissed unless it appears beyond doubt that plaintiff could 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 plaintiff’s complaint as true.

1. Violation of First Amendment Rights

Plaintiff alleges numerous adverse actions which occur in retaliation for, and therefore as a consequence of, his complaints regarding poor job evaluations and the unwillingness of the defendant to assign plaintiff to light duty due to his off-duty injury. The bias allegedly directed toward plaintiff in connection with the sergeant’s promotional examination is also related to plaintiff’s complaints about his job evaluations. In addition, the prejudicial psychological testing arose out of plaintiff’s complaints.

Defendant counters that there is no duty to provide plaintiff with light duty work and there was also none available. Regarding the psychological testing, defendant avers generally that acts in retaliation for an employee’s comments do not violate or curtail the employee’s First Amendment rights where his comments relate to purely personal matters, such as job evaluations and assignments. Finally, defendant argues that the sergeant’s promotional examination is not of the type which is open to bias and prejudice in the grading process.

It is well established that an employee cannot be disciplined consistently with the due process clause in retaliation for the exercise of his First Amendment rights. Altman v. Hurst, 734 F.2d 1240, 1243 (7th Cir.1984); see also Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). The Supreme Court, in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), recently announced a test to determine when the First Amendment protects the speech of public employees. It held there “that when a public employee speaks not as a citizen upon matters only of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, 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. at 147, 103 S.Ct. at 1690.

The Connick test has been applied to bar § 1983 claims involving personnel disputes brought under the guise of a First Amendment violation. In Connick, an assistant district attorney was fired for insubordination for distributing a questionnaire to other district attorneys in the office. The questionnaire concerned office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. The Supreme Court, finding that at least the last issue was one of public concern, nevertheless concluded that the questionnaire, on the whole, did not involve speech of public concern. Instead it characterized the questionnaire as an act of insubordination motivated by plaintiff’s unhappiness over a planned transfer. Id. at 151, 103 S.Ct. at 1692. Given the essentially “private motive” for the speech, the Court found that plaintiff’s firing was not actionable under § 1983.

In the present case, the speech involves plaintiff’s complaints about poor job evaluations and work assignments. The speech here is analogous to the employee dispute in Altman v. Hurst, 734 F.2d 1240 (7th Cir.1984). In Altman, a police officer was disciplined because he encouraged another officer to appeal her suspension and in retaliation for his filing the civil rights lawsuit. The court affirmed the dismissal of the complaint, finding that plaintiff’s speech-related conduct involved a private personnel dispute, but not matters of public concern. Id. at 1244. In concluding that the plaintiff policeman’s First Amendment rights had not been violated, the Altman court observed: “Such disputes are best left to internal procedures established by employers and employees or, as here, where no such protection exists or where such procedures are inadequate, through state court adjudication.” Id.

In the present case, plaintiff police officer alleges certain retaliatory acts which involve unfair work assignments (no light duty assignments given to plaintiff) and unfair treatment in the sergeant’s promotional procedures, resulting in plaintiff’s withdrawal from the promotional procedure. These acts arise as a consequence of plaintiff’s complaints about poor job evaluations and the defendant’s unwillingness to grant plaintiff light duty assignments for an off-duty injury. Plaintiff contends that his complaints constitute speech relating to matters of public concern under the Con-nick test because the Illinois Civil Service Act, Ill.Rev.Stat, Ch. 24, § 10-2.1-1, et seq., makes police personnel policy a matter of concern to the public which the police department serves.

The Court rejects plaintiffs attempt to transform speech related to dissatisfaction with personnel decisions into protected speech relating to matters of public concern. In attempting to draw the line between personnel disputes and policy and matters of public concern, the Court finds the reasoning in Murray v. Gardner, 741 F.2d 434 (D.C.Cir.1984), to be persuasive, and the case of Begg v. Moffitt, 555 F.Supp. 1344 (N.D.Ill.1983), relied upon by plaintiff, to be distinguishable. In Begg v. Moffitt, supra, First Amendment protection was accorded a .policeman who made accurate public comments about proceedings in open court in which a ticket quota which directly affected the public was declared illegal. 555 F.Supp. at 1353.

In the present case, the plaintiffs speech does not involve a policy which directly affects the public as the ticket quota did in Moffitt. The Court finds that all of plaintiffs comments relate to purely personal matters which plaintiff raised with his employer. In addition, as in Murray v. Gardner, supra, plaintiffs questioning of defendant’s personnel policy does not involve matters of public concern merely because public monies and government efficiency are involved. 741 F.2d at 438. The Court’s finding is bolstered by the fact that plaintiff’s complaints would not enrich the public’s store of appropriate knowledge regarding the operation of the police department as it affects the public. Id.

Since plaintiffs speech does not involve matters of public concern, his First Amendment rights could not be violated. Since his First Amendment rights have not been violated, the Court grants defendant’s motion to dismiss Count I of plaintiff’s complaint.

2. Violation of Due Process Property Interests

Plaintiff alleges a property interest in a light duty assignment when he could not carry on with regular police work because of an injury which he sustained from off-duty activities. This property interest arises out of a “custom and practice” of the Downers Grove Police Department, and not a contract or statute. Defendant counters that light duty assignment is neither a statutorily-created interest, a contractually-created interest, nor an interest created by custom and practice. Even if there is such an interest, defendant argues that plaintiff has not exhausted his remedies in state court and that a post-deprivation hearing would be sufficient.

A property interest arises for purposes of the due process clause, “if there are such rules or mutually explicit understandings that support [a] claim of entitlement to the benefit____” Altman v. Hurst, supra, 734 F.2d at 1242 (citing Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972)). If a cognizable property interest arises out of a mutually explicit understanding, it does not follow that plaintiff is due a predeprivation hearing. Altman v. Hurst, supra, 734 F.2d at 1242. In Altman, the court concluded that plaintiff “could receive all the process he was due in a post-deprivation hearing; namely, a state tort action for wrongful deprivation of his property.” Id. at 1242. The court in Altman noted that the plaintiff did not assert a property interest arising out of contractual obligations contained in his employment contract. Id. at 1242 n. 7.

In the present case, plaintiff alleges a custom and practice establishing light duty assignments for off-duty injury. He alleges no statute or contract as the basis for this alleged property interest. While it expresses doubt regarding the existence of a property interest such as alleged in this case, the Court finds that the interest, if any, in light duty assignments due to off-duty injury is insubstantial in relation to the substantial interest of the police department in managing work schedules and assignments. Id. Therefore, as in Altman, the Court in the present case finds that, assuming the plaintiff is due any process for his deprivation, state court remedies provide .sufficient relief for purposes of section 1983. Accordingly, defendant’s motion to dismiss Count II of plaintiffs complaint is granted.

3. Violation of Due Process Liberty Interest

Plaintiff alleges that denial of light duty assignments and discontinuation from the sergeant’s promotional procedure constitute deprivation of a liberty interest under due process because these deprivations occurred in retaliation for the exercise of his First Amendment rights. Defendant counters that no liberty interest can be involved because plaintiff is still employed by defendant and he is free to seek alternative employment.

The Supreme Court has held that even the loss of one’s job does not amount to a deprivation of “liberty,” as long as one remains free to obtain alternative employment. Paul v. Davis, 424 U.S. 693, 709-10, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976), reh. denied, 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976); Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). In Webster v. Redmond, 599 F.2d 793 (7th Cir.1979), cert. denied, 444 U.S. 1039, 100 S.Ct. 712, 62 L.Ed.2d 674 (1980), the Seventh Circuit Court of Appeals has held that no liberty interest is implicated where a plaintiff is denied a promotion, since he remains free to seek alternate employment if dissatisfied with his job. Id. at 798.

In the present case, plaintiff’s allegations of a liberty interest in light duty assignments and the sergeant’s promotional procedure standing alone are foreclosed by Webster v. Redmond, supra. Plaintiff’s allegation of deprivation of these interests based on First Amendment rights being violated might be actionable. However, the Court has already found that plaintiff’s speech does not involve First Amendment rights. Therefore, the alleged liberty interests cannot survive based on an alleged violation of First Amendment rights.

Plaintiff also relies on DiIulio v. City of Northlake, 682 F.2d 666 (7th Cir.) cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982), for the proposition that he has a liberty interest in a fair promotional system. However, DiIulio is distinguishable from the present case. In DiIulio, the court held that the plaintiffs had a liberty interest in not being subjected to an arbitrary system of promoting personnel. The interest in DiIulio involved substantive due process because plaintiff’s interest was in not being subjected to an arbitrary system — a substantive constitutional right. Begg v. Moffitt, 555 F.Supp. 1344, 1347 n. 7 (N.D.Ill.1983).

In the present case, as in Moffitt, plaintiff does not allege that the scheme used by defendants was an arbitrary one; he attacks only the decisions made in his case, not the overall system. Id. Therefore, in this situation, Dilulio is distinguishable and Webster controls to defeat plaintiff’s liberty interest claim. Accordingly, defendant’s motion to dismiss Count III of plaintiff’s complaint is granted.

4. Violation of Equal Protection

Plaintiff alleges a violation of equal protection because he was not given light duty assignments for off-duty injury. He alleges that he was treated differently from others who were granted light duty assignments. However, plaintiff identifies no officers who received light duty assignments nor any positions available involving light duty assignments. Defendant argues that plaintiff’s equal protection claim is based on his First Amendment claim.

A mere inconsistency in the way the state treats persons is not the basis for an equal protection claim unless it is caused by the defendants’ purposeful and intentional discrimination. Shango v. Jurich, 681 F.2d 1091, 1103-04 (7th Cir.1982). Where, as here, the only purpose or intent alleged in the complaint is an intent to retaliate against plaintiff for his comments on personnel policy, plaintiff’s equal protection claim is indistinguishable from his First Amendment claim. Begg v. Moffitt, supra, 555 F.Supp. at 1353 n. 32. Therefore, in the present case, since the plaintiff alleged no basis for purposeful or intentional discrimination other than retaliation for his comments regarding personnel policy, the Court finds that his equal protection claim is indistinguishable from his First Amendment claim and likewise should be dismissed. Accordingly, defendant’s motion to dismiss Count IV of plaintiff’s complaint is granted.

III. CONCLUSION

Defendant’s motion to dismiss all four counts of plaintiff's complaint is granted.

IT IS SO ORDERED.