author: THOMAS F. HOGAN, District Judge.

text:
    GLACIER GENERAL ASSURANCE COMPANY, Plaintiff, v. CONTINENTAL CASUALTY CO., Defendant.
    Civ. A. No. 83-1703.
    United States District Court, District of Columbia.
    March 19, 1985.

      Richard W. Boone, Lori J. Lustig, Todd S. Deckelbaum, Wilkes, Artis, Hedrick & Lane, Chartered, Washington, D.C., for plaintiff.
    James W. Greene, Bromley, Brown & Walsh, Washington, D.C., for defendant.
   MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

At issue before the Court on cross-motions for summary judgment is a dispute between two insurance carriers over which of the two companies shall ultimately bear the expense of the settlement of a malpractice claim against a podiatrist, Dr. Love, who was insured by the two companies during consecutive time periods. Counsel have done an excellent job of briefing and arguing the case, and the Court has reviewed the extensive filings and underlying documentation including the depositions of the parties’ expert witnesses. A detailed examination of the factual setting of this case is not necessary, but, briefly stated, the undisputed facts are as follows.

Dr. Love, a licensed podiatrist, was insured under a professional liability policy issued by plaintiff Glacier General Assurance Company (Glacier) from April 1, 1977 to March 31, 1981. Dr. Love’s professional liability insurance policy from March 31, 1981 to March 31, 1982 was issued by the defendant, Continental Casualty Company (Continental).

Phillip Cephas, a patient of Dr. Love from June 1979 until July 1981, had his legs amputated on September 29, 1981 and July 30, 1982 allegedly as a result of Dr. Love’s professional errors or neglect. Mr. Cephas filed a malpractice suit against Dr. Love in this Court and the parties to the present action jointly undertook the defense of Dr. Love until such time as the issue of responsibility for coverage could be determined. On April 6, 1983, Mr. Cephas released his claims against Dr. Love for the sum of $500,000, which was provided by equal contributions from each carrier. The present lawsuit was subsequently filed in which both parties seek to recover their one-half contribution to the defense and settlement of Mr. Cephas’ claim.

At the outset, it is obvious that Mr. Cephas was treated by Dr. Love during the coverage period of both companies. It is equally obvious that Mr. Cephas suffered the injury (the amputation of his right leg) during the Continental coverage period. However, the test for coverage is not so simple. In order to determine which of the two carriers is liable, the Court must first turn to the language of the policies in question. The insurance policy issued by Glacier provides, in pertinent part, that Glacier would pay

... all sums of money which ... [Dr. Love] shall become legally obligated to pay as damages ... for bodily injury ... suffered by any person during the policy period, arising as the result of the professional services rendered or which should have been rendered by ... [Dr. Love].

The policy issued by Continental to Dr. Love provides, in pertinent part, that Continental was obligated to pay

... all sums which ... [Dr. Love] shall become legally obligated to pay as damages because of injury ... caused by medical incident which occurs during the policy period, in the practice of ... [Dr. Love’s] profession.

The policies are similar, not only in coverage, but in premiums and limits, but they are not identical. The Glacier policy is triggered by “damages ... for bodily injury ... suffered by any person during the policy period....” Continental is triggered not by injury but by “medical incident [resulting in injury] which occurs during the policy period.”

According to the expert testimony, Mr. Cephas’ ultimate physical injury—the amputation of his legs—was the result of progressive vascular disease. In the course of oral argument, both counsel conceded that the negligence of Dr. Love—insofar as his failure to properly diagnose constituted negligence—continued throughout the period of treatment. They would also agree that an earlier diagnosis of vascular disease might have prevented the amputation from becoming necessary.

The parties do not agree however as to the legal significance of these facts.

Defendant Continental has argued that Dr. Love should have made his diagnosis during the Glacier coverage period because the disease was “obvious” as early as the summer of 1979 and that by January of 1981 there were “numerous classic symptoms” of progressive vascular disease. The defendant further suggests that by early May, 1981, the disease had sufficiently progressed so that amputation was “inevitable.” The defendant argues that pri- or to March 31, 1981, there was a “substantial possibility of a better result for Mr. Cephas which was destroyed by the continuing negligent failure to diagnose....” Thus, according to Continental, Mr. Cephas suffered bodily injury during the Glacier coverage period when Dr. Love’s negligent failure to diagnose “allowed his vascular disease to progress unnoticed to a critical point.”

Plaintiff, unsurprisingly, sees the facts in a different light. Plaintiff agrees that the disease in question was progressive and that there was a “negligent exposure” to the disease over a period of time. However, according to Glacier, “Dr. Love could not have discerned the underlying illness ... any more than two or three months ... prior to the culmination of the disease in July.” Although plaintiff admits that “[one] could find that the injury to Mr. Cephas was continuing in nature and occurred during both policy periods,” Glacier suggests that it would be more appropriate to focus on the period when the disease was “obvious” yet undiagnosed—from May to July, 1981—and when the continuing negligence culminated in the injury-producing “medical incident” of amputation. In other words, Glacier places the operative events solely within the Continental coverage period.

Both parties would no doubt agree that it would be difficult if not impossible to fix a point in time when the “injury” to Mr. Cephas occurred. In fact, for purposes of accuracy, one would want to draw two lines: the first at the point when the non-diagnosis became “negligent” and began the chain of causation that led to the operation, and the second at the point where amputation became inevitable. It was during this time period that the “medical incident” (Continental’s triggering term) of negligent treatment (non-diagnosis) was causing injury (Glacier’s triggering term) to Mr. Cephas as his vascular disease progressively worsened.

The Court, of course, cannot pinpoint this period of time, but it can say with some confidence that the conduct which proximately caused the injury in this case overlapped the coverage period of both carriers. Based on this factual finding—which was not seriously disputed by the parties—the Court holds that the coverage of both parties was triggered in this case.

A finding of dual coverage raises the further issue of how the liability for the loss should be apportioned between the two carriers. Plaintiff Glacier has argued that the method of apportionment is dictated by the law of this Circuit established in Keene Corp. v. Insurance Company of North America, 667 F.2d 1034 (D.C.Cir.1981).

In Keene, the court considered the liabilities of various insurers for damages incurred by their insured, an asbestos manufacturer, in products liability litigation resulting from asbestosis and other related diseases. The court held that the coverage of any or all of the insurance carriers was triggered by “inhalation exposure, exposure in residence, [or] manifestation” during the policy period. Id. at 1047. In short, the court construed the companies’ coverage as broadly as possible “in order for Keene’s rights under the policies to be secure.” Id. at 1046. The court also held that in order to “secure [the] function of relieving Keene of all risk of liability,” any insurer whose coverage is triggered would be held liable to Keene up to the policy’s limits.

With respect to the allocation of liability between the companies, the court held that “Keene [will] be able to collect from any insurer whose coverage is triggered the full amount of indemnity that it is due, subject only to the provisions in the policies that govern the allocation of liability when more than one policy covers an injury. That is the only way that Keene can be assured the security that it purchased with each policy.” Keene at 1050. As one can see, both the holding and language of Keene strongly suggest the purpose of the court’s decision: to insure that the liability coverage cast a broad enough net to protect the asbestos manufacturer and, consequently, the victims of asbestos-related diseases. This Court does not believe that the Keene holding—designed to maximize coverage in a unique liability situation— can be applied across the board to all situations of multiple coverage.

Glacier, however, argues that Keene is applicable and that application of the Keene holding results in Glacier’s release from all liability. Based on the Keene court’s holding that the allocation of liability will be governed by the provisions of the policies (i.e., “other insurance” clauses), Glacier argues that Continental is liable for the full amount of the settlement under the terms of the following clause of Glacier’s policy:

If other valid insurance exists at any time protecting against a loss covered by this policy, this policy shall be null and void with respect to said loss....

Glacier reasons that because Continental’s policy protects against the same “loss” (i.e., Mr. Cephas’ injuries resulting from their insured’s alleged malpractice), its own policy is “null and void” and the full liability is Continental’s.

However, even if the Keene opinion on insurance allocation was not sui generis, this Court finds that the case at bar is distinguishable on several grounds. Thus, assuming arguendo that Keene is broadly applicable as suggested by plaintiff, the allocation suggested by Glacier is nevertheless inappropriate.

First, the language of the Glacier policy is only operative if other valid insurance protects against a “loss covered by [the Glacier] policy.” As noted above, the injury occurred in both policy periods. Although the “loss” cannot be scientifically apportioned, there is nothing to suggest that Continental’s policy applies to the indivisible portion of the “loss covered by [the Glacier ] policy.” Under a strict reading of the Glacier policy the “null and void” provision is not activated by the facts of this case.

Second, this is not a situation where one carrier (i.e., Glacier) has issued an “excess” or “umbrella” type policy, while another (i.e., Continental) has assumed the greater risk of providing primary coverage. See 3 R. Long, The Law of Liability Insurance §§ 22.06, 22.07A (1981). Aside from some innocuous matters, the Glacier and Continental policies are identical. Both provide the same amount of liability protection for the same type of claim for virtually identical costs. Yet, if Glacier were really providing an “excess” policy or some type of “secondary” coverage, one would expect its premium to be significantly lower to reflect its lower risk.

Third, this is not a case, such as in Keene, where an insured is litigating coverage issues against multiple insurers. This case is in the very different posture of litigation of coverage issues between insurers. In such a case, there is no contract, or other agreement, between the parties to this litigation that the Court may turn to as a primary source. Instead the Court must examine the parties’ rights and liabilities in light of their contracts with a mutual third party (their insured). Viewed in this light it is inequitable and somewhat arbitrary to bind Continental to an ambiguous clause in a contract between its insured, Dr. Love, and his previous insurer.

Fourth—and most important—the existence of the “other insurance” language of the Glacier policy does not negate the “other insurance” provisions of the Continental policy. As Glacier correctly points out, the Continental policy provides that “[t]he insurance afforded by this policy is primary insurance....” However, the policies at issue are consecutive and not concurrent, and as previously noted, both policies may be considered “primary” within their coverage period. The Continental policy goes on to provide that “[w]hen both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the company shall ... be liable [as set forth below].” The contract then sets forth two formulas; “contribution by limits” is applicable when, as in the present case, the “other insurance does not provide for contribution by equal shares....” Giving effect to the language of the Glacier policy would require this Court to ignore the Continental policy’s contrary provision on the allocation of other insurance. Where, as here, the terms of the two policies are repugnant, it is not appropriate to merely give effect to one policy or the other. See infra pages 131-182. Instead the Court must read out the repugnant clauses and decide the case on the basis of the remaining language and the applicable law.

Thus, for the reasons above, as well as this Court’s belief in the limited scope of the Keene opinion, the Court will deny Glacier’s motion for summary judgment predicated on the argument that the entire loss must be allocated to Continental according to the terms of Glacier’s “other insurance” clause.

The denial of Glacier’s motion still leaves the issue of allocation open. As noted above, the two policies are in conflict on this issue and the “injury” or “loss” is incapable of accurate apportionment between the relevant time periods. In sum, this case is factually distinguishable from the usual multiple coverage case and there is no obvious method for dividing the “loss.”

The Court is not completely without guidance, however. For example, the Oregon Supreme Court considered the problem of apportionment where one of two automobile liability policies contained an “excess insurance” provision and the other policy contained a “pro rata” distribution provision. Lamb-Weston, Inc. v. Oregon Automobile Ins. Co., 219 Or. 110, 341 P.2d 110 (1959). Recognizing the repugnancy of the two clauses, the Court examined the various rules of law and interpretation adopted by the courts in reconciling such conflicting language. The court declined to adopt any of the various rules and held that in such a situation the insurers should share the loss proportionately. The court reasoned that such repugnant clauses could not in fact be reconciled and rather than attempting to do so, both clauses should be rejected. See also Cosmopolitan Mutual Ins. Co. v. Continental Casualty Co., 28 N.J. 554, 147 A.2d 529 (1959) (when “excess insurance” provisions are mutually repugnant, they become “inoperative” and “each company is obligated to share in the cost of the settlement and expenses.” 3 R. Long, The Law of Liability Insurance § 22.08 (1981) (discussing Lamb-Weston and citing other cases).

Other courts have adopted a variety of “artificial and forced rules” for determining the liability of multiple insurers. See id. Some courts shift the liability to the insurer of the primary tortfeasor; other courts fix liability on the insurer whose contract is deemed the “most specific” or the insurer who was first in time of issuance.

This Court does not believe that any of these formulas reach the central issue involved—the language and intent of the parties. See Woodrich Construction Co. v. Indemnity Insurance Co., 252 Minn. 86, 89 N.W.2d 412 (1959) (“the decision must rest upon a construction of the language employed by the respective insurers and not upon ... any other arbitrary rule or circumstance”). Obviously, the two policies are drafted without reference to each other and, in many circumstances, the underwriter will not have been able to anticipate the conflict. In such a case, speaking of the particular “intent” of the insurer is meaningless, and the language of the repugnant other insurance clauses should be rejected as a basis for decision.

Although the present case may be distinguished from many of the “other insurance” cases discussed above, in that those cases deal with two policies that clearly cover a single loss, whereas the present case involves a loss “divided” between two policies, the Court finds the holdings in those cases instructive. It is generally held that when the conflicting clauses are ignored, as they must be, the Court should—in the absence of other grounds for distinguishing the policies—evenly prorate the loss between the two insurers. See United States Fidelity & Guarantee Co. v. Liberty Mutual Ins. Co., 327 F.Supp. 462 (M.D.Pa.1971) (loss prorated based upon maximum limits of each policy where provisions of policies mutually repugnant); Cosmopolitan Mutual; Lamb-Weston, supra.

This outcome is further supported by local precedent providing for equal distribution of the loss where the time of the loss cannot be established with sufficient precision to place it within one of the two coverage periods. Transameriea Insurance Co. v. Diplomat Parking Corp., 282 A.2d 564 (D.C.1971). The court in Transamerica noted that the liability rule adopted in that case closely paralleled the liability of joint tortfeasors. Id. at 566 (citing Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948); Ybara v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944); Restatement (Second) of Torts § 433B (1965)). This analogy is appropriate in the present action as well. The parties in this case, through their contracts of insurance, assumed liability for the acts of their insured within the relevant coverage periods. In this case, the negligent acts of the insured in the Glacier coverage period together with the negligent acts of the insured in the Continental coverage period jointly resulted in indivisible injuries to Mr. Cephas. Because the insurers “assume” liability for the actions in the two different time periods, their position is analogous to two persons whose separate acts resulted in an indivisible injury to Mr. Cephas. If the two insurers were tried as defendants in a tort action arising from such an injury their liability would be joint. In the present case, the insurers’ liability, based on their contractual obligations, should also be joint. Absent a more accurate means of apportioning this joint liability, the parties must make equal contributions towards the total damage award.

Because the Court is aware that the parties have already made equal contributions to the settlement, no further distribution is necessary. The proper allocation of liability is the status quo. An appropriate Order will issue in accordance with the terms of this opinion.

ORDER

In accordance with the Memorandum Opinion issued this 19th day of March, 1985, it is hereby

ORDERED that:

1) Plaintiffs Motion for Summary Judgment is denied;

2) Defendant’s Motion for Summary Judgment is denied;

3) The above-captioned case shall be, and is, dismissed.

      . All of the positions and opinions attributed to the parties are supported by the expert testimony of one or more physicians.

      . Plaintiff's counsel and his experts have also expressed agreement on this point.

      . The disease was correctly diagnosed in July, 1981.

      . The Court finds this to be the relevant time period for both carriers despite the difference in triggering language. This "critical” period represents the time—neither too early nor too late—when the "medical mismanagement” of the case was a “substantial factor” in bringing about the ultimate result. See Daniels v. Hadley Memorial Hospital, 566 F.2d 749, 757 (D.C.Cir.1977). The continuing misdiagnosis involved here is analogous to a concurrent cause case in that the cumulative effect of Dr. Love’s failure to diagnose in some or all of Mr. Cephas' approximately forty visits contributed in some unquantifiable measure to the ultimate injury. Some of those visits occurred under Glacier’s coverage and some occurred under the Continental policy.

      . As noted earlier, Glacier admits "negligence” during its coverage period but denies injury. However, as noted above, each negligent act of misdiagnosis contributed to the injury as the disease progressed.
      Defendant also admits to negligence in its coverage period, but argues for no "injury” because it was “too late.” Given the facts as established, no expert has testified conclusively that by April 1, 1981, Mr. Cephas was suffering from an inoperable condition, and the Court does not find this argument convincing. On the contrary, several medical incidents (i.e., misdiagnoses) occurred and may well have contributed to the injury to Mr. Cephas during Continental’s coverage period.

      . The court noted that the unique nature of the asbestos litigation—with over 6000 cases then pending against Keene—rendered much of traditional insurance law inapplicable. For example, the Court reversed the traditional burden of proving coverage, noting that:
      [T]he injuries in this case ... are unique and traditional procedural rules cannot be allowed to defeat Keene’s or its insurers’ substantive rights under the policies____ We believe ... that this case is so different from the cases in which the insured’s burden of proof developed, that those cases provide no authority for this case.

        Keene, at 1052, n. 42. The "unique" facts and issues of Keene raise substantial questions as to the applicability of the decision in the instant case.

      . As noted supra, Glacier relies heavily on the one paragraph in its policy which provides that: "if other valid insurance exists at any time protecting the insured against loss covered by this policy, this policy shall be null and void with respect to said loss....” Glacier insists that Keene requires the Court to give effect to this contractual language, often referred to as an "escape” clause, and allocate the total loss to Continental.

      . In other words, this is not a case in which a harm—such as an automobile accident—is covered by two policies. This is a case in which the harm, or injury, is spread over time into two periods of separate insurance coverage. In the first case both policies undisputably cover the whole loss. In the second, the loss is divided between two policies.

      . The premium for the Glacier policy from April 1, 1980 to April 1, 1981 was $3,308.00. The premium for the Continental policy from March 31, 1981 to March 31, 1982 was $3,376.00.

      . Insurance law refers to this situation of conflicting policies as an issue of "mutually repugnant" clauses. See 3 R. Long, The Law of Liability Insurance § 22.08 (1981) (discussing various judicial approaches to problem of repugnancy in multiple coverage situations).

      . An example of a typical multiple coverage case is the situation where a loss is incurred by an insured driver while driving an automobile of an insured owner with the owner's permission. 3 R. Long, the Law of Liability Insurance § 22.01 (1981). In such a case both policies clearly cover the entire loss.


source: Caselaw Access Project

author: TURK, Chief Judge.

license: Public Domain

text:
    HARLEYSVILLE MUTUAL INSURANCE COMPANY, INC., Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY, INC., Defendant. Richard Ruggles BAKER, Lavalleys Wholesale Florists, and Harleysville Mutual Insurance Company, Inc., Plaintiffs, v. Joel Ray HOLLINGSWORTH, John Doe, and Nationwide Mutual Insurance Company, Defendants. Richard Ruggles BAKER, Lavalleys Wholesale Florists, and Harleysville Mutual Insurance Company, Inc., Plaintiffs, v. Joel Ray HOLLINGSWORTH, John Doe, and Nationwide Mutual Insurance Company, Defendants.
    Civ. A. Nos. 84-0130-D, 84-0129-D and 85-0001-D.
    United States District Court, W.D. Virginia.
    March 19, 1985.

      Ralph B. Rhodes, Hutcherson, Rhodes & Furrow, Ltd., Rocky Mount, Va., for plaintiff.
    William F. Stone, Jr., Stone & Worthy, Martinsville, Va., for defendant.
   OPINION

TURK, Chief Judge.

On October 21, 1983, Joel Ray Hollingsworth was involved in a motor vehicle accident in Henry County with Richard Ruggles Baker. The accident was precipitated when John Doe, an unknown, and therefore uninsured motorist, pulled onto the highway in front of a truck driven by Richard Baker, causing Baker’s truck to jacknife. Hollingsworth was unable to stop in time to avoid a collision.

At the time of the accident, Hollingsworth’s vehicle was insured by a policy of liability insurance issued by Nationwide Mutual Insurance Company (“Nationwide”). The limit of the uninsured motorist provision provided by Nationwide was $100,000. Baker’s truck was owned by his employer, LaValleys Wholesale Florist, Inc. (“LaValleys”), and was insured by Harleysville Mutual Insurance Company (“Harleysville”). This policy contained a single limit of $300,000.

As a result of this accident, Joel Hollingsworth obtained a joint and several judgment against Baker, LaValleys, and John Doe in the Circuit Court of Henry County on September 28, 1984, in the amount of $100,000. On October 24, 1984, Harleysville filed two suits in the Circuit Court of Henry County. The first asked the court to declare the rights and liabilities of the respective insurance companies to Hollingsworth as a result of the September 28, 1984, judgment while the second sought to enjoin Hollingsworth from executing on that judgment. While these actions were pending, Harleysville voluntarily paid one-half the judgment amount, or $50,000, to Hollingsworth. Subsequently, Hollingsworth made a written demand upon his own carrier, Nationwide, for satisfaction of the remaining $50,000, under its uninsured motorist provision. This demand was refused. On November 29, 1984, Nationwide filed petitions for removal in both actions, based on diversity of citizenship under 28 U.S.C. Section 1332.

On December 3, 1984, a third suit was filed in Henry County Circuit Court. This declaratory judgment action sought to define the rights and liabilities of all the parties involved. A petition for removal was subsequently filed by Nationwide, on January 3, 1985, based on diversity of citizenship. It is these three actions which are presently before this court.

I. REMOVAL JURISDICTION.

The plaintiffs in these actions contend that John Doe is an indispensable party and because his joinder would destroy the requisite diversity jurisdiction of this court, the cases must be remanded to the state court. While it is true that the defendants have produced no evidence that John Doe is not a resident and thus this court must consider John Doe as a citizen of Virginia for diversity purposes, Johnson v. General Motors Corp., 242 F.Supp. 778, 780 (E.D.Va.1965), it is this court’s opinion that John Doe is not an indispensable party and thus that these cases need not be remanded.

A joint and several judgment in the amount of $100,000 has already been obtained against Baker and LaValleys, both insured by Harleysville, and John Doe. Harleysville has already paid one-half the judgment amount, or $50,000, to Joel Hollingsworth. Thus the only remaining issue is which insurer, Nationwide or Harleysville, will be required to pay the remaining $50,000, and in turn have the right to proceed against John Doe, if and when his identity becomes known.

If Nationwide is required to pay the remaining $50,000 under its uninsured motorist provision, it would be subrogated to the rights of its insured, Joel Hollingsworth, and could recover that sum from Harleysville or John Doe, should his identity become known. If Harleysville is required to pay the remaining amount, it would have a right of contribution from John Doe in the amount of $50,000. Since no relief is sought either in favor of, or against, John Doe in the declaratory judgment action, he is not a necessary party and his presence may be disregarded for the purposes of diversity jurisdiction. Johnson v. General Motors Corp., 242 F.Supp. 778, 780 (E.D.Va.1965).

II. ABSTENTION.

Harleysville Mutual Insurance Company, Inc. argues that even if John Doe is found not to be an indispensable party to this action the court should abstain from exercising jurisdiction on the ground that this case presents “a difficult question of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar.” Plaintiffs’ Memorandum in Support of Plaintiffs’ Position that John Doe is an Indispensable Party, p. 10. While this is a recognized basis for abstention, see Colorado River Water Conservation District v. United States, 424 U.S. 800, 814, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976), it does not apply in this case.

Although state claims are involved, the question to be decided is not difficult, and indeed has been settled since this court’s decisions in Southern v. Lumbermens Mutual Casualty Co., 236 F.Supp. 370 (W.D.Va.1964), aff’d in part sub nom Lumbermens Mutual Casualty Co. v. Harleysville Mutual Casualty Co., 367 F.2d 250 (4th Cir.1966), and Hobbs v. Buckeye Union Casualty Co., 212 F.Supp. 349 (W.D.Va.1962). If this court were to adopt Harleysville’s sweeping basis for abstention, that there is no Virginia case answering the precise question presented by the pleadings, this court would be relegated to deciding only those cases in which every factual situation and every issue presented were identical to a case already decided by a Virginia court. Though this would certainly ease the congestion of the federal court docket, since every case presents some factual differences, it is not a valid basis for abstention. Drewry v. State Farm Mutual Automobile Insurance, 204 Va. 231, 129 S.E.2d 681 (1963), cited by Harleysville, is inapposite. Drewry involved a novel question of state law rather than, as here, an attempt to circumvent already established law by merely proceeding under a different theory of recovery.

III. RIGHT OP RECOVERY FROM UNINSURED MOTORIST CARRIER

Harleysville Mutual Insurance Company, Inc. contends that, under the uninsured' motorist provision contained in the contract of insurance between Joel Hollingsworth and Nationwide, Nationwide is obligated to pay one-half of the judgment amount obtained against Harleysville and John Doe. It is interesting that Harleysville proceeds under a theory of contractual liability rather than one of contribution, for under a theory of contribution, the general rule is that indemnity furnished by the uninsured motorist clause may “not insure to the benefit of anyone other than [the insured],” as defined in Section 38.1-381(c) of the Virginia Code. Lumbermens Mutual Casualty Co. v. Harleysville Mutual Casualty Co., 367 F.2d 250, 255 (4th Cir.1966). Specifically, “one joint tort feasor is entitled, in the absence of moral turpitude, to contribution from the insurer of another tort feasor. But when the other tort feasor is [an] uninsured [motorist] the party seeking contribution cannot seek it from the insurer of the injured plaintiff.” Southern v. Lumbermens Mutual Casualty Co., 236 F.Supp. 370, 372 (W.D.Va.1964), aff’d in part sub nom Lumbermens Mutual Casualty Co. v. Harleysville Mutual Casualty Co., 367 F.2d 250 (4th Cir.1966).

The uninsured motorist provision in the insurance policy issued by Nationwide contains language almost identical to that in Lumbermens Mutual Casualty Co. It provides that uninsured motorist “insurance [may] not apply: (c) so as to inure directly or indirectly to the benefit of any insurer of property.” Specimen: Nationwide’s Family Automobile Policy, p. 22, § 1(c). This clause would seem to have been placed in the uninsured motorist policy to cover the present situation, for it denies contractually what has long been prohibited by way of contribution. Therefore, regardless of whether Harleysville proceeds under a theory of contribution or contract, it may not seek recovery from Nationwide.

Neither may Joel Hollingsworth seek recovery from Nationwide under its uninsured motorist provision. As Judge Dalton noted in Hobbs v. Buckeye Union Casualty Co., 212 F.Supp. 349 (W.D.Va.1962), “Virginia’s uninsured motorist law ... is primarily concerned with providing adequate compensation for injured insureds when other sources are lacking. Id. at 351-2 (emphasis added). Certainly, however, there is no lack of a source of recovery where, as here, a joint and several judgment is obtained against two tortfeasors, one of which is insured, and the policy limits of the tortfeasor’s insurer are greater than the total amount of the judgment.

Therefore, this court finds that the entire judgment amount of $100,000 must be satisfied by Harleysville Mutual Insurance Company, Inc., and that Harleysville may not recover any portion of that judgment from Nationwide Mutual Insurance Co. under Nationwide’s uninsured motorist provision. Each side shall bear its own taxable costs. An accompanying order shall be entered this day.

The Clerk of Court is directed to send certified copies of this opinion to counsel of record.

ORDER

In accordance with the Memorandum Opinion of this day, it is hereby

ORDERED

as follows:

(1) that Joel Ray Hollingsworth is entitled to receive the entire amount of the one hundred thousand dollar ($100,000.00) judgment rendered against Richard Ruggles Baker, LaValleys Wholesale Florists, and John Doe in the Circuit Court of Henry County on September 28, 1984, from Harleysville Mutual Insurance Company, Inc.;

(2) that Nationwide Mutual Insurance Company has no liability toward Joel Ray Hollingsworth since the limit of the policy issued by Harleysville Mutual Insurance Company, Inc. is greater than the total amount of the judgment; and

(3) that Joel Ray Hollingsworth should proceed to collect the entire amount of the judgment from Harleysville Mutual Insurance Company, Inc.

The Clerk of Court is directed to send certified copies of this Order to counsel of record and to strike these cases from the court’s active docket.

      . The citizenship of the parties to this action are:
      (1) Harleysville Mutual Insurance Company, Inc. is a corporation incorporated under the laws of Pennsylvania, with its principal place of business in Pennsylvania;
      (2) Richard Ruggles Baker is a citizen of North Carolina;
      (3) LaValleys Wholesale Florist is a corporation incorporated under the laws of North Carolina, with its principal place of business in North Carolina;
      (4) Joel Ray Hollingsworth is a citizen of Virginia;
      (5) Nationwide Mutual Insurance Company is a corporation incorporated under the laws of Ohio, with its principal place of business in Ohio.


author: McNAUGHT, District Judge.

text:
    Frederick J. KNEELAND, Plaintiff, v. PEPSI COLA METROPOLITAN COMPANY, INC., et al, Defendants.
    Civ. A. No. 82-2527-Mc.
    United States District Court, D. Massachusetts.
    March 20, 1985.
    William S. Swartz, Walter T. Radulski, Lowell, Mass., for plaintiff.
    Edward R. Lev, Louis A. Rodrigues, Sullivan & Worcester, Boston, Mass., Joseph W. Dorn, Martin M. McNerney, David C. Palmer, Kilpatrick & Cody, Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

McNAUGHT, District Judge.

The defendant’s motion for summary judgment in this action is predicated upon two statutes of limitations: [1] the thirty-day statute of limitations for the vacation of arbitration awards set forth in Mass. Gen.Laws c. 150C § 11(b) and [2] the six-month statute of limitations set forth in Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(b), applicable to suits brought under Section 301 of the Act against an employer for breach of a collective bargaining agreement. This action is based upon an alleged violation—wrongful discharge from employment—of the collective bargaining agreement between Pepsi-Cola Metropolitan Bottling Company, Inc. (“Pepsi-Cola”) and the New England Joint Board of Retail, Wholesale, and Department Store Union, AFL-CIO, and Local No. 513 of that union (“Local 513”).

On July 3, 1981, the plaintiff, Frederick J. Kneeland, resigned as a route salesman from Pepsi-Cola. For the approximately ten years he had worked at Pepsi-Cola’s Allston, Massachusetts plant, he was represented by Local 513, and his wages, hours and other terms of employment were covered by the contract between Pepsi-Cola and Local 513. The plaintiff alleges in the complaint that on or about June 29, 1981, the defendant breached the contract by “maliciously and arbitrarily terminat(ing) the Plaintiff’s employment through the acts of its agents, ... Terrance J. Ryan and Lawrence J. Edwards.” On that date he was discharged for dishonesty and falsification of records. In order to contest this discharge, Kneeland requested and the president of Local 513, Edward McGovern, scheduled a hearing with the Pepsi-Cola officials in accordance with Article XIII of the contract. At that hearing on July 3, 1981, after a review of the evidence, McGovern informed Kneeland that, given the evidence presented, Local 513 would not take the case to arbitration and that he might not receive any severance pay unless he resigned. The plaintiff then signed a statement resigning from Pepsi-Cola, effective June 29, 1981. He did not file a grievance. On July 27, 1982, he filed the complaint in this action.

The question before the Court on this motion for summary judgment is whether this action, filed more than a year after the event in question, is barred by any applicable statute of limitations. The defendant characterizes the plaintiff’s employment relationship with Pepsi-Cola as being “based upon a collective bargaining agreement between an ‘employer,’ Defendant Pepsi-Cola, and a ‘labor organization,’ Local 513, as those terms are defined under the NLRA.” From this, it concludes that the plaintiff is essentially alleging a violation of the collective bargaining agreement which must be brought under Section 301 of the NLRA and is controlled by federal, not state, law. Teamsters, Local 174 v. Lucas Flour, 369 U.S. 95, 103-104, 82 S.Ct. 571, 576-577, 7 L.Ed.2d 593 (1962); Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S.Ct. 912, 917-918, 1 L.Ed.2d 972 (1957). The defendant cites several cases for the proposition that even though the counts of the complaint are described in state law breach of contract terms, the cause of action nevertheless arises under Section 301: Robbins v. George W. Prescott Publishing Co., 91 Lab.Cas. (CCH) ¶ 12,816 (D.Mass. 1980) (“Federal labor law governs whenever an action concerns rights arising under a collective bargaining agreement, whether or not the action is brought under § 301.”); Avco Corp. v. Aero Lodge, 376 F.2d 337, 340 (6th Cir.1967), aff’d, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) (“The force of Federal preemption in this area of labor law cannot be avoided by failing to mention Section 301 in the complaint.”); United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO v. Great American Industries, Inc., 479 F.Supp. 216, 224 (S.D.N.Y.1979) (“Turning first to the alleged breach of the Bargaining Agreement, ... federal substantive law must govern its adjudication ... even where, as in the case at bar, a claim arising out of a breach of a collective bargaining agreement is couched in terms of a common law contract action.”)

Initially, the defendant argued that since Congress did not specify a statute of limitations to govern suits under Section 301, the question of whether a Section 301 suit is time-barred must be determined, as a matter of federal law, by applying the appropriate state statute of limitations. International Union, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966); Locals 2222, 2320-27, IBEW v. New England Tel. and Tel. Co., 628 F.2d 644, 650 (1st Cir.1980). In applying that proposition, the Supreme Court held in United Parcel Services, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), that a suit by an employee against an employer under Section 301 is most closely analogous to an action to vacate an arbitration award and that, therefore, the state’s statute of limitations for vacating an arbitration award should be applied. Specifically, the First Circuit decided that the most appropriate statute of limitations applicable to Section 301 actions arising in Massachusetts is the thirty-day state statute for the vacation of arbitration awards. McNutt v. Airco Indus. Gases Div., 687 F.2d 539, 542 (1st Cir.1982), citing Mass.Gen.Laws c. 150A § 11(b).

In a more recent case, DelCostello v. International Brotherhood of Teamsters, et al, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), however, the Supreme Court held that the six-month statute of limitations set forth in Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(b), applies to wrongful discharge actions under Section 301 brought against an employer for breach of a collective bargaining agreement. Where the assertion of state law claims are in substance Section 301 claims, Judge Nelson held that DelCostello may be applied retroactively to bar such claims. Voda v. New England Telephone and Telegraph Co., 580 F.Supp. 852, 854 (D.Mass.1984); Williams v. Western Electric Corp., Inc., 580 F.Supp. 1462, 1464 (D.Mass.1984).

The plaintiff argues that this Court should follow the lead of the Ninth Circuit, McNaughton v. Dillingham Ship Repair, 722 F.2d 1459 (9 Cir.1984) and Edwards v. Teamsters Local 36, 719 F.2d 1036 (9 Cir.1983), and decline to apply DelCostello retroactively because “(i)t would.... produce the most ‘substantial inequitable results’ ... to hold that the respondent ‘slept on his rights’ at a time when he could not have known the time limitation that the law imposed on him.” Id., at 3230, quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 108, 92 S.Ct. 349, 356, 30 L.Ed.2d 296 (1971). This argument is unpersuasive because DelCostello did not shorten the statute of limitations period but instead actually extended it from thirty days to six months.

The plaintiff further contends that, even if Count I of the complaint is time-barred by retroactive application of DelCostello, Counts II and III should not also be dismissed because they “state causes of action against two supervisory employees of Pepsi-Cola under state law (and, accordingly,) are governed by the three-year statute of limitations stated in G.L. c. 260, § 2A.” Although the plaintiff attempts to couch Counts II and III in tort language as an action for malicious interference with contractual relations, Counts II and III do not state alternate grounds for relief since the supervisory employees were acting as Pepsi-Cola’s agents in administering the collective bargaining agreement. They were not third parties tortiously interfering with the relationship between employer and employees to gain some personal benefit. As agents acting within the scope of their employment, they were the employer, and Pepsi-Cola is liable for their actions under the federal law governing collective bargaining agreements. Any state claims contained in Counts II and III are preempted by federal law, and all three counts are barred by the six-month statute of limitations set forth in Section 10(b) of the National Labor Relations Act.

Accordingly, since the plaintiff’s claim, filed on July 27, 1982, more than a year after his resignation/termination, is barred by the six-month statute of limitations, the defendant’s motion for summary judgment is granted.


author: BUA, District Judge.

text:
    Anthony MILLONZI, et al., Plaintiffs, v. BANK OF HILLSIDE, et al., Defendants.
    No. 85 C 1215.
    United States District Court, N.D. Illinois, E.D.
    March 20, 1985.

      Tobin M. Richter, Spindell, Kemp, Kimmons & Kimball, Chicago, Ill., for plaintiffs.
    Narcisse A. Brown, Martin W. Salzman, Schwartz, Cooper, Kolb & Gaynor, Chartered, Chicago, Ill., for defendants Bank of Hillside and Donald Morris.
    Joseph A. Rosin, Chicago, Ill., for defendants Christian F. Henning, Jr. and Christian F. Henning, Jr. & Associates, Ltd.
    Harold E. Collins, Chicago, Ill., pro se.
   MEMORANDUM ORDER

BUA, District Judge.

Plaintiffs Anthony Millonzi, Joseph C. Millonzi and Aagard Electric, Inc. bring this action against defendants Bank of Hillside; Christian F. Henning, Jr. and Associates, Ltd.; Christian F. Henning, Jr., Attorney-at-law; Donald C. Morris; Harold E. Collins; and Harold E. Collins & Associates, Ltd. Before the Court are plaintiffs’ motion for a preliminary injunction and certain defendants’ motions to dismiss the complaint. For the reasons stated below, defendants’ motions to dismiss and plaintiffs’ motion for a preliminary injunction are denied.

FACTS

The facts alleged in the complaint and presented at the preliminary injunction hearing are numerous and complex. For purposes of this opinion, however, they need only be summarized briefly. In November of 1982, defendant Bank of Hillside filed a suit in the state court seeking to foreclose on Anthony Millonzi’s home. On July 27, 1983, judgment was entered for the Bank of Hillside. On August 3, 1983, a notice of sheriff’s sale of plaintiff’s home was mailed to Anthony Millonzi. See Complaint, ¶s 31-32.

In August of 1983, plaintiffs filed bankruptcy under Chapter 11. After the automatic stay was lifted, Anthony Millonzi’s home was sold at an auction by the Sheriff of Cook County to the Bank of Hillside. Millonzi’s right to redeem the property has expired. See Complaint, ¶s 33-35. The certificate of sale is presently in the possession of the Bank of Hillside. Under Illinois law, the holder of the certificate of sale may obtain a sheriff’s deed to the property and then bring a forcible detainer action to expel the Millonzis from their home. See Complaint, ¶ 35.

Plaintiffs seek to prevent defendants from obtaining possession of Millonzi’s home pending resolution of the merits of this case. In general, plaintiffs allege that the mortgage and note should be declared void due to various wrongful acts on the part of defendants between 1979 and 1985. Specifically, plaintiffs charge, in Count I of their complaint, that defendants entered into a scheme to acquire control over. Aagard Electric through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(b). Plaintiffs further allege that defendants’ fraudulent use of the U.S. mails and wires in violation of 18 U.S.C. §§ 1341 and 1343 and defendants’ acts of extortion in violation of 18 U.S.C. §§ 1951 and 1961(1)(A) constitute a pattern of racketeering activity as defined in 18 U.S.C. § 1961(1) and (5). Count II charges that defendants unlawfully used incomes received from a pattern of racketeering activity in violation of 18 U.S.C. § 1962(a). Count III alleges that defendants conspired to violate 18 U.S.C. § 1962(b) in violation of 18 U.S.C. § 1962(d). Counts IV and V allege fraud and a conspiracy to defraud, respectively. Count VI seeks the Court to order the defendants to hold plaintiff Anthony Millonzi’s home or the proceeds from any sale in a constructive trust. Finally, Count VII is directed against defendant Henning only and charges professional malpractice, breach of a fiduciary duty, conflict of interests and fraud.

Plaintiffs seek the following relief. First, a preliminary and permanent injunction which would prevent defendants from obtaining possession of Anthony Millonzi’s home. Second, plaintiffs seek a declaratory judgment that a mortgage and certain notes executed by the plaintiffs are void. Third, plaintiffs request that the Court impose a constructive trust on Anthony Millonzi’s home. Finally, plaintiffs seek compensatory and punitive damages.

Defendants Bank of Hillside, Donald Morris, and Harold E. Collins (individually and as a professional corporation) move to dismiss the complaint on various grounds. First, defendants argue that the doctrines of res judicata and collateral estoppel bar the plaintiffs from bringing this suit in light of the prior state court foreclosure judgment and the plaintiffs’ bankruptcy proceedings. Second, defendants argue that the complaint fails to state any claim for relief. Third, defendants argue that all necessary parties have not been joined. Fourth, defendants Collins and Collins & Associates, Ltd. additionally argue that since July of 1982, they had no involvement with any co-defendant or plaintiffs and therefore should be dismissed as parties in this case. Finally, defendants argue that any order granting plaintiffs’ motion for preliminary injunction would violate the Anti-Injunction Act, 28 U.S.C. § 2283.

Res Judicata and Collateral Estoppel Defenses

Under Marrese v. American Academy of Orthopaedic Surgeons, — U.S. -, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), “[t]he preclusive effect of a state court judgment in a subsequent federal lawsuit generally is determined by the full faith and credit statute.... This statute directs a federal court to refer to the preclusion law of the state in which judgment was rendered.” Id. at -, 105 S.Ct. at 1328-29. Under Illinois law, the doctrine of res judicata provides that:

A prior judgment may have preclusive effects in a subsequent action under both res judicata and collateral estoppel. The doctrine of res judicata provides that ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ When res judicata is established ‘as a bar against the prosecution of a second action between the same parties upon the same claim or demand ... it is conclusive not only as to every matter which was offered to sustain or defeat the claim or demand, but as to any other matter which might have been offered for that purpose.’

Housing Authority of LaSalle County v. YMCA, 101 Ill.2d 246, 78 Ill.Dec. 125, 127-28, 461 N.E.2d 959, 961-62 (1984) (citations omitted). The party asserting the affirmative defenses of res judicata and collateral estoppel “has the burden of proving the existence and character of the former judgment as well as its legal effect with relation to the matters alleged to be concluded by it.” LaSalle National Bank v. County of DuPage, 77 Ill.App.3d 562, 32 Ill.Dec. 935, 937, 396 N.E.2d 48, 50 (1979).

In this case, defendants argue that plaintiffs’ RICO, fraud and conspiracy claims should have been brought as defenses in the foreclosure suit and bankruptcy case. Defendants, however, have failed to sustain their burden of demonstrating that plaintiffs’ present claims would have constituted defenses in the prior litigation. Instead, plaintiffs’ RICO, fraud and conspiracy claims are separate causes of action which, under Illinois law, need not be brought as counterclaims in the prior litigation. See Ill.Code Civ.P. §§ 2-608 and 614. In fact, defendants have failed to present any Illinois authority which would indicate that a RICO counterclaim would be permitted in a foreclosure suit.

Defendants reliance upon the doctrine of collateral estoppel is also misplaced. Collateral estoppel applies only as to issues “actually litigated and determined and not as to other matters which might have been litigated or determined.” Housing Authority for LaSalle County, supra, 78 Ill.Dec. at 128, 461 N.E.2d at 962. Defendants have failed to apprise the Court as to what extent, if any, plaintiffs’ present claims were actually litigated in the prior proceedings. Accordingly, defendants have failed to meet their burden of establishing collateral estoppel as a defense in this cause.

Remaining Arguments For Dismissal

Defendants remaining arguments in support of their motion to dismiss merit little discussion. First, defendants argue that the complaint fails to state a cause of action under RICO because: (1) plaintiffs’ alleged racketeering activities do not fall within the RICO statute; (2) the mails were not used in furtherance of the racketeering scheme; and (3) the alleged extortion is unrelated to the alleged conspiracy. Regarding defendants’ first argument, plaintiffs’ allegations of mail fraud, wire fraud and extortion clearly fall within the definition of a racketeering activity. See 18 U.S.C. § 1961(1) and (5). Defendants’ second and third arguments raise factual issues which cannot be resolved in a motion to dismiss.

Finally, defendants argue that dismissal is warranted because plaintiffs have failed to include a necessary party, Nadine Millonzi. Defendants, however, fail to offer any explanation as to why Nadine Millonzi must be joined as a party. Accordingly, the Court views this argument without merit. Defendant Collins Ltd.’s additional ground for dismissal raises factual issues which cannot be resolved in a motion to dismiss.

For all of the above reasons, defendants’ motions to dismiss the complaint are denied.

Plaintiffs’ Motion For A Preliminary Injunction

Without passing upon any of the criteria for a preliminary injunction set forth in Roland Machinery v. Dresser Industries, 749 F.2d 380 (7th Cir.1984), it is clear that plaintiffs are not entitled to an injunction (preliminary or permanent) which would prevent defendants from proceeding on the foreclosure judgment.

Generally, the Anti-Injunction Act, 28 U.S.C. § 2283, prohibits federal courts from enjoining state court proceedings. Three statutory exceptions exist to this blanket prohibition: (1) where Congress has “expressly authorized” injunctive relief; (2) where injunctive relief is necessary in aid of federal jurisdiction; and (3) where injunctive relief is necessary to protect or effectuate a federal judgment. See 28 U.S.C. § 2283.

Plaintiffs argue that the Anti-Injunction Act is not applicable because plaintiffs are merely asking the Court to enjoin the Bank of Hillside from obtaining a sheriff’s deed from the Sheriff of Cook County. Plaintiffs’ attempt to avoid application of the Anti-Injunction Act, however, has been rejected by several courts. Generally, the mandate of the Anti-Injunction Act “cannot be evaded by addressing the order to the parties or prohibiting utilization of the results of a completed state proceeding.” Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 287, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1976). In Ungar v. Mandell, 471 F.2d 1163 (2d Cir.1972), the Second Circuit held that the Anti-Injunction Act prevented a federal court from issuing a preliminary injunction which would prevent the sale of property that was previously the subject of state foreclosure proceedings. Notably, the court stressed that the plaintiff’s attempt to limit the injunction only against the defendants and not state officials, “did not remove his suit from the [Anti-Injunction Act’s] bar.” Id. at 1165. Similarly, the Ninth Circuit has held that attempting to avoid the application of the Anti-Injunction Act by limiting the scope of the injunction to the litigants “would be no more than a transparent attempt to avoid the effect of [Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 97 S.Ct. 2881, 53 L.Ed.2d 1009 (1977)].” In this case, an order enjoining the Bank of Hillside from obtaining a sheriff's deed would render the state court judgment meaningless and would have the same intrusive effect as enjoining state officials.

Plaintiffs also argue that an exception to the Anti-Injunction Act applies. Specifically, plaintiffs argue that an injunction is necessary in aid of this Court’s jurisdiction. It would be improper, however, for this Court to interfere with a state court judgment which was rendered before plaintiffs’ federal case was filed. Atlantic Coast Line Railroad Co., supra, 398 U.S. at 296, 90 S.Ct. at 1747. As the Supreme Court stated in Atlantic Coast Line, “lower federal courts possess no power whatever to sit in direct review of state court decisions.” Id. Plaintiffs are simply asking this Court to declare void the state court judgment; a request which the Court must decline.

CONCLUSION

For all of the above reasons, defendants’ motions to dismiss and plaintiffs’ motion for a preliminary injunction are denied. The Court will set an expedited discovery schedule and early trial date at a status hearing on March 25, 1985 at 9:30 A.M.

IT IS SO ORDERED.

      . Since this Court’s denial of plaintiffs' motion for a preliminary injunction is based solely upon the Anti-Injunction Act, the Court’s decision is without prejudice to plaintiffs’ right to seek relief from the foreclosure judgment in state court under Ill.Code Civ.P. § 2-1401.


author: SCIRICA, District Judge.

text:
    Paul HELLER, et al. v. The UNITED STATES, et al.
    Civ. A. No. 84-3043.
    United States District Court, E.D. Pennsylvania, Civil Division.
    March 21, 1985.

      Robert Mozenter, Michael S. Durst, Mozenter, Molloy & Durst, Philadelphia, Pa., for plaintiffs.
    Susan Dein Bricklin, Asst. U.S. Atty., Philadelphia, Pa., for defendants.
   MEMORANDUM

SCIRICA, District Judge.

Plaintiff has brought suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq., and the federal medical malpractice immunity statute, 10 U.S.C. § 1089. Plaintiff is seeking compensatory and punitive damages in excess of five million ($5,000,000) dollars for the wrongful death of his wife, Gail Simpson Heller, from numerous defendants including the United States, the United States Air Force Regional Medical Center Clark (PACAF) (hereinafter “the Hospital”), as well as the doctors involved in her ease. The claims against the named defendants are based on diversity jurisdiction while the claims against the United States are based upon the above-cited statutes. Defendant, United States, has filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

Plaintiff, Paul Heller, enlisted in the United States Air Force, in July 1980. After assignments in Texas and Illinois, plaintiff and his wife were stationed at Clark Air Force Base in the Republic of the Phillipines. On July 5, 1981, Mrs. Heller gave birth to a son at the Clark Medical Center. She was assisted in the delivery room by Dr. Mai Diaz and, thereafter, laboratory tests were performed by defendants Moffet and Brockett in the microbiology department of the hospital. Mrs. Heller was discharged from the hospital on July 8, 1981 and returned to the Clark Medical Center for her six week post-partum check-up on August 27, 1981.

On October 15, 1981, Mrs. Heller appeared at the emergency room of the hospital complaining of a swollen breast. At that time, she was diagnosed as having mastitis of the right breast. On December 18, 1981, Mrs. Heller went to the primary care clinic of the hospital complaining of swollen eyes. She was seen at the gynecology clinic at the hospital on January 5, 1982, for a pregnancy test and again on January 8, 1982, as she was experiencing vaginal bleeding. At that time, a pelvic examination was performed by the hospital doctors. Although the results of the examination were negative, Mrs. Heller continued to experience weight loss, nausea and other problems. The Hellers left the Phillipines and on January 29, 1982, Mrs. Heller was admitted to Bucks County Hospital where a biopsy was performed. She was diagnosed as having choriocarcinoma (cancer of the placenta) with metastitis and on February 2, 1982, was transferred to the Hospital of the University of Pennsylvania for chemotherapy. On March 3, 1982, Mrs. Heller died from overwhelming carcinomatosis and sepsis.

Defendant, United States, moved to dismiss this action. The United States argues that since this action arose in a foreign country, the Phillipines, the Federal Tort Claims Act does not apply, and the Government retains its sovereign immunity-

It is clear that the Federal Tort Claims Act (hereinafter “FTCA”) does not apply to “any claims arising in a foreign country.” 28 U.S.C. § 2680(k). In United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949), the Supreme Court held that “the coverage of the Federal Tort Claims Act was geared to the sovereignty of the United States.” Id. at 219, 70 S.Ct. at 11. The court then enunciated the test to determine whether a claim arose in a foreign country, whether the “territory [was] subject to the sovereignty of another nation,” Spelar, supra at 217, 70 S.Ct, at 10 and whether the United States was to be subjected to liability based upon the laws of a foreign power. Id. at 221, 70 S.Ct. at 12. I find that both of these requirements have been met in this case.

The Clark Air Base is under Phillipine sovereignty as a result of an agreement reached between the United States and the Republic of the Phillipines. This agreement, enacted on January 7, 1979, provided that:

1. The bases covered by this Agreement are Phillipine military bases and shall be under the command of Phillipine Base Commanders ...
3. In the performance of their duties, the Base Commanders and United States Commanders shall be guided by full respect for Phillipine sovereignty on the one hand and the assurance of unhampered United States military operations on the other.

Agreement Between the United States of America and the Republic of the Phillipines Concerning Military Bases of 1947, as amended January 7, 1979, 30 U.S.T. 863, 879, T.I.A.S. No. 9224.

This agreement for the return of these military bases in the Phillipines was the culmination of several years of negotiations. It is clear that Phillipine sovereignty extended to Clark Air Base during the relevant time period which gave rise to this action.

The second prong of the Spelar test has been met as the FTCA requires that liability of the United States be imposed “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. §§ 1346(b), 2672. Since the alleged malpractice occurred in the Phillipines while Mrs. Heller was being treated at Clark Air Base, the United States would be held to the laws of the Republic of the Phillipines. Because both requirements have been met, the Phillipines qualifies as a foreign country.

A claim presented by or on behalf of dependents of United States military personnel who allege negligent treatment at a United States military hospital abroad, still falls within the foreign country exception to the FTCA. See Pelphrey v. United States, 674 F.2d 243 (4th Cir.1982); Manemann v. United States, 381 F.2d 704 (10th Cir.1967); Grunch v. United States, 538 F.Supp. 534 (E.D.Mich.1982).

The United States retains its sovereign immunity unless it consents to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). A waiver of sovereign immunity cannot be implied but must be unequivocally expressed. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). If the FTCA does not apply, the United States retains its sovereign immunity unless some other statute waives it.

The plaintiff contends that in medical malpractice cases, the United States waived its sovereign immunity by the adoption of the medical malpractice, statute, 10 U.S.C. § 1089.

Specifically, the plaintiff relies on Jackson v. Kelly, 557 F.2d 735 (10th Cir.1977), a medical malpractice case involving a military physician stationed at a United States Air Force Hospital in England, for the proposition that Section 1089(f) of the Federal Medical Malpractice Immunity Statute immunizes physicians from personal liability and shifts the assumption of liability to the appropriate agency of the United States.

Section 1089(a) of the Federal Malpractice Immunity Statute, 10 U.S.C. § 1089(a), provides that the exclusive remedy for those injured by military medical personnel practicing within the United States is to substitute the United States as a defendant.

The remedy against the United States provided by § 1346(b) and 2672 of Title 28 for damages for personal injury ... caused by the negligent or wrongful act or omission of any physician ... of the armed forces ... while acting within the scope of his duties ... shall hereinafter be exclusive ...

A review of the legislative history of the federal medical malpractice immunity statute indicates that Congress’ stated purpose was to “provide protection from individual liability to certain medical personnel while acting within the scope of their official duties. In short, defense medical personnel would be immunized from malpractice suits.” S.Rep. No. 94-1264, 94th Cong., 2d Sess. 1 reprinted in [1976], U.S.Code Cong. & Ad.News, 4443. It is clear that military doctors practicing in military hospitals within the United States, are immune from liability.

For military physicians who are practicing in a foreign country, 10 U.S.C. § 1089(f) provides:

The head of the agency concerned may, to the extent that the head of the agency concerned considers appropriate, hold harmless or provide liability insurance for any person described in subsection (a) for damages for personal injury, including death, caused by such person’s negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of such person’s duties if such person is assigned to a foreign country ... or if the circumstances are such as are likely to preclude the remedies of third persons against the United States described in section 1346(b) of title 28, for such damages or injury, (emphasis added).

Interpreting Section 1089(f), the Court in Jackson said:

[t]he purpose of the statute, is to provide a method for the assumption by the government of responsibility for damage claims against its military medical personnel arising from medical care given in foreign countries in the scope of their employment. Behind it is the desire to protect military medical personnel from the ever-present danger of personal liability and relieve them of the expense of supplying private malpractice insurance, while preserving a means for compensating malpractice victims for their injuries. Jackson, supra, at 740.

The legislative history of section 1089(f) indicates that its purpose was to:

authorize the appropriate Secretary to hold harmless or provide liability insurance for medical personnel described in subsection (a). The purpose of this section again is to avoid liability being assessed against an individual medical personnel in a situation where the Federal Tort Claims Act would not be applicable. The Federal Tort Claims Act does not apply to actions in a foreign country ... Subsection (f) authorizes the appropriate Secretary to provide protection through indemnification or insurance to medical personnel in those situations. The Cornmittee would expect that any payments made under the authority of subsection (f) would be payable from the appropriation for salaries and expenses. 1976 U.S. Code Cong.Ad.News at 4451.

In Pelphrey, supra, a claim against a Navy surgeon stationed at the United States Naval Regional Medical Center (NRMC) in the Phillipines for negligently performing a radical mastectomy was instituted in the Eastern District of Virginia. The United States was dismissed from that suit on the ground that FTCA coverage does not extend to medical malpractice claims arising in a foreign country.

The court in Pelphrey interpreted Section 1089(f) as providing special protection for foreign based medical personnel since medical malpractice claims against them do not fall within the FTCA.

Whereas military medical personnel acting within the United States are immune from personal liability because the FTCA is the exclusive remedy for military medical malpractice arising in the United States, see 10 U.S.C. § 1089(a), military medical personnel acting in a foreign country are liable for malpractice because the FTCA does not apply to ‘any claim arising in a foreign country.’ Thus, the need for special protection by foreign based medical personnel stems from the very fact that malpractice claims against them are exempt from the FTCA. Pelphrey, supra at 246.

I agree with this analysis and hold that the FTCA does not apply to this case and that the United States retains its sovereign immunity. The United States, therefore, will not be substituted as a party in this matter.

It must be remembered that the purpose of Section 1089(f)

is not to create an exception to the immunity from malpractice actions created by Section 1089(a). The purpose of subsection (f) is to enhance protection against malpractice actions in circumstances where local law allows recovery against military doctors. The subsection mentions two such circumstances: when a military physician is (1) assigned to a foreign country or (2) assigned to other than a federal department, e.g., a private hospital. In such circumstances the doctor may not be covered by the Federal Tort Claims Act and the Secretary of Defense is authorized to provide indemnification or insurance. Baker v. Barber, 673 F.2d 147, 149-150 (6th Cir.1982).

In view of the statute and opinions from other circuits, a military physician assigned to a foreign country is not granted immunity under subsection (f), but rather is to be insured or indemnified by the government in the event of a malpractice suit.

In § 1089(f), Congress provided that the government “may, to the extent that the head of the agency concerned considers appropriate, hold harmless or provide liability insurance” for medical personnel. Does the use of the term “may” expose military personnel to personal liability and effectively deprive injured plaintiffs of a remedy? I believe that Congress granted discretion to the agency head only to preclude the government from being held as an insurer or indemnitor in baseless lawsuits and to give it authority to evaluate claims. To read this section otherwise would render it a nullity.

I am presented with a ease in which the FTCA does not apply, and where the alleged malpractice occurred in the Phillipines. The plaintiff’s remedy, therefore, appears to be twofold: (1) he may bring a suit in the Republic of the Phillipines against the individually named defendants or (2) proceed with the administrative claim against the Air Force under the Military Claims Act, 10 U.S.C. §§ 2731-2737.

The United States filed an affidavit of Colonel Henry G. Green, Chief of the Claims and Tort Litigation Staff of the Judge Advocate General which recites that his office will be responsible for this claim upon dismissal, and will determine whether or not it merits payment under the Military Claims Act. Colonel Green states that his review will consist of all of the evidence plaintiff wishes to submit to his office within sixty (60) days after dismissal of this action and will not be limited to the Air Force’s evidence developed to defend the suit. Finally, Colonel Green states that there must be a credible showing of a failure to meet the appropriate standard of care in this matter.

Since I have found that the FTCA does not apply to this action and that § 1089(f) does not provide immunity to military medical personnel which requires the substitution of the United States as a party, I will dismiss this matter.

      . I have jurisdiction in this matter based on 28 U.S.C. § 1346(b).

      . As the United States Supreme Court stated in Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962), "[w]e believe that it would be difficult to conceive of any more precise language Congress could have used to command application of the law of the place where the negligence occurred than the words it did employ in the Tort Claims Act."

      . The Jackson decision, however, was rendered prior to Section 1089(f) taking effect and the court declined to grant the military physician official immunity. The Jackson court also stated that the plaintiff had no remedy under the Federal Tort Claims Act because the action arose in a foreign country.

      . In Afonso v. City of Boston, 587 F.Supp. 1342 (D.Mass.1984), the court held that where a military physician is not immune from individual liability under the malpractice immunity statute by reason of § 1089(f), "the statute provides that the government shall indemnify any physician for acts performed....”, Id. at 1345. The court gave no explanation for its substitution of the term "shaH” for the term “may”.


author: McLAUGHLIN, District Judge.

text:
    UNITED STATES of America, v. Francis Anthony TERRITO, Defendant.
    Nos. 84 CR 407(S-1), 85 CR 52.
    United States District Court, E.D. New York.
    March 21, 1985.

      Raymond J. Dearie, U.S. Atty., E.D. New York, Brooklyn, N.Y. (Peter J. Tomao, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for United States.
    Philip Katowitz, Brooklyn, for defendant.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

Defendant moves to suppress (1) evidence seized from him as an incident to his arrest on June 27, 1984; (2) certain statements he made to Agent John Counihan after his arrest on that day; and (3) evidence seized from a tan attache case found in the trunk of the automobile he was driving at the time of his arrest. For the reasons developed below, defendant’s motions are denied.

Facts

At the suppression hearing, the Government’s witnesses, whom I find credible, testified substantially as follows.

In June, 1984, Adil Aziz was arrested at Kennedy Airport for importing heroin into this country from Pakistan. Aziz cooperated with the government by supplying the names of certain individuals involved in the heroin transaction, including those of Aftad Kadir and Shabbir Siddiqui. Following Kadir’s arrest, the government focused on Siddiqui.

Siddiqui telephoned Aziz several times to buy heroin from Aziz. At one point, Siddiqui proposed that Aziz deposit a sample of the heroin in an open window of an unoccupied black Chevrolet, license number 368 YKL, which would be parked near the Bossert Hotel in Brooklyn. At the government’s request, however, Aziz insisted on a face to face meeting.

On June 27, 1984, several DEA agents watched as a confidential informant, posing as Atz, met Siddiqui near the Bossert hotel. The two men entered a nearby coffee shop where they discussed the transaction and exchanged the sample. The agents then observed Siddiqui and the informant leave the coffee shop and walk up the block to the fire hydrant across from the hotel. There, the men talked for a few minutes until a black Chevrolet, license number 368 UKL, pulled up beside them. Siddiqui entered the car, and it began to pull away. Instantly the agents stopped the car and arrested Siddiqui and the car driver. The driver was the defendant, Francis Territo.

Before driving Territo’s car back to the DEA office in the United States Courthouse, Agent Counihan searched the driver’s seat. He found a folding pocketknife and the sample packet of heroin given to Siddiqui. An inventory search conducted at the DEA garage by Agent Melvin revealed a note pad containing the address of the Bossert Hotel and a glass vial taken from the passenger compartment, as well as a tan attache case found in the trunk.

Meanwhile, Territo had been placed in a lock-up room at the DEA office. Agent Counihan read Territo his Miranda warnings, and Territo indicated that he understood his rights and that he desired to speak to the agents. Agent Counihan then interrogated Territo for approximately ten minutes. During this interrogation, Terri-to gave oral consent to a search of the attache case. Shortly thereafter, Territo was arraigned before United States Magistrate A. Simon Chrein.

Before a bail hearing held the next day, the prosecutor and one or more DEA agents again asked Territo and his counsel to consent to a search of the attache case. Although Territo refused to sign a written waiver, he stated, nevertheless, that there were documents in the case, including a copy of the deed to his home.

On June 28, 1984, the agents obtained a warrant to search the attache case. They then searched the case and seized its contents.

Discussion

Probable Cause

Initially, defendant Territo moves to suppress everything that was seized as an incident to his arrest (including his post-arrest statements) on the ground that he was arrested without probable cause.

The Second Circuit has noted that:

[a]lthough the existence of probable cause must be determined with reference to the facts of each case, in general probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested.

United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983) (citations omitted).

Defendant concedes, as he must, that the agents had probable cause to arrest Siddiqui. He emphasizes, however, that his name was never mentioned by any of the alleged co-conspirators and that Siddiqui had originally indicated that the black Chevrolet would be parked and unoccupied. Thus, defendant argues, his mere presence in the automobile should not give rise to the inference that he was involved in the heroin scheme.

I disagree. The government had certain knowledge that a crime was being committed by Siddiqui. At the hearing, Agent Counihan testified that Siddiqui had indicated that another party would be involved in the transaction. Moreover, Siddiqui had indicated that a black Chevrolet with the license number 368 YKL would be near the Bossert Hotel to facilitate the transaction. On the day of arrest, Territo appeared on the scene driving a black Chevrolet bearing a nearly identical license plate. Territo stopped the car and Siddiqui, who now had gotten the sample of heroin, entered the car.

Viewing the circumstances in their entirety, the inference is inescapable that the agents had probable cause to arrest defendant Territo. Cf. United States v. Marin, 669 F.2d 73, 82 (2d Cir.1982).

Post-Arrest Statements

Defendant does not contest that his Miranda warnings were properly administered at the DEA office. Defendant moves to suppress his subsequent statements, however, contending that in light of the totality of the circumstances, the statements were involuntary.

The government bears the burden of proving that “the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). The Supreme Court has noted that “the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation....” Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197 (1979).

In the instant case, the interrogation took place in an atmosphere notably devoid of threats or violence. Although up to three agents were present during the interrogation, no agent was armed. The entire interrogation lasted approximately 10 minutes.

Defendant argues that he was not permitted to communicate with his family. There is no indication, however, that defendant ever requested to see a family member prior to his arraignment. Moreover, it is significant that less than two hours elapsed between the time of arrest at the Bossert Hotel and the time of arraignment. Accordingly, I find no merit to this contention.

Defendant also contends that he was not advised that an attorney had already been appointed to represent him and that he had a right to communicate with that lawyer prior to making any statements. Clearly, defendant’s Sixth Amendment right to counsel had not attached at the time of the interrogation since defendant had not been indicted, nor had adversary proceedings otherwise begun. Edwards v. Arizona, 451 U.S. 477, 481 n. 7, 101 S.Ct. 1880, 1883 n. 7, 68 L.Ed.2d 378 (1981); United States v. Duvall, 537 F.2d 15, 23 (2d Cir.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976).

The Supreme Court has recognized that an accused has a Fifth Amendment right to have counsel present during custodial interrogation. Edwards, 451 U.S. at 482, 101 S.Ct. at 1883. In Edwards, the Court held:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.

451 U.S. at 484, 101 S.Ct. at 1884. In the instant case, however, defendant did not invoke his right to have an attorney present during the interrogation. Cf. Fare v. Michael Co., 442 U.S. at 724-28, 99 S.Ct. at 2571-73; Michigan v. Mosley, 423 U.S. 96, 101 n. 7, 96 S.Ct. 321, 325 n. 7, 46 L.Ed.2d 313 (1975). Based upon the totality of the circumstances, I find that defendant waived his Fifth Amendment right to counsel. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979).

Significantly, there is no indication that defendant’s counsel had instructed the agents to cease the interrogation, or for that matter, that the interrogating agents were even aware that counsel had appeared for defendant. Cf. United States v. Howard, 426 F.Supp. 1067, 1071 (W.D.N.Y.1977). Indeed, Agent Reape testified that he and the other interrogating agents first learned that an attorney had been appointed for Territo when they arrived in the courtroom forty minutes later for the arraignment.

Notably, this case did not involve pre-arraignment questioning by the prosecutor, a practice frowned upon in this circuit. See United States v. Foley, 735 F.2d 45, 48 (2d Cir.1984); United States v. Duvall, 537 F.2d 15, 23 (2d Cir.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). Nor is there any indication that the agents were acting as the alter ego of the prosecutor at the time of the interrogation. See United States v. Jamil, 707 F.2d 638, 645 (2d Cir.1983).

Viewing the circumstances in their entirety, I conclude that the government has sustained its burden of proving that defendant’s statements were voluntary. Accordingly, defendant’s motion is denied.

Contents of Attache Case

Defendant Territo moves, finally, to suppress the contents of the tan attache case seized from the trunk of his car. He argues (a) that the affidavit in support of the search warrant was inadequate and (b), in any event, the affidavit contained information obtained in violation of defendant’s right to counsel. For the reasons discussed below, defendant’s motion is denied.

First, it is questionable whether the agents even needed a warrant to search the attache case. Since the agents had probable cause to believe that the automobile contained evidence of narcotics trafficking, they might have searched the vehicle and its contents at the time of arrest. United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982). Likewise, the contents of the car could have been searched once the vehicle was impounded at DEA headquarters. See United States v. Johns, — U.S. -, 105 S.Ct. 881, 887, 83 L.Ed.2d 890 (1985). In Johns, the Supreme Court upheld a container search conducted at a DEA warehouse three days after the container had been removed from an impounded vehicle, noting that:

[W]here police officers are entitled to seize the container and continue to have probable cause to believe that it contains contraband, we do not think that delay in the execution of the warrantless search is necessarily unreasonable.

Id.

Nonetheless,—and commendably— the agents did obtain a warrant for the search. Considering the information presented to the Magistrate to get the warrant, as well as the evidence adduced at the suppression hearing, I conclude that the supporting affidavit supplied probable cause for the issuance of the warrant. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). I am not persuaded by the argument that the agents relied on information obtained in violation of defendant’s right to counsel, since it is clear that no intrusion into the attorney-client relationship had occurred. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 (1977). Nor do I find any persuasive evidence of a knowing or reckless falsehood in the affidavit. Franks v. Delaware, 438 U.S. 154, 156-57, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978).

In any event, I conclude that the agents acted in good faith in applying for and relying on the warrant. Moreover, there has been no suggestion that the Magistrate abandoned his neutral and detached role in issuing the warrant. Under these circumstances I conclude that even if the warrant were invalidated, suppression of the evidence seized pursuant to the warrant would be inappropriate. United States v. Leon, — U.S. -, 104 S.Ct. 3405, 3421-3423, 82 L.Ed.2d 677 (1984).

Conclusion

Defendant’s motion to suppress the physical evidence seized from his person and effects and his post-arrest statements made at the DEA office is denied.

SO ORDERED.

      . Although Territo had previously given oral consent to a search of the case, the agents elected not to act on the basis of this consent. The government concedes that Territo’s oral consent was subsequently revoked by Territo’s counsel, who insisted that the agents obtain a search warrant.

      . It should be noted that since the agents clearly had probable cause to stop the car and arrest Siddiqui, they were justified in conducting at least a limited search of the vehicle. See United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157-2172, 72 L.Ed.2d 572 (1982); New York v. Belton, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 2864-65, 69 L.Ed.2d 768 (1981). Cf. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3480, 77 L.Ed,2d 1201 (1983). Because the sample was discovered under the driver’s seat before Territo made any incriminating statements, its presence under Territo’s seat may be considered in determining whether his arrest was supported by probable cause. United States Ex Rel. Wright v. Cuyler, 563 F.2d 627, 631 (3rd Cir.1977).

      . It is well-established that “waivers of Sixth Amendment rights must be measured by a 'higher standard’ than are waivers of Fifth Amendment rights.” United States v. Mohabir, 624 F.2d 1140, 1146 (2d Cir.1980). See United States v. Duvall, 537 F.2d 15, 21 (2d Cir.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). I need not decide, however, whether defendant's waiver would have sufficed under Sixth Amendment analysis.

      . The claim that agents eavesdropped on conversations between Territo and his attorney is totally unsupported by the evidence. Indeed, Territo’s attorney testified that the statements regarding the contents of the attache case were made in the presence of the agents during a conversation between himself, Territo and the prosecutor.