text:
    James CHONGRIS and George Chongris, Plaintiffs, v. BOARD OF APPEALS OF the TOWN OF ANDOVER, et al., Defendants.
    Civ. A. No. 80-2316-S.
    United States District Court, D. Massachusetts.
    July 30, 1985.
    Arthur H. Goldsmith, Boston, Mass., for plaintiffs.

      William A. Brown, Gerald F. Blair, Avery, Dooley, Post & Avery, Kenneth L. Carson, Sugarman, Rogers, Barshak & Cohen, Morrison, Mahoney & Miller, Boston, Mass., Stephen R. Duly, Andover, Mass., for defendants.
   MEMORANDUM AND ORDER

SKINNER, District Judge.

In this case, plaintiffs challenge the actions of the Andover Board of Appeals (the “Board”) as well as the validity of certain state zoning review, notice and appeal procedures, set out in M.G.L. c. 40A, §§ 11, 15 and 17, on constitutional and federal statutory grounds. Plaintiffs also seek compensatory damages, attorney’s fees, declaratory relief and an injunction restraining the defendants from interfering with plaintiffs’ “rights or business”. The Board answered, asserted a counterclaim for abuse of process, and moved to dismiss plaintiffs’ complaint on various grounds. Plaintiffs, in turn, moved for summary judgment.

This longstanding dispute began in August of 1979 when the plaintiffs received a permit to build a Dunkin Donuts shop in Andover, Massachusetts from Andover Building Inspector William Meins. The permit was issued over the objections of a local voluntary citizens’ organization, the Friends of Shawsheen Village Association (“Friends”).

On August 30, 1979, the Friends filed a letter with the Board seeking to appeal Inspector Meins’ decision. Notice of a hearing on the appeal was published and mailed to “interested parties” (presumably including the plaintiffs). The notice and petition for appeal stated four grounds for opposing the permit: insufficient setback; insufficient parking; improper use of “curb service”; and violation of zoning bylaws pertaining to business signs.

The Board held a public hearing on the Friends’ petition on November 1, 1979. Plaintiffs allege that they were not permitted to cross-examine witnesses at the hearing and were not given adequate notice of the substance of the issues to be addressed. James Chongris and his attorney attended the hearing, however, and convinced the Board and the Friends to take a view of the premises before acting on the appeal.

On the morning of November 10, 1979, the Board and Friends viewed the premises. James Chongris claims that he and his attorney received notice of the time of the view at 8:00 a.m. that morning and were therefore unable to attend.

On November 13, 1979, the Board unanimously voted to revoke plaintiffs’ permit. Shortly thereafter, plaintiffs filed a suit in state Superior Court seeking review of the revocation. Prior to receiving the Board’s answer in that action, plaintiffs filed this action in federal court on October 14, 1980. In February, 1981, plaintiffs filed in both superior and federal court a reservation of their federal claims pending completion of the state court case.

The Essex County Superior Court annulled the Board’s permit revocation on December 29, 1982, finding that the Friends did not have standing to challenge the issuance of the permit. That decision was subsequently upheld by the Massachusetts Appeals Court on February 15, 1984. See Chongris v. Board of Appeals of Andover, 17 Mass.App. 999, 459 N.E.2d 1245 (1984).

The defendants have moved to dismiss plaintiffs’ instant federal claims on the ground of res judicata. It is settled that federal courts are to give state court judgments the same preclusive effect that state law prescribes. 28 U.S.C. § 1738; Sires v. Gabriel, 748 F.2d 49 (1st Cir.1984). Under Massachusetts law, the doctrine of res judicata prevents the relitigation of issues that were or could have been litigated in a prior action. Id. The defendants conclude that, because plaintiffs’ constitutional and federal statutory claims could have been raised in their prior action in Essex Superior Court, those claims are barred.

Plaintiffs contend that they effectively reserved their right to litigate their federal claims separately in this court pursuant to their February 1981 reservation. In support of this theory, plaintiffs rely upon England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1963). My examination of the purpose and history of the doctrine of reservation of rights, however, leads me to conclude that plaintiffs’ argument is without merit and that this action is barred by virtue of the prior state case.

The doctrine of reservation of rights was first formally articulated in England. There, the Court attempted to resolve uncertainties created by two of its prior cases dealing with abstention: Government Employees v. Windsor, 353 U.S. 364, 77 S.Ct. 838, 1 L.Ed.2d 894 (1963) and NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

In Windsor, plaintiff labor union initially brought suit in the federal district court seeking to enjoin, on constitutional grounds, the enforcement of a state statute regulating “labor union[s] or labor organization[s]”. The district court retained the case but withheld exercise of its jurisdiction in order to permit plaintiffs first to exhaust state remedies.

Plaintiffs thereupon sought a ruling from the state courts as to whether they were subject to the statute. Plaintiffs, however, did not raise their constitutional challenges at the state level. The state’s highest court eventually held that the union was subject to the statute but offered no opinion as to the statute’s constitutionality.

Upon receiving the adverse state judgment, plaintiffs returned to the federal district court in order to raise their constitutional challenge. The district court dismissed the case stating that the state “courts have not construed the [challenged statute] ‘in such a manner as to render it unconstitutional, and, of course, we cannot assume that the State courts will ever so construe said statute.’ ” 353 U.S. at 366, 77 S.Ct. at 839 (quoting 146 F.Supp. 214, 216).

On appeal, the United States Supreme Court remanded the case to the district court “with directions to retain jurisdiction until efforts to obtain an appropriate adjudication in the state courts have been exhausted.” Id., 353 U.S. at 367, 77 S.Ct. at 839.

In support of this result, the Court explained that

[I]n an action brought to restrain the enforcement of a state statute on constitutional grounds, the federal court should retain jurisdiction until a definitive determination of local law questions is obtained from the local courts. One policy served by that practice is that of not passing on constitutional questions in situations where an authoritative interpretation of state law may avoid the. constitutional issues, (citation omitted) Another policy served by that practice is the avoidance of the adjudication of abstract, hypothetical issues. Federal courts will not pass upon constitutional contentions presented in an abstract rather than in a concrete form, (citation omitted) The bare adjudication by the Alabama Supreme Court that the union is subject to this Act does not suffice, since that court was not asked to interpret the statute in light of the constitutional objections presented to the District Court. If appellants’ freedom-of-expression and equal-protection arguments had been presented to the state court, it might have construed the statute in a different manner.

Id. at 366, 77 S.Ct. at 839.

In NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), plaintiffs brought suit in federal court challenging the constitutionality of certain state statutes which had never been construed by the state courts. The federal court abstained in order to permit plaintiffs to seek an interpretation of the statute in state court. Unlike the plaintiffs in Windsor, however, the NAACP sought a determination by the state court as to whether the statute applied to their activities and, if so, whether it was constitutional. The state courts found that the statutes applied to the NAACP and also were constitutional.

Thereupon the NAACP filed a petition for certiorari in the United States Supreme Court.

Before reaching the merits, the Court questioned whether it could properly take jurisdiction over the case in light of the federal district court’s previous abstention. The Court specifically noted that when a federal court abstains, it merely postpones exercise of its jurisdiction, it does not entirely abdicate it. 371 U.S. at 427, 83 S.Ct. at 335. The Court concluded, however, that plaintiffs were not required to return to the district court because they had unreservedly submitted all their claims to the state court. The Court explained that where

the party remitted to the state courts elects to seek a complete and final adjudication of his rights in the state courts, the District Court’s reservation of jurisdiction is purely formal, and does not impair our jurisdiction to review directly an otherwise final state court judgment. (Citation omitted). We think it clear that petitioner made such an election in the instant case, by seeking from the Richmond Circuit Court “a binding adjudication” of all its claims and a permanent injunction as well as declaratory relief, by making no reservation to the disposition of the entire case by the state courts, and by coming here directly on certiorari.

Id. at 427-28, 83 S.Ct. at 335.

Finally, in England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1963), plaintiff chiropractors originally brought suit in federal court seeking both an interpretation of a state statute regulating medical licenses, and, if the statute were found to apply to them, a ruling on its constitutionality. The federal district court abstained, as did the lower federal courts in Windsor and Button, and “shunted” plaintiffs to state court. After litigating and losing both their state and federal claims in state courts, plaintiffs attempted to return to federal district court. The district court dismissed plaintiffs’ second action on the ground that their proper remedy was by appeal to the Supreme Court of the United States. The dismissal was upheld by the Court of Appeals and plaintiffs sought review in the Supreme Court.

Overturning the courts below, the Court, through Justice Brennan, held that

in cases where, but for the application of the abstention doctrine, the primary fact determination would have been by the District Court, a litigant may not be deprived of that determination ... he may inform the state courts that he is exposing his federal claims there only for the purpose of complying with Windsor, and that he intends, should the state court hold against him on the question of state law, to return to the District Court for disposition of his federal contentions.

375 U.S. at 417, 421, 84 S.Ct. at 465, 467.

The Court thus made clear that the right to reserve a federal forum was intended strictly to protect plaintiffs in “abstention cases”:

The line drawn should be bright and clear, so that litigants shunted from federal to state courts by application of the abstention doctrine will not be exposed, not only to unusual expense and delay, but also to procedural traps operating to deprive them of their right to a District Court determination of their federal claims.

Id. at 418, 84 S.Ct. at 466.

In light of the above, it is clear that the right to reserve the federal forum was created as an accommodation between the duty of federal courts to accept jurisdiction of federal cases, and the policy of abstention in order to allow state courts to construe their statutes in the context of a constitutional challenge. Indeed, the Supreme Court recently stated that “[t]he holding in England depended entirely on this Court’s view of abstention...” Allen v. McCurry, 449 U.S. 90, n. 17, 101 S.Ct. 411, n. 17, 66 L.Ed.2d 308 (1980). I therefore find no reason to extend England beyond its intended scope.

In contrast to the plaintiffs in Windsor, Button and England, plaintiffs here were not seeking an interpretation of a state statute as a predicate to a constitutional challenge. Quite the contrary, plaintiffs admit in their brief that “Massachusetts law [in this case] was clearly established...” at the time of the state court action. Thus, the present case is not one in which the doctrine of abstention could properly have been invoked. Plaintiffs were not entitled to avail themselves of the rule in England. Plaintiffs were not shunted to the state court; they went there on their own in order to seek relief that they could get only there. That they also would like relief under federal law gives them no right to split their cause of action and harass the defendants with a marathon course of litigation.

Because plaintiffs could have raised the instant federal claims in their prior state court action, I find this action barred by the doctrine of res judicata.

The plaintiffs conceded in oral argument that denial of a common victualler’s license does not raise a federal issue.

Accordingly, the defendants’ motion to dismiss plaintiffs’ complaint is ALLOWED.

While plaintiffs’ claims ultimately failed, I do not find them so lacking in merit as to constitute an abuse of process. Accordingly, plaintiffs’ motion to dismiss defendant’s counterclaim is ALLOWED.


source: Caselaw Access Project

author: JOYCE HENS GREEN, District Judge.

license: Public Domain

text:
    Joycelyn A. THOMPSON, Plaintiff, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, et al., Defendants.
    Civ. A. No. 83-1845.
    United States District Court, District of Columbia.
    July 31, 1985.

      Stephen J. Boardman, John R. Dwyer, Jr., Washington, D.C., for plaintiff.
    Clinton J. Miller, III, Joseph Guerrieri, Jr., Highsaw & Mahoney, P.C., Washington, D.C., for defendants; Joseph P. Manners, General Counsel, IAM, Washington, D.C., of counsel.
   MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

Plaintiff Joycelyn A. Thompson brings this action against the International Association of Machinists and Aerospace Workers (“IAM”) and four officials of that union to redress alleged employment discrimination and retaliation. Plaintiff, a black woman, claims that she was discharged from her job as Assistant Director of the IAM Human Rights Department on account of her race and sex and that defendants retaliated against her for engaging in certain advocacy activities protected by statute. In her amended complaint, plaintiff sets forth claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”) (race, sex and retaliatory discrimination), Section 1 of the Civil Rights Act of 1966, 42 U.S.C. § 1981 (“§ 1981”) (race discrimination only), the Ku Klux Klan Act, 42 U.S.C. § 1985(3) (“§ 1985(3)”) (conspiracy to deprive plaintiff of her right to be free from race, sex or retaliatory discrimination) and the District of Columbia Human Rights Act (“DCHRA”), D.C.Code § 1-2501, et seq. (race, sex and retaliatory discrimination). The Title VII claim was subsequently dismissed as against three of the four individual defendants, Thompson v. IAM, 580 F.Supp. 662, 668-69 (D.D.C.1984), and the matter proceeded to trial.

Over a five-day period the case was tried simultaneously to this judge (the factfinder on the Title VII claim) and to a jury (the trier of fact on the remaining claims). At the close of the evidence, the Court reserved decision on the Title VII action but entered judgment on the jury verdict denying the § 1981 claim, but finding for plaintiff on the § 1985(3) and DCHRA claims. The jury assessed compensatory damages against defendants in the amount of $2,000 and punitive damages in the amount of $200,000. Defendants promptly filed a motion for judgment notwithstanding the verdict (“n.o.v.”) or, in the alternative, for a new trial. That motion and supporting papers, plaintiff’s opposition thereto and defendants’ reply, as well as the entirety of the Title VII cause of action, are now before the Court.

Several of defendants’ arguments in support of their motion for judgment n.o.v. or, alternatively, for a new trial address the sufficiency or weight of the evidence on the basis of (1) the instructions given, (2) the verdict as to liability, and (3) the jury’s award of damages. In recognition of the overlap between the issues raised by defendants’ alternative motion and the Title VII claim — both of which are matters for the Court’s consideration — the evidence will be reviewed for both purposes below.

I. Summary of the Evidence

Plaintiff’s discrimination and retaliation claims — however styled — turn on defendants’ motive in discharging plaintiff from the assistant directorship of the IAM Human Rights Department on June 29, 1982. Defendants contend that plaintiff was fired because she displayed an unwillingness or inability to cooperate with her supervisor and with the goals of the human rights department generally. The theme of plaintiff’s case is that she consistently “did a good job” for the IAM and that the proffered reasons for her termination are pretextual. Through the testimony of the parties, nonparty past and present IAM members, and numerous associates and acquaintances of plaintiff, considerable evidence in support of both theories was presented at trial.

Plaintiff is a black woman born in 1941. A native of Guyana and self-described “product of the free trade union movement” in that country, she first came to the United States in 1962 on a student visa. After attending classes at the Cortez-Peters Business School from 1962, she enrolled at Howard University and received a bachelor’s degree in economics from that institution in 1969. Plaintiff’s undergraduate studies were principally directed to the labor movement in the Caribbean and South America, and she subsequently undertook post-graduate coursework with a concentration on labor union topics, as preparation for employment with a labor organization.

In November, 1970 plaintiff was hired as a research associate (her first professional job) at the IAM International Headquarters in Washington, D.C. The IAM is a labor organization representing some 750,000 members. It is governed by its international convention, which meets every four years. Resolutions passed by the convention are implemented by the executive council composed of a president, a general secretary-treasurer, and nine vice presidents, some of whom are general vice presidents and some of whom cover geographical regions. The union’s international headquarters is organized into various departments, including departments for research, education, human rights, community services and international affairs'. Each department is headed by a director. Tr. 8-9. The four individual defendants to this action work for the IAM at its headquarters: William Winpisinger is currently the international president of the union, George Poulin and George Kourpias are both general vice presidents and Clark Johnson directs the human rights department.

Plaintiff testified that her initial duties in the research department at IAM headquarters were to classify labor agreements negotiated by staff personnel in the field and to provide information to the field staff for their use in negotiations. Tr. 34. In 1973, plaintiff approached then-IAM president defendant Winpisinger to volunteer her services as a liaison between the IAM and various women’s and civil rights organizations. According to Winpisinger, he enthusiastically supported her proposal, authorized her to take on the liaison role, and began channeling correspondence relating to women’s issues to plaintiff. One of the numerous organizations in which plaintiff participated on behalf of the IAM was the Coalition of Labor Union Women (“CLUW”). Defendant Winpisinger testified that shortly after plaintiff began her liaison duties with CLUW, a handful of that organization’s members protested to him that plaintiff lacked the hands-on shop floor experience that would best befit an IAM contact person in CLUW. Winpisinger responded that plaintiff should be given an opportunity to demonstrate her skills in the role, and (according to his testimony), the complaints “dried up immediately.” Tr. 838. Several witnesses testified that, in general, plaintiff’s contacts as an IAM spokeswoman with outside organizations benefited the union.

In 1976, the IAM created a civil rights department at its international headquarters and in 1977, defendant Clark Johnson was appointed by then-IAM International President Winpisinger to head that department. Tr. 42, 838. A few months later, plaintiff expressed to Johnson her interest in obtaining a position in the civil rights department, and she subsequently formally applied for a position there. Although there may have been some discussion of appointing a white woman or Hispanic to assist Johnson, defendant George Poulin called plaintiff in December 1977 to notify her that she would be named by Winpisinger to be the civil rights department’s assistant coordinator commencing January 1978. Tr. 43, 106-07. Plaintiff stated at trial that her primary duty in that position was to provide support to Johnson, assisting him in his efforts to eliminate workplace discrimination and performing other tasks as assigned. She divided her specific duties into three categories: (1) preparing instructional and educational material for use at conferences and workshops, (2) attending conferences and conducting seminars, and (3) continuing her liaison function with outside organizations. By plaintiff’s estimate, between 50 and 70% of her time was devoted to women’s issues Tr. 43, 110. There is no dispute that, at least at the outset, her work was well-received and she received no oral or written warnings that her performance was deficient in any way.

Defendants contend that plaintiff’s discharge in 1982 resulted from the thematic direction of her public appearances on behalf of the union and a deterioration in her relationship with her supervisors. At trial, much of the testimony presented focused on certain incidents which, defendants claim, form the foundation for that defense. One such incident (the basic facts of which are not disputed) occurred at the 1979 IAM Indiana State Council meeting held in Indianapolis and sponsored by the political arm of the IAM in that state. Plaintiff spoke before a group at that meeting on the topic of women in the economy. Her remarks grew praise from the audience; however, some of the women in the group noticed with disapproval that immediately before the speech, the regional vice president and leadership of the state organization had left the room. The chairman of the session returned to hear plaintiff; the others did not. As plaintiff was leaving the conference area on an elevator, the women asked why the officials — who they felt should have attended plaintiffs presentation — had left. Plaintiff responded that she did not know. When the regional vice president entered the elevator, plaintiff exited and suggested that the women direct their question to him. Some four months later, at defendant Poulin’s request, plaintiff memorialized the incident in a handwritten memorandum. DX F. In that memorandum, she acknowledged that not all of the IAM regional vice presidents welcomed her into their territories and explained that for that very reason she had been careful to act in a diplomatic fashion when members of her audience confronted the regional vice president in the elevator.

Another incident involving plaintiff occurred at the IAM general convention held in Cincinnati, Ohio in September 1980. Following a large caucus of female IAM members at the convention, arrangements were made for a subset of that group to meet to draft a resolution for the advancement of women in the union. At a daily staff meeting, plaintiff reported to her superiors that the meeting would take place, and defendant Poulin advised her that as director of the human rights department (formerly named the civil rights department), defendant Johnson would accompany her to the meeting. Defendant testified that she was concerned and upset by that decision because it “sent two signals” to the women— that plaintiff was not trusted by her superiors or, alternatively, that she was not doing her job. Tr. 127. Plaintiff did not accompany Johnson to the meeting but instead arrived ahead of him. According to Johnson, his presence was not welcomed, but the meeting proceeded without incident. The following day, Johnson observed plaintiff crying at various times throughout the day at the civil rights information booth where she was stationed. Plaintiff testified that she was crying because she was upset that Johnson had been dispatched to the meeting of the women’s group. The booth was visible to many people, and several gathered around to provide sympathy and comfort to plaintiff during the day. Defendants viewed the spectacle as an embarrassment to the union administration generally and to Johnson in particular, and plaintiff was reprimanded for her conduct upon her return to headquarters. Tr. 705-06.

Yet another incident which was the subject of testimony occurred at the IAM training conference held at Placid Harbor, Maryland, in August 1981. The conference, as described by defendant Winpisinger, was the occasion for the unveiling of a training curriculum designed to equip the union’s organizers to confront antiunion tactics in the field and to capture the allegiance of unorganized workers. Tr. 848. Each department was charged with preparing a presentation which would “homogenize [the department’s program and goals] into an aggressive forward thrust.” Tr. 848. So that the union’s top leaders would know the substánce of and vital need for the curriculum and would be able to critique and adjust it as necessary, defendant Winpisinger directed that the IAM executive council would be the first class to which the new program would be presented. Tr. 848-50.

Plaintiff and defendant Johnson each delivered part of the presentation of the human rights department, plaintiff following Johnson to the podium. Winpisinger testified that some members of the audience, including himself, perceived tension and disagreement between the two, based in part on plaintiff’s facial expressions and an apparent contrast in their themes. According to Winpisinger, Johnson’s presentation was constructive and responsive to the assignment given, but plaintiff dwelled on the existing imbalance of minority representation in the union’s top positions, rather than on the grassroots incentive programs which were the department’s focus. Tr. 851. Winpisinger further testified that his reaction to the perceived infighting before the executive council was one of “unadulterated outrage” and that the council members in the audience were incensed as well. Tr. 846, 852.

Defendants testified that following the Placid Harbor training conference, Winpisinger decided to assign defendant Kourpias to exercise tight supervision over the human rights department in an effort to unify the spirit of the department. Over the next several months, Kourpias reported back on his progress and setbacks, and finally in the spring of 1982 announced that the department as it stood could not be saved. Winpisinger determined that plaintiff should be discharged at the end of June 1982, and instructed Poulin to carry out that decision. Poulin called plaintiff into his office on June 29, 1982 and informed her that her employment had been terminated, effective immediately. Poulin testified that he declined to discuss at length the reasons for the termination, but did explain to plaintiff that, in the union’s estimation, the goals of the human rights department could not be met with her in the department. Tr. 573. Plaintiff claims that she was given no specific reasons for the termination; however, she does acknowledge being told that the discharge resulted from an evaluation of her performance. Tr. 74. Plaintiff was offered a letter of recommendation and received her full salary through July 1982, in addition to compensation for accrued vacation time.

The occurrence and sequence of events in the above chronology is essentially undisputed: it is the significance of the various incidents that is the subject of controversy. Defendants argue that plaintiff’s conduct at the 1979 Indiana council meeting, the 1980 convention and the 1981 Placid Harbor training seminar was indicative of her attitude generally. Each defendant testified that plaintiff did not work well with her supervisor, Clark Johnson, and refused to submit to his leadership in the human rights department. The defendants stated that over time, they came to realize that plaintiff sought control over that part of the department’s program related to women’s issues and resisted Johnson’s participation in those matters. Defendants Winpisinger, Poulin and Kourpias further testified that plaintiff publicly belittled and undercut Johnson, whom she considered her intellectual inferior. Moreover, they testified that plaintiff appeared to have her own agenda for improving the union’s racial balance, and used her position to advance her ideas (which called for an increase in appointments of blacks and women to high-level positions) over the union’s program of grassroots development of minority opportunities in the field.

To corroborate plaintiff’s claim that the asserted basis for her discharge was pretextual, a number of plaintiff’s professional associates testified that they had never heard plaintiff belittle the union, its program, or her superiors and that she was, to their knowledge, at all times an excellent spokeswoman for the IAM. Plaintiff admitted that she and Clark Johnson “had [their] differences”, Tr. 113; DX Q, but she denied that any frustrations she may have felt affected her ability to serve as Johnson’s subordinate. Charles Higgins, a white male who had served as assistant to the white male director of the IAM education department until December 1982, testified that both he and a white woman in another department clashed with their superiors without being discharged. In later testimony, defendant Winpisinger stated that the white woman to whom Higgins referred had not held a position analogous to plaintiff’s: according to Winpisinger, that employee was hired as a trade specialist but was delegated to assist a department director based on her expertise in trade. Winpisinger unequivocally stated that she was not the director’s assistant and when the two were unable to work together she simply resumed her original duties outside of that department. Tr. 864-65.

In her own testimony, plaintiff emphasized that throughout her tenure at the IAM she received no written warnings of poor performance or advance notice of her termination. She further testified that even her direct supervisor claimed no foreknowledge of her termination and denied complaining about her work. Tr. 80. Defendant Winpisinger’s testimony corroborated plaintiff on that point: by his account, he personally decided to fire plaintiff based in part on the feedback he had received from Kourpias since Kourpias had been assigned supervision of the human rights department. Winpisinger testified that he intentionally did not seek Johnson’s direct participation in the discharge decision, because he was unwilling to pit one black against another. Tr. 899. Johnson testified that he had suggested to Kourpias that plaintiff be discharged from the department, Tr. 714, but there is no evidence that he discussed the matter directly with Winpisinger. Consistent with that, Winpisinger stated that he learned of Johnson’s recommendation to Kourpias only after plaintiff had actually been discharged. Tr. 911.

Plaintiff also submitted that during defendant Winpisinger’s term as international president of the union, only a small number of the available appointed positions in the union were awarded to minorities. At trial, Winpisinger disclaimed responsibility for the appointments made by vice presidents outside of headquarters, and contended that at least half of the appointees he himself selected were women and two were blacks. Tr. 912.

Finally, considerable testimony was presented with regard to defendant Winpisinger’s general attitude on discrimination issues. To an individual, plaintiff’s witnesses, including plaintiff herself, concurred in defendants’ portrayal of Winpisinger as a leading opponent of discrimination in the labor field. No one disputed that the IAM civil rights (later human rights) department was the brainchild of Winpisinger and that he cared deeply about its success. It was also agreed that Winpisinger actively participates in or supports numerous organizations (including CLUW) which are dedicated to fighting discrimination in the workplace and elsewhere. By themselves, such factors bear on but do not decide the issue presented to the jury and to the Court — whether defendants’ treatment of plaintiff was motivated by discriminatory animus.

When faced with that question, and after weighing all of the evidence presented and assessing the demeanor and credibility of those who testified, the jury concluded that plaintiff had failed to prove her claim under 42 U.S.C. § 1981, but had prevailed under 42 U.S.C. § 1985 and the DCHRA. Defendants’ various challenges to that verdict will be considered in the following section.

II. Consideration of Defendants’ Motion

A. Legal Standards and Defendants’ Arguments Under Federal Rules of Civil Procedure 50(b) and 59

Under Federal Rule of Civil Procedure 50(b), a motion for judgment n.o.v. is resolved under the same standard as that applied to a motion for a directed verdict. Vander Zee v. Karabatsos, 589 F.2d 723, 726 (D.C.Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1066 (1979); see also Tavoulareas v. Piro, 759 F.2d 90, 105 (D.C.Cir.1985), vacated on other grounds and set for rehearing en banc. The accepted formulation of that standard in this Circuit is found in Alden v. Providence Hospital, 382 F.2d 163, 165 (D.C.Cir.1967):

Unless the evidence, along with all inferences reasonably to be drawn therefrom, when viewed in the light most favorable to the plaintiff is such that reasonable jurors in fair and impartial exercise of their judgment could not reasonably disagree in finding for the defendant, the motion must be denied.

Tavoulareas, 759 F.2d at 105; accord Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1227 (D.C.Cir.1984); Coburn v. Pan American World Airways, 711 F.2d 339, 342 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 488, 78 L.Ed.2d 683 (1983); Metrocare v. Washington Metropolitan Area Transit Authority, 679 F.2d 922, 924-25 (D.C.Cir.1982). The motion may be granted only when, “without weighing the cred ibility of the evidence, there can be but one reasonable conclusion as to the proper judgment”, 5A J. Moore, Moore’s Federal Practice ff 50.07[2] (2d ed. 1984) (emphasis supplied). If fair-minded people may differ as to the conclusion, or if there is substantial conflicting evidence, the judgment n.o.v. motion must be denied. Carter v. Duncan-Huggins, Ltd., 727 F.2d at 1227; see also Coburn v. Pan American World Airways, Inc., 711 F.2d at 342.

A motion for new trial pursuant to Federal Rule of Civil Procedure 59 is addressed to the trial court’s discretion

insofar as it is bottomed on the claim that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving ...

Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940). “Other reasons” supporting a Rule 59 motion may include substantial errors in admission or rejection of evidence or jury instructions, jury misconduct, inconsistency in the verdict, denial of the proper mode of trial, or belated discovery of evidence, to name a few. Id.; 6A J. Moore, Moore’s Federal Practice § 59.08 (2d ed. 1984).

As one basis for both alternatives requested in their motions for judgment n.o.v. or a new trial, defendants contend that plaintiff should not have been granted a jury trial under the DCHRA as a matter of law. As the parties are well aware, there is a split of opinion in the district courts of this Circuit as to whether DCHRA claims call for a jury trial. See Turgeon v. Howard University, 571 F.Supp. 679 (D.D.C.1983) (motion to strike demand for jury trial under DCHRA denied); see also Abbate v. Hyatt Corp., 28 F.E.P. Cases 542 (D.D.C.1982) (DCHRA claim tried to judge). This Court has chosen to follow the Turgeon case inasmuch as the DCHRA claim, like the § 1981 claims, seeks compensatory damages, a form of legal relief. See generally Goodman v. Washington Radio, Inc., Civil Action No. 81-0062 (D.D.C. April 26, 1982) (attached to plaintiff’s opposition to defendants’ motion) and cases cited therein. Accordingly, that claim was properly tried to the jury rather than to the Court.

Defendants next challenge that portion of the verdict finding for plaintiff on her § 1985(3) claim on the ground that the evidence was legally insufficient to support that finding. Defendants correctly state that absent a finding for plaintiff on the § 1981 race discrimination claim, the § 1985(3) finding must be overturned. ' As was explained in the Order of February 13, 1984 at 9-11,

§ 1985 provides no substantive rights to plaintiff; it merely provides a remedy for violation of the rights it designates. Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 372 [99 S.Ct. 2345, 2349, 60 L.Ed.2d 957] (1979). The Supreme Court has expressly removed the guarantees of Title VII from the category of ‘designated rights’ subject to redress under § 1985(3) ... [Moreover, the Supreme Court in Novotny ] described § 1985(3) as a remedial statute ‘providing a civil cause of action when some otherwise defined federal right — to equal protection of the laws or equal privileges and immunities under the laws — is breached by a conspiracy.’ Novotny at 376 [99 S.Ct. at 2351] (emphasis supplied).

580 F.Supp. at 667. Although the Court denied defendants’ previous motion to dismiss the § 1985(3) claim in its entirety, it did so only because the § 1981 claim in plaintiff’s amended complaint provided the necessary yotentially-successful substantive federal cause of action. Id. at 668. When the jury rejected that claim, it effectively rejected the conspiracy claim as well: because the evidence, as viewed by the jury, did not support a finding of race discrimination, it necessarily was legally insufficient to support a finding that defendants had conspired to discriminate on the basis of race. Accordingly, that portion of defendants’ judgment n.o.v. motion which addresses the verdict on the § 1985(3) claim is granted. There is, therefore, no need to reach defendants’ contention that the § 1985(3) instruction should not have been given in light of the evidence adduced, and that a new trial is warranted on that basis.

As part of their motion for new trial, defendants challenge the decision made at trial to exclude the testimony of three witnesses who would testify on defendants’ behalf. This argument requires little discussion. In mid-trial, counsel for both parties debated at the bench whether the witnesses at issue should be allowed to testify, in that they had been listed as potential witnesses on defendants’ pretrial submissions, but had not (and should have) been previously identified to plaintiff in response to a certain interrogatory posed during discovery. It was decided that defendants could elicit the testimony of the desired witnesses only as part of a surrebuttal, if rebuttal were presented, but not in response to plaintiff’s ease in chief. Tr. 651-52. Plaintiff’s tactical decision to fore-go rebuttal in effect precluded the testimony of the contested witnesses. That outcome does not demonstrate trial court error; on the contrary, it illustrates one consequence of a failure to timely identify potential witnesses.

Each of defendants’ remaining contentions turns on the evidentiary support for decisions made by the jury or court. Specifically, defendants assert as bases for their motion for judgment n.o.v.:

that the evidence presented was legally insufficient to support the jury verdict on the DCHRA claim, and a reasonable and fairminded jury could not find against defendants on that claim;
that the evidence presented was legally insufficient to support the jury finding on punitive damages;
that the award of punitive damages was excessive in light of the evidence presented and applicable law.

In support of their motion for new trial, defendants contend:

that the verdict under the DCHRA is against the weight of the evidence;
that the punitive damage instruction should not have been given in light of the evidence produced;
that the damages awarded were unwarranted and excessive in light of the evidence, among other things.

Defendants’ Motion for Judgment N.O.V. or New Trial at 2-3. These arguments are addressed in the two following sections.

B. Liability Decision under DCHRA

In her complaint, plaintiff states a claim under the DCHRA alleging discrimination based on race and sex and retaliatory discrimination. The legal standards applicable to race discrimination claims under the DCHRA and § 1981 are identical, see e.g., Carter v. Duncan-Huggins, Ltd., 727 F.2d at 1231; Hawkins v. Jonathan Woodner Co., 31 F.E.P. Cases 1288, 1292 (D.D.C.1982), as were the instructions given at trial under those two statutes on the race discrimination issue. Therefore, because the jury found against plaintiff on the § 1981 claim, the DCHRA verdict for plaintiff must rest on a finding of sex discrimination and/or retaliation rather than race discrimination.

The legal analysis of a DCHRA disparate treatment claim follows the pattern established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII case. See Hawkins v. Jonathan Woodner Co., 31 F.E.P. Cases at 1292; see also McKenna v. Weinberger, 729 F.2d 783, 790 (D.C.Cir.1984) (McDonnell Douglas order of proof applicable to claims of retaliatory discrimination). The plaintiff must carry an initial burden of establishing a prima facie case of discrimination. In a sex discrimination case, this burden is met by plaintiffs demonstration that she (1) belongs to a protected group, (2) was qualified for the position, (3) was terminated, and (4) that others not in the protected class were treated differently. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Coburn v. Pan American Airways, 711 F.2d at 342 (age discrimination analysis analogous to Title VII). A prima facie case of retaliatory discrimination requires a showing (1) that the plaintiff was engaged in the statutorily protected activity, (2) that the employer took an adverse personnel action, and (3) that a causal connection existed between the two. McKenna v. Weinberger, 729 F.2d at 790 and cases cited at n. 50 therein; Evans v. Mail Handlers, 32 F.E.P. Cases 634, 639 (D.D.C.1983); Reese v. Batesville Casket Co., 25 F.E.P. Cases 1472, 1476 (D.D.C.1981). Neither formula requires direct proof of discrimination at the first stage; plaintiff need only establish facts adequate to permit an inference of discriminatory or retaliatory motive. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); McKenna v. Weinberger, 729 F.2d at 790.

Once the plaintiff has established a prima facie case, the burden of production shifts to the defendants to articulate a legitimate, non-discriminatory reason for plaintiffs discharge. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). If defendants carry that intermediate burden the prima facie case is rebutted and the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the articulated reason was pretextual. McDonnell Douglas v. Green, 411 U.S. at 802-05, 93 S.Ct. at 1824-25. The burden of demonstrating pretext merges with the ultimate burden of proving intentional discrimination or retaliation, Texas Dep’t of Community Affairs v. Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1094-95, and in the final analysis the fact-finder must decide whether defendants intentionally discriminated or retaliated against the plaintiff. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. at 715, 103 S.Ct. at 1482.

The jury in this case had before it ample evidence to establish a prima facie case of both sex discrimination and retaliatory discrimination. There is no dispute that plaintiff is female, that she was discharged from her job, and that she was an active spokeswoman on behalf of minorities and women within the union. In addition, plaintiff introduced evidence that she was qualified for the position she held, that at least one male assistant director at IAM Headquarters was not discharged for conduct arguably similar to hers, and that her style of advocacy may have been tied into defendants’ decision to discharge her. Defendants rebutted the inferences raised by plaintiff, and the ultimate factual issue— the question of motive — was squarely placed before the jury.

Presented with all of the evidence, and given the opportunity to judge the demean- or and credibility of the witnesses, a fair-minded jury could have decided either for or against plaintiff. The jury chose the former, finding either sex discrimination or retaliation or both. Perhaps the jurors concluded that plaintiff’s conduct in the incidents highlighted at trial was inoffensive and a pretextual basis for plaintiff’s dismissal. Even accepting that the incidents took place as described by defendants, the jurors may have concluded that defendants would have tolerated plaintiff’s conduct had she been a man dealing with fellow male superiors. They may have believed that plaintiff’s discharge was an act of retaliation prompted by the substance of her antidiscrimination advocacy rather than by the tactics by which she conveyed it. Each of these is a feasible outcome: a verdict in favor of defendants is not the only “reasonable conclusion” that the jurors could have drawn, and accordingly their verdict on the DCHRA liability issue must withstand defendants’ motion for judgment n.o.v. See Coburn v. Pan American World Airways, Inc., 711 F.2d at 342, and cases cited therein; see also Tavoulareas v. Piro, 759 F.2d at 105 n. 14 (“a judgment n.o.v. is particularly inappropriate where the case depends on witness credibility”).

Defendants’ challenge to the jury’s liability decision on their motion for new trial will likewise be denied. Out of respect for the function of the jury as the trier of fact, an allegation on a motion for new trial that the verdict is against the weight of the evidence will generally be rejected “unless it is quite clear that the jury has reached a seriously erroneous result”, Wright, Law of Federal Courts (4th ed. 1983) at 634, and the district judge finds the verdict contrary to the “great weight” or “clear weight” of the evidence. See Jackson v. Magnolia Brokerage Co., 742 F.2d 1305 (11th Cir.1984); Airweld, Inc. v. Airco, Inc., 742 F.2d 1184 (9th Cir.1984) cert. denied, — U.S.-, 105 S.Ct. 1184, 84 L.Ed.2d 331 (1985); Litman v. Massachusetts Mut. Life Ins. Co., 739 F.2d 1549 (11th Cir.1984); Perricone v. Kansas City So. Ry. Co., 704 F.2d 1376 (11th Cir.1983); but see 6A J. Moore, Moore’s Federal Practice § 59.00[5] (trial court may set aside verdict as contrary to the preponderance of the evidence). In this case, the jurors’ task of ascertaining defendants’ motive turned in large part on their perceptions of witness credibility. The clear weight of the evidence demonstrated that defendant Winpisinger had a history of condemning discrimination, but the evidence concerning defendants’ specific treatment of plaintiff was hardly one-sided. Under these circumstances, even though the Court may have weighed the evidence differently, see part III infra, it cannot be said “with definitive and firm conviction that a mistake has been made.” See Wright, Law of Federal Courts, supra at 635. Accordingly, the DCHRA liability issue shall not be retried.

C. Damages Available Under DCHRA

As grounds for judgment n.o.v. or a new trial, defendants challenge (1) the fact that the jury was instructed on punitive damages, (2) the sufficiency of the evidence to support the damage award, and (3) the amount of damages given ($2,000 compensatory and $200,000 punitive). Because defendants’ motion for judgment n.o.v. was granted as to the § 1985(3) claim, the issue before the Court is whether plaintiff’s success on her DCHRA claim will support all or part of the damage award.

The damage instructions read to the jury covered three topics — compensatory damages generally (Tr. 1048-50), damages in excess of $400 per defendant under the DCHRA (Tr. 1050-51), and punitive damages (Tr. 1051-52). Consistent with the language of the DCHRA, see Eller v. Houston’s Restaurant, 35 F.E.P. Cases 1801, 1802 (D.D.C.1984), it is this Court’s view that the second category is a specialized form of compensatory damages, and nothing in the Court’s instructions on prior orders contemplated that the punitive damage instruction would apply to plaintiff’s claim under the DCHRA. See Tr. 1051 (summing up DCHRA instruction in terms of “compensatory damages”); see also Order of February 13, 1984, 580 F.Supp. at 669-70 (denying motion to dismiss for punitive damages under §§ 1981 and 1985(3) without addressing availability of punitive damages under DCHRA). Accordingly, there being no basis for the $200,000 punitive damage award under the DCHRA, that portion of the damage award must be stricken from the judgment. Ample evidence was presented to support the $2,000 compensatory damage award, and that shall stand.

III. Title VII Claim

Remaining for resolution is plaintiff’s Title VII claim. The framework for analysis of the Title VII issue has already been set forth (see supra) and the legal issue presented — whether defendants intentionally discriminated and/or retaliated against plaintiff — is identical to that placed before the jury. With all due respect to the jury and its collective wisdom, the Court’s weighing of the evidence and assessment of witness credibility produces a judgment in favor of defendants. Even accepting that plaintiff has produced a prima facie case, she has failed to persuade the Court, by a preponderance of the evidence, that defendants acted with an unlawful motive. It is the Court’s opinion that defendants credibly testified that their decision to fire plaintiff had nothing to do with her sex or the fact that she advocated minority rights — it was the tension between plaintiff and her supervisor that defendants found intolerable. As Johnson’s subordinate, plaintiff was the most likely candidate for dismissal if the department’s program should suffer as a result of differences between plaintiff and Johnson. Had plaintiff been a male conducting himself exactly as plaintiff did, this Court believes that defendants would have taken the same action in the interest of the department’s future. Likewise, plaintiff has not proven to the Court that the subject matter of her advocacy activities was the causal element resulting in her discharge. Plaintiff’s advocacy of even the most benign cause, carried out through the divisive conduct credibly testified to at trial, would have brought the same result. In other words, plaintiff’s methods, not her message, were her downfall. See e.g., Hamm v. Board of Regents, 708 F.2d 647 (11th Cir.1983) (on similar facts, plaintiff failed to demonstrate Title VII violation). Accordingly, defendants’ discharge of plaintiff did not violate Title VII, and judgment shall be entered for defendants on the Title VII claim.

In accordance with the above, it is by the Court this 31st day of July, 1985

ORDERED that defendants’ motion for new trial is hereby denied. It is further

ORDERED that defendants’ motion for judgment n.o.v. on plaintiff’s claim under 42 U.S.C. § 1985(3) is hereby granted, and it is further

ORDERED that defendants’ motion for judgment n.o.v. on plaintiff’s claim under the District of Columbia Human Rights Act, D.C.Code § 1-2501 et seq. is hereby denied except to the extent that the jury verdict of punitive damages is stricken. It is further

ORDERED that judgment shall be entered in favor of defendants on plaintiff’s claim under Title VII, 42 U.S.C. § 2000e et seq.

      . Plaintiff's allegations of retaliation were added to the original complaint by amendment. See December 2, 1983 Order and Amended Complaint filed same date.

      . Other aspects of the February 13, 1984 Order reported at 580 F.Supp. 662 are discussed infra at Parts II-A and II-C.

      . Plaintiff's testimony that Poulin claimed to be seeking a replacement for her was directly refuted by Poulin. Tr. 574.

      . Plaintiff acknowledges that "her Section 1981 right to be free from race discrimination was the right at which the [alleged] conspiracy was aimed.” Plaintiff’s January 17, 1985 Opposition Memorandum at 44.

      . In this Circuit, a district court's denial of a motion for new trial on this basis will withstand review unless "there was a total absence of evidence to support the jury's verdict.” Columbia Plaza Corp. v. Security National Bank, 676 F.2d 780, 788 (D.C.Cir.1982). This appellate test for abuse of discretion should not be confused with the standard applied at the trial level.

      . Section 3.11 of the guidelines for payment of damages under the DCHRA ("Guidelines”) promulgated by the Commission on Human Rights of the District of Columbia ("Commission”) authorizes payment of "damages in excess of $400 for embarrassment, humiliation and indignity.” Under this provision,
      " ‘such damages shall be prove[n] by competent evidence’ and the Court shall ’[take] into consideration’ ... [wjhether the act or acts of discrimination were accompanied by one or more of the following:
      (1) Untrue derogatory statements by the respondent regarding the awardee or made known to the awardee.
      (2) Awardee was demoted or terminated.
      (3) Racial, ethnic, religious, sexual or other epithets were used.
      (4) The incident, if any, occurred publicly or was within the knowledge of awardee’s friends, acquaintances, peers or family.
      (5) the respondent’s unlawful acts were willful and/or repetitive and/or reckless to the extent that they constituted harassment or caused unusual inconvenience.”
      21 D.C. Register No. 14 § 3.11 pp. 1614-15 (1975), approved pursuant to D.C.Code § 1-2553.
      In the Eller case, this Court struck plaintiff’s demand for punitive damages under the DCHRA as follows:
      "Although both McCormick [v. District of Columbia, 554 F.Supp. 640, 649 (D.D.C.1982) ] and Abbate [v. Hyatt, 28 F.E.P. Cases 542, 544 D.D.C. 1982)] refer to Section 3.11 damages as ‘punitive’ the Guidelines themselves list Section 3.11 damages as one of several categories of ‘compensatory damage', and generally provide for awards of damages to compensate for injuries sustained as a result of discriminatory acts and practices" (Guidelines, Section 2.3), as well as awards of attorney’s fees (Guidelines, Section 1.0). In keeping with the stated intent of the Commission, plaintiff’s claim for punitive damages under Counts I and II shall be considered to be a claim for compensatory damages for embarrassment, humiliation and indignity in excess of $400 and shall be allowed to stand.” Eller v. Houston’s Restaurant, 35 F.E.P. Cases at 1802.


author: CARL O. BUE, Jr., District Judge.

text:
    UNION INDEMNITY INSURANCE CO. OF NEW YORK v. CERTAIN UNDERWRITERS AT LLOYD’S, et al.
    C.A. No. H-83-4324.
    United States District Court, S.D. Texas, Houston Division.
    July 31, 1985.
    Innes A. Mackillop, Brown, Sims & Ayre, Houston, Tex., for plaintiff.
    Ed Bluestein, Jr., Fulbright & Jaworski, Houston, Tex., for defendants.
   ORDER

CARL O. BUE, Jr., District Judge.

Plaintiff brought this action for a declaratory judgment pursuant to 28 U.S.C. § 2201, for the purpose of determining the obligations of plaintiff and defendants as hull underwriters under the insurance policies with respect to contribution to a settlement involving the assured. Soon thereafter, cross motions for summary judgment were filed and argued to the Court. Simply stated, plaintiff contends that because a “total loss” occurred in this case, all hull underwriters, regardless of any priority under the policies that they may have in the event of a partial loss, are obligated to respond to the maximum monetary limits of their respective policies. In response, defendants contend that plaintiff, as the primary hull insurer, has an obligation, regardless of the extent of the loss, which requires the exhaustion of its policy limits before defendant excess insurers are obligated to pay. Accordingly, the critical issue in this case which appears to be one of first impression is whether in a hull insurance case in which a total loss occurs and is later compromised each hull underwriter, whether primary or excess, should be required by policy or by law to share ratably in the satisfaction of the settlement.

After careful consideration of the facts of the case, the insurance policies in question, argument of counsel, and relevant law, this Court is of the opinion that plaintiff’s motion for summary judgment should be denied and that defendants’ cross-motion for summary judgment should be granted for the reasons discussed below.

Background

The F/V DECO XX, owned by Duzich Trawlers, Inc., sank in heavy water in the Gulf of Mexico in April of 1982 and could not be salvaged. Thereafter, the insured made a claim for a “total loss”. At the time of the loss, the DECO XX was insured under several policies, one of which was issued by plaintiff and the remainder of which were issued by defendants. The agreed value of the vessel as stated in each of these policies was $475,000. The owner’s claim was compromised for $300,000.

In order to fund the settlement, plaintiff, the primary hull insurer, paid $250,000, the limit of its policy. One set of defendants, Certain Underwriters at Lloyd’s, whose policy had a limit of $10,000 in excess of $250,000, paid its limit. A second set of defendants, Certain Underwriters at Lloyd’s together with the member companies, whose policies had a combined limit of $215,000 in excess of $260,000, paid the remainder of the settlement, or $40,000.

Summary Judgment Standards

In order to succeed on a motion for summary judgment, a movant must demonstrate that there is no genuine issue as to any material fact, and that the law demands a judgment in the movant’s favor based on those undisputed facts. FED.R. CIV.P. 56(c); Darden v. C.H. Heist Corp., 743 F.2d 1135, 1137 (5th Cir.1984). Plaintiff and defendants are in agreement as to the material facts in this case — the existence of the insurance policies, the total loss of the F/V DECO XX and the subsequent settlement. The only question remaining is the legal one of plaintiff’s right, if any, to contribution from defendants. Therefore, the parties concur that this case is a proper one for summary judgment.

The Law

For an insurer to be entitled to equitable contribution from other insurers, the policies in question must insure the same party, the same interest, and the same risk. Reliance Ins. Co. v. Allstate Indem. Co., 514 F.Supp. 486 (E.D.Penn.1981), aff'd, 681 F.2d 808 (3rd Cir.1982). This is known as double or overlapping insurance. Brockway-Smith Co. v. Boston & Maine Corp., 497 F.Supp. 814, 823 (D.D.Mass.1980); 6 Appleman, Insurance Law and Practice § 3903 (1972). If one insurer pays the insured’s entire loss in such a situation, that insurer is entitled to pro rata contribution from any other insurer who issued double insurance. Reliance Ins. Co., 514 F.Supp. at 486, 487. The purpose of the doctrine of equitable contribution is to prevent the insured from making a double recovery. See 1 Arnold, Law of Marine Insurance and Average, § 433, (16th ed. 1981).

Primary insurance coverage is insurance coverage whereby, under the terms of the policy, liability attaches immediately upon the happening of the occurrence that gives rise to liability. Whitehead v. Fleet Towing Co., 110 Ill.App.3d 759, 66 Ill.Dec. 449, 442 N.E.2d 1362 (Ill.App.Ct.1982). An excess policy is one that provides that the insurer is liable for the excess above and beyond that which may be collected on primary insurance. Brownsville Fabrics, Inc. v. Gulf Ins. Co., 550 S.W.2d 332, 337 (Tex.App.—Corpus Christ 1977, writ ref’d n.r.e.). In a situation in which there are primary and excess insurance coverages, the limits of the primary insurance must be exhausted before the primary carrier has a right to require the excess carrier to contribute to a settlement. U.S. Fire Ins. Co. v. Lay, 577 F.2d 421 (7th Cir.1978), reh’g denied; see also Valentine v. Aetna Ins. Co., 564 F.2d 292, 296 (9th Cir.1977); Travelers Indem. v. Certain Underwriters at Lloyd’s, 566 F.Supp. 267, 270 (E.D.La.1983). In such a situation, the various insurance companies are not covering the same risk; rather, they are covering separate and clearly defined layers of risk. The remote position of an excess insurer thus greatly reduces its chance of exposure to a loss. This reduced risk is generally reflected in the cost of the excess policy.

In the instant case, plaintiffs insurance policy is unmistakably primary and defendants’ are excess. Not only are defendants’ policies labeled “excess”, but they recite, in addition, that they follow the terms and conditions of the underlying coverage. Clearly, in this situation, each underlying policy must be exhausted before the next layer of excess insurance is required to contribute. There is no danger of the insured making a double recovery because each insurer is liable only to the limits of its policy.

Nevertheless, plaintiff contends that the case at bar presents a situation analogous to a co-insurance scenario. Stated simply, plaintiff asserts that where, as here, the aggregate of the policy limits equals the agreed insured value, the nature of the contractual obligation owed by each underwriter to the assured in a total loss situation is identical, except as to the difference in policy limits. In other words, all underwriters may be said to insure the same party at the same time and against the same risk. However, plaintiff cites no authority in support of this contention, nor does the Court following its own research find any.

Instead, plaintiff attempts to support its position inter alia by analogy to the effects of a compromised total loss involving other types of insurance. As its single authority on this point, plaintiff quotes Bu-glass, Marine Insurance and General Average in the United States, pp. 112-113 (2d ed. 1981) as follows:

When a claim for constructive total loss is compromised for, say, 90% of the agreed or insured value in the basic hull policy, any other total loss underwriters must respond similarly (that is to say, any underwriters insuring increased value, disbursements or freight, must also respond for 90% of the sum for which they insure). In other words, any compromise settlement reached by the assured with his basic hull underwriters carries with it the other total loss insurances.

However, insurance for increased value, disbursements and freight does not insure the same interest as hull insurance. Brown v. Merchant’s Marine Ins. Co., 152 Fed. 411, 413 (9th Cir.1907). While those coverages may be bound by the percentage of loss represented by the settlement achieved by the hull underwriter, those coverages do not contribute to lessen the hull underwriter’s obligation. In the case sub judice, ■ the insurers do insure the same interest — the hull — but they do not insure the same parts of the risk. In short, the authority cited by plaintiff, while undoubtedly accurate in its own context, is inapposite to the case at bar.

Plaintiff finds further support for his contentions in Brown in a quote taken from Arnould, Marine Insurance § 1215 (7th ed.) which reads as follows:

Upon abandonment, each of the underwriters participates in the benefits of the transfer by sharing in the proceeds of the salvage according to the proportion which the amount of his subscription bears to the whole value of the thing insured, and this without regard to the date of the different subscriptions, or the priority of the policies, if more than one.

152 Fed. at 413. In Brown, the Court held that the underwriters of a disbursement policy should rank equally with the other underwriters in the distribution of the fund in court. That Court neither analyzed nor ruled upon the issues raised herein.

The distinction between hull insurance and disbursements, discussed previously by this Court, is explained in that opinion as well:

The object of insurance on disbursements is to insure the shipowner the recovery of additional sums beyond the amount covered by his insurance on ship and freight, and it is made against total loss only____ [PJolicies on disbursements ... are designed to cover a variety of interests not covered by policies in the ordinary form____ ‘Disbursement’ policies are often issued where the hull is fully covered by other policies.

Id. at 413. That being so, the holding and analysis in Brown is inapplicable to the instant case involving the respective liabilities amongst primary and excess hull underwriters.

Plaintiff argues that if the Court denies the relief sought by plaintiff by not allowing the primary carrier to recover pro rata contribution from any excess carrier under the facts of this case, settlements will be discouraged. To the contrary, in this Court’s view, requiring excess carriers to lessen a primary insurer’s obligation would undoubtedly impair settlements, regardless of whether the loss is partial or total. The point was made in Valentine:

If the existence of excess insurance relieved a primary insurer of its responsibility to negotiate and settle up to its policy limits in good faith, then the primary insurer would have a disincentive to settlement. Moreover, if during settlement negotiations the primary insurer is allowed to force the excess insurer to cover part of the primary’s insurance exposure, the coverages and rate structures of the two different types of insurance — primary and excess — would be distorted, and excess insurance premiums would have to be adjusted. On the other hand, allowing an excess insurer to enforce a primary carrier’s duty to negotiate and settle in good faith to the full limits of the primary carrier’s policy does not add to or change that carrier’s duties.

564 F.2d at 298. Indeed, courts in this Circuit as well have held that a primary insurance carrier owes a duty to its assured and to the excess insurer to settle the case in good faith. Offshore Logistics Serv., Inc. v. Arkwright-Boston Mfr. Mut. Ins. Co., 469 F.Supp. 1099 (E.D.La.1979), aff'd as mod, 639 F.2d 1142 (5th Cir.), reh. denied, 647 F.2d 1121 (5th Cir.1981). These principles should apply whether the loss in question is partial or total.

The Policies

It is axiomatic that an insurance policy is a contract which expresses the law between the contracting parties. As such, it must be enforced according to its terms when there is no ambiguity. Gulf Oil Corp. v. Mobile Drilling Barge or Vessel, 441 F.Supp. 1, 7 (E.D.La.1975), aff'd, 565 F.2d 958 (5th Cir.1978). In Offshore Logistics, the Fifth Circuit found the terms of the policy controlling. 639 F.2d at 1142. Similarly, in Alcoa S.S. Co. v. Charles Ferran & Co., 443 F.2d 250, 255 (5th Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 94 (1971), the Fifth Circuit looked again to the intent and the wording of the primary and excess insurers when determining the issue at hand, and stated specifically:

But we do not make this as a choice of law for general (or Louisiana) application. We do it in the context of this situation in which the insurance was a carefully dovetailed, integrated program in which each had significant interests at stake, often regardless of the ultimate outcome of a potential claim ...

The underwriters in the case at bar, too, had a carefully “dovetailed, integrated program in which each had significant interests at stake.” Union as the primary underwriter had the first $250,000. One excess cover was based expressly upon the named primary policy and subject to all of its terms and conditions. It picked up liabilities in the amount of $10,000 in excess of $250,000. The remaining excess cover also was based expressly upon the named primary policy and subject to all its terms and conditions. It picked up liabilities in the amount of $215,000 in excess of $260,-000.

Further, the Court notes that plaintiff makes provisions in its policy to cover divers circumstances which could arise in a “total loss case”. Likewise, in defendants’ policies, a costs clause is included, providing for the ratable contribution of costs in connection with any claim which the underwriters may require to be contested by the assured. Accordingly, it follows that plaintiff could have avoided the position that it now endures by making provision in its policy for pro rata contribution from defendants in the event of a total loss. Having failed to do so, plaintiff cannot now ask this Court to read an ambiguity into an otherwise unambiguous contract.

Conclusion

In this case, the Court has carefully considered all factual and legal arguments of counsel. Having done so, the Court is of the view that under the particular facts at hand, the defendants have no legal obligation to the plaintiff to contribute on a pro rata basis. Rather, plaintiff had a legal obligation to pay its assured $250,000, the limits of its policy, before the obligations of the excess carrier defendants under their excess policies were triggered.

Plaintiff seeks to invoke the doctrines of fairness and justice that are enforced through the Court’s equitable powers. However, as one equitable maxim most aptly provides, “Equity follows the law.” There being no law to support plaintiff’s contentions, its prayer for equitable relief must be denied. Accordingly, plaintiff’s motion for summary judgment is denied, and defendants’ cross-motion for summary judgment is granted.

Contemporaneously entered herewith is the Court’s Final Judgment, and the above Order is in support of that Final Judgment.

      . Plaintiff admits "that in regard to partial losses to the F/V DECO XX (i.e. damage to the hull not resulting in a 'total loss') Plaintiff’s policy would operate as primary insurance.” (Plaintiffs Motion for Summary Judgment at 7).

      . Plaintiff agrees that in a partial loss situation the policies at issue do not provide coverage of • exactly the same nature. (Plaintiff's Motion for Summary Judgment at 10).

      . Plaintiff contends that the rules of law governing hull insurance must be different from the rules of law for liability insurance. However, as they concern the issues in this case, the Court is of the opinion that there are no grounds to believe that such a distinction would be material; nor does plaintiff cite any legal authority in support of its contention.

      . However, even this might not have mandated a decision in plaintiff's favor, since it appears to be the general rule that in instances in which two insurance policies afford coverage on a particular loss, and one contains a pro rata clause as to other insurance, while the other policy contains an excess clause, the policy containing the excess clause does not provide any coverage until the other policy is exhausted. Early Settlers Ins. Co. v. Selected Risks Ins. Co., 346 F.Supp. 1272, 1277 (E.D.Va.1972); Fireman's Fund Ins. Co. v. Underwriters Ins. Co., 389 F.2d 767 (10th Cir.1968).