author: DEVINE, Chief Judge.

text:
    Katherine M. CHAMBERLIN v. 101 REALTY, INC.; Matthew Zsofka, individually and in his official capacity as President of 101 Realty, Inc.
    Civ. No. 84-692-D.
    United States District Court, D. New Hampshire.
    Dec. 30, 1985.

      Katherine A. Daly, Concord, N.H., for plaintiff.
    Jack S. White, Nashua, N.H., Kevin G. Powers, Lynn, Mass., for defendants.
   ORDER

DEVINE, Chief Judge.

In this action plaintiff Katherine Chamberlin has brought suit against defendants 101 Realty, Inc. (“Realty”), and its president Matthew Zsofka, both individually and officially, for damages arising out of plaintiff’s termination of employment with defendants. Realty is a real estate development corporation located in Amherst, New Hampshire, and it had employed plaintiff as an architect from February to September 1983. Plaintiff has raised one federal and three pendent state law claims in her complaint. Plaintiff complains in Count I that defendants’ actions were unlawful under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, in Count II that defendants’ actions constituted wrongful discharge under state law, in Count III that defendants’ actions constituted intentional infliction of emotional distress under state law, and in Count IV that defendant Zsofka made defamatory remarks under state law. Presently before the Court is defendants’ motion to dismiss, Rule 12(b), Fed.R.Civ.P., or alternatively for summary judgment, Rule 56, Fed.R.Civ.P., with respect to the three state law claims (Counts II through IV) and plaintiff’s objection thereto.

Count II

Consideration of a motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P., requires application of the rule that the “material facts alleged in the complaint are to be construed in the light most favorable to the plaintiff and taken as admitted, with dismissal ordered only if the plaintiff is not entitled to recover under any set of facts it might prove.” Chasan v. Village District of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983), affd without opinion, 745 F.2d 43 (1st Cir.1984) (citations omitted). Upon review of plaintiff’s complaint and application of the above standard thereto, the Court finds and rules that defendants’ motion to dismiss Count II, the state law wrongful discharge claim, must be denied.

Plaintiff’s complaint, paragraphs 7 through 25, alleges facts which, as construed in the light most favorable to plaintiff and taken as admitted, indicate that plaintiff was fired from her position as an architect in retaliation for rebuffing the improper sexual advances of her employer, defendant Zsofka. These allegations are strikingly similar to the facts supporting a claim for wrongful discharge in the seminal wrongful discharge ease, Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974). The evidence in Monge was to the effect that plaintiff, a married woman with three children, was discharged, not for incompetence, but for her refusal to accept her supervisor’s invitations to dating. These facts led the New Hampshire Supreme Court to declare (as an exception to the well-established rule that an employee at will can be discharged for any cause or no cause) that an employee has a right to recover for a termination of employment “motivated by bad faith or malice or based on retaliation.” Id. at 133, 316 A.2d 549.

Understandably, ingenious counsel saw the Monge decision as an invitation to bring an action for wrongful discharge in every case of termination of employment. Accordingly, in Howard v. Dorr Woolen Company, 120 N.H. 295, 414 A.2d 1273 (1980), the plaintiff claimed his improper discharge was due to illness and age. The Court responded by holding that the doctrine of Monge v. Beebe Rubber Company, supra, is applicable only to situations “where an employee is discharged because he performed an act that public policy would encourage, or refused to do that which public policy would condemn.” Howard v. Dorr Woolen Company, supra, 120 N.H. at 297, 414 A.2d 1273. The court went on to hold that a discharge due to sickness was not within this category, given the availability of medical insurance or disability provisions in an employment contract, and that the remedy for discharge because of age was to be found in the provisions of both state and federal statutes, specifically the New Hampshire law against discrimination, New Hampshire Revised Statutes Annotated (“RSA”) 354-A, and the federal Age Discrimination in Employment Act, 29 U.S.C. §§ 623, 626. Id.

The New Hampshire Supreme Court correlated Monge and Howard and articulated a two-part test for establishing a common-law claim for wrongful discharge. Cloutier v. Great Atlantic & Pacific Tea Company, 121 N.H. 915, 436 A.2d 1140 (1981). According to the court therein, to state a claim for wrongful discharge from employment, plaintiff must show that defendant was motivated by bad faith, malice, or retaliation, and must demonstrate that he was discharged because he performed an act that public policy would encourage or refused to do something that public policy would condemn. Id.; see Vandegrift v. American Brands Corp., 572 F.Supp. 496 (D.N.H.1983).

If plaintiff can prove the facts with inferences therefrom as alleged in her complaint, recovery would be warranted under state law, and dismissal at this stage of the proceedings would therefore be inappropriate. Plaintiff has alleged first that her discharge was retaliatory in nature (Complaint, ¶¶ 20-25), and thus, if established, would satisfy the first test under Cloutier v. Great Atlantic & Pacific Tea Company, supra. While recognizing that the scope of the Monge decision has been narrowed, the Court is satisfied that public policy would condemn the acceptance of sexual harassment by an employee as a means of retaining employment; thus the second test under Cloutier for establishing a claim of wrongful discharge is satisfied. Plaintiff’s pleadings are accordingly sufficient to withstand a motion to dismiss.

Count III

Defendants have also moved for summary judgment with respect to Count III (Complaint, 11¶ 26-31), which asserts a cause of action for intentional infliction of emotional distress. Defendants argue first that New Hampshire does not recognize such a cause of action, and second, that even if it did, the actions complained of by plaintiff are not sufficient to constitute the tort. For the following reasons, the Court finds these arguments to be without merit and rules that the motion for summary judgment must be denied.

While there is a paucity of New Hampshire case law discussing the tort of intentional infliction of mental distress, the Court’s review thereof has revealed enough to satisfy it that such a cause of action does exist. Almost eighty years ago, the New Hampshire Supreme Court in Prescott v. Robinson, 74 N.H. 460, 69 A. 522 (1908), made reference to the recovery of damages for the intentional infliction of mental suffering. Prescott involved the issue of the extent to which a negligent defendant is liable for a plaintiff’s emotional distress, and the court articulated that

[i]f in the case at bar the fact was that the defendant maliciously inflicted the injury upon the plaintiff, one of the natural and intended results of the act would be to cause the plaintiff great mental distress____ It might not be incorrect to say that it would be conclusively presumed that the defendant’s purpose was to inflict upon her the mental suffering she sustained, and hence ought to pay for it.

Id. at 465, 69 A. 522.

More recently the New Hampshire Supreme Court had occasion to discuss this cause of action in a case where a plaintiff complained that a defendant insurance company intentionally inflicted mental distress by denying insurance coverage. Jarvis v. Prudential Insurance Co., 122 N.H. 648, 448 A.2d 407 (1982). The court therein held:

Assuming arguendo that this Court, in an appropriate case, would recognize the tort of intentional infliction of mental distress, this is not such a case. Our review of the factual allegations before us convinces us that the defendant’s conduct would, as a matter of law, fail to meet the definition of ‘outrageous conduct’ set forth in the Restatement of Torts. Restatement (Second) of Torts § 46, at 72-73 (1965).

Id. at 652, 448 A.2d 407 (citation omitted). This language is significant to the extent that the New Hampshire Supreme Court had the opportunity to summarily dismiss the cause of action as one not cognizable under state law. The Court, however, shunned the opportunity to so dismiss, recognized that the cause of action might be appropriate in certain cases, and analyzed the claim on its merits. The action by the New Hampshire Supreme Court in Jarvis thus evidences the existence of a cause of action for intentional infliction of mental distress.

A year and a half after the Jarvis decision, the New Hampshire Supreme Court in a brief but succinct statement confirmed the existence of this cause of action under state law. In Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (1983), a plaintiff sought damages for severe emotional distress for a defendant’s aiding and abetting in the interference with parental custody. While holding that certain damages are recoverable for the interference with parental custody, the court noted that “[w]e are of the opinion that a claim for the intentional infliction of emotional distress should be treated as a separate cause of action. See Restatement (Second) of Torts § 46 (1965).” If this cause of -action was nonexistent, the New Hampshire Supreme Court would have had no reason to render such an opinion. This Court accordingly is satisfied that New Hampshire recognizes the tort of intentional infliction of emotional distress and that the elements of the cause of action are outlined in Restatement (Second) of Torts § 46 (1965).

The Court further finds upon review of the pleadings and other submitted documents, including affidavits and depositions, that genuine issues of material fact exist which must be resolved by the trier of fact. These issues include but are not limited to whether or not the complained-of actions by defendant Zsofka were intentional or reckless and how extreme the complained-of actions were. Accordingly, summary judgment would be inappropriate at this stage of the proceedings, and defendants’ motion therefor must be denied.

Count TV

Defendants have also moved for dismissal or summary judgment with regard to Count IV (Complaint ¶¶ 32-37), which asserts a cause of action for defamation. The alleged facts to support this cause of action are contained in paragraphs 33 and 34. Paragraph 33 provides:

Upon firing plaintiff in September, 1984, defendant Zsofka stated to his Comptroller and to his lawyer that plaintiff had unlawfully removed from the offices of 101 Realty, Inc. property belonging to the corporation.

Paragraph 34 provides:

Upon firing plaintiff in September, 1984, defendant Zsofka wrote to the Department of Employment Security, stating that plaintiff was fired ‘for reasons other than lack of work’ and was therefore ineligible for unemployment benefits. When defendant Zsofka was questioned by a Department of Employment Security representative regarding this allegation, he stated that plaintiff spent a lot of time out of the office, did not spend enough time on her work, and did not do her work properly.

Plaintiff herein concedes, and the Court finds, that the allegations contained in paragraph 34 fail to state a cause of action under state law. As provided by RSA 282-A:122:

No action for slander or libel, either criminal or civil, shall be predicated upon information furnished by any employer or any employee to the commissioner [of the Department of Employment Security] in connection with the administration of any of the provisions of this chapter.

Thus, where defendant Zsofka provided information to the Department regarding plaintiff’s discharge, such information cannot form the basis of an action for defamation. The claim of defamation based on the facts alleged in paragraph 34 is accordingly dismissed.

The Court also finds and rules that defendants’ motion for summary judgment with respect to the defamation claim outlined in paragraph 33 of the complaint must be denied in part and granted in part. Rule 56, Fed.R.Civ.P., provides that a

judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

In paragraph 33 plaintiff complains that defendant Zsofka defamed her by stating to his comptroller and to his attorney that she had unlawfully removed property from the offices of defendant Realty. Plaintiff was made aware of this alleged defamation upon receipt of letters from defendants’ comptroller, Mr. Caron, and defendants’ attorney, Mr. White. The letter from Mr. Caron read:

I have been trying for three days, without success, to reach you by telephone.
The reason I was calling, was to let you know that Matt [Zsofka] is demanding you return all materials in your possession which Matt has paid you for. This includes, but is not limited to, the Derry House models, along with any other plans that you were working on while in our employ.
Please deliver the above items prior to September 14, 1983; or, Matt has informed me that, he will do whatever is necessary to obtain his rightful property.

Similarly, the letter from Mr. White read:

Please be advised that this office represents 101 Realty relative to the taking by you of certain scale models, blueprints, drawings, photographs, and other property or work products of 101 Realty, Inc.
Demand is hereby made upon you for the immediate return of this property within five (5) days from receipt of this letter.
If you fail to return the aforementioned property within this timeframe, then I will proceed with legal action against you for this unauthorized taking. Please do not underestimate the seriousness of your actions in taking this property of 101 Realty, Inc.

Defendants argue first that a mere allegation of unlawful activity, short of criminal conduct, does not rise to the level of actionable defamation. It is established, however, that in ruling on a motion for dismissal or summary judgment in a defamation case, it is for the Court to determine whether the language in question could reasonably have been read or understood to defame the plaintiff. Duchesnaye v. Munro Enterprises, Inc., 125 N.H. 244, 252-53, 480 A.2d 123 (1984); Restatement (Second) of Torts § 614 (1977). Language is defamatory when it tends “to lower the plaintiff in the esteem of any substantial and respectable group, even though it may be quite a small minority.” Morrissette v. Cowette, 122 N.H. 731, 733, 449 A.2d 1221 (1982), quoting Thomson v. Cash, 119 N.H. 371, 373, 402 A.2d 651 (1979); W. Prosser, Torts § 111 at 743 (4th ed. 1971). And to be actionable, such defamation need be published to only one person other than plaintiff, with publication, as determined by the fact finder, occurring when the language was actually communicated and understood in the possible defamatory sense. Duchesnaye v, Munro Enterprises, Inc., supra, 125 N.H. at 253, 480 A.2d 123.

While it is unclear at this point exactly what language defendant Zsofka employed in expressing his concern to Mr. Caron, who relayed it to Mr. White, about the property removed from defendant Realty, and even whether such statements were slanderous (oral) or libelous (written), the Court is satisfied that the language as manifested in the subsequent letters from Mr. Caron and Mr. White could reasonably have been understood to defame plaintiff. The clear import of the language contained in the letters received by plaintiff reflects a belief that plaintiff unlawfully retained property that properly belonged to defendants herein. Such an allegation would undoubtedly damage plaintiff’s reputation and lower her in the esteem of any substantial and respectable group. See Robinson v. Keyser, 22 N.H. 323 (1851) (actionable to call one a thief); Harris v. Burley, 8 N.H. 256 (1836) (actionable to call one dishonest and accuse him of taking items not belonging to him). Accordingly, defendants’ first argument for summary judgment is rejected.

Defendants next argue that they are entitled to judgment as a matter of law on the ground that defendant Zsofka’s remarks were conditionally privileged and thus not actionable. In support of this argument, defendants claim that a good faith dispute exists as to the ownership of the subject property, referring to plaintiff’s deposition testimony, wherein plaintiff admits that ownership of the property is debatable. With this admission in hand, defendants seek protection under the rule in Chagnon v. Union Leader Corp., 103 N.H. 426, 438, 174 A.2d 825 (1961), cert. denied, 369 U.S. 830, 82 S.Ct. 846, 7 L.Ed.2d 795 (1962), which provides:

A conditional privilege ... is established if the facts, although untrue, were published on a lawful occasion, in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds of truth.

The Court finds, however, that the determination of the existence of such a conditional privilege must be made by the trier of fact, see Pickering v. Frink, 123 N.H. 326, 329, 461 A.2d 117 (1983); Supry v. Bolduc, 112 N.H. 274, 277, 293 A.2d 767 (1972), and upon review of the proffered attachments, the Court finds that there is a genuine issue of material fact, viz the existence of defendant Zsofka’s good faith reasonable belief that the subject property had been unlawfully retained by plaintiff; hence, summary judgment would be inappropriate. Accordingly, defendants’ second argument for summary judgment is rejected.

Defendants next argue that summary judgment should be granted with respect to the publication of the alleged defamatory language to defendants’ attorney on the ground that such communication is privileged. The Court agrees.

It is established law that statements made in the course of judicial proceedings are absolutely privileged from liability in civil actions, provided they are pertinent to the subject of the proceedings. Pickering v. Frink, supra, 123 N.H. at 329, 461 A.2d 117; Restatement (Second) of Torts § 587 (1977). Statements made to an attorney during the course of legal representation have been found by the New Hampshire Supreme Court to be part of judicial proceedings, and thus privileged. McGranahan v. Dakar, 119 N.H. 758, 764-65, 408 A.2d 121 (1979). While recognizing that the attorney-client privilege may not be absolute where, for instance, a compelling need exists for disclosure, the court held that forced disclosure of attorney communications could be inappropriate where the communications themselves were allegedly tortious. Id. According to the court:

Subjecting a client to liability, or indeed to the burden of defending against a defamation action, for statements made to his attorney pertinent to and during the course of legal representation would seriously impair the full and frank discussions that the attorney-client privilege is designed to protect____ On balance, the plaintiff’s desire for civil damages in defamation is not sufficiently compelling to warrant abrogation of the attorney-client privilege.

Id. (citations omitted).

The Court is satisfied that defendant Zsofka’s remarks as communicated to his attorney are subject to the attorney-client privilege. The remarks concerning ownership of the subject property were pertinent to a contemplated civil action, and thus are protected. See, e.g., Sriberg v. Raymond, 370 Mass. 105, 345 N.E.2d 882 (1976) (defamatory letter sent by attorney to prospective defendant privileged). Further, the dictation of the allegedly defamatory language by defendant’s attorney to his secretary would not be a publication under the law of libel, see, e.g., Rodgers v. Wise, 193 S.C. 5, 7 S.E.2d 517 (1940), and thus not actionable, or even assuming that it was a publication, the scope of the attorney-client privilege is broad enough to include communications between the attorney and his secretary, particularly where the communication concerns a client’s business. The Court also rejects the contention that defendants’ attorney waived or abused the privilege. Accordingly, the Court grants summary judgment in favor of defendants, but only as to those communications made to defendants’ attorney and the attorney’s subsequent communication with his secretary.

Lastly, defendants argue that they are entitled to judgment as a matter of law on the ground that plaintiff has not suffered any monetary damage and that the defamation claim is therefore not actionable. The Court disagrees.

Monetary or special damages, see Restatement (Second) of Torts § 575 comment b (1977), are not required to establish liability for libelous statements. As noted in the Restatement (Second) of Torts § 569 (1977):

One who falsely publishes matter defamatory of another in such manner as to make the publication a libel is subject to liability to the other although no special harm results from the publication.

A written or printed imputation of a crime is sufficiently libelous to be actionable, and imputation of such crime need only harm the reputation of the plaintiff in the eyes of a substantial minority of respectable persons. Id., comment d. The Court is satisfied that defendant Zsofka’s statements to the effect that plaintiff unlawfully retained property is sufficiently libelous; hence, proof of special damages is not required. The Court would also note that even if defendant's remarks were slanderous, rather than libelous, special damages would not be required since such remarks impute criminal conduct regarded by public opinion as involving moral turpitude. Restatement (Second) of Torts § 571 comment g (1977). See, e.g., Jones v. Walsh, 107 N.H. 379, 380, 222 A.2d 830 (1966) (accusation of embezzlement is slander per se). Thus, plaintiff must only prove actual damages to establish an actionable defamation claim herein, Gertz v. Welch 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), where actual damages include impairment of reputation, personal humiliation, and mental anguish, Restatement (Second) of Torts § 621 comment b (1977). Plaintiff herein has pleaded as well as provided depositional testimony that she has suffered actual harm, e.g., damage to her reputation. The Court accordingly rejects this last argument by defendants for summary judgment.

Conclusion

With respect to Court II, the Court denies defendants’ motion to dismiss the wrongful discharge claim; with respect to Count III, the Court denies defendants’ motion for summary judgment regarding the claim for intentional infliction of emotional distress; and with respect to Count IV, the Court grants the motion to dismiss the defamation claim outlined in paragraph 34 of the complaint, but denies the motion for summary judgment concerning the defamation claim outlined in' paragraph 33 with the exception of those communications made to defendants’ attorney and from defendants’ attorney to his secretary. Those communications are privileged and not properly subject to a defamation action.

SO ORDERED.

      . Defendants have moved both for summary judgment, Rule 56, and for dismissal, Rule 12(b)(6), with respect to this claim. Defendants' motion to dismiss will be treated as a motion for summary judgment since matters outside the pleadings have been presented to the Court. See Rule 12(b).

      . This section of the Restatement (Second) provides:
      One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

      . Defendants have moved both for summary judgment, Rule 56, and for dismissal, Rule 12(b)(6), with respect to this claim. Defendants’ motion to dismiss will be treated as a motion for summary judgment since matters outside the pleadings have been presented to the Court. See Rule 12(b).


source: Caselaw Access Project

author: HENRY WOODS, District Judge.

license: Public Domain

text:
    Thomas SIMMONS, Petitioner, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Respondent.
    No. PB-C-83-411.
    United States District Court, E.D. Arkansas, Pine Bluff Division.
    Dec. 31, 1985.

      Ron Heller, Little Rock, Ark., for petitioner.
    Jack Gillean, Ass’t Atty. Gen., Little Rock, Ark., for respondent.
   MEMORANDUM OPINION

HENRY WOODS, District Judge.

FACTS

Thomas Simmons, a thirty-seven-year-old white male was convicted of four counts of capital murder and sentenced to death for killing four persons in 1981. The facts are related in detail in the opinion of the Supreme Court of Arkansas, 278 Ark. 305, 645 S.W.2d 680 (1983) and will only be briefly reviewed at this time.

Jawana and Larry Price agreed to handle the sale of a used car owned by Mrs. Price’s employer, Holly Gentry. On Monday morning, January 5, 1981, Mrs. Price admitted a man into the Price’s apartment who professed interest in the car and when she left for work, Larry Price and the man were having coffee in the kitchen. Mr. Price failed to keep a lunch date with his wife and when she discovered he had not reported for work, she went to the police station accompanied by Gentry to report her husband missing. After talking with police officers, Mrs. Price and Gentry left to return to the Price’s apartment and a policeman, Tate, went in a blue, unmarked police car to meet them there.

A short time later, a neighbor saw a man make three trips from the apartment complex to the blue car. On the first trip, he accompanied a man whose hands were bound behind him. Then he brought out another man whose hands were tied and finally he brought out a woman. He drove away with the three individuals in the car.

The bodies of Mrs. Price, Tate, and Gentry were discovered by a farmer on Tuesday, and Mr. Price’s body was found in a different place on Wednesday. Various witnesses placed Simmons at the Price’s apartment complex, in the areas where the cars were later found, and at the parking lot where Mrs. Price parked her car. Other events occurred which implicated Simmons and led to his arrest and ultimately his conviction and sentence to death.

LEGAL PROCEEDINGS

On January 8, 1981 Simmons was charged by information with four counts of capital murder. Charges were filed in both Sebastian and Crawford Counties. On April 17, 1981 Simmons’ attorney moved for a change of venue contending extensive publicity concerning the crimes, the identity of the defendant, and pre-trial motions filed on defendant’s behalf had created prejudice in the minds of the inhabitants of Sebastian and Crawford counties such that it would be impossible for the defendant to receive a fair and impartial trial in either county. Defendant asked that the trial be transferred to a county other than Sebastian and Crawford. A hearing was held on May 11, 1981 to consider this matter and other pre-trial motions; the motion for change of venue was denied.

At the bifurcated trial which began on August 5, 1981, the jury found Simmons guilty on all four counts and sentenced the petitioner to death by electrocution on each count. Counsel for the defendant moved for a mistrial which was denied and judgment was entered in accordance with the jury verdict.

Petitioner appealed his conviction to the Arkansas Supreme Court which affirmed the conviction and the sentence. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983) reh’g denied, (March 14, 1983). The United States Supreme Court declined to grant certiorari on October 3, 1983. Execution was scheduled for November 11, 1983, and on November 4, Simmons petitioned the Arkansas Supreme Court for a stay of execution and for additional time to request post-conviction relief pursuant to Arkansas Criminal Procedure Rule 37. The petition was denied on November 7, 1983.

On November 8, 1983 Simmons requested a stay of execution pending a federal habeas proceeding pursuant to 28 U.S.C. § 2254. This Court granted a stay until further order.

In his amended habeas petition, petitioner raises seven grounds for relief. He requested a hearing on one issue, whether his Sixth, Eighth and Fourteenth Amendment rights were violated when the trial court refused to grant a mistrial after it was discovered at trial that the identity of the individual who provided the police with information which led to the discovery of the body of Larry Price had been withheld from defendant. A hearing before this Court was held on September 3, 1985 at which evidence was presented on this issue. Petitioner and the State rely on arguments presented in briefs on the remaining six points and we will address each in turn.

POINTS RELIED ON

I.

Simmons was deprived of his right to a fair trial when the trial court refused to grant the motion for a change of venue.

In his first point, petitioner claims that pre-trial publicity was so prejudicial that it was impossible for him to receive a fair trial in the 12th judicial district consisting of Crawford and Sebastian Counties. (The trial was held in Crawford County.)

The federal habeas statute provides that factual findings made by a state court are entitled to a presumption of'correctness unless one of seven enumerated conditions is found to exist or unless the court’s determination is not “fairly supported by the record.” This presumption may be overcome only by “convincing evidence that the factual determination by the state court was erroneous.” 28 U.S.C. 2254(d).

The United States Supreme Court held in Patton v. Yount, 467 U.S. 1025,104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) that the effect of pre-trial publicity on a jury is a factual issue. Therefore, the refusal of the trial court to order the venue changed is presumptively correct. The petitioner has failed to produce any evidence which convinces this Court that the ruling was erroneous.

The pre-trial publicity dispersed by the media consisted of newspaper accounts and radio and television broadcasts which occurred, for the most part, within the first week following the murders. These were primarily brief factual accounts of the events and many did not refer to the defendant in any manner. Defendant was arrested before the bodies of the four victims were discovered and most of the publicity focused on the search for the bodies. The relatively few items which appeared after January concerned defendant’s return from a psychiatric examination, pre-trial motions, and hearings on those motions.

Voir dire of individual jurors took place seven months after the murders and the arrest of defendant, and the transcript reveals that only six of about sixty prospective jurors were excused because of their feelings about defendant’s guilt. Each juror who was seated was pronounced “good for the defense” by Simmons’ attorney. All had heard or read something about the case soon after the crimes were committed but a finding of impartiality does not require that each juror be ignorant of the facts involved in the case. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). “The relevant question is not whether the community remembered the case, but whether the jurors at ... trial had such fixed opinions that they could not judge impartially the guilt of the defendant.” Patton, supra, 104 S.Ct. at 2891 (citing Irvin v. Dowd). Each juror stated he had no opinion as to the guilt or innocence of defendant and each stated he would follow the judge’s instructions.

The pre-trial publicity evidenced in the record was not so inflammatory that a wave of public passion against the defendant existed so as to prejudice his right to a fair trial. The motion for change of venue was correctly denied.

II

The fact that the capital murder statute and the statute dealing with murder in the first degree have overlapping provisions deprives petitioner of due process.

Simmons claims in his second point that the overlapping of offenses in the capital murder statute, Ark.Stat.Ann. § 41-1501(l)(a) (1977), and the statute regarding murder in the first degree, Ark.Stat.Ann. § 41-1502(l)(a) (1977), renders those statutes unconstitutionally vague and therefore deprives him of due process. He maintains the overlapping permits arbitrariness in a jury’s decision.

The relevant portion of Ark.Stat.Ann. § 41-1501(l)(a) defines capital murder as murder committed in the course of one of seven felonies under “circumstances manifesting extreme indifference to the value of human life.” Ark.Stat.Ann. § 41-1502(l)(a) is phrased in the same terms but applies to a murder committed during the course of any felony. Capital murder is punishable by death or life imprisonment without parole while murder in the first degree is punishable by a sentence of imprisonment and/or a fine.

The Supreme Court of Arkansas has repeatedly upheld the constitutionality of these two statutes. See, e.g. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982); Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). See, also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (statute is not rendered unconstitutional by jury’s option to convict defendant of a lesser included offense). The United States Supreme Court, when faced with a challenge to the constitutionality of two state statutes which prohibited convicted felons from receiving firearms and provided for different penalties, upheld the statutes as constitutional. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). The court noted that a “criminal statute is invalid if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” Id. at 123, 99 S.Ct. at 2203 (citations omitted). The court has stated that “[v]oid for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-598, 9 L.Ed.2d 561 (1963).

Both statutes under attack here clearly identify the conduct prohibited and unambiguously describe the applicable penalties thus providing adequate notice. Petitioner’s argument is without merit.

Ill

Simmons’ Sixth, Eighth and Fourteenth Amendment rights were violated when the court refused to excuse prospective jurors Watkins, Moore, and Billingsly for cause.

Petitioner next takes issue with the court’s refusal to excuse for cause three individual jurors who, he contends, revealed bias toward him during voir dire. Simmons exercised three of his twelve peremptory challenges to eliminate those individuals from the jury.

The Supreme Court has stated that a trial judge’s finding that an individual venireman was not biased and therefore was properly seated is a finding of fact subject to the presumption of correctness of § 2254(d). Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). This holding recognizes that the trial judge is in the position to assess the credibility and demeanor of potential jurors and that his determination concerning partiality is based on his observations as well as on answers to questions during voir dire. Wainwright v. Witt, — U.S. -, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

Because of the factual nature of the issue of a particular venireman’s bias, the question becomes whether fair support exists in the record for the state court’s conclusion that the jurors would be impartial. 28 U.S.C. § 2254(d)(8).

The voir dire of Buelah Watkins appears at pages 1654-1688 of the trial transcript, and a review of her testimony reveals absolutely no prejudice against the defendant. She heard factual accounts concerning the crime at some time before on television or radio but had heard nothing recently. She had no opinion about how the case should be decided and she testified she would follow the court’s instructions. She stated and reiterated she would have to hear the evidence before deciding the guilt or innocence of defendant and before determining the appropriate penalty in the event defendant was found guilty. The impartiality of this juror is supported by the record.

The testimony of Mildred Moore appears at pages 1897-1918. She testified she would have to hear both sides of the case before deciding whether a guilty defendant should get the death penalty. She heard factual accounts about the crimes and the defendant on television and read accounts in the newspapers. She knew nothing about defendant or his background and she had no opinion on his guilt. She professed belief that a man is innocent until proven guilty and acknowledged she would follow the judge’s instructions and set aside what she had read or heard and listen to the evidence with an open mind.

Calvin Billingsly’s voir dire appears in the record at pages 2589-2616. He had read newspaper accounts and perhaps heard television reports of the case. His wife worked at Citizens Bank and she told him about transactions at the bank concerning the petitioner. He stated, however, that the fact his wife worked at the bank would not influence his actions as a juror. He professed his belief that Simmons was innocent until proved guilty and stated he would consider both possible sentences — life without parole and death if Simmons were adjudged guilty. He said he would follow the court’s instructions and would have to hear all the evidence before deciding the case.

Of considerable importance is the fact that none of the three jurors served on Simmons’ jury. Petitioner exercised his final strike just before the 12th juror was seated and each venireman who was seated was pronounced “good for the defense.”

“An impartial jury consists of jurors who will conscientiously apply the law and find the facts.” Wainwright v. Witt, — U.S. -, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The trial judge’s determination that these three individuals were impartial is fairly supported by the record and petitioner is not entitled to relief based on this ground.

IV

Petitioner’s rights under the Sixth, Eighth, and Fourteenth amendments were violated when the court refused to grant his motion for a mistrial following disclosure during the course of trial that the identity of the individual whose phone call led to the discovery of the body of Larry Price had been withheld from petitioner’s counsel.

It is undisputed that Deputy Bill Grill received a phone call on the evening of January 7th during which he was advised that either a mannequin or a body had been seen at Clear Creek Recreation Area. The officer followed up on the tip and discovered the body of Larry Price.

Deputy Grill told the defendant’s attorney as well as the prosecutor that the call was from an anonymous source and it was during his testimony at trial that he revealed for the first time that the caller was Lon Maxwell who had asked to remain anonymous. Lon Maxwell did not actually see the object. The observer was his brother, Clyde Maxwell. Defendant’s counsel asked for a mistrial contending the withholding of this information impaired the petitioner’s ability to prepare for trial and investigate the crime. His motion was denied.

Deputy Grill’s testimony relevant to this issue appears in the record of trial at the pages noted.

A. When I arrived at the scene was shortly before 9:00 P.M. (R. 3590).
Q. Was anyone with you?
A. Yes.
Q. Who was with you?
A. The man who called me.
Q. Who was that?
A. Lon Maxwell.
Q. Mr. Grill, it has been previously reported that this telephone call was anonymous. (R. 3591).
A. Yes.
Q. You are familiar with that?
A. Yes, sir.
Q. In fact, I believe on at least two occasions I inquired as to who it was that called you and you told me you did not know for sure and would not even tell me if you did know; is that correct?
A. I believe I told you I would not tell you because the man asked at that time to remain anonymous.
A. The man was present the night I went to Clear Creek Park. He was somewhat intoxicated and at that time he did not say anything. I was told that there wgs either a body down there or a mannequin. (R. 3600).
Q. Who told you that?
A. Lon Maxwell. He wasn’t sure that it was even a body.
Q. Did Clyde tell you — Did Clyde tell you anything about where the body was supposed to be? (R. 3603).
A. Clyde didn’t say much. He was — he was some intoxicated. He didn’t say anything about, other than he was, he was saying, “Mannequin or body, but I don’t know.” I think he was repeating Lon.
Q. Did it appear that Clyde had, that Clyde actually had personal knowledge of where the body was or had actually seen it?
A. It didn’t appear that way to me, no, sir.
Q. Did you ever ask him whether he had seen it? (R. 3604).
A. No, sir. Mr. Maxwell told me he hadn’t seen it, Lon Maxwell.
Q. Well, did you ask either of them how they came to suspicion that the body might be at that particular location?
A. I did, and he said he was just told that someone saw it that was down in the park drinking some beer.
Q. Who told him that?
A. Who told who what? I didn’t understand you.
Q. Okay, Mr. Grill, let me explain. As I understand it, you were investigating four murders and I thought I— Did you not consider it important to know how, who discovered that body, how it was discovered?
A. Yes, sir.
Q. How they gained knowledge of it being there, whether they had participated in it in any way?
A. Yes, I did, but I was a hundred percent sure to myself Lon Maxwell wasn’t involved in it.
Q. Were you not curious as to who might be involved in it, curious enough to ask who told you this so you could go—
A. Yes, I did ask him, and he said a guy saw it down there while they was drinking beer. Then he has later told me it was his brother and he didn’t want to get' involved with the press coming around and so forth.

An evidentiary hearing was held before this Court for the purpose of hearing testimony on this single issue. Mr. Garner Taylor testified he was a deputy Public Defender for Sebastian County and along with John Settle, the Public Defender, represented petitioner at trial. He stated the Sebastian County Prosecuting Attorney has an open file policy which permits defense attorneys access to the prosecutor’s file and presumably to all written police reports. The policy was applied in Simmons’ case.

Taylor testified the media reported that the tip which led to the discovery of Larry Price’s body was an anonymous one. Deputy Grill told him on one occasion that the caller was anonymous and “he wouldn’t tell me even if he did know who it was.” Taylor indicated he first knew the identity of the caller when Grill testified at trial. He said he didn’t move for a continuance because he doubted it would have been granted and he didn’t think a continuance would have helped at that point. He stated he did not file a motion asking the court to order Grill to reveal the identity. Taylor also stated he was shocked to learn Grill had been accompanied by Lon Maxwell and an unidentified person when he discovered the body since the media and police reports indicated Grill was alone at the time.

Ron Fields, prosecutor for the 12th judicial district, testified to the open file policy of the office and stated defendant’s counsel filed a discovery request asking the prosecutor to secure any material any police agency had concerning the casé even if irrelevant. Fields asked all investigating agencies to give him this information and he provided it to Simmons’ attorney.

Prosecuting Attorney Fields testified that Grill also told him he didn’t know who had made the call. Fields stated:

We had several meetings. We had, like I say, we had a number of agencies investigating the case. We had several, I guess you would say ‘skull sessions’ where we all got together to make certain that everybody knew exactly what each agency was doing. I recall Chief of Police of Fort Smith, Henry Oliver, specifically asked Deputy Grill, I specifically asked Deputy Grill in the meeting, and I also followed Deputy Grill down after the meeting and caught him on the stairwell and told him that if he knew, and it was one of those case[s] where the witness wanted to remain anonymous, that assuming that there wasn’t any evidence that, you know, that we could deem appropriate thing under Rule 509, to protect his identity; Detective Grill stated that he did not know the name.
John Settle came to me on at least one occasion, I think twice; Mr. Settle and I had a very good working relationship; we do not ‘snow’ one another; if he asks me a question, I tell him the truth, if I ask him a question he tells me the truth, or we don’t say anything if it’s something that we don’t want him to know, if it’s strategy; but, be that as it may, if we give an answer we do not mislead one another.
He asked me if I knew who the person was, I stated that I did not. He asked if Bill Grill had indicated to me that he knew who it was, and I said he had not.
And that was the state of it up until the trial. Now, I do not recall exactly when I learned that Bill Grill was prepared to give the name of the witness. As I recall, my recollection was that Mr. Taylor told me in a very heated conversation outside in the hallway, told me that Deputy Grill had just told him that he was — that he was going to say who it was, and he was asking me if I knew it, and I said, ‘I am stunned.’ And I was.
Looking through the transcript it may be that I was aware of it when he asked the question, but, be that as it may, either Mr. Taylor himself told me, or I found out about it in the courtroom at the same time Mr. Taylor knew it; I did not know it beforehand.
Q. So it was as big a surprise to you at that point as it was to the defendant?
A. If not a bigger surprise, yes, sir. (Transcript of hearing held Sept. 3, 1985, 27-29.)

Concerning a continuance, Fields testified:

[I] indicated that if they wanted a continuance that I would use whatever resources were at hand to locate this person and have him in the courtroom. I was aware that the State was going to put on some substantial rebuttal witnesses. By that I mean fairly lengthy; and we had been in the trial for a week and a half or so; we were under no time burden at all; as far as I was concerned the trial could have gone a month; we weren’t trying to rush it, we were trying to do a very thorough job. I don’t know — I think in this case we had already had a couple of delays like this to obtain witnesses where the State went out and — I think in one case we tried to obtain Mr. Simmons’ sister a couple of times, and I don’t know if that was on — I think it was going to be a defense witness, but it may have been our witness, but we had gotten a couple of delays for that and used the State’s resources. But, apparently, at that time they did not want the continuance. (T. 29-30.)

Then at page 33 he said:

[AJfter the trial I asked Detective (sic) Grill to go into this more, that I wanted to know what had happened. His report back to me reflected that I, I— you’re saying the word “Clyde,” and I don’t remember — I have never seen—

Q. The brothers.

A. Two brothers. Okay. And that he had been down there with one other person at Clear Creek Park, which is a Corps of Engineers Park in a very isolated area of Crawford County; that he had been drinking in the car along with the other guy and that the Maxwell brother, Clyde, had gone to this drainage ditch, or slough, and while he was standing there, apparently there was moonlight, or something, and he saw what he reported to be either a mannequin or a body; he thought it was a body; he became very frightened; he immediately turned around, got in the car, and he and the other person left the area. To my knowledge, the other person never got out of the car. And they drove and talked to, I guess, Lon Maxwell, who called Grill. At that point, they thought, ‘Well, it was dark and maybe it’s a mannequin,’ so that’s how the mannequin-thing got started. They hadn’t actually examined the body that closely to see if it was a human or not. (T. 33-34.)

Petitioner alleges the late disclosure of the identity of the caller precluded him from preparing properly for trial. However, he fails to disclose how the identity of the caller would have been used if it had been known before trial. He states in his brief that “the presentation of the defense may have been enormously changed.” And the public defender who represented him at trial stated at the September hearing “we might have decided to use [the Maxwells) as witnesses.” This sort of speculation is insufficient to establish a constitutional violation. Richards v. So-lent, 693 F.2d 760 (8th Cir.1982).

Although the prosecution has a constitutional duty to disclose exculpatory evidence, United States v. Turner, 725 F.2d 1154 (8th Cir.1984), this information is not exculpatory. The identity of the caller cannot be said to be favorable to the defendant nor does it create a reasonable doubt as to petitioner’s guilt that otherwise did not exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Counsel for petitioner admittedly could have asked the Court in a pre-trial motion to require Grill to disclose the identity of the caller if it was known to Grill. And he could have requested a continuance at the time the disclosure was made.

V.

Simmons’ rights under the Fourth Amendment were violated by the trial judge’s refusal to suppress statements made by defendant and real evidence taken from defendant at his residence.

At a suppression hearing prior to trial, petitioner tried to convince the trial court that his arrest was illegal and that all evidence obtained thereafter was the “fruit of the poisonous tree” and should be suppressed. Alternatively petitioner claims his consent to search was not valid since it was not shown by the state that it was given freely and voluntarily. Petitioner also attacks the validity of search warrants issued by the trial court. The judge at the trial court upheld the arrest and the search warrants and allowed the evidence to be used.

The Supreme Court of Arkansas reviewed the trial court’s decision and found it was not clearly erroneous and that furthermore, no prejudice to defendant had been shown. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983).

It is well-settled law that “where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial.” Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). It follows that federal courts have jurisdiction of such an issue only when the petitioner was denied an opportunity to fully and fairly litigate his Fourth Amendment claim “at trial and on direct review.” Id. at 495 n. 37, 96 S.Ct. at 3052 n. 37. The Eighth Circuit Court of Appeals has applied this rule of law to the consent to search issue where a state court had ruled consent was valid. See Cody v. Solem, 755 F.2d 1323 (8th Cir.1985).

Simmons not only had the opportunity to litigate these claims in state court but did in fact actually try these issues. Therefore, this Court is precluded from relitigating them.

VL

Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments were violated when the court refused to declare a mistrial during the penalty stage when the jury did not follow instructions of the trial court concerning consideration of aggravating circumstances.

After the jury returned its verdict, the forms were reviewed by defendant and his counsel in the presence of the court, the jury, and other counsel. It was noted that on each verdict Form No. 2, except that dealing with the charge concerning the death of Larry Price, it was stated that one or more of the jurors found “fear of detection” as a mitigating circumstance. Defendant’s counsel requested a mistrial arguing that the forms showed the jury failed to understand the court’s instructions. The court denied the motion and at the request of defense counsel, polled the jury.

Defendant’s argument that the jury has added an additional aggravating circumstance to those specified by Ark.Stat. Ann. § 41-1303 is totally without merit and a misstatement of the facts. As is obvious from the verdict forms which appear at pages 274-301 of the transcript, some member(s) of the jury found an additional mitigating circumstance. Ark.Stat.Ann. § 41-1302 requires a jury to consider any mitigating circumstances and defendant has failed to show any constitutional error in its action.

VII.

Petitioner’s conviction was supported by sufficient evidence.

Petitioner claims the evidence presented at trial was insufficient to support a conviction.

A claim of insufficient evidence by a habeas petitioner can succeed “only if no rational trier of fact could find the petitioner guilty beyond a reasonable doubt.” Richards v. Solem, 693 F.2d 760, 767 (8th Cir.1982) citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The evidence of Simmons’ guilt included: identification by witnesses who saw him at the Price’s apartment and in the company of at least three of the victims shortly before their deaths; Simmons’ presence at relevant times in the areas where two cars owned by the victims were found; testimony by a witness who saw an occupant of a car owned by Simmons watching victim’s car for over one hour; tracing of the murder weapon to a neighbor of petitioner; physical evidence (hair, semen) found on bodies of victims consistent with petitioner’s identity; petitioner’s involvement and identification regarding the forged check written on the closed account of two of the victims.

This evidence is sufficient to support the conviction.

CONCLUSION

After a thorough consideration of the record of pre-trial hearings, the trial in state court, and the evidentiary hearing before this Court, it is determined that defendant has not been deprived of any constitutional right. He has been ably represented throughout the proceedings by appointed counsel who receive the appreciation of the Court. However, the petition must be denied.


author: DAVID V. O’BRIEN, District Judge.

text:
    HESS OIL VIRGIN ISLANDS CORP. and Royal Insurance Int., Ltd., Plaintiffs, v. FIREMEN'S FUND INSURANCE COMPANY and Communications Systems & Maintenance Corporation, Defendants. COMMUNICATIONS SYSTEMS & MAINTENANCE CORPORATION and Firemen’s Fund Insurance Company, Plaintiffs, v. HESS OIL VIRGIN ISLANDS CORP., Defendant.
    Civ. Nos. 1985/139, 1985/114.
    District Court, Virgin Islands, St. Croix.
    Jan. 2, 1986.

      Britain H. Bryant, St. Croix, Virgin Islands, for Hess Oil Virgin Islands Corp. and Royal Ins. Int., Ltd.
    Wilfredo Geigel, St. Croix, Virgin Islands, for Firemen’s Fund Ins. Co. and Communications Systems & Maintenance Corp.
   MEMORANDUM OPINION

DAVID V. O’BRIEN, District Judge.

This case demonstrates the risks an insurance company undertakes when it withdraws from the defense of an insured on the eve of trial, leaving that insured to its own devices. We uphold in this case the insured’s own actions taken in protection of its interests after the abandonment by the insurance carrier. Partial summary judgment will be granted to Hess Oil Virgin Islands Corp. and Royal Insurance Int., Ltd. as its subrogee. Remaining questions of reasonableness of the settlement and whether punitive damages should be awarded are left for future determination.

I FACTS

On or about July 14, 1982, Hess Oil Virgin Islands Corp., (“HOVIC”), and Communications Systems & Maintenance Corporation, (“CS & M”), entered into a written agreement. CS & M was to furnish labor and services to HOVIC at HOVIC’s plant on St. Croix. One of the conditions contained in the contract was a broad promise by CS & M to indemnify HOVIC:

... from and against any and all demands, liability, losses, damages and/or expenses which HOVIC ... may suffer ... or may be liable by reason of injury (including death) to any person or damage to any property arising out of or in any manner connected with the operations to be performed under this purchase order, whether or not due in whole or any part to any act, omission or negligence of HOVIC ... or any of its representatives or employees or by any other person ...

CS & M also agreed to furnish a certificate of insurance adding HOVIC as a named insured to its policy, including the indemnity agreement as part of the coverage. This was accomplished and the insurance certificate was issued by Firemen’s Fund Insurance Company, (“Firemen’s Fund”). There is no dispute that in November, 1983, the indemnity agreement and the insurance coverage was in force when Gregory Lucien, a CS & M employee working at HOVIC under the contract, was injured.

Lucien and his wife filed an action against HOVIC in December, 1983, claiming that Gregory Lucien, (“Lucien”), inhaled a toxic substance resulting in permanent injuries. Upon receipt of the summons and complaint, the attorneys for HOVIC promptly tendered the defense to CS & M under the indemnity agreement. This was done in writing. Both CS & M and Firemen’s Fund accepted the tender of defense, and HOVIC’s attorneys, who had already commenced their investigation, were retained to continue the defense of the case.

Trial of the action was scheduled for March 27, 1985, and a jury had already been selected when the parties and attorneys gathered in the courtroom. Shortly before the jury was brought into the courtroom to be sworn, the attorneys retained by CS & M and Firemen’s Fund to defend HOVIC were handed a letter from another attorney retained by Firemen’s Fund. The gist of the letter was that Firemen’s Fund was withdrawing any defense of HOVIC and rejected the payment of any judgment which might be awarded Mr. and Mrs. Lu-den against HOVIC.

Firemen’s Fund stated that the indemnity agreement was not part of the policy and that it was void in any event as contrary to the public interest. Counsel for Firemen’s Fund also advised the attorneys it had retained to defend HOVIC, now cast adrift, that they should raise the defense of HOVIC’s immunity from suit by a CS & M employee on grounds HOVIC was a statutory employer.

Faced with that situation, counsel obtained a recess until that afternoon, in order to consult with HOVIC and develop a strategy. The result was twofold; first, HOVIC retained the same attorneys to continue the defense, and second, it authorized them to enter into a settlement with the Luciens. A settlement was reached in the sum of $500,000 and a demand was made on both CS & M and Firemen’s Fund that they undertake to pay the settlement. No response was received, and HOVIC, through its own carrier, Royal Insurance Int., Ltd., made the payment. The personal injury action was then dismissed.

In May, 1985, CS & M and Firemen’s Fund filed a declaratory judgment action seeking determination of its rights and obligations. A scant one month later, HOVIC and Royal Insurance Int., Ltd. filed a bad faith claim against CS & M and Firemen’s Fund, seeking recovery of the $500,000 settlement together with punitive damages. Firemen’s Fund paid HOVIC’s counsel, retained by them, the costs of the defense up to the time the letter withdrawing the defense was submitted to HOVIC.

The two cases were consolidated, and shortly thereafter, HOVIC and Royal Insurance Int., Ltd. moved for summary judgment on the issue of failure to defend and the right of indemnification. CS & M and Firemen’s Fund filed a response in opposition to the motions which consisted of essentially the same legal argument raised in the letter, i.e., that the agreement was void as against public policy, and that HOVIC was immune from suit by Lucien on the theory that it was Lucien’s statutory employer. The question of reasonableness of the $500,000 settlement was also put in issue.

There are no material facts in dispute. Therefore, the matter is ripe for partial summary judgment.

II. DISCUSSION

A. The Public Policy Argument

The first contention of CS & M and Firemen’s Fund is that the agreement itself providing indemnity was void as against public policy. No cases in support of that argument have been provided which are persuasive in this circuit. To the contrary, the Third Circuit, and the courts in this district, have repeatedly upheld similar agreements. There is no public policy which prevents judicial enforcement of an agreement to shift liability for the consequences of one’s own negligence. Eastern Airlines, Inc. v. IN A, 758 F.2d 132 (3d Cir.1985). See also United States v. Seckinger, 397 U.S. 203, 211, 90 S.Ct. 880, 885, 25 L.Ed.2d 224 (1970). There is no longer any question that such agreements are enforceable.

B. Failure to Raise a Defense

Firemen’s Fund also argues that HOVIC should have raised the defense that it was a statutory employer. This is a curious argument to be made by Firemen’s Fund, since it had retained counsel for HOVIC, it was defending under an indemnity agreement and insurance coverage, and it controlled the litigation strategy. If, indeed, it considered that the defense should be raised, it needed only to so instruct counsel during the course of the litigation. The contentions of Firemen’s Fund are made as if it had no power to direct the course of events during the litigation.

The withdrawal of the defense, even if Firemen’s Fund thought there might be no liability because of the statutory employer defense was wrong. It was a breach of the insurance agreement which covered the indemnity agreement. It was held in C.H. Heist Caribe Corp. v. American Home Assurance Company, 640 F.2d 479, 481 (3d Cir.1981), that the duty to defend and the duty to indemnify are separate. The duty to defend comes into play when a claim is made against an insured which may potentially be covered by the policy. Thus Firemen’s Fund had the obligation to defend HOVIC until that determination was made.

There are only three options available to an insurance company when a tender of defense under a policy is made. It can file a declaratory judgment action before or during the pending personal injury action regarding its obligation. It can defend the insured under a reservation of rights. Or, it can refuse to either defend or seek a declaratory judgment action at its own peril that it might later be found to have breached the duty to defend. Maneikis v. St. Paul Insurance Co. of Illinois, 655 F.2d 818, 821 (7th Cir.1981). Since Firemen’s Fund did not seek declaratory relief until after the personal injury action was settled and over, when it withdrew the defense of HOVIC, it effectively selected the third option and decided to take its chances. The mode and method by which Firemen’s Fund, and by implication, CS & M, withdrew the defense of HOVIC is not before us at this time. Rather, we only need decide whether HOVIC was entitled to be defended in the Lucien action, and if so, whether it was entitled to be indemnified if found liable.

There is no question that HOVIC was entitled to a defense, both by CS & M and by Firemen’s Fund. The claim by Lucien clearly fell within the ambit of the indemnity agreement which was insured by Firemen’s Fund. Under the rule of C.H. Heist Caribe Corp. v. American Home Assurance Company, supra, if the complaint by Lucien spelled out a claim which potentially was covered, HOVIC was entitled to be defended.

C. HOVIC’s Potential Liability

Firemen’s Fund raises the statutory employer defense in another context. It claims that because HOVIC was clearly the statutory employer of Lucien, a CS & M employee, it was immune from suit by him, and thus there is no coverage under the indemnity agreement and the insurance. Therefore, it argues, it had no duty to defend HOVIC since HOVIC was not even potentially liable to Lucien.

The issue of whether HOVIC is a statutory employer as to employees of contractors working at its plant has never been decided in the Virgin Islands. 24 V.I.C. § 251(d) provides that contractors are liable for reimbursement to the Government Insurance Fund for benefits given to employees of uninsured subcontractors when those employees are actually doing work for the benefit of the contractor. But whether HOVIC as “owner” of the premises is also a “contractor” for purposes of the statute, is unclear. And as long as the issue is unsettled in this jurisdiction, HOV-IC remained potentially liable to Lucien. We note too, as we did before, that while Firemen’s Fund controlled the litigation, having retained counsel to defend HOVIC, it was free to raise that issue and bring it to a head during the course of case development. It did not. Certainly this issue was not sufficient to warrant a withdrawal of the defense. Rather, it was the kind of question susceptible to a defense under a reservation of rights.

As we said in Dominic v. Hess Oil Virgin Islands Corp., 624 F.Supp. 117 (1985), the Third Circuit has yet to rule whether an indemnitee, such as HOVIC, need only show potential liability to recover from an indemnitor such as CS & M, and by extension, Firemen’s Fund. M & 0 Marine, Inc. v. Marquette, Co., 730 F.2d 133, 135 (3d Cir.1984). Other circuits have allowed the indemnitee who settles with the injured party to secure indemnification upon proof of its potential liability. Parfait v. Jahncke Service, Inc., 484 F.2d 296 (5th Cir.1973), cert. denied, 415 U.S. 957, 94 S.Ct. 1485, 39 L.Ed.2d 572 (1974). The indemnitee, (HOVIC), need only offer CS & M and Firemen’s Fund the choice of either approving the settlement or resuming the defense of the action. M & 0 Marine v. Marquette Co., supra, at 136. HOVIC did this in the interim between the morning withdrawal of defense and the afternoon session of court. It received no response.

We believe that under these circumstances, the Third Circuit would permit proof of only potential liability to trigger the right to indemnification. See also the dissent by Judge Seitz in Frederick v. HOVIC, 642 F.2d 53, 56 (3d Cir.1981).

III. CONCLUSION

HOVIC, having been abandoned by CS & M and Firemen’s Fund, was free to conduct the litigation itself in protection of its own interests, and to enter into a settlement with the Luciens which was reasonable, in view of its potential liability to them. Partial summary judgment will enter in favor of HOVIC and Royal Insurance Int., Ltd., declaring that it is entitled to indemnification from CS & M and Firemen’s Fund, leaving the amount of the indemnification to be determined on the basis of the reasonableness of the settlement with the Luciens.

CS & M and Firemen’s Fund, in their third amended complaint, raised questions concerning other personal injury actions now pending. Since HOVIC and Royal Insurance Int., Ltd. did not make any motions directed toward those matters, we will enter no judgments thereon. However, several of them appear to have the same fact pattern as Lucien, i.e., the same indemnity agreement and the same insurance coverage. In one of them we have already directed CS & M to take over the defense under the indemnity agreement. (Anatole v. HOVIC, et al Civ. No. 1984/253)


author: TODD, District Judge.

text:
    Elijah Ismail RAHMAN, Plaintiff, v. Thomas STEPHENSON, Defendant.
    Civ. No. 85-1111.
    United States District Court, W.D. Tennessee, E.D.
    Jan. 3, 1986.

      Elijah Ismail Rahman, pro se.
    Wayne E. Uhl, Asst. Atty. Gen., Nashville, Tenn., for defendant.
   ORDER OF DISMISSAL

TODD, District Judge.

Before the Court is Defendant’s motion to dismiss this 42 U.S.C. § 1983 action. Defendant contends that Plaintiff fails to state a claim upon which relief may be granted, and that in any event Defendant has qualified immunity from suit under Section 1983. For the reasons stated herein, Defendant’s motion is, GRANTED.

Plaintiff complains of Defendant’s refusal to place him on the Lake County Regional Prison sick call roster under his adopted religious name, which is not his legal name. When Plaintiff attempted to do so, Defendant removed his name from- the roster, resulting in Plaintiff missing sick call for that day. Plaintiff asserts that his First Amendment right to freedom of religious expression has been violated, as well as his Eighth Amendment right to be free from the denial of medical treatment while in prison.

A prisoner does have the right to legally change his name for religious reasons. Further, several courts have recognized a limited right to recognition of the new name by prison officials. Inmates do not, however, have the right to require prison officials to change their internal record-keeping and identification procedures whenever an inmate changes his name, legally or otherwise. Akbar v. Canney, 634 F.2d 339 (6th Cir.1980), cert. denied 450 U.S. 1002, 101 S.Ct. 1712, 68 L.Ed.2d 205 (1981). This Court recently held that even where an inmate had legally changed his name for religious reasons prison administrators could still constitutionally require that the inmate’s “committed” name be on his prisoner identification card as well as his new religious name. Mujihadeen v. Compton, 627 F.Supp. 356 (W.D.Tenn.1985). The Court must now decide what recognition, if any, prison administrators must constitutionally give to a name an inmate uses for religious reasons but does not legally adopt.

Mujihadeen v. Compton represents this Court’s view of the balance between prisoners’ rights to freedom of religious expression and the state’s compelling interest in the control, administration and security of prison institutions. Allowing the inmate to legally change his name and to include that name on his identification card ensures that the inmate retains his limited right to freedom of religious expression, while allowing prison administrators to include the inmate’s previous, or “committed,” name on the card satisfies the compelling need for a workable system to keep track of the prison population. The Court does not now believe that this balance between the state’s compelling interests and inmates’ religious freedom warrants allowing inmates to change names at will and impose such confusion upon prison officials. Cf. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972).

If inmates were allowed to change names at will and to impose each and every name change upon prison officials, these officials would be unable to trace inmate movement through the prison system, protect against fraudulent use of inmate names, or quickly identify inmates who escape or commit crimes within an institution. These arguments are not only forceful but compelling.

It is undisputed that Tennessee Department of Corrections policy allows an inmate some recognition of his religious name if the inmate legally adopts the name. Plaintiff here has not legally changed his name, and is not entitled to the benefits of this policy. While this Court does not wish to deny prison inmates the right to religious freedom, a prisoner’s constitutional right to religious freedom can properly be limited by the legitimate need of prison administrators to be able to keep track of their inmate population. As stated in Salahuddin v. Coughlin, 591 F.Supp. 353, 358-359 (S.D.N.Y.1984), a New York case involving similar prison policy:

Statutory name changes are speedy, definite, and a matter of record, so as to be easily proved. Prison officials have a legitimate interest in avoiding confusion and simplifying record-keeping. The easy availability of the statutory scheme constitutes the “reasonable opportunity to exercise the religious freedoms guaranteed by the First and Fourteenth Amendments.” Common-law name change, even for religious purposes, is among the rights that plaintiffs lost as “inconsistent with their status as prisoner[s] of the correction system.” [Citations omitted].

Id.

The Salahuddin case is precisely on point, and its reasoning is compelling. A prisoner who has adopted a new name, for religious or any other reasons, but has not legally changed his name, cannot sustain a claim that his right to religious freedom is violated when prison officials fail to recognize his new name.

Given that the refusal to recognize Plaintiff’s adopted name was not unconstitutional in this instance, it can also be said that as a matter of law Defendant is not liable for Plaintiff’s failure to obtain medical care. Had Plaintiff followed valid prison policy and used his legal name on the sick call roster, he would have received the same opportunity for medical treatment as any other prisoner who properly placed his name on the roster. Further, there is no allegation or showing that Plaintiff’s serious medical needs were deliberately ignored. Inmates, Washington Gounty Jail v. England, 516 F.Supp. 132 (E.D.Tenn. 1980), affd 659 F.2d 1081 (6th Cir.1981). Plaintiff here likewise fails to state a claim upon which relief may be granted.

Plaintiff also claims a violation of his civil rights based on the offensive language he alleges Defendant used during an argument with Plaintiff regarding the sick call incident. It is well-settled that mere threats, abusive language or verbal harassment by prison officials do not support liability under 42 U.S.C. § 1983. Freeman v. Trudell, 497 F.Supp. 481 (E.D.Mich. 1980). This claim is, therefore, dismissed as well.

This Court has held, in summary, that Plaintiff had no right to impose his informal name change upon prison officials, that his Eighth Amendment right to medical treatment was not violated by Defendant’s refusal to include Plaintiff’s adopted name on the sick call roster, and that no constitutional violation resulted from the argument between Plaintiff and Defendant regarding the sick call incident. Plaintiff’s action is, therefore, DISMISSED, as no claim has been stated upon which relief may be granted.

Because Plaintiff fails to state any claim under 42 U.S.C. § 1983, the Court need not reach the question of whether Defendant is entitled to qualified immunity.

IT IS SO ORDERED.


author: MEREDITH, Senior District Judge.

text:
    INTERCO, INCORPORATED, Plaintiff, v. MISSION INSURANCE COMPANY and the Hartford Fire Insurance Company, Defendants.
    No. 85-643C(C).
    United States District Court, E.D. Missouri, E.D.
    Jan. 3, 1986.

      Keith Mattern, St. Louis, Mo., for plaintiff.
    Joseph Kortenhof, St. Louis, Mo., for Hartford Fire Ins.
    E. Thomas Liese, St. Louis, Mo., for Mission Ins. Co.
   FINDINGS OF FACT & CONCLUSIONS OF LAW

MEREDITH, Senior District Judge.

Prior to trial, the parties made the following stipulations:

1. Plaintiff, Interco, Incorporated (Interco) is incorporated under the laws of the State of Delaware, having its principal place of business in St. Louis, Missouri.

2. Defendant, Hartford Fire Insurance Company (Hartford) is organized under the laws of the State of Connecticut and has its principal place of business there.

3. Defendant, Mission Insurance Company (Mission) is organized under the laws of the State of California and has its principal place of business there.

4. The matter in controversy herein exceeds the sum of Ten Thousand Dollars ($10,000) exclusive of interest and costs, and is between citizens of different states. This Court has jurisdiction pursuant to 28 U.S.C. § 1332.

5. Defendant Hartford insured College-Town, one of plaintiff’s operating divisions, against certain liabilities under an insurance policy issued in Massachusetts.

6. Defendant Mission insured College-Town against certain liabilities under an umbrella insurance policy issued in Missouri.

7. On January 24, 1984, David Egol, a Vice President of College-Town was fired by Arthur Sibley, the President of College-Town.

8. David Egol filed suit against Interco and Arthur Sibley.

9. Hartford and Mission denied any coverage under their respective insurance policies, and refused to defend plaintiff in the action.

10. Plaintiff hired a law firm and eventually settled the suit.

11. After the case was settled, defendant Mission notified Interco that it would defend Interco in the suit but reserved its right to deny any coverage of damages which might be assessed.

After consideration of the pleadings, the testimony, depositions and exhibits introduced at trial, the credibility of the witnesses, the parties’ supplemental briefs, and the applicable law, the Court makes the following findings of fact and conclusions of law, considering the above stipulations as incorporated thereto. Any finding of fact equally applicable as a conclusion of law is adopted as such, and conversely, any conclusion of law equally applicable as a finding of fact is adopted as such.

Findings of Fact

1. By the terms of the settlement agreement, Egol was to receive the sum of $300,315, representing $180,325 in bonus compensation, $13,661 in wages, $1,329 in business expenses, and $105,000 in damages.

2. Interco withheld the sum of $39,507 of the settlement amount for tax purposes.

3. Interco’s check to Egol was for the sum of $260,808.

4. Egol endorsed the check back to Interco and paid Interco an additional $12,901 to pay the balance of a house loan which Interco had made to Egol.

5. Against Hartford, Interco seeks the sum of $105,000 for the damages amount of the settlement agreement; $73,741.01 for attorneys fees related to the damages amount; $18,024.10 for vexatious refusal to pay on a loss; interest at 9%; and attorneys fees for the present law suit.

6. Against Mission, Interco seeks the sum of $105,000 for the damages amount less the $10,000 deductible amount of the policy; $73,741.01 for attorneys fees related to the damages; $17,024.10 for vexatious refusal to pay; interest at 9%; and attorneys fees for the present suit.

7. Mission has become insolvent.

8. A California court has appointed a conservator for Mission and ordered that no law or equity actions be instituted or maintained against Mission; further, that none of Mission’s property be attached or executed upon.

9. The Hartford policy provided coverage for personal injury caused by an “occurrence.”

10. An “occurrence” is defined by the Hartford policy as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”

11. The Hartford policy also covers an injury arising out of “The publication or utterance of a libel or slander or. of other defamatory or disparaging material.”

12. The Hartford policy contains numerous exclusions.

13. Exclusion (q) of the Hartford policy provides:

The insurance does not apply: ... (q) to personal injury sustained by any person as a result of an offense directly or indirectly related to the employment or prospective employment of such person by the named insured.

14. The Mission policy provided coverage for personal injury caused by an “occurrence.”

15. An “occurrence” is defined by the Mission policy as “an accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally results in personal injury ... during the policy period.”

16. Egol was a high strung, emotional, highly paid person earning $700,000 per year and had developed a high reputation in the women’s apparel industry.

17. Egol’s complaint against Interco claimed emotional distress and upset, physical detriment, humiliation, and damage to his reputation.

Conclusions of Law

1. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1332.

2. The law of the state where an insurance contract was entered into controls the substantive rights of the parties; the forum’s procedural rules apply. Brumbaugh v. Travelers Indemnity Company, 396 S.W.2d 740, 741 (Mo.Ct.App. 1965); Bourne v. Manley, 435 S.W.2d 420, 426 (Mo.Ct.App.1968).

3. The state where the policy was issued is the state where the contract was entered into. Tickner v. Union Insurance Company, 425 S.W.2d 483, 485 (Mo.Ct. App.1968).

4. The Hartford insurance policy was issued in Massachusetts; therefore, Massachusetts law applies to it.

5. The Mission insurance policy was issued in Missouri; therefore, Missouri law applies to it.

6. Under Massachusetts law, an injury resulting from an intentional act can be an “accident” within meaning of insurance policy if insured did not specifically intend to cause the resulting harm or was not substantially certain that such harm would occur. Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 469 N.E.2d 797, 799-800(1984); see also Lane v. Worcester Mut. Ins. Co., 13 Mass.App. 923, 430 N.E.2d 874, 875-76 (1982) and Vappi & Co. v. Aetna Casualty & Surety Company, 348 Mass. 427, 204 N.E.2d 273, 276 (1965).

7. When he fired Egol, Arthur Sibley may or may not have specifically intended to cause the emotional and physical harm and injury to Egol’s reputation, but he was substantially certain that such harm would occur.

8. The Egol firing did not constitute a defamation.

9. The firing was not an “occurrence” under the Hartford policy.

10. Insurance contracts are to be interpreted according to the fair and reasonable meaning of their words. Cody v. Connecticut General Life Ins. Co., 387 Mass. 142, 439 N.E.2d 234, 237 (1982).

11. If the insurance contract is ambiguous, doubts about the meaning of the words are to be construed against the insurance company in favor of the insured. Id.

12. Exclusions from coverage are to be strictly construed. Abernathy, supra 469 N.E.2d at 799.

13. Unambiguous terms of an exclusionary clause are not to be construed strictly against the insurer, but must be given their usual and ordinary meaning. Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 373 N.E.2d 966, 968 (1978); Royal-Globe Ins. Co. v. Schultz, 385 Mass. 1013, 434 N.E.2d 213, 213 (1982).

14. The Egol firing was related to employment by Interco.

15. The terms of Exclusion (q) of the Hartford policy are clear and unambiguous, and apply in this case.

16. Because the Egol firing was not an “occurrence” under the Hartford policy and exclusion (q) applies, Hartford was not required to defend Interco and is not required to reimburse Interco. See Terrio v. McDonough, 16 Mass.App. 163, 450 N.E.2d 190, 193-94 (1983) and Massachusetts Turnpike Authority v. Perini Corp., 349 Mass. 448, 208 N.E.2d 807, 813-14 (1965).

17. Under Missouri law, plain and unambiguous language in an insurance contract must be given its plain meaning. Howard v. Russell Stover Candies, Inc., 649 F.2d 620, 623 (8th Cir.1981).

18. Clear and unambiguous limitations to liability of insurer should be enforced. Missouri Terrazzo v. Iowa Nat. Mut. Ins., 566 F.Supp. 546, 553 (E.D.Mo. 1983), affd, 740 F.2d 647 (8th Cir.1984).

19. In insurance cases, doubt or ambiguity is to be construed against the insurer and in favor of insured, but this rule has a limit; a court must give effect to limitations and exclusions in the policy unless the words in the policy are ambiguous. Associated Elec. v. Mut. Boiler & Machinery, 492 F.Supp. 410, 412-13 (W.D.Mo.1980); see City of Carter Lake v. Aetna Cas. and Sur., 604 F.2d 1052, 1055-56 (8th Cir.1979) and Johnson v. United States Fire Ins. Co., 586 F.2d 1291, 1295 (8th Cir.1978).

20. The definition of “occurrence” in the Mission policy is clear and unambiguous.

21. The firing of Egol does not fall under the definition of “occurrence” in the Mission policy because it was not unexpected and unintended. See City of Carter Lake, supra at 1058-59.

22. Because the firing was not an “occurrence” under the Mission policy,-Mission was not required to defend Interco and is not required to reimburse Interco. See Travelers Ins. Co. v. Cole, 631 S.W.2d 661, 665 (Mo.Ct.App.1982); Missouri Terrazzo, supra at 554-55.

23. The fact that Mission offered to defend Interco after the settlement agreement was reached does not invoke liability because their offer to defend was made after the Egol firing case had ended and because Mission reserved its rights to deny liability. See City of Carter Lake, supra at 1060.

24. Accordingly, plaintiff is not entitled to the relief prayed for and judgment will be entered for the defendants, with costs taxed against the plaintiff.