author: NANGLE, Chief Judge.

text:
    Mario P. COMERIO, Plaintiff, v. BEATRICE FOODS CO., d/b/a Imperial Oil and Grease Co., Defendant.
    No. 84-1474C(1).
    United States District Court, E.D. Missouri, E.D.
    Oct. 15, 1984.

      James J. Sauter, Deeba, DeStefano, Sauter & Herd, St. Louis, Mo., for plaintiff.
    Anthony J. Sestric, St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on defendant’s motion to dismiss plaintiff’s entire three (3)-count complaint. For the reasons stated below, this Court grants the motion in part and denies it in part.

Plaintiff’s cause of action arises out of the termination of his employment with defendant. Plaintiff was hired by defendant in 1978 as Area Manager for defendant’s St. Louis, Missouri, operations. Plaintiff had an employment contract, dated June 12, 1978, with defendant for an indefinite term. Said contract was superseded by a contract dated March 9, 1981. The second contract was also for an indefinite term, but contained an amended “Restrictive Covenant” provision. On August 7, 1981, plaintiff’s employment was terminated by defendant. According to plaintiff’s complaint, on both October 21, 1981, and on December 30, 1981, plaintiff sent letters to defendant seeking a statement of the reasons for his termination in accordance with Missouri’s “Service Letter” statute then in effect, Mo.Rev.Stat. § 290.140 (1978), but defendant never responded.

In Count I, plaintiff alleges that defendant intentionally violated the service letter statute and seeks compensatory damages of $20,000.00 and punitive damages of $500,000.00 for said violation. In Count II, plaintiff relies on language in the “Restrictive Covenant” of the amended 1981 contract. Said covenant prohibited plaintiff from taking competitive employment for a period of two (2) years, and under 11 E(2) defendant agreed that if plaintiff was unable to obtain non-competitive employment, then defendant had to either release plaintiff from said covenant or provide plaintiff with compensation according to a specified formula. Count II alleges that plaintiff was unable to find equivalent non-competitive employment, that defendant did not release plaintiff from the covenant until January 22, 1982, and that said delay was unreasonable and intentional. In Count II, plaintiff seeks compensatory damages of $30,000.00 and punitive damages of $300,000.00. Finally, in Count III, plaintiff alleges that defendant violated the implied covenant of good faith and fair dealing in terminating his employment. In Count III, plaintiff seeks compensatory damages of $30,000.00 and punitive damages of $500,000.00.

Defendant has several arguments with respect to each count in support of its motion to dismiss and this Court will consider defendant’s motion by separately treating each count. In passing on a motion to dismiss, a court is required to view the facts alleged in the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss will not be granted merely because the complaint does not state every element necessary for recovery with precision. 5 Wright & Miller, Federal Practice and Procedure: Civil § 1216 at 120 (1969). A complaint is sufficient if it “contain[s] allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Id. at 122-23. A complaint should not be dismissed unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 102.

COUNT I

Defendant makes three (3) arguments which challenge Count I. The first argument is that the letters sent by plaintiff, which letters are attached to the complaint, failed to comply with the requirements of the statute. Specifically, defendant argues that the letters were not sent by certified mail, were not sent to the proper person, and failed to make specific reference to Mo.Rev.Stat. § 290.140 (1978 as amended). Prior to August 13, 1982, the only formalities imposed on an employee requesting a service letter were that the request be in writing and that the request be directed to the supervisor or manager of the employee. However, the statute in existence on the date plaintiff was terminated was subsequently repealed, effective August 13, 1982, and replaced by the present § 290.140. Mo.Rev.Stat. § 290.140 (1978 as amended). The new statute requires a request for a service letter to be “in writing by certified mail to the superintendent, manager or registered agent of said corporation, with specific reference to the statute____” Mo.Rev.Stat. § 290.140 (1978 as amended). The amendment to the statute did not contain an express “repealer” clause and therefore its retroactive effect is governed by the savings clauses in Mo. Rev.Stat. §§ 1.170, 1.180 (1978). Musselman v. Anheuser-Busch, Inc., 657 S.W.2d 282, 285 (Mo.Ct.App.1983); Arie v. Intertherm, Inc., 648 S.W.2d 142, 159 (Mo.Ct. App.1983). Under these savings clauses, the amendment did not affect “acts done” prior to August 13, 1982, but it applies to actions filed after said date.

In the case at bar, plaintiff’s request clearly satisfied the statute in effect at the time of said request. Carr v. Montgomery Ward, 363 S.W.2d 571 (Mo.1963). Because the amendments did not affect “acts done” prior to August 13, 1982, said amendments do not affect the sufficiency of plaintiff’s request. In other words, plaintiff’s request need not have complied with formalities which were not required at the time of said request. Defendant’s first argument is rejected.

Defendant’s second argument is a variation on its first. Defendant argues that by repealing former § 290.140 and by enacting the new statute, the legislature “ ‘forgave’ any liability for any prior purported violation.” Defendant’s Memorandum in Support of Motion To Dismiss at 5. According to defendant, plaintiff’s cause of action was extinguished by the repeal of Mo.Rev. Stat. § 290.140 (1978), because plaintiff did not file this action until after August 18, 1982. This argument must be rejected because the amendments did not expressly “forgive” or extinguish any liability and the savings clauses of Mo.Rev.Stat. §§ 1.170, 1.180 (1978) do not mandate such a result.

The Arie and Musselman cases also do not support defendant’s argument. Those cases dealt with the question of the effect of the amendments, which restricted the availability of punitive damages, on a judgment for punitive damages entered prior to August 13, 1982. Both cases held that § 290.140, as re-enacted, may not be applied retroactively in such a case. The issue presented here is the effect of the amendments on a case filed subsequent to August 13, 1982, where the relevant events occurred prior to August 13, 1982. In the opinion of this Court, the savings clauses referred to supra require this Court to apply the statute as it is presently worded to the extent possible without affecting “acts done” prior to August 13, 1982. Thus, the prior statute governs the sufficiency of plaintiffs request and the legality of defendant’s conduct in response thereto. Plaintiff’s right to sue defendant for violation of the old statute accrued prior to August 13, 1982, and said right was not extinguished by enactment of the new statute on August 13, 1982. On the other hand, the relief to which plaintiff is entitled did not “vest” prior to August 13, 1982. See Arie, 648 S.W.2d at 159. Therefore, plaintiff’s remedies are governed by the statute as amended. Defendant’s second argument is rejected.

Defendant’s final argument is that Count I must be dismissed because the contract in question chose California as the state whose law should apply to the employment relationship. Section XI of the contract provides that “[t]his agreement shall be construed, interpreted and governed by the laws of the State of California.” Missouri courts generally give effect to contractual choice-of-law clauses. Na-Kao v. Na-Kao, 602 S.W.2d 223, 226 (Mo.Ct. App.1980); American Institute of Marketing Systems, Inc. v. Brooks, 469 S.W.2d 932, 935 (Mo.Ct.App.1971). However, the parties cannot make a choice-of-law that would alter a fundamental policy of Missouri. Restatement, Second, Conflict of Laws § 187(2)(b) (1971). See also E. Scoles & P. Hay, Conflict of Laws at 637-43 (1984). The service letter statute reflects such a policy. Horstman v. General Electric Company, 438 S.W.2d 18, 20 (Mo.Ct. App.1969). Therefore, regardless of its validity, the parties’ choice-of-law clause in this case does not defeat application of Missouri’s service letter statute.

Accordingly, defendant’s motion to dismiss Count I is denied.

COUNT II

Defendant asserts two (2) arguments challenging Count II. First, defendant argues that because Count II is a breach of contract claim, punitive damages are not recoverable, regardless of whether this Court applies Missouri or California law. Plaintiff is correct that in both Missouri and California punitive damages are generally not recoverable in a case arising out of a breach of contract. Otto v. Imperial Casualty and Indemnity Company, 277 F.2d 889, 893-94 (8th Cir.1960); Denton Construction Company v. Missouri Portland Cement Company, 507 F.Supp. 53, 55 (E.D.Mo.1981); Greening v. Klamen, 652 S.W.2d 730, 733-34 (Mo.Ct.App. 1983); Contractor’s Safety Association v. California Compensation Insurance Company, 48 Cal.2d 71, 307 P.2d 626, 629 (1957). However, Missouri recognizes an exception to the general rule “ ‘where the breach amounts to an independent, willful tort and there are proper allegations of malice, wantonness or oppression.’ ” Sands v. R.G. McKelvey Building Company, 571 S.W.2d 726, 733 (Mo.Ct.App.1978).

Plaintiff argues that defendant’s alleged breach amounts to an independent, willful tort. The contract in question gave defendant the option of releasing plaintiff from the restrictive covenant or giving plaintiff compensation. Defendant started paying compensation to plaintiff when it released plaintiff from the covenant four (4) months after his termination. Assuming that the contract required defendant to elect its option within a reasonable time after which plaintiff was unable to find equivalent noncompetitive employment, defendant’s allegedly unreasonable delay does not amount to an independent, willful tort. The source of the duty to choose the option within a reasonable time, if such a duty existed at all, was the contract. There was no such duty independent of the contract and thus the allegation of unreasonable delay does not amount to an independent tort. In Sands, there was a breach of a house construction contract which also amounted to an independent tort because the builder violated the local building code. In the case at bar, there is no independent source for the alleged duty and plaintiff alleges only a breach of the contract. Accordingly, plaintiff’s claim for punitive damages is dismissed.

Defendant’s second argument is that Count II fails to state a claim upon which relief can be granted, because the contract did not obligate defendant to exercise any particular option. However, the contract clearly obligated defendant to choose one or the other of the two (2) options. In addition, construing the complaint in a fashion most favorable to plaintiff, defendant had a contractual obligation to elect within a reasonable time which of the two (2) options it would use. Therefore, plaintiff’s allegation that defendant breached said obligation states a claim upon which relief can be granted.

Defendant’s motion with respect to Count II is granted in part and denied in part.

COUNT III

Defendant’s only argument challenging Count III is that it fails to state a claim upon which relief can be granted. Defendant argues that under Missouri law plaintiff’s employment was terminable at will because the contract was not for a definite term. See Kempe v. Prince Gardner, Inc., 569 F.Supp. 779, 781-82 (E.D.Mo. 1983); Amaan v. City of Eureka, 615 S.W.2d 414, 415 (Mo. banc 1981), cert. denied, 454 U.S. 1084, 102 S.Ct. 642, 70 L.Ed.2d 619 (1981); Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 124 (1956); Lundberg v. Prudential Insurance Company, 661 S.W.2d 667, 668 (Mo.Ct.App. 1983). Missouri courts consistently reject exceptions to the employment-at-will doctrine, such as implying covenants of good faith and fair dealing in employment contracts. Kempe v. Prince Gardner, Inc., 569 F.Supp. 779, 781-82 (E.D.Mo.1983); Ising v. Barnes Hospital, 674 S.W.2d 623, at 625 (Mo.Ct.App.1984). However, defendant overlooks the fact that its contract with plaintiff, which was drafted by defendant, is governed by California law. Under California law, the employment-at-will doctrine is restricted because California implies a covenant of good faith and fair dealing in every contract, including employment contracts. Pugh v. See’s Candies, Inc., 116 Cal.App.3d 311, 171 Cal. Rptr. 917 (1981); Cleary v. American Airlines, Inc., 111 Cal.App.3d 443, 168 Cal. Rptr. 722 (1980). This conflict between Missouri and California law requires this Court to determine which state’s law applies to the contract.

A federal court exercising diversity jurisdiction must follow the choice-of-law rules of the forum state to determine which state’s law applies. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Hansen v. Sears, Roebuck & Co., 574 F.Supp. 641, 643 (E.D.Mo.1983). As discussed supra, Missouri courts generally give effect to contractual choice-of-law clauses. The only significant limitation on the freedom of the parties to choose a particular state’s law is that there be some logical or reasonable basis for the choice. National Union Fire Insurance Co. of Pittsburgh, Pa. v. D & L Construction Co., 353 F.2d 169 (8th Cir.1965).

In the case at bar there is a logical basis for choosing California law — it is the location of the principal headquarters of the Imperial Oil and Grease Company. It is reasonable for defendant to attempt to have one state’s law apply to its employment contracts which are numerous and nationwide. Therefore, the choice-of-law clause herein is valid and California substantive law applies to the contract. Because California law applies, a covenant of good faith and fair dealing must be implied in the contract herein and plaintiff’s allegation that defendant breached that covenant states a claim upon which relief can be granted.

Defendant’s motion with respect to Count III is denied.

      . This action was filed on June 26, 1984. Previously, plaintiff filed a similar action in state court on April 21, 1982, or before the repeal became effective. The state action was dismissed on April 24, 1984. In the opinion of this Court, the fact that plaintiff previously filed a separate action before the date of repeal has no bearing on which statute, if any, applies in this case.


source: Caselaw Access Project

author: CHARLES R. RICHEY, District Judge.

license: Public Domain

text:
    NUCLEAR CONTROL INSTITUTE, Plaintiff, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, Defendant.
    Civ. A. No. 82-1476.
    United States District Court, District of Columbia.
    Oct. 15, 1984.

      Eldon Y.C. Greenberg, Galloway & Greenberg, Washington, D.C., and Mark A. Borenstein, Los Angeles, Cal., for plaintiff.

      Thomas H. Peebles, U.S. Dept, of Justice, Washington, D.C., and Irwin B. Rothschild, III, Acting Asst. Gen. Counsel, U.S. Nuclear Regulatory Com’n, Washington, D.C., for defendant.
   CHARLES R. RICHEY, District Judge.

Before the Court is an application by the Nuclear Control Institute, hereinafter “Institute,” for Attorneys’ fees and costs incurred in a suit brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The requested information was in the possession of the Nuclear Regulatory Commission, hereinafter “Commission.” This Court holds that the plaintiff, Nuclear Control Institute, has not substantially prevailed and is thereby not eligible for, nor entitled to, such an award. Further, the Court finds that even if plaintiff were entitled to fees, the award requested by the attorneys are excessive and duplicative.

For the reasons set forth in this Opinion, the Court, by Order of even date herewith, denies the award of attorneys’ fees and costs.

BACKGROUND

In the FOIA action, the Institute, a public interest group, sought disclosure of several documents on November 16, 1981. In response to the above request, the NRC turned over to the Institute copies of a number of documents excluding only a certain five. These five documents, one of which was known as the “Morgan Memorandum,” had been classified pursuant to Executive Order 12065, 3 C.F.R. 190 (1970). The Morgan Memorandum had been published in a trade newsletter, called Nuclear Fuel, on November 9, 1981. This memorandum was the only one of the five requested that had already been publicly released. In fact, the Institute contends that the memorandum was published “verbatim.” (Plaintiff's Complaint, ¶ 2.)

On March 28, 1982, the Institute filed an action with the Court to direct the NRC to disclose the “Morgan Memorandum” as well as the other four documents. The Court issued an Opinion on May 20, 1983, granting plaintiff’s motion for summary judgment insofar as ordering disclosure of the Morgan Memorandum, and granted the defendant’s motion for summary judgment insofar as allowing the government to keep the other four documents classified. The language of the Court as to the Morgan Memorandum was, “There is nothing in substance that was not fully disclosed and debated in the extremely public hearing of the United States Congress.” 563 F.Supp. 768, 771 n. 1 (D.D.C.1983).

While cross-appeals of the decision were pending, the plaintiff filed its application for attorneys’ fees. On September 6, 1983, this Court issued an order staying the consideration of Plaintiff’s application for fees until the appeal was decided. The NRC, thereafter, determined that the “Morgan Memorandum” no longer required classified status, and they dismissed their appeal. The Court lifted the stay on November 21, 1983, and requested that the parties negotiate a settlement. After two unsuccessful attempts to settle, the parties are now before the Court.

THE PLAINTIFF IS NOT ELIGIBLE FOR ATTORNEYS’ FEES BECAUSE THE INSTITUTE DID NOT SUBSTANTIALLY PREVAIL

Under FOIA, “section 552(a)(4)(E), a motion for fees and costs requires that two questions be asked and answered: (1) is the plaintiff ‘eligible’ for such an award, and if so, (2) is it ‘entitled’ to such an award?” Fund for Constitutional Government v. National Archives, 656 F.2d 856, 870 (D.C. Cir.1981). The plaintiff Institution, therefore, must first meet the requirement of eligibility.

The language of FOIA states the criteria for eligibility:

The court may assess against the United States reasonable attorney fees and other litigation cost reasonably incurred in any case under this section in which the complainant has substantially prevailed. (Emphasis added.)

5 U.S.C. § 552(A)(4)(E) (1976), To substantially prevail, the plaintiffs must establish the threshold requirement, that the lawsuit, “could reasonably be regarded as necessary to obtain the information.” Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 514 (2d Cir.1976); Cox v. United States Department of Justice, 601 F.2d 1, 6 (D.C.Cir.1979).

The Institute has not met this threshold criteria. The Morgan Memorandum was publicly released in Nuclear Fuel on Nov. 9, 1981, previous to the March 28, 1982 litigation, and, even previous to the Nov. 16, 1981, FOIA request. Because of the prior release of the document, the Court holds that the litigation on the Morgan Memorandum cannot be “regarded as necessary.” In fact, the litigation was patently unnecessary.

Assuming, arguendo, that the threshold has been met, the plaintiff would still not substantially prevail based on the “minimal significance” that this Court formulated in Braintree Electric Light Company v. Department of Energy, 494 F.Supp. 287 (D.D.C.1980). The present controversy parallels the finding in Braintree, where this Court compelled the production of some of the disputed documents. Notwithstanding such production, the Court held that the plaintiff still had not substantially prevailed because he only received a “minimally significant” portion of the material requested. This Court held, in Braintree:

In light of the minimal significance of the compelled disclosure, the court finds that the plaintiff has not substantially prevailed in this action.

Id. at 291. In the case at bar, the release of the Morgan Memorandum is of “minimal significance” in light of the magnitude of the original request. Therefore, plaintiff is neither eligible nor entitled to an award for attorneys’ fees under the provision of FOIA.

PLAINTIFF IS NOT ENTITLED TO ATTORNEYS’ FEES

In the interest of completeness, the Court also considers the second question in Fund for Constitutional Government, supra, that of the plaintiff's entitlement. For plaintiff to be awarded attorneys’ fees, the Court must decide whether, in the Court’s discretion, they aré entitled to such an award. Id. at 870. Three are factors to be taken into account, in the exercise of the Court’s discretion: (1) the benefit to the public, if any, derived from the suit; (2) the nature of the complainant’s interest in the released information; and, (3) whether the agency’s withholding of the records had a reasonable basis in law. Cox v. United States Department of Justice, 601 F.2d 1, 6 (D.D.Cir.1979).

First, this Court finds that the public has “derived” no ‘.‘benefit” from the release of the Morgan Memorandum. This Court is aware that the Institute believed that there was a “benefit,” but mere beliefs are not enough. The meaning of benefit is clear — it must bring something to the public’s attention that was not previously available. See, Chrysler Corporation v. Brown, 441 U.S. 281, 292, 99 S.Ct. 1705, 1712, 60 L.Ed.2d 208 (1979). For the present case, this Court has held, in its Memorandum Opinion, that everything contained within the Morgan Memorandum was already disclosed in a public hearing. Since the material was previously disclosed, the change in status of the classification is not a benefit to the public.

As to the second guideline, the parties concede that the complainant’s interest is neither economic nor commercial. This Court is aware that the Institute is stimulated by the highest motives of public service. However, the lack of personal interest in the outcome of the suit is not dispositive. The Court believes that the complainant must have at least some interest in the materials to be released. The plaintiff here has no interest at all in the classification of the Morgan Memorandum since it was previously released.

Considering the third factor, the Court finds itself repeating the holding in its Memorandum Opinion. The previous classification of the Morgan Memorandum was absurd, given its having been publicly published. Therefore, the Court must state that the classification was unreasonable. However, as irrational as the classification may have been, it was not a “withholding” that entitles the plaintiff to attorneys’ fees. Nothing was withheld since the Memorandum was previously printed “verbatim.”

THE APPLICATION FOR ATTORNEYS’ FEES IS EXCESSIVE AND DUPLICATIVE

To begin with, in setting attorneys’ fees, one must start with the reasonable hours expended on the litigation and the reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The plaintiff, in determining a reasonable hourly rate, has given considerable information involving billing rates in general and billing rates in other types of litigation by other attorneys. It is clear that the use of fee scales in non-FOIA action is erroneous. Further, the Court will not accept evidence of community standards — if an in-house rate is applicable, it is the one to be used. Laffey v. Northwest Airlines, 746 F.2d 4 (D.C.Cir.1984).

As to the fees charges, this Court finds many to be excessive, duplicative, and unnecessary. This Court includes this final analysis in an effort to remedy the gross variations that occur in attorneys’ fees cases.

The Court must point out that when one attorney can be effective in a hearing, the use of two is obviously duplicative. There is no statement, nor does this Court infer, that either Mr. Greenberg or Mr. Borenstein, both of the plaintiff’s counsel, are incompetent to single-handedly represent their client during a hearing. However, both attorneys attended a July 22, 1982 hearing. Because only one of these attorneys’ fees could be includable, the fee for the second attorney is duplicative. See, Copeland v. Marshall, 641 F.2d 880 (D.C. Cir.1980).

The defendant points out, and the Court agrees, that 68.1 hours to prepare a summary judgment motion on a matter such as this is clearly excessive. See, Ramos v. Lamm, 713 F.2d 546, 554 (10 Cir.1983). Continuing, the move of counsel’s law firm from Washington to Los Angeles, may have created the need for messenger and long-distance telephone calls, but these are not to be billed to the government.

Finally, as to claims for upward adjustment of the already inflated lodestar, the Court finds the remarks of plaintiff contradictory. The plaintiff claims the need for a multiplier because of the delay in the original suit. In direct contradiction to the above, the plaintiff states on page 27 of their application that the lawsuit continued “with remarkable speed.” This Court is willing to grant reasonable multipliers in cases where they are warranted. However, the Court will not tolerate the “kitchen sink” approach to multipliers.

The Court cannot over-emphasize the need to organize fee structures which are a true reflection of the time and resources spent in litigating the action. This Court has too often seen duplicative, unnecessary, and excessive fees in FOIA actions, and it is this Court’s duty to remind the attorneys that the monies needed to pay these applications are derived from tax revenues.

CONCLUSION

The Court today has decided, after assessing the application for attorneys’ fees, the defendant’s response thereto, and the entire record, that the plaintiff, Nuclear Control Institute, has not substantially prevailed and, therefore, is neither eligible for, nor entitled to, attorneys’ fees. Accordingly, the Court has, by Order of even date herewith, denied plaintiff’s application for attorneys’ fees and costs.


author: GERRY, District Judge.

text:
    Ahmad Uthman SHABAZZ and Sadr-Ud-Din Mateen, Plaintiffs, v. Edward O’LONE, Individually, and in his official capacity as Administrator of Leesburg Prison Complex; James A. Ucci, Individually, and in his official capacity as Chief Deputy Keeper of Leesburg Prison Complex; and William Fauver, Individually, and in his official capacity as Commissioner of the New Jersey Department of Corrections, Defendants.
    Civ. A. No. 84-1789.
    United States District Court, D. New Jersey.
    Oct. 15, 1984.
    James Katz, Tomar, Parks, Seliger, Simonoff & Adourian, Haddonfield, N.J., for plaintiffs.
    Irwin I. Kimmelman, Atty. Gen. of New Jersey by Laurie M. Hodian, Deputy Atty. Gen., Trenton, N.J., for defendants.
   OPINION

GERRY, District Judge.

This case was brought under 42 U.S.C. § 1983. The plaintiffs, two inmates at the New Jersey State Prison at Leesburg, sought a preliminary injunction restraining the defendants, various correctional officials at Leesburg, from interfering with their attendance at the Jumu’ah, a Muslim congregational service occurring every Friday shortly after the noon hour. Pursuant to Rule 65(a)(2), the parties have agreed to consolidate the preliminary and permanent injunction applications. A hearing was held on June 20 and June 21, 1984. The following constitutes the court’s Rule 52(a) findings of fact and conclusions of law regarding the propriety of the issuance of the injunction.

FINDINGS OF FACT

1. Plaintiff Shabazz is a prisoner at Leesburg who has been a practicing Muslim since 1973. His security status within the institution is “gang minimum.” Plaintiff Mateen is also a prisoner at Leesburg, a practicing Muslim since 1977, and a “full minimum” inmate. There is no question as to the sincerity of the religious beliefs of either plaintiff. The defendants in this case are: William Fauver, New Jersey Commissioner of Corrections; Edward O’Lone, Leesburg Superintendent; and James Ucci, Chief Deputy at Leesburg.

2. Leesburg is a medium security state prison located on approximately 1100 acres of land. On this site, there is a main prison building which houses inmates assigned to maximum and gang minimum custody status. A second building, the Farm, houses only those inmates having full minimum status.

In April 1983, the New Jersey Department of Corrections promulgated Standard 853, which sets out three prisoner custody levels, the privileges and responsibilities attached to each, and the criteria for assignment to each. Those prisoners considered the greatest security risk have “maximum” custody status. Such inmates “shall be assigned to activities within the confines of the security of the institution under continuous supervision.” In the case of Leesburg, this means that such inmates must remain within the main building. There is an intermediate classification, “gang minimum.” Inmates classified as gang minimum, according to Standard 853, “shall be assigned to activities or jobs which routinely require them to move outside the security of the institution, on institutional grounds, and within eyesight of a correction officer ... or other employee authorized to supervise them.” Successful completion of a period at gang minimum is a prerequisite to the attainment of “full minimum” status, the lowest security level. Inmates classified as full minimum, in the words of the Standard, “must be assigned to either (1) work details, jobs, or programs outside the main institution, on or off institutional grounds, with minimal supervision, or (2) a satellite unit or minimum security trailer unit (such as the Farm building), or (3) both (1) and (2).” Prior to April 1983, inmates had been eligible to proceed directly from maximum to full minimum status. Apparently, however, this somewhat radical reduction in supervision had been problematic, prompting the change reflected in the Standard. Also, apparently, prior to April 1983 certain inmates classified as gang minimum held jobs within the confines of their institutions (e.g., within the “main building”). The language of Standard 853, however, seems to mandate that gang minimum inmates routinely work outside the institutional buildings where they are housed, on institutional grounds. It seems that the new “outside” policy reflected in the standard was at least in part a response to a critical overcrowding in the state’s prisons, and that the policy was at least in part designed to ease tension and drain on the facilities during that part of the day when the inmates were outside the confines of the main buildings.

According to the defendants, the new policy of increased outside assignments was not easily implemented. Although the number of inmates assigned to outside details gradually rose after April 1983, some inmates, for a variety of reasons, were able to avoid actually reporting for their assignments. Moreover, some inmates who went out on their work details, found reasons— legitimate or otherwise — for returning to the main building during the course of the work day. In the months following April 1983, the defendants instituted a few changes whereby those assigned to outside details would remain outside for the entire work day. For example, arrangements were made for lunch to be brought out to inmates rather than have them return to the institution for lunch; similarly, medications were brought out to the inmates, and appointments with doctors or social workers were scheduled for the late afternoon or early evening (following the end of the work day). These changes culminated in a memo dated March 7, 1984 and directed to the Leesburg inmate population. The memo reads as follows:

Due to the increase of the size of outside details at both Medium [the main building] and Minimum [the Farm], once an inmate goes to work in the morning, he will remain on his detail throughout the day. He will no longer be brought back into the institution on a normal work day unless it is an emergency. In the event of an emergency, your detail officer will contact his immediate supervisor, who will see to it that you are brought in.

Thus this flat ban — except for emergencies — on returns to the facilities during the day has the effect of preventing practicing Muslims who work outside from participating in the Friday Jumu’ah service.

3. The Jumu’ah service is a congregational service with a minister, or imam, presiding. It is the only congregational service of the week, and it therefore is comparable to the Saturday service of the Jewish faith and the Sunday service of the various Christian sects. The service occurs on Fridays and must take place after the sun reaches its apex and before the next scheduled Muslim prayer, the Asr, a prayer performed individually in the mid-afternoon. Thus, Jumu’ah may only be said during a limited number of hours. In addition, unlike other Muslim prayers which are performed individually and can be made up if missed, the Jumu’ah is obligatory, cannot be made up, and must be performed in congregation. The Jumu’ah is therefore regarded as the central service of the Muslim religion, and the obligation to attend is commanded by the Qur’an, the central book of the Muslim religion.

4. Plaintiff Mateen testified that to his knowledge, Jumu’ah services, up until the March 1984 memo, had been conducted on a regular basis at Leesburg for at least the previous five years. Prior to March 1984, those Muslim prisoners classified as gang minimum who were housed at the main facility, assigned to outside work details, and who wished to attend the Jumu’ah were permitted to remain in the prison and work on an alternate detail within the main building on Fridays so that they could attend the service. Muslim prisoners housed on the Farm and assigned to outside work reported on Fridays to their regular work assignment but were permitted to return by themselves to the Farm to worship. Those inmates who remain inside the buildings may still attend Jumu’ah. In March 1984, the defendants changed the alternate work detail from a gang minimum detail to a maximum detail, thus eliminating the opportunity for gang minimum inmates assigned to outside details to remain inside on Fridays and attend the Jumu’ah.

At the time the complaint in this case was filed (and to this day), plaintiff Shabazz was a gang minimum inmate. Prior to March 1984, he had a job inside the main building and attended Jumu’ah. Since March 1984, Shabazz has worked outside and has been unable to attend the Jumu’ah. At the time the complaint was filed, plaintiff Mateen was also a gang minimum inmate. Prior to March 1984, he was assigned outside and worked the alternate detail on Fridays. After March 1984, he remained outside and was therefore unable to attend the Jumu’ah. However, on May 31, 1984, Mateen was reassigned to minimum status and transferred to the Farm. He was assigned to work in the kitchen, an inside job, so that presently he is able to attend the Jumu’ah. Although there was testimony from the defendants that job assignments are fairly constant, the court is not convinced that Mateen will not, at some time in the near future, be reassigned to an outside detail and consequently be deprived of the opportunity to participate in the Friday service. (Accordingly, we will reject the defendants’ mootness argument as to Mateen.)

5. At issue in this case are two regulations — Standard 853 and the March 7, 1984 memo — applicable to all Leesburg inmates, which, in combination, have the effect of denying plaintiffs the opportunity to attend the Jumu’ah. In their testimony, defendants Ucci and O’Lone advanced several justifications for the two regulations. Standard 853 was explained as a response to prison overcrowding. The mandate that gang minimum prisoners work outside their institutions was described as a means to alleviate the tension produced by the presence of many men at close quarters, as well as a means to reduce the strain on institutional resources. Moreover, the mandatory transitional gang minimum level was seen as a means for reducing the “shock” caused by the sudden reduction in supervision.

The March 7, 1984 memo, it was stated, served a couple of purposes. The first objective had to do with “traffic control.” The evidence establishes that, surrounding the main building at Leesburg, there is a gate through which all inmates entering the building must pass. At the time of entry, inmates must be strip-searched and otherwise processed. This same gate is the receiving area for all visitors to the institution, including the trucks making the frequent deliveries of supplies to the facility. It was felt by defendants that there was too much congestion at this gate, that too many guards were required to handle all the traffic, and that deliveries were unduly delayed. Thus, the March 1984 directive effectively put an end to this congestion problem at the main building. However, this goal does not account for the prohibition on full minimum prisoners returning to the Farm during the day, since these prisoners do not have to pass through the gate to enter the Farm unit. A second goal was advanced in support of the March 1984 policy. This goal was framed in terms of rehabilitation. It was stated that, in order for prisoners to be ready to undertake careers in the free society, they would have to learn to work a full, productive day without taking time off from their jobs to pursue personal matters. Thus, the new policy was designed to eliminate interruptions in the work day, interruptions which had been reduced by prior means (see No. 2, supra), but not totally eliminated. The policy took some pressure off guards supervising outside details, who, previously, had had to evaluate each reason possibly justifying a return to the facilities and either accept or reject that reason. Moreover, because gang minimum inmates must always be at least within eyesight of a guard, if permission were granted for any one inmate on a detail to return inside, all inmates on the detail would have to be marched inside. Thus, the rehabilitative lesson threatened to be lost on more than just the affected inmate.

Superintendent O’Lone further stressed that Leesburg’s work program is not simply a “make-work” project. Goods produced at Leesburg and services provided by its inmates have positive, sometimes vital, effects throughout the state.

6. The March 7, 1984 memo addressed to the inmate population indicates that the new policy is a response to the “increase of the size of the outside details.” The plaintiffs introduced documentary evidence which seems to indicate that in the months immediately preceding the issuance of the memo, the number of people on outside details either remained about the same or decreased slightly. In doing so, the plaintiffs sought to establish that the new policy, not grounded in the facts on which it purported to be based, was pretextual; that is, that its true purpose was not to deal with increased volume but to deprive inmates of the (Opportunity for worship. However, the court does not believe the plaintiffs have proven their case on this issue. First, the memo does not give a time frame during which the size of details increased; certainly between April 1983 and March 1984, the size of the details increased. Second, the statistics introduced, according to the defendants, only refer to gang minimum details. Statistics were not kept for the number of full minimum inmates on outside details. The defendants credibly testified that the total number of men on outside details increased in the months preceding March, 1984. Moreover, the defendants testified that the statistics refer to the number of men assigned to outside details, not the number of men who actually reported for work. This latter number, it was stated, increased as the prison successively took steps to eliminate grounds for not reporting. Finally, the defendants testified that it was not their policy to always inform inmates of the reasons behind their actions. Thus, the memo was not drafted to reflect all the reasons — given above — for the institution of the new policy.

7. The plaintiffs also sought to establish that, notwithstanding the institution-wide nature of the March 1984 policy, individualized adjustments could be made to accommodate the religious practices of the plaintiffs with little inconvenience to the defendants, or disruption of the goals established by defendants. As to gang minimum inmates, such as the plaintiff Shabazz, it was proposed that they be permitted to return to the alternate detail on Fridays, as this adjustment would neither add to congestion at the main gate nor result in loss of work time. The defendants stated that the alternate detail had been converted to a detail for maximum inmates, and that the prison did not mix gang minimum and maximum inmates on details. Thus, the detail was no longer available for this purpose. The defendants did not explain why inmates of different security levels are not mixed on work assignments when otherwise they are mixed. However, the elimination of this alternate detail as a possible assignment for gang minimum inmates is in accordance with Standard 853’s mandate to move gang minimum inmates outside. Therefore, the charge proposed by plaintiffs, although not a threat to the goals reflected in the March 7 policy, does interfere with the goals reflected in Standard 853.

As a second alternative, the plaintiffs proposed that, as to gang minimum inmates such as Shabazz, they be assigned to other gang minimum work details whose assignments require them to remain inside the main building. The defendants admitted that there are such details in the kitchen, bakery and tailor shop. They stated, however, that these details are reserved for the “riskiest” gang minimum candidates, those for whom it was felt an outside job might be problematic. Thus, it was felt that it would be ill advised to move these risky inmates outside to accommodate Muslims such as Shabazz. Moreover, such a course is arguably contra to Standard 853’s mandate of moving outside those inmates capable of handling the additional responsibility.

As a third alternative, it was proposed that gang minimum inmates such as Shabazz be assigned to details that work Saturdays or Sundays, thereby permitting these inmates to make up any time lost by not working Fridays. The defendants admitted that there are a limited number of inmates assigned to Saturday or Sunday work. They stated, however, that this proposal was impracticable. Since prison personnel are needed for other programs on weekends, the creation of additional weekend details would be a drain on scarce human resources.

Regarding minimum security, Muslim inmates living at the Farm, such as plaintiff Mateen, it was proposed that they simply be assigned to jobs permitting them to work either in the Farm building or in its immediate vicinity. This proposal would interfere with neither Standard 853 — which contemplates that full minimum inmates may be assigned to work inside satellite units such as the Farm — nor with the March 1984 policies, as the proposal would neither result in congestion nor a loss of worker productivity. The defendants justified their rejection of this proposal on a couple of grounds (which also have some applicability to the proposals advanced by plaintiffs regarding gang minimum detail assignments). First, it was stated that the defendants did not want to concentrate all Muslims who desired to attend the Jumu’ah in one or two details, and thereby create a cohesive, organized group capable of challenging the institution. The evidence indicates that there are a substantial number of Muslims at Leesburg so that, if all requested reassignment, they would possibly form all Muslim details. The institution, it was stated, has difficulty with affinity groups of this nature, which threaten prison discipline, order and security. Second, the defendants stated that any of the plaintiffs’ suggestions would raise the problem of favoritism: non-Muslim inmates would resent the special considerations given Muslims; would themselves request individualized treatment — thus destroying the “bright line” rules enunciated in the two policies in question; and might themselves (abusively) seek to fit within the Muslim exception. As a practical matter, the defendants stated that there is insufficient staff at Leesburg to allow for too much individualized treatment of inmates.

CONCLUSIONS OF LAW

1. The free exercise clause of the First Amendment generally prohibits government officials from interfering with the religious practices of non-prisoners absent a compelling justification, effectuated by a regulation interfering with the religious practice in the least restrictive manner possible.

This principle is not fully applicable to prisoners, however. Convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement. But those constitutional rights are limited by the legitimate goals and policies of the penal institution. See St. Claire v. Cuyler, 634 F.2d 109 (3d Cir.1980), citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The Supreme Court, in Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), named as legitimate goals of the corrections system: deterrence of crime; rehabilitation of criminals, and the central goal of maintaining security and order within the correctional facilities. The Court stated that considerations of rehabilitation and security “are peculiarly within the province and professional expertise of corrections officials,” and that “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Two succeeding Supreme Court cases also speak of the “wide-ranging” deference to be accorded prison officials in the adoption and execution of policies that are in their judgment necessary to further legitimate institutional goals. See Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Bell v. Wolfish, supra.

The Third Circuit in the St. Claire case, supra, adding a further gloss to these Supreme Court opinions, has explicitly stated that these opinions “leave no room for a requirement that prison officials choose the least restrictive regulation consistent with prison discipline,” as such a requirement is inconsistent with a deferential review. Id. at 114. Further, officials do not have the burden of affirmatively showing that a restriction would in fact be detrimental to proper penological objectives; all officials must do is show a potential danger to security, and may submit this evidence in the form of the opinions of responsible officials “held sincerely and arguably correct.” In order to overcome the presumption of validity accorded to prison regulations, the prisoner must prove that the officials’ response to security considerations is exaggerated.

In rejecting, within the prison context, the “least restrictive alternative” approach to governmental infringements on First Amendment rights in favor of a deferential review, the St. Claire court implicitly stated, this court believes, that a prison regulation may be overbroad yet still be valid. That is, an institution-wide policy may cast too wide a net, and catch within it some individuals for whom the same goals could be achieved with less trampling upon their rights. So long as such a policy, drafted to cover all inmates, effectively serves a valid goal, it is permissible, although it may have a particularly negative impact on some inmates. The rejection of a “least restrictive alternative” approach means that regulations need not be drafted so as to give individual consideration to the peculiar circumstances of each particular class of inmates.

2. Standard 853 and the March 7 policy were explained as institution-wide means designed to advance the goals of both security and order, and rehabilitation. Based on the testimony of the defendants, the court concludes that the means selected plausibly advance these goals. Thus, the court believes it is virtually constrained to hold that, even as applied to plaintiffs, the two policies are valid.

Still, the Supreme Court cases do also speak of the need for a “mutual accommodation” between institutional objectives and constitutional rights. See, e.g., Bell, supra, 441 U.S. at 546, 99 S.Ct. at 1878, cited in St Claire, supra, at 112. Therefore, some effort must be made to afford prisoners reasonable opportunities for the exercise of religious freedom. See Barrett v. Commonwealth of Virginia, 689 F.2d 498, 501 (4th Cir.1982). Although officials need not adopt the least restrictive approach consistent with its goals, neither would it seem they may adopt the most restrictive approach when faced with a claim of constitutional right. In effect, the application of the two policies to the plaintiffs is the most restrictive alternative. Therefore, the court believes it is necessary to consider the validity of the defendants’ objections to the individualized alternatives posed by plaintiffs. (These objections are included in the court’s findings of fact, supra.)

We must conclude that proposals having the effect of potentially concentrating all Muslim inmates in one or two inside details could be properly rejected as potential dangers to prison order and security. See Jones, supra (comparable facts). In drawing this conclusion, as well as the ones which follow, we defer to the expertise of the defendants. Proposals having the effect of displacing more dangerous inmates from inside jobs could be properly rejected on the same grounds. Proposals for weekend work as a substitute for Friday labor could properly be rejected as potential dangers to security insofar as such proposals would necessitate the diversion of manpower from other programs requiring supervision. Proposals to allow inmates working on the 1100 acre grounds to return (escorted or unescorted) to their buildings for the Jumu’ah could properly be rejected on both security (particularly in the case of gang minimum inmates) and rehabilitation grounds. Finally, all proposals, insofar as they might be perceived by other inmates as evidence of favored treatment, could properly be rejected on the grounds of both security and rehabilitation. Thus, it appears that no less restrictive alternative could be adopted without potentially compromising a legitimate institutional objective. Therefore, the court cannot conclude that the defendants are in violation of plaintiffs’ First Amendment rights.

3. Plaintiffs’ equal protection challenge must also fail. The “least restrictive alternative” approach applicable to equal protection cases involving fundamental rights, such as religious expression, must undergo the same modification it undergoes in the First Amendment context. Therefore, that Jews and Christians are able to attend their Sabbath services while Muslims may not is not in violation of the equal protection clause, as the practices of Christians and Jews in no way impinge upon the institution’s objectives.

It is true that as a general matter, inmates of any religion may not be denied the reasonable opportunity to pursue their faith comparable to the opportunity afforded prisoners of other faiths. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). But this does not mean that religious opportunities need be identical. Id. at 322 n. 2, 92 S.Ct. at 1081 n. 2. Here, the evidence indicates that generally Muslims have opportunities similar to those of everyone else. There is, for example, an inam who regularly visits Leesburg, conducts a service on Wednesday nights, and is paid by the state. Furthermore, Lees-burg makes special arrangements to accommodate the dietary needs of Muslims during Ramadan, a month-long holy season, suggesting that Muslims are not ignored in the observance of important religious events.

4. Finally, the plaintiffs have not proved that the policies under discussion, facially valid, were adopted with the impermissible goal of restricting their religious rights.

5. In view of the foregoing, plaintiffs’ claims for compensatory and punitive damages must also be dismissed.

The foregoing represents the court’s findings of fact and conclusions of law.

      . A discussion of the several security levels to which an inmate may be assigned will be found infra.

      . There is a third unit, Ancora, which is geographically separate from the 1100 acre compound. Neither of the plaintiffs is housed at Ancora, and thus, no further discussion of this unit is warranted.

      . Although Mateen is presently able to attend the service, for the discussion that follows, we will assume that his tenure at his kitchen job is impermanent, and that he may at any time be moved outside.

      . During the time when all gang minimum prisoners were returned to the building at the end of their work day, but only at this time, a separate gate was set up to receive them.

      . Presently, inmates who work in the immediate vicinity of the Farm are permitted to attend the Jumu’ah, just as if they actually worked inside.

      . The St. Claire court did not decide whether the showing of a potential threat to non-security
        goals (e.g., rehabilitation) would be sufficient grounds for restricting First Amendment practices. This is an issue this court need not decide, since the defendants’ justifications for the restrictions are at least substantially tied to security concerns.


author: GETZENDANNER, District Judge:

text:
    Walter KOMAN, Plaintiff, v. SEARS, ROEBUCK & CO., Defendant.
    No. 84 C 5754.
    United States District Court, N.D. Illinois, E.D.
    Oct. 15, 1984.
    Edward Kahn, Michael F. McKinley, William T. Coleman, J. Kevin Hennessy, Kahn & Facktor, P.C., Chicago, 111., for plaintiff.
    Melissa Apcel, Richard Levy, Latham & Watkins, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This action under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34 (1982), is before the court on the motion of defendants to dismiss for plaintiff’s failure to file timely state charges with the Illinois Department of Human Rights (IDHR). Specifically, the issue is whether plaintiffs failure to commence state administrative proceedings until after this suit was brought precludes him from taking advantage of the extended 300 day period for contacting the EEOC allowed under § 626(d)(2) of the ADEA. Although the question of construction is close, the court holds that plaintiff is so precluded, and grants defendant’s motion.

Plaintiff Walter Roman, a Chicago resident, was employed by defendant Sears from January, 1955 until July 7, 1981, when he was discharged from his position as Producer/Operations in Sears’ Audio Visual Department. Plaintiff has alleged that he was discharged because of his age, in willful violation of 29 U.S.C. § 623(a)(1). On March 12, 1982, 248 days after his discharge, plaintiff filed charges of age discrimination with the EEOC. The present action was filed on July 5, 1984. Defendants moved to dismiss on the ground that the plaintiff had never commenced state proceedings and therefore did not meet the statutory prerequisites under 29 U.S.C. § 623(b) for bringing a civil ADEA suit. Defendants further argued that the plaintiff's filing with the EEOC after 180 days was untimely, and therefore that the jurisdictional prerequisites of § 626 were also not satisfied. In response, plaintiff filed charges with the IDHR on August 2, 1984. Because this date was more than two and a half years after the 180-day limitations period for filing such charges had run, see Ill.Rev.Stat., ch. 68, § 7-102(A)(1) (1982), the IDHR promptly dismissed the charges. Plaintiff now argues that this filing, albeit untimely, is sufficient to preserve his federal rights under the ADEA, and that his EEOC filing was timely because made within 300 days of the date of discrimination.

The general requirements of timeliness under the ADEA are found in §§ 7(d) and 14(b) of the Act, 29 U.S.C. §§ 626(d) and 633(b). Section 7(d),, 29 U.S.C. § 626(d), provides:

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Commission. Such charge shall be filed—
(1) within 180 days after the alleged unlawful practice occurred; or
(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

Section 14(b) of the Act, 29 U.S.C. § 633(b), in turn provides:

In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated____

Neither party has disputed that the Illinois Department of Human Rights meets the requirements of a “State authority” as defined in § 633(b). Plaintiff has not urged any equitable grounds for tolling the time period, nor has he argued that his submission to the EEOC initiated state proceedings within the meaning of § 633(b). See Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir.1972) (submission to EEOC within state limitations period “initiates” state proceedings within meaning of Title VII). Rather, the sole issue for decision is whether plaintiff can invoke the 300 day period of § 626(d)(2) without having made any effort within that same period to initiate state administrative proceedings.

In Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), the Supreme Court held that ADEA plaintiffs in deferral states to which § 14(b) is applicable must initiate state administrative proceedings prior to filing suit in federal court. The Court also held, however, that § 14(b) does not require those proceedings to be commenced within the time specified by state law, id. at 762, 99 S.Ct. at 2074, and suggested that the plaintiff in that case be allowed to comply with § 14(b) by filing a complaint with the state commission while the federal court held his suit in abeyance. Id. at 764-65, 99 S.Ct. at 2075-76. Subsequently, in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Court stated in dicta that a Title VII plaintiff, under provisions analogous to § 7(d) of the ADEA, need not necessarily commence state proceedings within 180 days in order to obtain the extended filing period of 300 days. Id. at 816 n. 19, 100 S.Ct. at 2492 n. 19. In light of these two cases, plaintiff argues that timeliness of the state filing is not necessary in order to invoke the longer 300 day period allowed plaintiffs in deferral states such as Illinois.

As all parties are aware, the argument put forth by plaintiffs is identical to one this court has rejected in the context of Title VII. Lowell v. Glidden-Durkee, Division of SCM Corp., 529 F.Supp. 17 (N.D. Ill.1981). In Lowell, I held that a Title VII plaintiff who had not filed state proceedings until 218 days after her unlawful discharge, 38 days after the state limitation period of 180 days had run, could not claim advantage of the 300 day extended period provided in § 706(e) of the Civil Rights Act, 42 U.S.C. § 2000e-5(e). That decision was recently reaffirmed by this court, Daniels v. City of Aurora, No. 83 C 7878, slip op. (April 23, 1984), and has been followed by most courts in this district despite considerable authority to the contrary. See Matos v. Anheuser-Busch, Inc., No. 83 C 7103, slip op. (N.D.Ill. March 21, 1984) (citing cases). In Minogue v. Marsh & McLennan, Inc., No. 83 C 3674, slip op. (N.D.Ill.7/24/84), appeal docketed, No. 84-2560 (7th Cir. 9/12/84), Judge Hart applied Lowell to an ADEA case.

I have reviewed the decision in Lowell and think its logic applies with equal force to ADEA cases, despite some differences in language between the two statutes. As noted in Oscar Mayer,

Since the ADEA and Title VII share a common purpose, the elimination of discrimination in the workplace, since the language of § 14(b) is almost in haec verba with § 706(c), and since the legislative history of § 14(b) indicates that its source was § 706(c), we may properly conclude that Congress intended that the construction of § 14(b) should follow that of § 706(c).

441 U.S. at 756, 99 S.Ct. at 2071.

With this rule of construction in mind, the flaws in plaintiffs argument will be addressed. First and foremost of these is plaintiffs disregard for the congressional purpose behind the extended federal filing period. As explained in Mohasco:

[N]either [the extended filing period] nor anything else in the legislative history contains any ‘suggestion that complainants in some states were to be allowed to proceed with less diligence than those in other states.’ The history identifies only one reason for treating workers in deferral states differently from workers in other states: to give state agencies an opportunity to redress the evil at which the federal legislation was aimed and to avoid federal intervention unless its need was demonstrated.

447 U.S. at 821, 100 S.Ct. at 2494 (citation omitted). In effect, plaintiff advocates that ADEA claimants who altogether ignore their state remedies may nonetheless take advantage of an extended filing period, the sole purpose of which is to allow plaintiffs who must exhaust their state remedies to do so without jeopardizing their federal rights. Such a position is unfair to plaintiffs in non-deferral states, who must file within 180 days, and totally ignores the congressional intent to give state agencies the opportunity to redress the discrimination before federal intervention has begun. As noted in Lowell, the argument “that a claimant becomes entitled to the extended filing period ... merely because she filed a meaningless, time-barred charge with the state agency strikes this court as illogical. To so hold would be to reduce the state filing to a procedural sham.” 529 F.Supp. at 22.

Neither Oscar Mayer nor Mohasco compels reconsideration of this conclusion. In Oscar Mayer, the Court considered the effect of an untimely state filing only on the plaintiffs ability to bring suit, and not on the plaintiff’s ability to bring suit, and not on the plaintiff’s ability to take advantage of the extended filing period for contacting the EEOC. Indeed, the Court could not have addressed the latter question, since the plaintiff in that case filed his notice of intent to sue well within the 180 day period required of ADEA plaintiffs in nondeferral states. Moreover, the state limitation period at issue in Oscar Mayer was shorter than the federal non-extended filing period: the Court’s holding that § 633(b) did not require timely state filings was necessary lest state procedural rules abridge federal rights.

In Mohasco, the issue was also not reached, since the plaintiff had initiated state proceedings within the state limitation period, which was one year. Mohasco held only that an EEOC submission filed prior to initiating state proceedings did not meet the statutory prerequisite of an EEOC filing as defined in §§ 706(c) and (e) of Title VII, 42 U.S.C. § 2000e-5(c) and (e). That holding is not relevant here since, unlike Title VII, the ADEA does not require sequential state and federal administrative jurisdiction. See Oscar Mayer, 441 U.S. at 757, 99 S.Ct. at 2072.

To support his argument, plaintiff cites Mohasco not for its holding but for the footnote in which the Court criticized several lower courts for construing § 706(e) to require that the filing with the state agency be made within 180 days. See Mohasco, 447 U.S. at 814 n. 16, 100 S.Ct. at 2491 n. 16 (“[This] restrictive approach is not supported by the statute.”) Plaintiff interprets this footnote to mandate application of the longer federal period in deferral states irrespective of the timeliness with which the plaintiff initiated state proceedings. While this interpretation has been adopted by some circuits subsequent to Mohasco, see, e.g., Davis v. Calgon Corp., 627 F.2d 674 (3d Cir.1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981); Ewald v. Great Atlantic & Pacific Tea Co., 644 F.2d 884 (6th Cir.1981); Ciccone v. Textron, Inc., 651 F.2d 1 (1st Cir.), cert. denied, 452 U.S. 917, 101 S.Ct. 3052, 69 L.Ed.2d 420 (1981), I decline to follow it. As noted in Lowell, the relevant language in Mohasco addresses a line of cases which held that a claimant must under all circumstances file charges with a state employment agency within 180 days before taking advantage of the extended period. 529 F.Supp. at 21-22, 24-25. The Supreme Court found such an approach “restrictive” precisely because it did not take into account state filing periods of longer than 180 days. Mohasco thus stands for the sensible proposition that plaintiffs in deferral states with filing period of more than 180 days may take advantage of those extended periods and not jeopardize their federal rights, so long as they meet the 300 day deadline for filing with the EEOC. In the present case, however, where the state filing period is the same as the federal filing period in non-deferral states, no such considerations offset the unfairness of allowing plaintiffs in deferral states “to proceed with less diligence” than ADEA plaintiffs in non-deferral states. Mohasco, 447 U.S. at 821, 100 S.Ct. at 2494.

Plaintiff’s strongest argument rests on the differences in language between Title VII and the ADEA. Section § 706(e) of Title VII, which was construed in Lowell, reads as follows:

A charge under this section shall be filed within one hundred and eighty days ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency ... such charge shall be filed ... within three hundred days.

42 U.S.C. § 2000e-5(e) (emphasis added). By contrast, the ADEA allows 300 days for filing “in a case to which section 633(b) of this title applies...” 29 U.S.C. § 626(d)(2). Section 633(b), in turn, requires that ADEA plaintiffs in states with agencies competent to redress age discrimination must “commence” state proceedings before filing suit, and does not mention the extended federal filing period at all. It is therefore arguable that § 633(b) “applies” within the meaning of § 626(d)(2) whenever the alleged unlawful practice occurs in a deferral state.

This construction is wrong for two reasons. First, in Oscar Mayer, the Supreme Court concluded that the ADEA required no less deference to state agencies than Title VII despite statutory provisions possibly suggesting otherwise. 441 U.S. at 756-57, 99 S.Ct. at 2071-72. Significantly, plaintiff offers no plausible explanation as to why Congress chose a different result under the ADEA from that under Title VII. To the contrary, the difference in language between § 706(e) and § 626(d) can be readily explained by the fact that the ADEA, unlike Title VII, “permits concurrent rather than sequential state and federal administrative jurisdiction” in order to prevent the delay inherent in sequential jurisdiction from prejudicing the rights of older citizens for whom time may be especially precious. Id. at 757, 99 S.Ct. at 2072. Therefore, the explicit hinging of federal filing on a prior state filing, as required under Title VII, would make no sense under the ADEA.

Secondly, the legislative history of § 626(d) unequivocally demonstrates that Congress intended that provision to have the same effect as § 706(e):

[Njotice of intention to sue must be given the Secretary of Labor within 180 days after the alleged unlawful practice occurred, except that where action has been commenced under a State statute this period shall be extended to 300 days.

S.Rep. No. 723, 90th Cong., 1st Sess. 5. This view is then reiterated later in the same report:

Subsection (d) requires that ... the notice to be filed by an individual who wishes to bring suit must be filed within 180 days of the occurrence of the alleged unlawful practice except that where a state has undertaken action in accordance with its laws, an individual must file his notice within 300 days of the alleged unlawful practice.

Id. at 10. Given that § 626(d), on its own terms, is equally susceptible of being interpreted either as plaintiff or defendant contends, the legislative history is controlling. Accordingly, the court holds that plaintiff may not involve the extended filing period of § 626(d)(2) without having made a timely state filing.

Therefore, defendant’s motion to dismiss for lack of timeliness is granted.

It is so ordered.

      . The Notice of Intent to Sue was the predecessor of the Charge of Age Discrimination now required to be filed with the EEOC. This change took effect by virtue of the amendments to the ADEA in Pub.L. 95-256, § 4(b)(1), Apr. 6, 1978; 1978 Reorg. Plan No. 1, § 2, eff. Jan. 1, 1979, 43 Fed.Reg. 19807, 92 Stat. 3781.

      . Even were this court to reverse the decision in Lowell or deny its application to ADEA cases, plaintiff would still not be entitled to relief. By the plaintiffs admission, the § 633(b) prerequisite of commencing state proceedings did not occur in this case until Aug. 2, 1984, after the statute of limitations for suits alleging willful violations of the ADEA had run. Under these circumstances, defendant’s objections to plaintiffs lack of timeliness have greater force than the objections of the defendants in Lowell or like cases.


author: GARRITY, District Judge.

text:
    Geoffrey G. WHITNEY, Jr., et al., Plaintiffs, v. CONTINENTAL INSURANCE COMPANY et al., Defendants.
    Civ. A. No. 81-1166-G.
    United States District Court, D. Massachusetts.
    Oct. 15, 1984.

      Thayer Fremont-Smith, Harold H. Leach, Jr., Choate, Hall & Stewart, Boston, Mass., for plaintiffs.
    Richard Eurich, Morrison, Mahoney & Miller, Boston, Mass., for defendants.
   MEMORANDUM AND ORDERS ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

GARRITY, District Judge.

Plaintiffs, two insureds, have brought this action against defendant insurance company and its adjustor seeking to establish that defendants are obligated to provide coverage under plaintiffs’ homeowner’s and automobile insurance policies in a tort action brought against plaintiffs. Jurisdiction is proper under 28 U.S.C. §§ 1332 and 2201. Plaintiffs have moved for partial summary judgment on the issues of coverage under the two policies, the amount of coverage under the automobile policy, unfair insurance practices under M.G.L. c. 176D and c. 93A, and defendants’ contractual obligation to pay plaintiffs’ attorneys fees related to their defense of the underlying tort action. Defendants have brought a cross-motion for summary judgment on the issues of coverage under the homeowner’s and automobile policies. The court received briefs and heard oral argument.

I. Statement of Facts

In 1978, defendant Continental Insurance Company (“Continental”) issued automobile and homeowner’s insurance policies to plaintiffs, a husband and wife. The automobile policy provided coverage for bodily injury to others of $200,000 per person and $500,000 per accident. The homeowner’s policy provided for personal liability coverage up to $100,000.

On December 8, 1978, plaintiffs’ daughter, while driving in her own automobile, was involved in an accident. The accident killed the driver of the other vehicle, who left a wife and two children. On July 28, 1979, plaintiffs received a summons for an action in Barnstable County Superior Court, Lang v. Whitney, Civil Action No. 39250, brought by the estate and family of the victim of the accident. The complaint in the Lang action alleged that plaintiffs “negligently and recklessly provided and allowed the defendant Jamie C. Rogers to use the dangerous instrumentality (to wit, an automobile) which caused the fatal injuries and further failed to take corrective measures to withhold liquor from their child or to restrain their child from driving while drinking or when under the influence of intoxicants, when the defendant parents knew or should have known of their child’s dangerous propensity for such conduct and the resulting threat of injury to other drivers.”

On August 7, 1979, plaintiffs sent Continental a copy of the Lang summons and complaint and requested coverage under their insurance policies. Continental referred the claim to defendant Underwriters Adjusting Company (“Underwriters”). Eight months later, on April 9, 1980, plaintiffs’ attorney sent Continental a Chapter 93A “demand letter” insisting that it notify plaintiffs whether Continental would provide coverage in the Lang action. In a letter of April 10, 1980, plaintiffs’ attorney informed Continental that the Lang’s attorney had proposed settlement for one-third of their original demand of $1,500,000, and demanded that defendants provide a defense and settle the Lang case within the limits of the policies.

On May 9, 1980, plaintiffs’ attorney was informed by telephone that Continental would afford coverage under the automobile policy up.to a limit of $200,000. Both plaintiffs and-plaintiffs’ attorney received letters on May 19, 1980 confirming that Continental would provide coverage under the automobile policy, but denying coverage under the homeowner’s policy. Neither letter contained any “reservation of rights” by Continental. Plaintiffs were informed that Attorney Thomas Burns had been retained by Continental to provide plaintiffs with a defense in the Lang action. The letter to plaintiffs also recommended that plaintiffs continue to retain their personal lawyer in the Lang action, since they were potentially liable for damages in excess of the $200,000 policy limits.

In a letter to Burns dated May 23, 1980, plaintiffs’ attorney accepted the defense provided by Continental under the automobile policy, but disagreed with Continental’s determination as to the homeowner’s policy. Plaintiffs’ attorney also expressed his intention to continue representing plaintiffs in the Lang action. On June 2, 1980, Burns filed an appearance in the Lang action. Plaintiffs’ personal attorney has not withdrawn his appearance in that action.

On August 1, 1980, Burns informed plaintiffs’ attorney that Continental would pay his fees in defending plaintiffs in the Lang action up until the time the insurance company assumed the defense. Plaintiffs’ attorney sent Burns an itemization of his work, but was never paid.

During the months of November 1980 through January 1981, Burns requested settlement authorization from Continental. Continental and Underwriter’s employees also recommended to their superiors that Burns be given settlement authority.

On October 23, 1980, plaintiffs wrote to Burns demanding that Continental provide the maximum coverage of $500,000 under the automobile insurance policy since, according to plaintiffs, four persons claimed injury in the Lang action. They also demanded coverage under the homeowner’s policy and requested that Continental attempt to settle the Lang action within the aggregate policy limits of $600,000. On February 10, 1981, plaintiffs sent Continental and Burns another Chapter 93A “demand letter” making similar demands.

On May 5, 1981, plaintiffs received a letter from defendants disclaiming coverage under both the automobile and homeowner’s insurance policies. Continental stated that the automobile policy did not cover the accident since the car involved in the accident was owned by plaintiffs’ daughter and was not insured under plaintiffs’ policy. The insurance company offered to continue to represent plaintiffs in the Lang action under a reservation of rights.

On May 6, 1981, plaintiffs filed the instant action. Plaintiffs also entered into an agreement with the Langs during May of 1981. Under this agreement, plaintiffs have paid the Langs $150,000 outright, and placed an additional $175,000 in trust in consideration for the Langs’ promise not to seek payment from plaintiffs’ personal assets upon a judgment against plaintiffs in the Lang action. According to the trust agreement, income from the trust is to be paid to plaintiffs until there is a determination by this court that defendants must provide coverage under any of the policies in question. At that time, the interest will be accumulated by the trustee. If and upon a final judicial determination that plaintiffs’ insurance policies do not cover the Lang action, the trust principal and any accumulated interest will be paid to the Langs. If it is determined that the insurance policies do cover plaintiffs, the trust res will still be paid to the Langs at a future date, but plaintiffs will receive any accumulated interest from the trust as well as a percentage of any payment by Continental to the Langs under the insurance policies in question.

II. The Automobile Insurance Policy

Defendants and plaintiffs agree that, under its actual terms, the automobile insurance policy does not provide coverage for plaintiffs in the Lang v. Whitney action. The automobile involved in the December 8, 1978 accident was owned and operated by plaintiffs’ daughter. It was not an insured vehicle under the policy issued by Continental, but was insured by an entirely different insurance company. Therefore, defendants were not obligated to provide plaintiffs with a defense in the Lang action, nor pay any judgment returned against them under the terms of the automobile insurance policy.

Plaintiffs argue, however, that defendants are barred from disclaiming coverage under the automobile policy because defendants conceded coverage on May 19, 1980 without reserving their rights, undertook control of the defense in the Lang action, and failed to disclaim coverage until twenty-one months after learning of the claims against plaintiffs and eleven months after acknowledging coverage and commencing their defense in Lang v. Whitney. Plaintiffs rely on the principle stated in Employer’s Liability Assurance Corp. Ltd. v. Vella, 1975, 366 Mass. 651, 657, 321 N.E.2d 910, that “if the insurer knows of its right to disclaim and exercises dominion over the case at an important point without disclaiming liability or reserving rights, subsequent disclaimer is barred.” In Vella, the insured misrepresented the true owner of the automobile listed in his policy of insurance. The insurance company was aware of the misrepresentation at the time that the insured notified it of a tort action against him. However, it defended the insured without any reservation of rights. Eighteen months later, the insurance company disclaimed coverage based on the misrepresentation. The Supreme Judicial Court decided that the insurance company’s disclaimer was barred, stating: “In situations like the present one, we think the insurer loses its right to disclaim when it knows the facts, fails to disclaim within a reasonable time, and acts in a way inconsistent with an intent to disclaim.” Id. at 658, 321 N.E.2d 910.

Defendants attempt to distinguish Vella from the instant action by arguing that Vella involved an attempt by an insurance company to disclaim on the basis of an invalid policy, rather than because there was no coverage under the terms of the policy. However, the language of the Supreme Judicial Court does not indicate that this distinction is at all significant. The purpose of the rule as stated in Vella is to protect individuals from prejudicial vacillation by insurance companies which, while having sufficient information to warrant disclaimer, fail to disclaim coverage within a reasonable time, but participate in and, therefore, have an effect on the defense of the insured. The Supreme Judicial Court was not concerned with the reason for the disclaimer, but with the insurance company’s unreasonable delay in disclaiming.

In the present case, plaintiffs have demonstrated that defendants had completed their investigation of the circumstances surrounding the Lang action by March 24, 1980. Other evidence indicates that defendants were aware that the car involved in the accident was owned by plaintiffs’ daughter and was not covered under the automobile policy in question well before March of 1980. According to this evidence, which is not countered by any evidence presented by defendants, defendants’ disclaimer of liability on May 5, 1981 was at least fourteen months after defendants acquired information sufficient to warrant disclaimer, was twenty-one months after defendants were given notice of the Lang action against plaintiffs, and was eleven months after defendants acknowledged coverage and became involved in the defense of the Lang case. Therefore, defendants failed to disclaim coverage within a reasonable time after they discovered the necessary information. Furthermore, defendants acted inconsistently with their intent to disclaim by participating in the Lang action. Thus, according to Vella, the disclaimer should be barred.

The next question is whether plaintiffs must meet all of the requirements of estoppel under the Vella rule. While the Supreme Judicial Court does not explicitly discuss the doctrine of estoppel, the rule stated in Vella is taken from a line of older Massachusetts cases which are based on the estoppel doctrine. See Rose v. Regan, 1961, 344 Mass. 223, 228, 181 N.E.2d 796; Shapiro v. State Farm, Mutual Insurance Co., 1968, 355 Mass. 54, 57, 242 N.E.2d 753; Klefbeck v. Dous, 1939, 302 Mass. 383, 387, 19 N.E.2d 308. See also Appleman, Insurance Law and Practice § 4693 (1979); 38 ALR 2d 1148. Furthermore, the requirement in Vella that the insurance company exercise “dominion over the case at an important point” is based on principles of estoppel. As stated in Rose v. Regan, supra, it is because the insured relies on the insurance company’s protection that the insurance company may not later withdraw that protection. Id. 344 Mass, at 228, 181 N.E.2d 796.

Therefore, under the doctrine of estoppel, plaintiffs must establish that they were induced by defendants to act differently than they otherwise would have done, that this harmed plaintiffs, and that defendants knew or had reason to know that such harm would result. Lunt v. Aetna Life Insurance Co., 1928, 261 Mass. 469, 473, 159 N.E. 461. In other words, plaintiffs must show that they were prejudiced by defendants’ failure to disclaim coverage within a reasonable time. See Appleman, Insurance Law and Practice § 4693 (1979); 38 ALR 2d 1148.

Defendants argue that, under Lunt, plaintiffs have not been prejudiced as a matter of law because they were represented by their personal attorney, who remained on the Lang case after defendants took over its defense. We disagree, believing that each case must turn on its particular facts. A genuine issue of material fact remains in this case whether plaintiffs have been prejudiced by defendants’ failure to disclaim liability within a reasonable time.

Plaintiffs also claim that defendants are contractually obligated to provide them with coverage under the automobile insurance policy. After plaintiffs sent defendants a 93A demand letter on April 9, 1980, defendants informed them in two letters dated May 19, 1980 that they would provide coverage and a defense under the automobile policy, but not under the homeowner’s policy. Defendants’ letters, plaintiffs argue, constituted an offer of coverage under the automobile policy. Plaintiffs’ subsequent letter of May 23, 1980 is characterized by plaintiffs as an acceptance of defendants’ offer of coverage under the automobile policy, but not of defendants’ disclaimer of coverage under the homeowner’s policy.

In our opinion, this correspondence between defendants and plaintiffs did not create any contractual obligations. Defendants’ letters of May 19, 1980 contain only their assessments as to their obligations to plaintiffs under the existing policies. Plaintiffs, in their letter of May 23rd, merely agreed with defendants’ conclusion regarding coverage under the automobile policy, and disagreed with defendants’ assessment with respect to the homeowner’s policy. This exchange, in our view, did not form a contract.

Defendants are similarly not contractually obligated to pay plaintiffs’ attorneys fees expended in the defense of the Lang action prior to defendants’ assumption of the defense. Defendants did not make an “offer” to enter into a contract with plaintiffs or their lawyer with respect to the payment of these fees. Rather, defendants, believing that the automobile policy provided coverage in the Lang action, were fulfilling their obligations under the policy by providing plaintiffs with a defense. Therefore, defendants will be required to pay these attorneys fees only if there is a final determination that defendants are estopped from disclaiming coverage under the automobile policy.

Finally, plaintiffs claim that defendants are obligated to provide them with the maximum coverage of $500,000 under their automobile insurance policy. The automobile policy provides plaintiffs with coverage for liability up to $200,000 per person with a limit of $500,000 per accident. Plaintiffs contend that the Lang v. Whitney complaint alleges four injured persons: the decedent, Dr. Lang;. Mrs. Lang, through her loss of consortium; and the two minor children, through their loss of parental society; and that coverage would be for $800,000 ($200,000 x 4) but for the $500,000 ceiling. Bilodeau v. Lumbermen’s Mutual Casualty Company, 1984, 392 Mass. 537, 467 N.E.2d 137, recently decided that loss of consortium is to be treated as a separate person’s “bodily injury” under the standard Massachusetts automobile insurance policy such as the one in question here. Therefore, say plaintiffs, defendants must provide coverage up to the accident limit of $500,000.

In our opinion, the Bilodeau rule does not govern the instant case because the coverage claimed by plaintiffs rests not upon the terms of the policy, but on estoppel, and the only assurances by defendants upon which plaintiffs could have relied to their prejudice, see Sheehan v. The Commercial Travelers Mutual Accident Association of America, 1933, 283 Mass. 543, 186 N.E. 627, were that defendants would afford coverage up to $200,000. Plaintiffs allege in their complaint that, in a telephone call on May 9, 1980, their attorney was told that defendants would provide coverage up to a limit of $200,000. Defendants’ May 19, 1980 letter to plaintiffs explained that since the Langs had claimed damage of $1,750,000, plaintiffs were exposed to personal liability of $1,550,000. Accordingly, defendants’ liability under the automobile policy, if ultimately established on estoppel grounds, will be limited to $200,000.

III. The Homeowner’s Insurance Policy

The next issue is whether defendants must provide plaintiffs with coverage under the homeowner’s policy of insurance. According to coverage E (“Personal Liability”) of Section II of the policy, the company “agrees to pay on behalf of the Insured all sums which the Insured .shall become legally obligated to pay as damages because of bodily injury ... to which this insurance applies, caused by an occurrence.” Exclusion 1(a)(2), however, states that the policy does not apply “... to bodily injury ... arising out of the ownership, maintenance, operation, use, loading or unloading of ... any motor vehicle owned or operated by, or rented or loaned to any insured____”

Although plaintiffs’ daughter is an “insured” under the homeowner’s policy, it is clear that the policy will not cover her in the Lang v. Whitney action since the injuries incurred in the accident arose directly from the daughter’s ownership and operation of an automobile. However, plaintiffs and defendants disagree as to whether plaintiffs are covered by this policy.

As stated in Barnstable County Mutual Fire Insurance Company v. Lally, 1978, 374 Mass. 602, 373 N.E.2d 966, the court must look to the allegations against the insureds to determine whether the homeowner’s policy provides coverage. Id at 604, 373 N.E.2d 966. The complaint in Lang v. Whitney alleges that plaintiffs negligently entrusted an automobile to their daughter and that they failed to restrain their child from driving while intoxicated. The policy exclusion obviously applies to the claim of negligent entrustment under the Lally decision. Therefore, this court must only decide whether the allegations in the Lang complaint concerning plaintiffs’ alleged negligence in failing to prevent their child from driving under the influence of alcohol also fall within the policy exclusion.

We conclude that the tort of negligent supervision of a minor child with respect to the minor’s driving while intoxicated is sufficiently similar to the tort of negligent entrustment of an automobile to a minor to warrant similar treatment. See Great Central Insurance Co. v. Roemmich, S.D.1980, 291 N.W.2d 772. The allegations in the Lang complaint concerning plaintiffs’ negligent supervision are inextricably tied to the operation and use of a motor vehicle. Therefore, we hold that exclusion 1(a)(2) of plaintiffs’ policy is applicable in the instant case and, therefore, plaintiffs are not covered by the homeowner’s policy with respect to Lang v. Whitney.

IV. Unfair Insurance Practices

Under M.G.L. c. 93A, § 9, any person who has been injured by another’s acts declared to be unlawful under M.G.L. c. 176D, § 3(9), may bring an action for damages and/or equitable relief. M.G.L. c. 176D, § 3(9) lists specific unfair claim settlement practices in the business of insurance. Plaintiffs claim that defendants have violated subsections (b), (e), (f) and (n) of § 3(9).

Chapter 176D, § 3(9)(b) provides that it is an unfair claims settlement practice to “[f]ail to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies.” In this case it is undisputed that defendants did not take any position on coverage for nine months, despite repeated requests by plaintiffs, and then repudiated their determination as to coverage eleven months later. Therefore, we find that defendants did fail to act reasonably promptly under § 3(9)(b).

Plaintiffs also claim that defendants failed “to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear” in violation of § 3(9)(f), on the basis that the numerous requests from Burns and defendants’ employees for settlement authority from defendant Continental demonstrate that liability in the Lang action was reasonably clear. However, in a memorandum dated October 16, 1980, defendants’ attorneys opined that the Lang’s likelihood of recovery against plaintiffs was small, but recommended settlement due to the magnitude of damages involved in that case. Since it is debatable whether liability was reasonably clear to defendants, see Van Dyke v. St. Paul Fire and Marine Insurance Co., 1983, 388 Mass. 671, 448 N.E.2d 357 (expert advice may be relied on by insurance company in determining whether liability is reasonably clear), questions of material fact exist, precluding summary judgment on this issue.

Finally, defendants have violated § 3(9)(n) in “failing to provide promptly a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim____” Defendants never explained the basis for denying coverage under the homeowner’s policy, in contrast with their prompt explanation with respect to the automobile policy once they disclaimed coverage.

The parties have not sought to have the question of actual damages determined at this juncture. Furthermore, while the court has determined that defendants have violated M.G.L. c. 176D, § 3(9)(b) and (n), we recognize that material questions of fact remain concerning whether defendants’ acts were willful or knowing violations of the statute, entitling plaintiffs to double or treble damages.

V. Summary

Defendants’ motion for summary judgment is granted in part on the ground that, under the terms of the automobile and homeowner’s insurance policies, no coverage is directly afforded to plaintiffs for the Lang v. Whitney action. However, plaintiffs’ motion for summary judgment is also granted in part, and defendants’ denied, to the extent that defendants will be barred from disclaiming coverage under the automobile policy if plaintiffs can show at trial that they relied to their detriment on defendants’ prior acknowledgment of coverage. Coverage under the automobile policy, if any, will be limited to $200,000. Plaintiffs’ motion is denied with respect to their claims that defendants are contractually obligated to provide coverage under the automobile insurance policy and to reimburse plaintiffs for counsel fees incurred by them in defending the Lang ^ction prior to defendants’ assumption of the defense.

Plaintiffs’ motion for partial summary judgment on their claims of unfair insurance practices is granted with respect to §§ 3(9)(b) and (n) of M.G.L. c. 176D, but denied with respect to § 3(9)(f), since a material question of fact remains concerning whether liability was reasonably clear to defendants. The questions of damages and whether defendants’ acts were willful or knowing violations of this statute are reserved for trial.

      . Continental claims that it did not receive this letter until April 30, 1981, when it was forwarded from Burns. However, plaintiffs’ evidence shows that a copy of the letter was sent directly to Continental in February.

      . The principal will be distributed to the Langs and the accumulated income to plaintiffs upon the death of plaintiff Geoffrey G. Whitney, Jr. or the attainment by Adam Lang of his twenty-first birthday, whichever comes first.

      . According to the agreement between the Langs and plaintiffs, of any insurance policy proceeds paid to the Langs by Continental as a result of the instant action, plaintiffs will receive (a) 20% of the first $100,000, (b) 33% of the second $100,000 and (c) 50% of any additional proceeds.

      . While reasonableness is normally a question of fact, we find that defendants’ delay was unreasonable as a matter of law under the Vella decision.

      . The Lunt decision is distinguishable: the plaintiff there attempted to estop the defendant insurance company merely because it had defended plaintiff in the underlying court action; he did not claim that the insurance company unreasonably delayed its disclaimer after acquiring information sufficient to warrant it.

      . Plaintiffs’ briefs on the pending motions refer repeatedly to defendants’ acknowledgement of $200,000 coverage under the automobile policy.

      . We do not reach defendants’ contention that the Bilodeau rule is also inapplicable because Lang v. Whitney was brought as a wrongful death action under Mass.G.L. c. 229, § 2 and only one person is entitled to relief under that statute, the estate of Dr. Lang.

      . Plaintiffs contend that there is no factual basis for the tort of negligent entrustment of an automobile because the automobile involved in the accident was owned and controlled by plaintiffs' daughter. However, Lally requires that the court look to the allegations in the underlying tort action, but not their merits. Furthermore, the recreational motor vehicle involved in the Lally case was also owned by the insured’s minor child, yet the Supreme Judicial Court decided the case on the basis of a negligent entrustment theory.

      . The court also rejects plaintiffs’ contention that the "occurrence" sought to be covered under the homeowner’s policy was not the accident itself, but was the negligent supervision of plaintiffs’ child. The occurrence which caused the injury was obviously the automobile accident.

      . Defendants also failed to respond to plaintiffs' demand letters of April 9, 1980 and February 10, 1981 within thirty days with a written tender of settlement. Defendants claim that they did not receive the February 10, 1981 letter until it was forwarded to them by Attorney Burns on April 30, 1981. However, plaintiffs have produced evidence showing that defendants were also sent a copy of this letter by certified mail/return receipt requested on February 10.

      . This finding moots plaintiffs’ claim that defendants also violated § 3(9)(e) in failing "to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed.”

      . A determination that defendants are not es-topped from disclaiming coverage under the automobile policy may moot this issue.

      . Under DiMarzo v. American Mutual Insurance Co., 1983, 389 Mass. 85, 101, 449 N.E.2d 1189, damages, if any, will be limited to the amount of plaintiffs’ liability to the Langs in excess of their policy coverage, taking into account the settlement agreement between the Langs and plaintiffs.