Respondents Brief — Angela Jane Johnson, et al., Petitioners v. Victoria Fire and Casualty Company

No. 23-5516

IN THE

SUPREME COURT OF THE UNITED STATES

ANGELAJANEJOHNSON;AUDREYANGEL

JOHNSON-DUNCAN,

Petitioners,

v.

VICTORIA FIRE AND CASUALTY COMPANY,

and USA c/o SOLICITOR GENERAL OF THE

UNITED ST ATES,

Respondent(s).

RESPONDENT VICTORIA FIRE AND CASUALTY COMPANY'S BRIEF IN

OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

RUSSELL E. REVIERE 1 (#319449)

JONATHAN D. STEWART (#319459)

RAINEY, KIZER, REVIERE & BELL, P.L.C.

Attorneys for Defendant-Respondent

209 East Main Street

P. 0. Box 1147

Jackson, TN 38301-1147

(731) 423-2414 - telephone

(731) 426-8150 - facsimile

rreviere@raineykizer.com

jstewart@raineykizer.com

1

Counsel of Record for Victoria Fire and Casualty Company

COUNTER STATEMENT OF QUESTIONS PRESENTED

1)

Whether Petitioners stated a prima facie cause of action for breach of

contract under controlling state law?

2)

Whether Petitioners stated a primafacie cause of action for negligence

under controlling state law?

3)

Whether summary judgment was appropriate with regard to Petitioners'

allegations of breach of contract and negligence?

LIST OF PARTIES

Petitioners

1)

Angela Jane Johnson

2)

Audrey Johnson-Duncan

Respondents

1)

Victoria Fire and Casualty Company

II

CORPORATE DISCLOSURE STATEMENT

Victoria Fire and Casualty Company makes the following disclosure pursuant to Sup.

Ct. R. 29:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below

the identity of the parent corporation or affiliate and the relationship between it and the

named party: No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial

interest in the outcome? If yes, list the identity of such corporation and the nature of the

financial interest: No.

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TABLE OF CONTENTS

Page

COUNTER STATEMENT OF QUESTIONS PRESENTED .................... .i

LIST OF PARTIES ..................................................................... .ii

DISCLOSURE OF CORPORATE AFFLIATIONS

AND FINANCIAL INTERESTS ..................................................... .iii

TABLE OF CONTENTS .............................................................. .iv

TABLE OF AUTHORITIES ........................................................... vi

RELATED CASES ......................................................................vii

STATEMENT IN SUPPORT OF JURISDICTION ................................. l

STATEMENT OF THE CASE .......................................................... 2

ARGUMENT ............................................................................. .4

CONCLUSION ............................................................................ 8

IV

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C:E:R'fIF'IC:i\'fE: ()F' SE:RVIC:E: .......................................................... 10

V

TABLE OF AUTHORITIES

CASE NAME

PAGE

Black v. Roadwax Ex12ress, Inc., 297 F.3d 445 (61h Cir. 2002)

3

Dxer v. Hill Servs. Plumbing & HVAC, 2010 Tenn. App. LEXIS 3, 5

2010 WL 27877 (Tenn. Ct. App. Jan. 7, 2010)

Gallowax v. United States, 319 U.S. 372 (1943)

7

Kevenex v. Mo. Militan: Academx, 304 S.W.3d 98 (Mo. 2010)

4

Matsushita Elec. Indus. Co. v. Zenith Radio Com., 475 U.S. 574 3

(1986)

Neelx v. Martin K. Ebx Constr. Co., 386 U.S. 317 (1967)

7

State v. Nationwide Life Ins. Co., 340 S.W.3d 161 (Mo. App. W.D. 4

2011 ).

STATUTES AND RULES OF PROCEDURE

PAGE

6th Amendment to US. Constitution

6

6

7th Amendment to US. Constitution

VI

RELATED CASES

Angela Jane Johnson and Audrey Angel Johnson-Duncan v. Victoria's Insurance,

Now Nationwide Insurance, 2021 U.S. Dist. LEXIS 249926 (W.D. Tenn. October

14, 2021).

Angela Jane Johnson, et al., v. Victoria Fire and Casualty Company, 2023 U.S. App.

LEXIS 7304 (6th Cir. March 27, 2023).

VII

STATEMENT IN SUPPORT OF JURISDICTION

This matter is before the Court pursuant to a policy of insurance issued in

Missouri by Defendant covering an automobile owned and operated in Tennessee

and involving actions allegedly occurring in Tennessee. Subject matter jurisdiction

is proper pursuant 28 U.S.C. §§ 1332 and 2201 as there is complete diversity of

citizenship between the parties and the amount in controversy exceeds $75,000.00,

exclusive of interest and costs. Venue is established through 28 U.S.C. § 1391 as

the acts which give rise to this case are alleged to have occurred in the Western

District of Tennessee from which this appeal is taken.

1

STATEMENT OF CASE

This case arises out of two accidents that occurred around October 2016

involving Petitioners' 2010 Volkswagen Jetta.

(Order, RE 31, PageID 145).

Following those accidents, David White Body Shop, in Jackson, Tennessee,

prepared an estimate of repairs that was approximately $4,000.00. Id. These claims

were submitted by Petitioners to Respondent who issued a policy of insurance

covering the vehicle. Id. at PageID 146. Respondent determined that the value of

the 2010 Jetta compared to the estimated cost of repairs resulted in the vehicle being

deemed a total loss. Id. Respondent offered to pay the total loss settlement which

Petitioners initially refused but later accepted. Id.

In July 2019, while Petitioners were returning from a trip, the Jetta's engine

is alleged to have blown up on Interstate 40 in Arkansas. Id. The malfunction is

alleged to have been caused by a leak in the antifreeze. Id. This all occurred

subsequent to Petitioners' acceptance of the total loss settlement payment made by

Respondent. Id. Between the accidents in 2016 and the incident in July 2019, the

vehicle was driven between 45,000 and 60,000 miles without incident. Id. After the

accident of July, 2019, Petitioners filed the underlying pro se complaint seeking a

2020 or 2021 Volkswagen Jetta along with $1,000,000.00 each for "life

endangerment." Id.

2

After answering the complaint and engaging in limited discovery including

the deposition of Angela Johnson, Respondent submitted a Motion for Summary

Judgment. (Motion for Summary Judgment, RE 26, 26-1 and 26-2). On October

14, 2021, the United States District Court for the Western District of Tennessee

issued an Order (Order, RE 31) granting Respondent's Motion for Summary

Judgment finding that Petitioners failed to make out primafacie causes of action for

breach of contract and negligence. From this ruling Petitioners appealed to the Sixth

Circuit Court of Appeals which affirmed the district court's ruling on March 27,

2023. Petitioners thereafter submitted their Petition for a Writ of Certiorari to this

Court. A trial court's grant of summary judgment is reviewed de nova on appeal.

Black v. Roadway Express, Inc., 297 F.3d 445, 448 (61h Cir. 2002). In so doing, an

appellate court "must view all evidence in the light most favorable to the nonmoving

party." Id. (citing, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)).

3

ARGUMENT

This Petition for a Writ of Certiorari should be denied on the basis that 1) the

conflict between the parties is focused narrowly on issues of a private contract

between them having no implication for national insurance-related matters, 2)

Petitioners were not denied any constitutional right to trial by jury, and 3) the lower

courts' rulings were not in conflict with other state or federal courts.

1.

This Conflict Does Not Have National Implications

Dismissal of Petitioners' complaint through summary judgment was

appropriate because they failed to establish prima facie evidence of causes of action

for breach of contract or negligence under state law.

A.

Breach of Contract

The policy of insurance in this case was issued in Missouri. Under Missouri

law, in order to assert a cause of action for breach of contract, a plaintiff must set

forth "( 1) the existence and terms of a contract; (2) [a party] performed or tendered

performance pursuant to the contract; (3) breach of the contract by the defendant;

and (4) damages suffered by the plaintiff." Keveney v. Mo. Military Academy, 304

S.W.3d 98, 104 (Mo. 2010). Under Missouri law, "[t]he primary rule in interpreting

a contract is to ascertain the parties' intent and give effect to that intent." State v.

Nationwide Life Ins. Co., 340 S.W.3d 161, 182 (Mo. App. W.D. 2011). In order to

4

ascertain the intent of the parties, courts in Missouri rely on the plain and ordinary

meaning of the words of the contract considering the document as a whole. Id.

The Sixth Circuit noted Petitioners' lack of evidence supporting their claim

that Respondent breached the contract of insurance. Pursuant to the plain and

unambiguous policy, Respondent was only required to pay Petitioners the actual

cash value of the vehicle. Plaintiff Angela Johnson accepted payment for the value

of the car about a year prior to the time suit was filed. As such, summary judgment

was appropriate.

B.

Negligence

Petitioners' complaint alleged that Respondent owed them a "duty of care ... as

patrons." (RE 27, PageID 133). Under Tennessee law, to establish a claim of

negligence, plaintiffs must prove "(l) a duty of care owed by the defendant to the

plaintiff; (2) conduct by the defendant falling below the standard of care amounting

to a breach of that duty; (3) an injury or loss; (4) causation in fact; and ( 5) proximate

or legal cause." Dyer v. Hill Servs. Plumbing & HV AC, 2010 Tenn. App. LEXIS

3, *11-12, 2010 WL 27877 (Tenn. Ct. App. Jan. 7, 2010).

In this case, as the Sixth Circuit addressed, there is no evidence to establish a

claim for negligence, in large part, because the Petitioners agreed that they were not

injured as a result of Respondent's alleged actions.

Petitioners' negligence claim was appropriate.

5

Summary Judgment as to

C.

Petitioners' Claims Are Case Specific

As can be seen, Petitioners' claims are specific to the particular facts and

circumstances of this case. The determination of their breach of contract claim is

reliant solely on the provisions of the insurance contract issued to Angela Johnson

while the negligence claim is specific to their allegations of failed performance in

the performance of that contract. In their Petition, Petitioners go to great length to

implicate issues of national safety. Those efforts are misplaced, however, as the case

hinges on the particular actions of Petitioners and the alleged failures of Respondent.

No evidence exists or is established by Petitioners to show that this case has broader

implications beyond bald assertions of dangers to other drivers.

2.

Petitioners Were Not Deprived Of Constitutional Rights

This matter was decided by the district court, and affinned by the court of

appeals, through summary judgment pursuant to Rule 56 of the Federal Rules of

Civil Procedure. Petitioners seek appeal to this court asserting that they were

deprived of a constitutional right to trial by jury. However, neither the Sixth nor

Seventh Amendments to the United States Constitution were violated by the lower

courts' granting and affirming summary judgment. The Sixth Amendment is not

implicated because it applies solely to criminal cases. The Seventh Amendment,

while applying to civil cases, was not violated as the Petitioners failed to establish

primafacie evidence of breach of contract or negligence sufficient to proceed to trial

6

by a jury. Although this Court does not appear to have directly ruled on the question

of whether summary judgment is violative of the Seventh Amendment, similar

procedures have been upheld as comporting with its protection of the right to a jury

trial.

See, Galloway v. United States, 319 U.S. 372, 389-390 (1943)(directed

verdicts not violative of Seventh Amendment); Neely v. Martin K. Eby Constr. Co.,

386 U.S. 317, 321-322 (1967)Uudgments notwithstanding the verdict not violative

of Seventh Amendment). This Petition should, therefore, be denied.

3.

The Lower Courts' Rulings Do Not Conflict With Other Rulings

Petitioners do not assert that the rulings of the district court or court of appeals

conflict with rulings in similar cases by other Circuits. No evidence exists that such

is the case. If anything, Petitioners assert that the courts made errors of fact or

misapplied law, neither of which warrant review by this Court.

7

CONCLUSION

Based upon the foregoing facts and law, Victoria Fire and Casualty Company

respectfully requests that this Court deny the Petition for a Writ of Certiorari.

8

CERTIFICATE OF COMPLIANCE

1.

This document complies with the word limit of Sup. Ct. R. 24 as it

contains 1955 words.

2.

This document complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this

document was prepared in proportionally spaced typeface using Microsoft Word

2010, Times New Roman font, font size 14.

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s/Russell E. Reviere

Attorney for Defendant-Respondent

Dated: October 5, 2023

s/Russell E. Reviere

RUSSELL E. REVIERE (#319449)

JONATHAN D. STEWART (#319459)

Rainey, Kizer, Reviere & Bell, P.L.C.

Attorneys for Defendant-Respondent

209 East Main Street

P.O. Box 1147

Jackson, Tennessee 38302-1147

(731) 423-2414-telephone

(731) 426-8150-facsimile

rreviere@raineykizer.com

istewart@raineykizer.com

CERTIFICATE OF SERVICE

The undersigned certifies that a true copy of this pleading or document was

served upon counsel for each of the parties by mailing postage prepaid or by delivery

to the person or office of such counsel, as follows:

Pro Se Angela Jane Johnson

Pro Se Audrey Angel Johnson-Duncan

24 Revere Circle, Apartment #13

Jackson, TN 38305

This the 3rd day of October, 2023.

s/ Russell E. Reviere

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