Opposition — Getz v. Equitable Life Assurance Society of the United States

IN THE MICHAEL RODAK, JR_CLERK

Supreme Court of the United States

October Term, 1976

JESSE L. GETZ,

Petitioner

VS.

EQUITABLE LIFE ASSURANCE SOCIETY

OF THE UNITED STATES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW MEXICO

BRIEF FOR RESPONDENT IN OPPOSITION

MODRALL, SPERLING, ROEHL, HARRIS

AND SISK

Peter J. Adang

800 Public Service Building

P.O. Box 2168

Albuquerque, New Mexico 87103

Attorney for Respondent

INDEX

Page

es we cose ckieeseeccaseveenacese ii-iv

is i's ewb Coe seeeeeieoerecevevcsceeeasouse 1

PR Gcceddddcadevcccenedesucesseesseeccess 2

GUD reee WUE ccc ccc cccccccccccccceccecees 2

CONSTITUTIONAL PROVISIONS INVOLVED............... 2

SUATERGEINE OF THRE CASE... cw ccccccccccccccccsecececs 2-6

GLEN e Cede edb dee eck sve ebubeadeteuse sense 6-15

ED tive beresdhorecesvesesegecsoneessecenes 16

TABLE OF AUTHORITIES

CASES: Page

Anaya vs. Scarborough,

7S N.M. 702, 410 P.2d 732 (1966) ........ 5c cece ee eeee 8

In Re Bishop's Estate,

250 F. 145 GO Cir. IGE). cc ccccvcccvsccevcveveseceus 8

Bubany vs. New York Life Ins. Co.,

39 N.M. 560, 51 P. 2d 864 (1935S) 2.2... eee eee ee eee eee 10

Cole vs. Loew's, Inc.,

76 F. Supp. 872 (S.D. Cal. 1948)... 0.2... cee eee wees 8

Continental Cas. Co. vs. Davidson,

463 S.W. 26 GG2 (Ack. 1978). cc cccccccvececsescasauune 10

Edwardsen vs. State,

2a A.26 S47 OES. EGER) 2c ccccccscccssocesevsceuanbe 8

Evans vs. Gore,

253 U.S. 245, 40 S.Ct. 550 (1920) 2.0... ce eee eee eens 8

Evans vs. Superior Court,

SUD P. SRE Oak IGGRD oc ccc cccccdcnccveseecehoouanee 8

Fry Roofing Co. vs. Wood,

344 U.S. 157, T3S. CR. TO CITEAD . c cvvccvccccvcecsccess 11

Grayson vs. Harris,

267 U.S. TZ, GS. C2. SET (BGs 0 cc cccccccccccccesees 11

Gutierrez vs. Middle Rio Grande Conservancy District,

34 O.BG. 346, 258 PB (CIGD) . o occ cccccesscecsceseucses 7

Haslam vs. Morrison,

190 P.26 SID (Utah 9G . nw ccc ccccccccevecssonsceens 8

In Re Heirich,

$49 0.8.25 G25 GE. 1957). o ccccvcccccsosesevcdvessusn 8

Hudspeth vs. State,

67 S.W.28 198 (Ack. 19GB). wc cccccccceccssccceaneeses 8

Hughes vs. Black,

160 A.26 113 (REG. 19GB) .. ccccccccccccccccccccessess 8

ii

Kubat vs. Kubat,

eee e es sees ee eceesesccccceces 8

Lainum vs. Continenetal Cas. Co.,

SEPP .26 FOO (WOGM. 19TO). ccc ccc ccc cc ccccccccce 10

Lindsey-Strathmore Irrigation Dist. vs. Superior Court,

Cees cee cceccccsececscccccoce 8

Midwest Royalties, Inc. vs. Simmons,

61 N.M. 399, 301 P.2d 334 (1956)... 6... eee eee eee 7

Mitchell vs. Sage Stores Co.,

cr cin sccebsestcosccvceccves 8

Osborne vs. Chinn,

EE Cc ccc esccserecccecvcccccces 8

Portland Ry. Co. vs. Railroad Comm.,

si GPCRS EEDs ccc cccsccccccccsccces 11

Prudence Life Ins. Co. vs. Wooley,

IS, BED oo ccc ccc cecccccceccccces 10

Rogers vs. Mutual Life Ins. Co.,

I INS oo ccc ccc ceecseccssecccces 10

Sawyer vs. Washington Nat'l Life Ins. Co.,

78 N.M. 201, 421 P.2d 901 (1967)... 1.0... cece eee eee eee 10

Slocum vs. Simms,

S Cranch 363, 3 L.Ed. 125 (1809) ......... 2c cee ceceees 8

State vs. Waterman,

Cees ccc c be. ce seeeceecescecss 8

Stoner vs. New York Life Ins. Co.,

311 U.S. 464, 60 S.Ct. 336 (1940) 2... ee eee 11

Stout vs. Central Nat'l Life Ins. Co.,

PPC BUUED co sccccccceccscccceccoce: . 10

Tatum vs. Southern Pacific Co.,

Ee cca ce bccccecccsccccccceceess 8

Tharp vs. Massengill,

eee 7

iii

U.S. vs. 16,000 Acres of Land

Se a Pe Is GS WU cc ccc cccwcccccceccccces s

U.S. vs. Johnston T

268 U.S. 220, 45 S.Ct. 496 (1925) ..... 22. eee eee cease 11 |

World Ins. Co. vs. Hall ;

I se 12

FEDERAL STATUTES:

ENE A ee Sy 7S ire eee

CONSTITUTIONAL PROVISIONS:

Constitution of New Mexico, Article VI, Section 18............ 2

MISCELLANEOUS:

§S9-10-12.18 N.M.S.A. (1953 Comp.).... 0... 000 eee eee eee 14

—@ —————————— ~

iv

IN THE

Supreme Court of the United States

October Term, 1976

JESSE L. GETZ

Petitioner,

VS.

EQUITABLE LIFE ASSURANCE

SOCIETY OF THE UNITED STATES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF NEW MEXICO

BRIEF FOR RESPONDENT IN OPPOSITION

The Equitable Life Assurance Society of The United States,

hereinafter referred to as the ‘‘Respondent’’, prays that the Petition

for Writ of Certiorari to review a final order of the Supreme Court of

the State of New Mexico, entered on March 11, 1977, be denied.

OPINION BELOW

The opinion of the Supreme Court of New Mexico is reported in

the State Bar of New Mexico Bulletin, Vol. 16, No. 5, at 1736. The

opinion appears at Appendix A of the Petition.

1

JURISDICTION

The final order of the New Mexico Supreme Court was made and

entered in March 11, 1977. The order denying Petition for Rehearing

was entered on March 23, 1977. That order appears at Appendix B of

the Petition.

QUESTIONS PRESENTED

1. Whether Petitioner has demonstrated that the Chief Justice

of the New Mexico Supreme Court had such an “‘interest’’ in the

litigation as to disqualify him from participation.

2. Whether Petitioner waived or otherwise failed to timely

exercise any right he may have had to disqualify the Chief Justice of

the New Mexico Supreme Court.

3. Whether this case involved any question of Federal

constitutional law.

4. Whether this case was decided primarily upon a question of

fact.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of New Mexico, Article VI, Section 18:

‘Sec. 18 [Disqualification of judges. ]

‘*No justice, judge or magistrate of any court shall, except by

consent of all parties, sit in any cause in which either of the

parties are related to him by affinity or consanguinity within the

degree of first cousin, or in which he was counsel, or in the trial

of which he presided in any inferior court, or in which he has

an interest. (As amended November 8, 1966).”’

STATEMENT OF THE CASE

Jesse L. Getz, hereinafter referred to as the ‘‘Petitioner’’, was

56 years old at the time of trial. (Tr. 140). He was a mechanical

engineer by education and profession and had worked for his

employer, Sandia Corporation, in Albuquerque, New Mexico, from

November 1956 through September 1973. (Tr. 140-141). From about

1967 or 1968, he worked specifically as a design engineer within the

2

mechanical engineering community. (Tr. 144). While employed at

Sandia Corporation, Petitioner was insured under a group long-term

disability policy issued to employees of the corporation by the

Respondent. Under the policy in question, insured members of the

group were entitled to benefits if totally disabled. In this context,

total disability was defined as follows:

‘‘For the purpose of this policy,

(a) an employee shall be considered totally disabled if he is

wholly and continuously unable

(i) during the first two years of any one period of disability

to perform any and every duty pertaining to his employment, and

(ii) during the remainder of such period of disability, to

engage in any occupation or perform any work for compensation

or profit for which he is or may become reasonably fitted by

education, training or experience.”’

In October 1970, while insured under the above-mentioned

policy, Petitioner suffered a myocardial infarction secondary to

arteriosclerosis. (Tr. 52-53). In December 1970, after a period of

treatinent and recuperation, the Petitioner, on his physician’s advice,

returned to his regular job on a part-time basis. (Tr. 64, 150). In

February 1971, he was released to full-time work without any restric-

tions or limitations. (Ibid.). From February 1971 until the fall of

1972, the Petitioner worked at his regular occupation. During that

period of time, he was not under the care of any physician; he saw no

physicians; he worked without complaint or visible limitation; and, he

had no excessive absenteeism. (Tr. 270). For all intents and

purposes, he had completely recovered from his heart attack.

In the fall of 1972, Petitioner heard a rumor at Sandia Corporation

of an impending general layoff. (Tr.272). He became worried about

his job and went to see the company physician in November, at which

time he voiced his fears about losing his job. (Ibid.). Significantly,

he made no mention of his heart condition, or of any problem with his

heart, or his ability to perform the work. (Tr. 273). The company

physician made an appointment for him with the company psycholo-

gist, but Petitioner failed to keep the appointment.

Petitioner continued to work at his regular employment there-

after. In February 1973, he was notified that he would be laid off

3

as part of a general layoff of Sandia Corporation employees. (Tr. 277).

The people laid off were generally the least productive. The Peti-

tioner’s work production had never been very high, even before his

heart attack. (Tr. 313). His evaluations by supervisors both before

and after the heart attack showed that his productivity was about the

same. (Tr. 241, 250, 309). Upon receipt of the notice of layoff, the

Petitioner immediately filed a claim for disability retirement under

Sandia Corporation’s retirement plan. (Tr. 282). The application was

investigated by Sandia’s medical staff and a report was made to the

the retirement committee. In the judgement of the medical staff,

Petitioner was not totally disabled from doing the work of a design

engineer. (Ibid.). As a consequence, the application for disability

retirement was rejected by the retirement committee. (Tr. 284).

However, Sandia Corporation did allow the Petitioner to remain on its

payroll until September 1973, in order to qualify for early retirement

benefits. Petitioner testified that, had he not been laid off, he would

have continued to work for three and one-half years in order tc qualify

for full retirement benefits. (Tr. 278).

After he took early retirement in September 1973, the Petitioner

filed a claim with the Respondent for benefits under the long-term

disability policy on the ground that, in September 1973, he was totally

disabled from performing his duties as a consequence of the 1970

heart attack.

Prior to trial, the Petitioner was examined and evaluated by four

physicians, one of whom had been his treating physician in 1970.

There was no evidence that his physical condition had changed from

February 1971 until the time of the trial. Electrocardiograms taken in

1971, as compared with 1975, were stable and showed no change.

(Tr.84). Petitioner's physical findings from February 1971 to the time

of trial were identical. (Tr. 103-04). None of the physicians who

examined the Petitioner found or observed any of the symptoms of

which the Petitioner complained. (Ibid.). All of the physicians

classified the Petitioner as a Class IA or Class IIB heart patient

according to the American Heart Association Classification of Heart

Patients. These classifications were:

“ClassI. _—‘ Patients with cardiac disease but without resulting

limitations of physical activity. Ordinary physical

activity does not cause undue fatigue, palpitation,

4

dyspnea, or angina) pain.

“Class II. Patients with cardiac disease resulting in slight

limitation of physical activity. They are comfortable

at rest. Ordinary physical activity results in fatigue,

palpitation, dyspnea, or angina) pain.

“Class A. _‘ Patients with cardiac disease whose physical activity

need not be restricted in any way.

“Class B. Patients with cardiac disease whose ordinary

physical activity need not be restricted, bat who

should be advised against severe or competitive

efforts.”’

Testimony at the trial from physicians established that the

Petitioner could, at that time, perform the tasks of a mechanical

engineer. (Tr. 106). His treating physician testified that it would

be psychologically better for the Petitioner if he were to continue

working. (Tr. 115). Disinterested witnesses testified that the job of a

mechanical engineer is light and sedentary, . and _ not

particularly stressful. (Tr. 240, 311-12). A vocational expert analyzed

the educational background of a mechanical engineer, the joo

requirements and the medical testimony, and concluded that the

Petitioner was capable of performing the tasks of a mechanical

engineer on a regular basis. (Tr. 327). He further testified that even

if the Petitioner could not do the job of a mechanical engineer, there

were numerous other occupations in which he could engage by using

his existing educational background and work skills. (Tr. 329).

Based upon the evidence presented at the trial, the New Mexico

Supreme Court held that findings of fact of the trial court that the

Petitioner was totally disabled under the definitions in Respondent’s

long-term disability policy were not supported by substantial

evidence. It stated:

‘Although it is not proper for us to disagree with a finding

supported by substantial evidence, we can and must determine

whether the evidence presented substantially supports a finding

which has been properly attacked.Findings not supported by

substantial evidence, and which have been properly attacked,

cannot be sustained on appeal, and a judgment dependent

thereon must be reversed....

‘‘We have read the transcript on appeal in this case and are

convinced that there is no substantial evidence to support the

finding of the district court that Getz is and will be unable to

engage in any occupation or perform any work for compensation

or profit for which he is or may become reasonably fitted by

education, training or experience.’ Since this finding is essential

to the judgment entered in favor of Getz, that judgment cannot

stand.”’

The Respondent’s appeal from the judgment of the trial court

was heard by a three-judge panel in the New Mexico Supreme Court,

one of whom was Chief Justice LaFel E. Oman, now retired. There is

no record of any remarks allegedly made by the Chief Justice during

the course of oral arguments and Respondent disputes the narration

of statements allegedly attributed to the Chief Justice by the

Petitioner. Oral argument was conducted before the Supreme

Court on June 23, 1976. The decision of the Supreme Court was

rendered on March 11, 1977. At no time uid the Petitioner move to

have the Chief Justice recuse himself from the matter; or, otherwise

attempt to disqualify the Chief Justice.

ARGUMENT

1.

Petitioner’s first point for granting the Petition is that Chief

Justice Oman of the New Mexico Supreme Court was biased or

interested in the matter and that he was, therefore, deprived of a fair

hearing. The argument is predicated entirely upon statements

allegedly made by the Chief Justice during the course of oral argu-

ment on appeal. There is no record of the alleged statements and

Respondent disputes the Petitioner’s assertion that they were made.

In the absence of any record upon which this Court can rely to

substantiate the Petitioner’s claims, the Petition should be denied.

If the remarks attributed to Chief Justice Oman by the Petitioner

were, in fact, made, it would seem that the Petitioner would have

done something immediately to preserve his rights or at least make a

record of what occurred. He could have immediately requested a

record; or, he could have requested that the Chief Justice recuse

himself; or he could have filed a motion to disqualify the Chief

Justice. Yet, he did none of these things. His statement that he

6

zs -

“~r-

‘‘presumed”’ that the Chief Justice would not participate in the

decision is hollow and unconvincing. Petitioner’s inaction belies his

claim that alleged comments of the Chief Justice during the course of

oral argument were as he has paraphrased them.

In addition to the foregoing, even if the remarks, as alleged,

were made, the Petitioner failed to properly preserve his rights.

Petitioner's argument is that, under Article VI, Section 18, of the

Constitution of New Mexico, a justice may not participate in any case

‘tin which he has an interest.’’ The contention apparently is that

Chief Justice Oman demonstrated an “‘interest’’ in the outcome of

this litigation and could not participate in the decision. By his doing

so, the Petitioner was denied due process and the equal protection of

the laws of the State of New Mexico.

Petitioner's argument is interesting but it ignores the fact that

the New Mexico constitutional provision is not automatic or self-

executing. It has been consistently held in New Mexico that Article

VI, Section 18, does not contain an absolute disqualification, but only

confers a right upon litigants which they must exercise or waive.

Midwest Royalties, Inc, vs. Simmons, 61 N.M. 399, 301 P.2d 334

(1956); Gutierrez vs. Middle Rio Grande Conservancy District, 34

N.M. 346, 292 P.1 (1929). Ifa litigant chooses to avail himself of the

constitutional right he is required to file some motion or other

appropriate pleading calling the ground for disqualification to the

court’s attention and demanding a ruling thereon. See, Tharp vs.

Massengill, 38 N.M. 58, 28 P.2d S502 (1933). In this case, as stated

above, the Petitioner made no effort, at the time Chief Justice Oman

allegedly made the remarks attributed to him, to affirmatively

disqualify the Justice; nor, did he file any pleading within a reasonable

time thereafter calling the Supreme Court’s attention to the claimed

ground for disqualification. Oral argument was held on June 23,

1976, and the Supreme Court rendered its decision reversing the trial

court on March 11, 1977, almost ten months later. Petitioner rested

on whatever rights he had for that period of time and made no

attempt to assert them until after the decision reversing a trial court

judgment in his favor had been made. It is obvious that the Petitioner

was content with the situation as long as he felt that the decision was

going to be in his favor; and, that he has attempted to belatedly

assert a claimed right only because his expectations were not

7

realized. However, under the plain language of the New Mexico

constitutional provision, as well as the interpretations therof by the

New Mexico Supreme Court, Petitioner’s conduct constituted a

waiver of any right to have the Chief Justice disqualified.

Finally, even if it is assumed that Chief Justice Oman made

remarks exactly as alleged by the Petitioner, such remarks do not

demonstrate an “‘interest’’ or ‘‘bias’’ that would be sufficient to

disqualify him. It is well established that a judge is disqualified from

acting in a case in which he has an “‘interest’’. Evans vs. Gore,

253 U.S. 245, 40 S.Ct. 550 (1920); Slocum vs. Simms, 5 Cranch 363,

3 L.Ed. 126 (1809). The prevailing view is that the disqualifying

‘‘interest’’ must be pecuniary or proprietary in nature. In Re

Bishop's Estate, 250 F. 145 (9th Cir. 1918); Lindsay-Strathmore

Irrigation Dist. vs. Superior Court, 187 P. 1056 (Cal. 1920): Tatum vs.

Southern Pacific Co., 58 Cal. Rptr. 237 (Cal.); Kubat vs. Kubat, 258

P.2d 897 (Colo); In Re Heirich, 140 N.E.2d 825 (Ill. 1957), cert, den.,

35S U.S. 805, 78 S.Ct. 22 (1957); Edwardsen vs. State, 220 A.2d 547

(Md. 1966); Hughes vs. Black, 160 A.2d 113 (Md. 1960); State ex rel

Osborne vs. Chinn, 121 S.E.2d 610 (W. Va.). In New Mexico, an

“‘interest’’ sufficient to disqualify may also be an actual bias or

prejudice. State ex rel. Anaya vs. Scarborough, 75 N.M. 702, 410

P.2d 732 (1966). The words ‘‘bias’’ or prejudice’’ refer to the mental

attitude of the judge toward a party to the litigation and not to any

views that he may entertain regarding the subject matter involved.

Cole vs. Loew's, Inc., 76 F.Supp. 872 (S.D. Cal. 1948); U.S. vs.

16,000 Acres of Land, 49 F.Supp. 64S (D. Kan. 1943); Hudspeth vs.

State, 67 S.W.2d 191 (Ark. 1933), cert. den., 296 U.S. 642, 56 S.Ct.

178 (1935). See, also, Evans vs. Superior Court, 290 P. 552 (Cal,

1930); State vs. Waterman, 210 P. 208 (Idaho 1922); State ex rel.

Mitchell vs. Sage Stores Co., 143 P.2d 652 (Kan. 1943), affd.,

323 U.S. 32, 6S S.Ct. 9 (1944). ‘“‘Bias’’ and ‘‘prejudice’’ mean a

hostile feeling or spirit of ill will against one of the litigants, or undue

friendship or favoritism toward another. Haslam vs. Morrison, 190

P.2d 520 (Utah 1948). The fact that a judge may have an opinion as to

the merits of the case or that he has strong feelings about the type of

litigation involved does not make him biased or prejudiced. (Ibid.).

The Petitioner has not demonstrated that Chief Justice Oman

had any pecuniary or proprietary interest in the subject matter of this

8

litigation; nor, has he shown any bias or prejudice in the sense of

hostility or ill will toward the Petitioner personally. The language

attributed to Chief Justice Oman, if it was uttered, shows at most that

he had certain views concerning the subject matter of the litigation

(viz., the capacity of a person who has suffered a heart attack). This

was not sufficient to disqualify the justice from hearing the matter

anc does not establish that the Petitioner was deprived of due process

or equal protection of the law. Since Chief Justice Oman was not,

therefore, disqualified from acting in this matter, a majority of the

justices of the new Mexico Supreme Court did decide the case in favor

of the Respondent and the decision was proper in all respects.

Il.

Petitioner's second point for granting the Petition for Writ

or Certiorari is that the New Mexico Supreme Court in some manner

changed New Mexico law and that, in so doing, treated the Petitioner

differently from others similarly situated, thereby denying him equal

protection of the law. It is contended that the consequence of this is

that Petitioner is required to ‘‘return to work even though any work

would expose him to great pain and further risk his life.’’ ‘‘To

prolong Petitioner’s life it is necessary that he be free from mental

and physical strain.’” The narration goes on that Petitioner is

required to return to work to ‘adequately support his family.’’ None

of these arguments is supported by any transcript references and, as

a matter of fact, they are untrue. Most people’s lives would probably

be prolonged if they were free from physical and mental strain. But,

the fact that one’s lifespan may be less because of the stresses and

strains of daily living does not establish total disability under an

insurance policy. Petitioner’s own treating physician testified at the

trial that it would be better for the Petitioner if he did return to work.

And, all of the expert witnesses testified that he was capable of

working. The implication that Petitioner cannot now ‘‘adequately

support his family’’ is specious since there was evidence at the trial

that Petitioner has no children living at home; that he is collecting

early retirement benefits, from Sandia Corporation, as well as Social

Security benefits; and, that his wife is a school teacher. He is

apparently affluent enough to own a boat and spend his time fishing.

9

Furthermore, the new Mexico Supreme Court did not disregard

its prior decisions in deciding Petitioner’s case. The only two New

Mexico cases involving long-term disability policies were Bubany vs.

New York Life Ins. Co., 39 N.M. 560, 51 P.2d 864 (1935); and, Sawyer

vs. Washington Nat'l Life Ins. Co.,78 N.M. 201, 421 P.2d 901 (1967).

Both of these cases were briefed, discussed and argued in the trial

court and before the New Mexico Supreme Court. Neither case

involved a total disability provision which was ‘‘identical’’ to that of

the Respondent in the instant case. And, neither case had facts

similar to the instant case. It is obvious that the New Mexico

Supreme Court did not consider either case to be controlling and

rejected them as authority in the instant case. It did not, and had no

reason to, overrule either of these decisions.

The foregoing illustrates Respondent’s position that there is

no substantial Federal question involved in this case. Petitioner has

not specified any particular Federal question involved, nor has he

‘cited any article, clause or amendment of the United States Consti-

tution that was violated. It is evident from the arguments made by

Petitioner under Point II that this case involves an interpretation of

New Mexico law; and, certain findings of fact from the evidence. It

is respectfully submitted that, in the interpretation of New Mexico

law, the judgment of the New Mexico Supreme Court is superior and

paramount. It is not within the jurisdiction of this Court to substitute

its judgment of what New Mexico law should be as long as the

state of the law in New Mexico does not contravene the Constitution

of the United States. It was demonstrated by the Respondent before

the New Mexico Supreme Court that the interpretation of Respon-

dent’s policy given by that Court is an accord with the prevailing

weight of authority in the United States. Continental Cas. Co. vs.

Davidson, 463 S.W. 2d 652 (Ark. 1971); Prudence Life Ins. Co. vs.

Wooley, 182 So. 2d 393 (Miss. 1966); Stout vs. Central Nat'l Life Ins.

Co., 522 S.W. 2d 124 (Mo. 1975); Rogers vs. Mutual Life Ins. Co.,

122 S.W. 2d 5 (Mo. 1938); Lainum vs. Continental Cas. Co., 469 P.2d

964 (Wash. 1970).

Furthermore, the critical element of the decision in the New

Mexico Supreme Court involved a determination of facts. It should

not be the function of this Court to substitute its judgment on the

10

facts for that of the state court. Thus, it is well settled that certiorari

is not granted to review evidence. United States vs. Johnston, 268

U.S. 220, 45 S.Ct. 496 (1925). And, jurisdiction of this Court

should not be exerted simply to review a state court’s findings and

conclusions of fact. Fry Roofing Co. vs. Wood, 344 U.S. 157, 73 S.Ct.

204 (1952); Grayson vs. Harris, 267 U.S. 352, 45 S.Ct. 317 (1925);

Portland Ry. Co. vs. Railroad Comm., 229 U.S. 397, 33 S.Ct. 820

(1913).

In summary, the legal question of the interpretation of

Respondent’s policy language had not been settled in New Mexico

by prior decision. The New Mexico Supreme Court resolved that

problem in a manner consistent with the interpretation of such

contractual language in other jurisdictions. It further found, under

the facts, that the Petitioner did not meet the requisite standard of

total disability under the policy and its interpretation of the language.

The Petitioner was not ‘‘singled out ... for unequal treatment’’ and

was not, therefore, deprived of any constitutional rights.

Ii.

Petitioner’s third point for granting his Petition for Writ of

Certiorari is akin to the second point. The argument is to the effect

that he contracted for long-term disability insurance at a time when

there was a certain interpretation of disability policies in New

Mexico; that the New Mexico Supreme Court decision in this case

changed that interpretation; and, therefore, he was deprived of

property without due process of law. Petitioner fails, however, to

specify what the New Mexico law was at the time of contracting; and,

what change was effected.

Respondent contended before the New Mexico Supreme Court

that the policy involved contained two types of disability clause --

occupational disability during the first two years and general

disability thereafter. Occupational disability clauses have been

interpreted to mean that an insured is totally, occupationally disabled

if he is unable to perform the substantial and material acts of his

regular occupation. Stoner vs. New York Life Ins. Co., 311 U.S. 464,

61 S.Ct. 336 (1940). General disability clauses are usually interpreted

to mean that an insured is totaily disabled if he is unable to perform

11

the material and substantial acts necessary to the prosecution of any

occupation within his education, training and experience. World Ins.

Co. vs. Hall, 384 F.2d 138 (Sth Cir. 1967). Neither of the two New

Mexico decisions which pre-dated the Petitioner’s policy involved an

interpretation of both parts of a general disability policy containing

occupational and general disability clauses. The issue was a novel

one in New Mexico. Thus, the point is, that the New Mexico Supreme

Court did not change the law or any of the Petitioner’s contract rights

by virtue of its interpretation.

Furthermore, the instant case was decided on the basis of

certain findings of fact and not any novel, or different, legal interpre-

tation. The New Mexico Supreme Court noted the evidence as

follows:

‘“‘The evidence was that on or about October 1, 1970, Getz

suffered a coronary thrombosis or myocardial infarction and

that he does have arteriosclerosis. A myocardial infarction

causes some heart muscle damage, and, upon healing, leaves

some scar tissue in the heart muscle. He was hospitalized on

October 1, 1970, and remained in the hospital for about three

weeks. After his discharge from the hospital he remained at

home until December 7, 1970. He was largely resting and

recuperating, but was permitted to engage in limited physical

activity. On December 7, 1970, he returned to his work, but he

was limited to four hours per day. In February 1971, he was

returned to the performance of the fuil duties of his employment.

In addition, he was on a program of physical exercise, including

jogging. By the middle of 1971 he was jogging a mile of more,

four or five days a week.”’

‘In support of his position that he is wholly and continuously

disabled to the extent required by this provision of the policy,

Getz relies primarily upon his claim that all jobs for which he is

fitted or may become reasonably fitted involve stress, and that

after his retirement from Sandia he mailed out to different

employers approximately 100 job applications and did not secure

employment.

‘The fact that there is stress in any job, or even in living, and the

fact that he received no offer of a job in response to his applica-

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tions, is no evidence of substance that he is wholly and continu-

ously disabled from performing the duties of any occupation

or performing any work for compensation for profit which he is

or may become reasonably fitted by education, training or

experience. He jogs for about a mile four or five times a week,

he gardens, he fishes and he boats, and there is no evidence that

he is unable to perform any of the ordinary activities of a normally

sedentary life, or perform the duties of many types of employ-

ment for which he is or may become fitted.

‘The physicians who had treated and examined him and who

testified at trial, classified him as Class I or Class II under the

functional classification and either Class A or Class B under the

therapeutic classification of the American Heart Association

Classifications for heart patients....

“Both physicians who testified on behalf of Getz stated there

were certain types of employment which he could perform.

His treating physician named drafting and technical writing as

two forms of employment in which he could engage. The other

doctor made the general statement that Getz could perform

light and sedentary types of work. Work as a mechanical

engineer was repeatedly referred to by witnesses as being

sedentary. There is evidence that Getz’ duties in engineering

design did involve some stress, perhaps more than at least

some other employments in the field of mechanical engineering.

His employment also required occasional lifting of heavy

equipment for which he would seek assistance, since his doctor

advised he should not lift heavy objects. However, because his

particular duties caused him some discomfort and distress three

or four times a week and involved occasional physical activity

which he could not perform alone, it does not follow that he

is wholly and continuously disabled from performing the duties

of any occupation or performing any work for compensation or

profit for which he is or may become reasonably fitted by educa-

tion, training or experience. There was undisputed testimony

from a vocational analyst concerning many types of employment

which Getz could do, and his treating physician testified he

would be better off psychologically if he did work.”’

Thus, according to the New Mexico Supreme Court, the Petitioner

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failed to prove that he was wholly and continuously unable to perform

the material acts necessary to the prosecution of his occupation as

a mechanical engineer and that he was wholly and continuously

unable to perform the material acts necessary to the prosecution of

any occupation for which he was fitted by reason of education,

training and experience.

Petitioner asserts that the public policy of New Mexico to

compensate individuals for disability is embodied in the New Mexico

Workmen’s Compensation Act. Section 5S%-10-12.18 N.M.S.A.

(1953 Comp.). That section provides:

**59-10-12.18 Total Disability. -As used in the Workmen’s

Compensation Act [59-10-1 to 59-10-37], ‘total disability’ means

a condition whereby a workmar *y rez.on of an injury arising

out of, and in the course of, hi: ‘loyment, is wholly unable to

perform the usual tasks in th. ork he was performing at the

time of his injury, and is wholly unable to perform any work for

which he is fitted by age, education, training, general physical

and mental capacity, and previous work experience.”’

It is interesting to note that the test of total disability under the

New Mexico Workmen’s Compensation Act, relied upon by the

Petitioner, is almost identical to the language of the Respondent’s

policy. It is difficult, therefore, to understand how the Petitioner can

assert that the decision in the instant case was contrary to the public

policy of the State of New Mexico.

Finally, it might be pointed out that certain other assertions by

the Petitioner under Point II] are without any evidentiary foundation

and otherwise take certain liberties with the actual facts. The

Petitioner was not discharged from employment because of inability

to perform work as a consequence of his physical condition. Testi-

mony revealed that his physical condition had nothing to do with the

layoff. (Tr. 24S). He was retired early as a part of a general layoff of

the least productive employees. And, Petitioner had always been one

of the employer's least productive employees. Neither was there any

evidence that the Petitioner purchased Respondent’s long-term

disability insurance based upon a particular interpretation of disability

14

insurance policies by the New Mexico Supreme Court. Petitioner

would lead us to believe that, despite the clear, unequivocal and

unambiguous language of Respondent’s policy, the New Mexico

Supreme Court would have interpreted such language to mean that

an insured was totally disabled if substantially unable to perform the

material acts of his regular occupation, regardless of his ability to

perform other work; that he was aware of such interpretation; and,

that he contracted in reliance that the Supreme Court would interpret

his disability policy in that manner. The assertion is so incredible

that it merits no further comment. The New Mexico Supreme Court

had never interpreted two-part disability policies similar to the

Respondent’s, in the manner alleged; and, even if it had, Petitioner

failed to sustain his burden of proof. He did not prove an inability to

perform substantially all the acts material to the occupation of a

mechanical engineer, much less any other occupation for which he

was fitted by reason of education, training and experience.

IV.

The Petitioner’s Federal questions were not all timely raised.

There can be no question that the Petitioner failed to properly assert

his claim that Chief Justice Oman was disqualified from participating

in the case. That contention was raised for the first time on a Motion

for Rehearing. Petitioner knew, or should have known, of the ground

for disqualification at the time of oral argument, almost ten months

before the Supreme Court decision. The ground for disqualification,

if any existed, should have been brought to the attention of the

New Mexico Supreme Court as soon as the Petitioner was aware of it.

His failure to do so prevents his obtaining further relief by way of

Petition for Writ of Certiorari.

1S

CONCLUSION

For the reasons set forth above, it is respectfully submitted that

the Petition for Writ of Certiorari to review the order and decision

of the Supreme Court of the State of New Mexico be denied.

Respectfully submitted,

MODRALL, SPERLING, ROEHL, HARRIS

AND SISK

Peter J. Adang

Attorney for Respondent

800 Public Service Building

P.O. Box 2168

Albuquerque, New Mexico 87103

505-243-4511

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