Petition — McCabe v. Greenberg (No. 78-1875)

Supreme Court, U,

FILE D>”

IN THE | JUN 18 1979

SUPREME COURT OF THE UNITED, STATES

CHAEL RODAK, JR., CLERK

at ete oe ee

October Term, 1979

vo. 23°18 @5

GALE GREENBERG, Respondent

U.

DONALD LEE MCCABE, D.O., Petitioner

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Louis Samuel Fine

Harvey L. Anderson

Sarah Hohenberger

Attorneys for Petitioner

FINE, STAUD AND GROSSMAN

1333 Race Street

Philadelphia, Pa. 19107

(215) 665-0100

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA. PA. 19107 (215) 561-4050

TABLE OF CONTENTS

Page

tes so aaleicaces 1

Questions Presented for Review ....:............ 2

Constitutional Provisions and Statutes Which the

SIE SEE IR NG De a er ee 2

ne id la sKaecawess 3

NE Nr as wn bibs bbw p'e.b ee ox 7

IBS SE REE Ea 17

Nee oe ow owe ceatavws 18

APPENDIX:

Professional Liability Insurance Coverage Agree-

a ee a eas mace a eke esa ate A-1

Professional Liability Policy Limits of liability ... A-2

Letter of Aetna to Insured of March 31, 1976 .... A-3

Letter of Aetna to Insured of March 11, 1977 .... A-5

Excerpts of Notes of Testimony ........... ‘A-7; A-10

[pp. 14-23]

Affidavit of Jonathan Dunn .................... A-11

TABLE OF CASES AND AUTHORITIES

U.S. Supreme Court: Page

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) 2,

14, 16

Faretta v. California, 422 U.S. 806 (1975) ....... 14

Powell v. Alabama, 287 U.S. 45 (1932) .......... 7

Federal Courts of Appeals:

Ballard v. Citizens Casualty Co. of N.Y., 196 F.2d

Te Bs BED ok olga ts enedsiearensaan 8, 9, 11

Bell v. Commercial Insurance Co. of Newark,

N.J., 280 F.2d 514 (3rd Cir. 1960) ........ 13, 16

Claverie v. American Casualty Co., 76 F.2d 570

GUE a SD * ce nasda ovr as when can neous bese Os 11

DiPrampero v. Fidelity & Casualty Co. of N-Y.,

286 F.2d 367 (3rd Cir. 1961) . 8, 11, 13, 15, 16, 17

Farm Bureau Mut. Automobile Insurance Co. v.

Hammer, 177 F.2d 793 (4th Cir. 1949) ...... 9

Gandy v. Alabama, 567 F.2d 1318 (5th Cir. 1978) 7

In re Mandell, 69 F.2d 830 (2d Cir. 1934) ..... 10-12

Lee v. United States, 235 F.2d 219 (D.C. Cir.

WE <P ak GC xeeUN Gish Te tke dia keke ecw raw euks 7

Outboard Marine Corp. v. Liberty Mutual Insur-

ance Co., 536 F.2d 730 (7th Cir. 1976) . 8, 11, 13

SEC v. Csapo, 533 F.2d 7 (D.C. Cir. 1976) ...... 14

United States v. Burton, 584 F.2d 485 (D.C.

ee; EE uss Sa ach Oda waa a5 1, & 20, 23,1383

ii

TABLE OF CASES AND AUTHORITIES—~ Cont'd)

Cases: Page

United States v. Dinitz, 538 F.2d 1214 (5th Cir.

1976), cert. denied, 429 U.S. 1104 .......... 14

United States v. Inman, 483 F.2d 738 (4th Cir.

1973), cert. denied, 416 U.S. 988 ........... 7

United States v. Mandell, 525 F.2d 671 (7th Cir.

RIP. dix oes Wa ea c cnc bans ba aeh aes 8

United States v. Mardian, 546 F.2d 973 (D.C. Cir.

RR oa alwkt cane ae Ao eee 7

United States v. Morrison, No. 78-2258 (3rd Cir.

May 10, 1979) reported at 180 The Legal

Intelligencer No. 99, pp. 1, 11 issue of May

eh cae nants bs vc BcOSieeacdeee tes 8

United States v. Sheiner, 410 F.2d 337 (2d Cir.

1969), cert. denied, 396 U.S. 825 ........... 10

Federal District Court:

Aetna Life & Casualty Co. v. McCabe v. Greenberg,

om, Od EN ree rr ny ee reer 4

LaRocca v. State Farm Mutual Automobile Insur-

ance Co., 329 F. Supp. 163 (W.D. Pa. 1971),

aff’d, 474 F.2d 1338 (3rd Cir. 1973) ...... 13, 16

Phillips v. United States Lines Co., 240 F. Supp.

eee Cas ey ED havo ce cac a aveut ch ecuuets 9

SEPTA v. Transit Casualty Co., 55 F.R.D. 553

Ca EC ecebane' evs ARRAS MURR EOS 16

Silver Chrysler Plymouth v. Chrysler Motors

Corp., 370 F. Supp. 581 (E.D. N.Y. 1973) .. 7, 13

iii

TABLE OF CASES AND AUTHORITIES—(Cont’d)

Pennsylvania Supreme Court: Page

Cowden v. Aetna Casualty & Surety Co., 389 Pa.

450, 134. A.3e SRS CIO? eke eee 15, 16

Kremer v. Shoyer, 453 Pa. 22, 311 A.2d 600

(1973) ....ccsccowseeuse koe: oe 14

Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283

(1973)... cccccaves ce cuduaduen ee ene 15

Nichols v. American Casualty Co., 432 Pa. 480.

225 A.23d 80 (2608) . ...0%.0c0550s ee. 9

Perkoski v. Wilson, 371 Pa. 553, 92 A.2d 189

(1958) .....ccncwdenncay suse eee 9,15

Swedloff v. Philadelphia Transportation, 409 Pa.

382, 187 A.28 198 (GES) oo ie eee 16

Pennsylvania Superior Court:

Allen v. Duignan, 191 Pa. Super. 608, 159 A.2d

21 (1968) .. ..cccencecustwese nun neeneRUees 15

Bernat v. Socke, 180 Pa. Super. 512, 118 A.2d

253 (1955) ©......snceuee cs supe 15

Esmond v. Liscio, 209 Pa. Super. 200, 224 A.2d

793 (19GB) o.oo ccccccciuucaneeee eee 9

Krull v. Krull, 236 Pa. Super. 207, 344 A.2d

619 (1975) ....secteewuvsls sue eee ene 14

Ottaviano v. SEPTA, 239 Pa. Super. 363, 361 A.2d

810 (1976)... ccsuncesa en eueeen ears 15

Other States:

Anderson v. Southern Surety Co., 107 Kan. 375,

191 p. S63 (1980)... .ccvinsccokeaes ee 9

iv

TABLE OF CASES AND AUTHORITIES— Cont’d)

Other States: Page

Fidelity & Casualty Co. of N.Y. v. Stewart Dry

Good Co., 208 Ky. 429, 271 S.W. 444 (1925) . 17

Magee v. Superior Court, 8 Cal. 2d 949, 106 Cal.

Rptr. 647, 506 P.2d 1023 (1973) .......... 10, 14

Magoun v. Liberty Mutual Insurance Co., 346

Mass. 677, 195 N.E.2d 514 (1964) ........... 17

Maryland Casualty Co. v. Peppers, 64 IIl.2d 187,

ee ee ee COPE saa anne ts teen paanwanee 17

Prashker v. United States Guarantee Co., 1 N.Y.2d

584, 136 N.E.2d 871, 154 N.Y.S.2d 910(1956) 17

Reynolds v. Maramorosch, 208 Misc. 626, 144

ee CD kc kd tov wed vasa akews 14

Tomerlin v. Canadian Indemnity Co., 61 Cal.

2d 638, 39 Cal. Rptr. 731, 394 P.2d 571

RE oer at are oaks Ae Oe aca iia & 10. 37

Constitution:

i Se cork ee na ee

NR a POS ote ee Eee cy 7

Statutes:

ee Pees BON CEP CRTO) (y iwodcbnveadcdesechue’ 1

ee ee, a CUE: cc cs ake each aw anew Saw bee 1

a rere oS, aaa oes ena eee Mere 2

hy te NE A) OES cn naratae eal Meee Gort Fee tet | 14

TABLE OF CASES AND AUTHORITIES~ Cont'd)

Law Reviews: Page

Aronson, Conflict of Interest, 52 Wash. L. Rev.

DTP ce tes Sata ea eae ae 10

Brodsky, Duty of Attorney Appointed by Liability

Insurance Company 14 Clev. Mar. L. Rev.

RIED oe ates. oh ie tle ie Wal BK in AK Wk Oe 9

Haskell & Page, The Insurer’s Conflict of Interest

Dilemma, 65 Ill. B.J. 220 (1976) ........... 9, 10

Insurance Company’s Dilemma: Defending Ac-

tions Against the Assured, 2 Stan. L. Rev.

PCIE tcc U nv clas can eh eeies a Gieeeh es wes 9

The Insurer’s Duty to Defend Under a Liability

Insurance Policy, 114 U. Pa. L. Rev. 734

PCa nr get Pua ye Circe ace as aeeubline this 9

vi

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

ao

GALE GREENBERG, Respondent

v.

DONALD LEE MCCABE, D.O., Petitioner

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

TO THE HONORABLE THE CHIEF JUSTICE AND THE AS-

SOCIATE JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

Copies of the opinion of the Court of Appeals and

the United States District Court are contained in the

Appendix of the Petition for Certiorari filed by Edward

Joseph, Esquire, counsel for petitioner’s insurer, on pe-

titioner’s behalf, which is also being filed with this

Honorable Court.

JURISDICTION

a) The date of the judgment sought to be re-

viewed is March 21, 1979, the denial of the petition

for rehearing.

b) The Federal District Court had jurisdiction

of the case under 28 U.S.C. §1332(1976), diversity

of citizenship. This Honorable Court has jurisdic-

tion under 28 U.S.C. §1254(1)(1976).

1

2

QUESTIONS PRESENTED FOR REVIEW

I. Whether the petitioner was denied his constitu-

tional right to representation by counsel of his choice

under the Fifth Amendment by the trial court’s exclu-

sion of his personal counsel from active participation in

the trial, leaving only his insurer’s attorney to repre-

sent him, where there was a conflict of interest be-

tween petitioner and his insurer.

Il. Whether the petitioner was denied his constitu-

tional right to representation by counsel of his choice

under the Fifth Amendment by the trial court’s selec-

tion of his insurer’s counsel to represent him over his

own personal counsel.

III. Whether petitioner was denied his right to

separate and individual representation by the trial

court’s exclusion of his personal counsel from active

participation in the trial, where that substantial right

of individual representation is guaranteed under Penn-

sylvania Law, in violation of Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938), where the Federal Dis-

trict Court was sitting as a State Court in a diversity

case.

CONSTITUTIONAL PROVISIONS AND

STATUTES WHICH THE CASE INVOLVES

a) Amendment 5 of the Constitution, which

states:

‘“‘No person shall. . . be deprived of life, liberty,

or property without due process of law.”

b) 28 U.S.C. §1652(1976).

3

STATEMENT OF THE CASE

In this diversity action, petitioner, Dr. Donald

McCabe was sued for compensatory and punitive dam-

ages arising out of his relationship with a patient, the

plaintiff, in a medical malpractice action. At trial there

was a verdict for respondent for compensatory dam-

ages in the amount of $275,000.00, and for punitive

damages in the amount of $300,000.00.

The petitioner properly notified his medical mal-

practice insurer, Aetna Life and Casualty Co., of the

suit in a timely fashion. His insurer selected the law

firm of Kaliner and Joseph, and Mr. Edward Joseph of

that firm, to represent Dr. McCabe pursuant to the con-

tract of insurance, which gives the insurer the right to

defend the insured against such claims. Appendix p. 1,

Policy of insurance. The Complaint alleged negligence

in treatment and willful and wanton conduct and re-

quested both punitive and compensatory damages.

The insurer, by letter of March 31, 1976, advised

the petitioner of his right to his ‘‘“own personal counsel”

and advised of the insurer’s adverse interest with re-

spect to a possible judgment in excess of the policy

limits, and with respect to punitive damages, which

are not covered by the policy. Appendix p. 3, letter of

March 31, 1976. By an additional letter of March 11,

1977 the insurer advised petitioner that “We reserve

our rights to disclaim coverage...” and that “at this

time that this company will pay no judgment nor in-

demnify you for any judgment that you may pay arising

out of the matters complained of in the Complaint filed

in this case.” Appendix pp. 5-6, letter of March 11,

1977.

Dr. McCabe selected Jonathan Dunn, Esquire, to

represent him as his personal counsel, to the extent of

his uninsured interest in the case. Jonathan Dunn was

present at the first day of trial, and he was prepared,

along with Mr. joseph, to go on with the trial and

represent petitioner at trial. Appendix pp. 7-9, 11-12.

4

The conflict of interest between the petitioner, in-

sured, and Aetna, his insurer, was stated to the trial

judge. Appendix pp. 7-10, N.T. 1-16, 1-22-23. Mr.

Dunn stated that he planned on examining witnesses

and making objections, and presenting argument in

order to represent petitioner properly. Appendix pp. 7-8,

N.T. 1-16. Mr. Joseph, the attorney selected by the in-

surer, stated to the trial judge that any limitation on

the participation of Mr. Dunn, personal counsel, would

put him, Mr. Joseph, counsel for the insurer, “in a

somewhat awkward position’’. Appendix p. 8, N.T. 1-16.

Finally, Mr. Dunn pressed for a ruling, with the follow-

ing result:

MR. DUNN: “Then you are ruling that I have no

right to participate in effect in the-

case.”

THE COURT: “That is right .. .” Appendix p. 8

N.T. 1-17.!

The insurance policy had a limit of $250,000.00, so

that the recovery was in excess of the policy limits even

as to the compensatory damages. Appendix, p. 2. The

policy would not cover intentional or willful or outrage-

ous acts, or acts outside the scope of Dr. McCabe’s pro-

fessional conduct. Appendix, p. 1. Under Pennsylvania

law the insurer could not pay the punitive damages

awarded. Appendix, p. 3. The insurer has in fact dis-

claimed the obligation to indemnify under the policy,

and has filed for a declaratory judgment to that effect.”

1. The court further stated that Mr. Dunn would have to pro-

vide him with authority before he would change his ruling. How-

ever, the court gave Mr. Dunn no time to do so, and the jury was

being picked at that very time. There would not be sufficient time to

do that and appear for trial. Present counsel has expended consider-

able time in research on this matter. Further, the court singled out

Mr. Dunn rather than Mr. Joseph, and did not consult Dr. McCabe

as to whom he wanted to represent him if a choice had to be made.

See appendix p. 8, N.T. 1-17.

2. Aetna Life & Casualty Co. v. McCabe v. Greenberg, (E.D.

Pa.), No. 78-598, Complaint for Declaratory Judgment filed on

23 Feb., 1978.

5

Only Mr. Joseph and his associate represented Dr.

McCabe throughout the trial. The defense at trial pre-

sented no evidence. Mr. Joseph and his associate and

his firm were selected by the insurer, Aetna, and repre-

sented the insurer, Aetna. Dr. McCabe selected Mr.

Dunn to be his personal counsel to represent him to the

extent of his uninsured interest. Mr. Dunn in fact ap-

peared at the trial and indicated that he desired to ac-

tively participate in the trial, and reserved the right to

speak out by way of objections, cross-examination, ar-

gument, and presentation of the case for the petitioner,

Dr. McCabe. Where there was a disagreement over

how the defense should be conducted, Mr. Dunn, in

effect, was requesting the right to act independently of

the insurer’s counsel. Petitioner had great confidence

in Mr. Dunn, an old friend. Appendix, p. 8, N.T. 1-17.

In this case there was a conflict of interest between

the insurer and Dr. McCabe of the following types:

(1) The claim was in excess of the policy limit;

(2) The claim included theories of law which

were both within the coverage of the policy and

with~ut the coverage of the policy, so that the in-

surer had an interest in shaping the trial so as to

either preclude all liability, or in seeing that it pred-

icated liability of Dr. McCabe on a theory outside

the scope of coverage;

(3) Punitive damages were sought which were

outside the scope of insurance coverage, and

which could not, as a matter of law, be paid by the

insurer.

Mr. Dunn has given his affidavit stating how he

would have approached the trial, what he would have

done as counsel, and how he would conducted the

case.* Where excluded counsel would have utilized a

3. Appendix pp. 11-12.

The claim of denial of right to counsel of one’s choice is not a claim

that representation at trial was anything other than adequate, for

that is not the issue raised by individual counsel. Where there is a

denial of counsel of one’s choice, it is of no matter whether counsel

6

different tack, it gives additional weight to petitioner’s

claim that he was denied counsel of his choice.

On Appeal to the Third Circuit, Dr. McCabe was

represented by Mr. Joseph and his firm. Among the

trial errors raised was the denial of Dr. McCabe's right

to be represented by his individual counsel.

In this case, Mr. Joseph, counsel for the insurer,

represents Dr. McCabe with respect to the non-counsel

issues, raised in his separate petition for writ of cer-

tiorari, while petitioner has retained Louis Samuel

Fine, Esquire, and the firm of Fine, Staud and

Grossman to represent him as individual counsel in

this petition, on the issues pertaining to the denial of

the right to choice of counsel.

NOTE 3 — (Continued)

who did represent the individual was adequate or even superior in

his representation. Individual counsel at trial, Mr. Dunn, would

have followed a different strategy in doing what he believed was in

petitioner's best interests. Petitioner had confidence in Mr. Dunn

and desired his representation.

7

ARGUMENT

I. The petitioner, Dr. Donald McCabe, was denied

his constitutional right under the Fifth Amendment to

representation by counsel of his choice in the trial be-

low, where the trial judge excluded petitioner’s per-

sonal counsel from actively representing him and only

allowing the counsel furnished by his insurer to repre-

sent him, despite a conflict of interest between the peti-

tioner and his insurer.

There is a constitutional right to representation by

counsel in a civil case in the Federal Courts. In Powell

v. Alabama, 287 U.S. 45, 69 (1932), this Honorable

Court stated:

“If in any case, civil or criminal, a state or federal

court were arbitrarily to refuse to hear a party by

counsel, employed by and appearing for him, it

reasonably may not be doubted that such a refusal

would be a denial of a hearing, and, therefore, of

due process in the constitutional sense.” (Emphasis

added); See also In re Mandell, 69 F.2d 830, 831

(2d Cir. 1934).

The right to counsel includes the right to counsel of

one’s own choice. The defendant ‘“‘must be afforded a

reasonable opportunity to secure counsel of his own

choosing.”’ United States v. Burton, 584 F.2d 485,

489, 498 (D.C. Cir. 1978), relying on both the Fifth and

Sixth Amendments. In Burton, supra, the Court of

Appeals noted that “the right to choice of counsel is

distinct from the right to adequate assistance of coun-

sel.’”’*

4. See also Gandy v. Alabama, 567 F.2d 1318 (Sth Cir. 1978);

United States v. Inman, 483 F.2d 738, 739-40 (4th Cir. 1973), cert.

denied, 416 U.S. 988; United States v. Mardian, 546 F.2d 973,

(D.C. Cir. 1976) (en banc); Lee v. United States, 235 F.2d 219(D.C.

Cir. 1956).

In Silver Chrysler Plymouth v. Chrysler Motors Corp., 370 F. Supp.

581 (E.D. N.Y. 1973) the court held that courts “must be cautious

not to interfere needlessly with the freedom of litigants to proceed

8

Where there is a conflict of interest the insured has

the right to select his own counsel. Outboard Marine

Corp. v. Liberty Mutual Insurance Co., 536 F.2d 730,

737 (7th Cir. 1976); DiPrampero v. Fidelity and Casu-

alty Co. of N.Y., 286 F.2d 367 (3rd Cir. 1961). In Di-

Prampero v. Fidelity and Casualty Co. of N.Y., Supra,

the court stated:

“It may well be preferable that all possibility of

conflict of interest be avoided through the defense

of insured and uninsured interests by separate

and independent counsel whenever there is doubt

whether the policy covers the circumstances of

the accident.”

In Outboard Marine Corp. v. Liberty Mutual In-

surance Co., supra, 536 F.2d at 737 the court stated:

“If a conflict of interest does exist, OMC has the

right to its own counsel . . . and even in the ab-

sence of a direct conflict of interest, OMC cannot

be compelled to surrender control of the defense if

Liberty Mutual lacks an economic motive for a

vigorous defense.”

The right to counsel of one’s choice extends to addi-

tional counsel and associate counsel. United States v.

Burton, supra, 584 F.2d at 498, n. 46, (Majority opin-

ion), 508, text, and n. 45, 46. (Dissent).

Mere presence at trial or by sufferance of the in-

surer’s counsel is not active participation. United

States v. Mandell, 525 F.2d 671 (7th Cir. 1975),

(Merely sitting at counsel table during trial without ac-

.tive participation in the record, although appearance

entered, is not representation); Ballard v. Citizens

NOTE 4 — (Continued)

with counsel of their choice.” See also, United States v. Morrison,

No. 78-2258 (3d Cir. May 10, 1979), reported at 180 The Legal

Intelligencer No. 99, p. 1, 11, issue of May 24, 1979. Published at 66

N. Juniper St., Philadelphia, Pa.

9

Cas. Co. of N.Y., 196 F.2d 96 (7th Cir. 1952) (Incidental

participation by insured’s attorney “by sufferance”’ of

insurer’s counsel did not estop insured from seeking

excess coverage); Anderson v. Southern Surety Co.,

107 Kan. 375, 191 P. 583 (1920).

There is a conflict of interest between the insured

and insurer when there is a disclaimer or reservation of

the right to disclaim by the insurer where the claim

may exceed the limits of the insurance policy, where

the insurer claims that the acts committed are outside

the coverage of the policy and where punitive damages

are being sought.* See discussion in Perkoski v. Wil-

son, 371 Pa. 553, 92 A.2d 189 (1952); Tomerlin v.

Canadian Indemnity Co., 61 Cal.2d 638, 39 Cal. Rptr.

731, 394 P.2d 571 (1964); Nichols v. American Casu-

alty Co., 432 Pa. 480, 225 A.2d 80 (1966); Farm

Bureau Mut. Automobile Insurance Co. v. Hammer,

177 F.2d 793 (4th Cir. 1949); Insurance Company’s

Dilemma: Defending Actions Against the Assured, 2

Stan. L. Rev. 383, 392 (1949-50); Brodsky, Duty of At-

torney Appointed by Liability Insurance Company,

14 Clev.-Mar. L. Rev. 375 (1965); The Insurers’ Duty

to Defend Under a Liability Insurance Policy, 114 U.

Pa. L. Rev. 734, 738-42, 745-46 (1966); Haskell and

Page, The Insurer’s ‘Conflict of Interest’ Dilemma, 65

5. The leading case in Pennsylv ‘nia on punitive damages is

Esmond v. Liscio, 209 Pa. Super. 200, 224 A.2d 793 (1966), which

states, as follows:

“Pennsylvania adheres to the orthodox view that punitive

damages are in no sense intended as compensation to the in-

jured plaintiff. They are, rather, a penalty, imposed to punish

the defendant and to deter him and others from similar ‘out-

rageous’ conduct .. .” 109 Pa. Super. at 212; see also Phillip

vu. United States Lines Co., 240 F. Supp. 992 (E.D. Pa. 1965).

Esmond v. Liscio, supra, specifically held that the insurer could not

pay punitive damages awarded against an insured. Thus, punitive

damages are quasi-criminal in nature requiring the counsel stan-

dards of criminal procedure as a constitutional protection, an addi-

tional reason for granting review.

10

iil. B.J. 220 (1976); Aronson, Conflict of Interest, 52

Wash. L. Rev. 807, 822-25 (1977).

In Tomerlin v. Canadian Indemnity Co., 61

Cal.2d 638, 39 Cal. Rptr. 731, 394 P.2d 571 (1964) the

California Supreme Court stated the underlying rea-

sons in a case involving an insurer:

[I]nsurer may be subject to substantial temptation

to shape its defense so as to place the risk of loss

entirely upon the insured. [If the insurer dis-

claimed liability under the policy] its sole economic

motive for prosecuting a vigorous defense had been

eliminated. . . . Customarily, insurers, in cases in-

volving tort claims in excess of policy limits, notify

the insured that he may employ his own attorney to

participate in the defense. A like duty must arise

in the instant case in which potential conflict

stemmed not only from multiple theories of the...

complaint and the propriety of settlement, but from

the total absence indefense of any economic interest

in the outcome of the suit. ...

In actions in which the insurer lacks an economic

motive for a vigorous defense of the insured, or in

which the insurer and insured have conflicting in-

terests, the insurer may not compel the insured to

surrender control of the litigation. 394 P.2d at 577;

61 Cal.2d at 647, 648.

The right to choice of counsel is not subject to the

harmless error rule. The relationship of client and at-

torney is a highly personal one which requires “faith

and confidence.” In re Mandell, 69 F.2d 830, 831 (2d

Cir. 1934). Where the right to choice of counsel has

been denied reversal is required. United States v. Bur-

ton, supra, 584 F.2d at 491, N.19, 516; United States

uv. Sheiner, 410 F.2d 337, 342 (2d Cir. 1969) Cert. de-

nied, 396 U.S. 825, Magee v. Superior Court, 8 Cal.3d

949, 506 P.2d 1023, 1025 (1973), 106 Cal. Rptr. 647; In

1]

re Mandell, supra: See Chapman v. California, 386

U.S. 18 (1967).°

Clearly, in civil actions there is a constitutional

right to counsel of one’s choice under the due process

clause of the Fifth Amendment. That right extends to

the right to have chosen counsel actively participate in

the proceedings. There is a denial of that right to coun-

sel where the trial court prevents one’s chosen counsel

from actively participating in the trial. Representation

by an attorney selected only by one’s insurer without

consent where there is a conflict of interest, and that

conflict of interest is clearly stated to the trial judge, is

not representation by counsel of one’s choice.

The decision of the Court of Appeals is in conflict

with its own prior decision in DiPrampero v. Fidelity

and Casualty Co., supra and with the rationale of the

decision of the Courts of Appeals in the District of Co-

lumbia, and the Fourth and Seventh Circuits in

United States v. Burton, supra; Claverie v. American

Casualty Co., 76 F.2d 570 (4th Cir. 1935): Ballard v.

Citizens Casualty Co., supra, and Outboard Marine

Corp. v. Liberty Mutual Ins. Co., supra. The decision

also is such a departure from the accepted and usual

course of judicial proceedings as to call for an exercise

of this Court’s power of supervision.

Liability insurance contracts are imbedded in the

nation’s social and economic fabric. Industry insures

itself against liability for defective products, and for

the torts of its employees; individuals purchase au-

tomobile liability insurance policies, sometimes under

6. Even if a showing of prejudice is required, the affidavit of

Jonathan Dunn, Esquire, personal counsel of petitioner at the trial

shows that at trial he was prepared to impeach the credibility of

Mrs. Greenberg, and to present witnesses whose testimony “would

have cast the relationship of Dr. McCabe and Gale Greenberg in a

different light more favorable to Dr. McCabe.” Appendix p. 11. Mr.

Joseph, counsel for the insurer, presented no witnesses.

12

compulsion of state laws, and a variety of other policies

which also cover personal liability in number of situa-

tions. Federal courts will be frequently presented with

this issue.

Also, where a party may suffer a loss of property in

an amount staggering to an individual, due process of

law requires that he have his day in court. His day in

court is not the same as the insurance company’s day

in court.’ He may not have his individual counsel pre-

cluded from participation in the trial and be forced,

without consent, to representation solely by an insurer

with an adverse interest. The power of an advocate to

shape the appearance of a trial record through his

examination of witnesses, and choice of what evidence

or witnesses he should present to the jury is great.

Further, it is often the subtle items which are of the

greatest importance, for, like an artist, an attorney

may emphasize a fact here, or place an apparently

damning fact in a harmless context there, highlight

one witness and obscure another, where such an im-

pression is made that the final result may be different.

The relationship of client and attorney is a highly per-

sonal one which requires “faith and confidence.” In re

Mandell, supra. It is that personal relationship which

was totally obstructed by the trial court’s decision.

A review of this question would be in the interest of

the insurer as well as that of the insured, since it would

clarify the obligations and duties of the insurer in simi-

lar situations.* Further, review would provide a

7. The trial judge's suggestion that the defendant could settle

the coverage question in other proceedings is not relevant, here.

App. 10 N.T. 1-23. The insurer's attorney was not responsible for

the trial judge’s decision. Indeed, he felt it put him in an “awkward

position.” Thus, absent review for trial error in this case, the peti-

tioner may be preciuded from review of that error forever.

8. Based on the trial record the insurer has already filed for

declaratory judgment seeking to be relieved of all obligations under

the insurance policy. Since neither insurer nor insured were re-

sponsible for the trial judge’s ruling, there is a serious question as to

13

guideline for federal and state trial courts, since the

situation in the instant case is a recurring and signifi-

cant problem. This is an ideal case for this court to rule

on the issue of the right of an insured to have counsel of

his choice actively participate in the trial, where there

is a conflict of interest between the insured and his

insurer.

The issue of the right to counsel, in this case, is a

question of pure law. No factual resolution is required.

All of the facts pertaining to the exclusion of personal

counsel are undisputed and set forth on the record, and

the record does not require any factual clarification.

Accordingly, this issue is ripe for judicial review.

II. The petitioner was denied his right to counsel

of his choice under the Fifth Amendment by the trial

court, where the court selected counsel for his insurer

to represent him over his personal counsel.

Dr. McCabe was entitled to counsel of his choice.

United States v. Burton, 584 F.2d 485, 489, 498 (D.C.

Cir. 1978); Silver Chrysler Plymouth v. Chrysler

Motors Corp., 370 F.Supp. 581 (E.D. N.Y. 1973); Di-

Pramperov. Fidelity and Casualty Co. of N.Y., 286 F.2d

367 (3rd Cir. 1961); Outboard Marine Corp. v. Liberty

Mutual Insurance Co., 536 F.2d 730, 737 (7th Cir.

1976).

In the present case both Edward Joseph, the coun-

sel selected by the defendant’s insurer, and Jonathan

Dunn, defendant’s individual counsel, had entered

their appearances. On the first day of the trial, im-

mediately prior to the selection of the jury, the issue of

how this ruling could be treated in the independent declaratory

judgment action. Many cases indicate that the presence or absence

of individual counsel, or the consent or lack thereof by the insured

to sole representation by insurer’s counsel may reflect on the in-

surer’s liability under the policy. Compare Bell v. Commercial In-

surance Co. of Newark, N.J. 280 F.2d 514, 516 (3rd Cir. 1960) with

LaRocca v. State Farm Mutual Automobile Insurance Co., 329

F. Supp. 163 (W.D. Pa. 1971), aff'd, 474 F.2d 1338 (3rd Cir. 1973).

14

active representation by both counsel arose. The trial

judge was informed of the conflict of interest between

the insurer and insured. Nevertheless, he stated that

only one counsel would be allowed to actively partici-

pate, and he placed on Mr. Dunn the burden of estab-

lishing his righi to participate in the trial. No burden

was placed on Mr. Joseph. The defendant, Dr. McCabe

was not asked whom he wanted to represent him at

trial.” Instead, the trial judge made a ruling that

Mr. Dunn could not actively represent Dr. McCabe.

Appendix p. 8, 9, 10, N.T. 1-17, 1-22-1-23.

The trial judge had no right to select the counsel

whom he would allow to represent Dr. McCabe. See

Magee v. Superior Court, 506 P. 2d 1023, 1025, 8 Cal.3d

949, 106 Cal. Rptr. 647 (1973); United States v. Dinitz,

538 F.2d 1214, 1219 (5th Cir. 1976), cert. denied, 429

U.S. 1104 (1977); cf. Faretta v. California, 422 U.S.

806, 821 (1975); SEC v. Csapo, 533 F.2d 7, 10-11 (D.C.

Cir. 1976),

III. The petitioner was denied his right to indi-

vidual representation, a substantial right afforded

under Pennsylvania law, in violation of Erie Railroad

Co. v. Tompkins, 304 U.S. 64 (1938), in a diversity of

citizenship case, where the law of Pennsyivania gov-

erns.

Under the law of Pennsylvania, in a civil suit, a

party has the right to be present at trial either by him-

self or by his attorney. 17 Pa. Stat. §1601; Krull v.

Krull, 236 Pa. Super. 207, 344 A.2d 619 (1975). That

right extends to counsel of his choice. Kremer v.

9. The insured is not required to accept counsel provided by the

insurer, Reynolds v. Maramorosch, 208 Misc. 626, 144 N.Y.S. 2d

900 (1955).

If Petitioner had in fact rejected the insurer’s counsel, that

rejection could have been a breach of the insurance contract,

since the insurer had the right, under the policy, “to defend any

suit against the insured.’ App. p. 1. See Reynolds v.

Maramorosch, supra. Such an action could have forteited all of

Petitioner's rights to claim he was in fact covered by the policy.

\

15

Shoyer, 453 Pa. 22, 311 A.2d 600 (1973); Moore vw.

Jamieson, 451 Pa. 299, 307-308, 306 A.2d 283 (1973).

It is recognized that an individual may require

separate representation in two capacities in a lawsuit.

See Allen v. Duignan, 191 Pa. Super. 608, 159 A.2d 21

(1960); Ottaviano v. SEPTA, 239 Pa. Super. 363, 361

A.2d 810 (1976).

Pennsylvania has specifically recognized that a

conflict of interest may arise between an insurer and

an insured where the scope of coverage is not identical

to the claim, or there is a potential claim that the claim

is totally without the scope of the policy. Perkoski v.

Wilson, 371 Pa. 553, 92 A.2d 189 (1952); Cowden v.

Aetna Casualty and Surety Co., 389 Pa. 459, 134 A.2d

223 (1957). Where such a conflict has arisen the in-

surer is required to notify the insured of this adverse

interest and of the insured’s right to secure individual

counsel of his choice. Perkoski v. Wilson, supra.

In Nichols v. American Casualty Co., 423 Pa. 480,

225 A.2d 80 (1966) the Pennsylvania Supreme Court

stated the rule, thusly:

(I]f an insurance carrier is contemplating refusing

to indemnify it should advise the insured to secure

competent counsel of his choice. In the instant

case, the carrier, by following this practice,

avoided the risk that the insured might suffer in-

jury by reason of being denied insurance coverage

after trial or settlement, at which he was not rep-

resented by his own counsel. (Emphasis added).

423 Pa. at 484.

In Bernat v. Socke, 180 Pa. Super. 512, 118 A.2d

253 (1955) the court denied excess liability, since in

that case the insured “did in fact employ private coun-

sel to assist him, thus tending to negate the inference

of prejudice which might arise when the defense is

conducted solely by an insurer’s lawyer whose interest

might be antagonistic to those of defendant.” 180 Pa.

Super. at 518.

16

In DePrampero v. Fidelity and Casualty Co. of

N.Y., 286 F.2d 367 (3rd Cir. 1961) the Court of Appeals

stated that it would be “preferable” for the defense of

insured and uninsured interests to be conducted by

“separate and independent counsel.’ DiPrampero,

supra, had been favorably cited in Nichols v. Ameri-

can Casualty Co., supra. See also Bell v. Commercial

Insurance Co. of Newark, N.J., 280 F.2d 514, 516 (3rd

Cir. 1960); LaRocca v. State Farm Mutual Automobile

Insurance Co., 329 F. Supp. 163 (W.D. Pa. 1971),

aff'd, 474 F.2d 1338 (3rd Cir. 1973); SEPTA v. Transit

Casualty Co., 55 F.R.D. 553,556 (E.D. Pa. 1972);

Swedlojf v. Philadelphia Transportation Co., 409 Pa.

382, 187 A.2d 152 (1963); Cowden v. Aetna Casualty

and Surety Co., supra.

In Erie Railroad Co. v. Tompkins, 304 U.S. 64

(1938) this Honorable Court held that in diversity of

citizenship cases, the federal district court is required

to apply the law of the state, which in this case is Penn-

sylvania. Indeed, this Honorable Court therein stated:

Except in matters governed by the Federal Con-

stitution or by acts of Congress, the law to be

applied in any case is the law of the state. And

whether the law of the state shall be declared by its

Legislature in a statute or by its highest court in a

decision is not a matter of federal concern... .

304 U.S. at 78.

The right to counsel is a substantive right, and a

right which may make a difference in the trial on the

matter. Indeed, the Pennsylvania courts, and the fed-

eral courts in deciding similar questions in diversity

cases, have consistently adhered to the position that

independent counsel may make a differene in the

trial, and have granted relief where there was no in-

dependent counsel where the insured did not specif-

ically consent to the insurer’s counsel representing him

in his uninsured as well as insured interest. See Bell v.

Commercial Insurance Co. of Newark, N.J., supra,

and compare with Nichols v. American Casualty Co.,

17

supra, and DiPrampero v. Fidelity and Casualty Co.

of N.Y., supra.

Accordingly, Dr. McCabe, Petitioner, was denied

his right under Pennsylvania law to have his unin-

sured interest represented by his independent coun-

se]l.'”

CONCLUSION

WHEREFORE, the undersigned independent, in-

dividual counsel for petitioner, Dr. McCabe, respect-

fully pray that this Honorable Court grant the Petition

for Certiorari on the questions of ae right to

choice of counsel. Sf

ee hh re Sit Se

LOUIS SAMUEL FINE

Oto

Peer j ANDERSON

SARAH HOHENBERGER

FINE, STAUD AND GROSSMAN

Attorneys for Petitioner

Dr. McCabe

1333 Race Street

Philadelphia, Pennsylvania 19107

(215) 665-0100

10. This is a right recognized by the laws of several of the

states: Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 355 N.E.

2d 24 (1976); Prashker v. United States Guarantee Co., 1 N.Y. 2d

584, 136 N.E. 2d 871, 154 N.Y.S. 2d 910 (1956); Fidelity & Casu-

alty Co. of N.Y. v. Stewart Dry Goods Co., 208 Ky. 429, 271 S.W.

444 (1925); Magoun v. Liberty Mutual Insurance Co., 346 Mass.

677, 195 N.E. 2d 514 (1964); Tomerlin v. Canadian Indemnity

Co., 61 Cal. 2d 638, 394 P.2d 571, 39 Cal. Rptr. 731 (1964).

* Member of the Bar of the Supreme Court (formerly of 5506

Wentworth Avenue, S. Minneapolis, Minnesota)

18

CERTIFICATE OF SERVICE

| hereby certify that on this 15th day of June, 1979,

three true and correct copies of the Petition for Writ of

Certiorari were personally served on James E. Beas-

ley, Esquire, Beasley, '"tewson, Casey and Stopford, 21

South 12th Street, Philadelphia, Pennsylvania 19107.

I further certify that all parties required to be

served have been served.

'.

HARVEY L. AN *ERSON

Attorney for .’etitioner

APPENDIX

A-1

PART I—PROFESSIONAL LIABILITY INSURANCE

I. COVERAGE AGREEMENTS

The company will pay on behalf of the insured all

sums which the insured shall become legally obligated

to pay as damages because of:

Individual Professional

Liability Coverage

Injury arising out of the rendering of or failure to

render, during the policy period, professional services

by the individual insured, or by any person for whose

acts or omissions such insured is legally responsible,

except as a member of a partnership, performed in the

practice of the individual insured’s profession de-

scribed in the declarations including service by the in-

dividual insured as a member of a formal accreditation

or similar professional board or committee of a hospital

or professional society, and the company shall have the

right and duty to defend any suit against the insured

seeking such damages, even if any of the allegations of

the suit are groundless, false or fraudulent, and may

make such investigation and, with the written consent

of the insured, such settlement of any claim or suit as it

deems expedient, but the company shall not be obli-

gated to pay any claim or judgment or to defend any

suit after the applicable limit of the company’s liability

has been exhausted by payment of judgments or set-

tlements.

Exclusion

This insurance does not apply to liability of the in-

sured as a proprietor, superintendent or executve of-

ficer of any hospital, sanitarium, clinic with bed and

board facilities, laboratory or business enterprise.

iil. PERSONS INSURED

Each of the following is an insured under this i in-

surance to the extent set forth below:

(a) under Individual Professional Liability,

each individual named in the declarations as in-

sured;

Ill. LIMITS OF LIABILITY

Individual Professional

Liability Coverage

The limit of liability stated in the declarations as

applicable to “each claim” is the limit of the company’s

liability for all damages because of each claim or suit

covered hereby. The limit of liability stated in the dec-

larations as “aggregate” is, subject to the above pro-

vision respecting “each claim”, the total limit of the

company’s liability under this coverage for all dam-

ages. Such limits of liability shall apply separately to

each insured.

IV. ADDITIONAL DEFINITION

When used in reference to this insurance “dam-

ages” means all damages, including damages for

death, which are payable because of injury to which

this insurance applies.

THE AETNA CASUALTY AND SURETY COMPANY

PROFESSIONAL — LIABILITY POLICY

Physicians, Surgeons, Dentists and Optometrists

NAMED For

INSURED ® Donald Lee McCabe, D.C.

mae 1080 Lakeview Road

appress. Harrisburg, Penna. 17112

COVERAGES

LIMITS OF LIABILITY

]

| Each Claim Aggregate

Professional Liability | $250,000 | $500,000

Individual Cov erage

provided for Donald Lee McCabe, D.C.

A-3

Casualty & Surety Division

1617 John F. Kennedy Boulvard

Philadelphia, Pa. 191903

854-7200

March 31, 1976

Dr. Donald Les McCabe

Delaware Valley Mental Hospital

Doylestown, Pa.

GREENBERG vs. McCABE, DATE OF LOSS — 2/11/74

Dear Dr. McCabe:

We have received Complaint filed against you in

the above case. This matter has been referred to our

attorney(s) Kaliner & Joseph, Suite 1600 — Two Penn

Center Plaza, Phila., Pa. 19102. Our attorneys will

take all steps required on your behalf in accordance

with the terms and conditions of the policy of insurance

applicable to this case.

The amount sued for is “In excess of Ten Thousand

Dollars” for injuries allegedly sustained by the above

claimant. We must call to your attention the fact that it

is possible for a judgement to be obtained in excess of

your policy limits. We must also call to your attention

the fact that there is demand made for punitive dam-

ages. According to present Pennsylvania law it is

against public policy for an Insurance Carrier to pay

that portion of a judgement allocable to punitive dam-

ages against a Tort Feasor.

For these reasons you are at liberty, if you so desire,

to associate your own personal counsel, at your own

expense, in the defense of this suit.

A-4

Thank you for your cooperation and referring this

matter to us promptly.

Sincerely,

C. F. Higgins, Jr., Suit Supervisor

Philadelphia Claim Department

CFH/ow

te

file

(110)

Agent—William D. Kellar, Jr., Hoffman & 6th Sts.,

Harrisburg, Pa. 19105.

Attorney—Jonathan D. Dunn, 438 Main St.,

Pennsburg, Pa. 18073

Kalinar & Joseph

A-5

Casualty & Surety Division

1617 John F. Kennedy Boulevard

Philadelphia, Pa. 19103

854-7433 C/R Ralph P. Volpe

March 11, 1977

Dr. Donald Lee McCabe

5903 Watt Avenue

North Highland

Sacramento, Calif. 95660

Re: Greenberg vs McCabe

Dear Dr. McCabe:

This is to advise you that we reserve our rights to

disclaim coverage for you in the above case. Under the

terms of our policy, coverage is afforded for:

“all sums which the insured shall become legally

obligated to pay as damages because of: injury

arising out of the rendering of or failure to render,

during the policy period, professional services by

the individual insured. . .”

Review of your deposition in this case indicates

that you have testified very specifically that your sex-

ual activity with Mrs. Greenberg was not part of your

therapy. The injuries claimed in the Complaint, some

or all of which are claimed to be permanent, are as

follows:

Left frontal skull fracture;

Cerebral concussion;

Headaches;

Blurred vision;

Intravaginal trauma;

Parametritis;

Multiple contusions;

Abrasions and bites;

Scarring;

Shock;

Mental anxiety;

A-6

Embarrassment;

Injury to her nerves and nervous system;

Pain and mental suffering;

Lost earnings and earning capacity; and

Special damages.

All such injuries are related to an incident which oc-

curred in the early morning hours of February 11.

Whatever happened between 2:30 a.m. on that date

and the injuries that Mrs. Greenberg suffered were not

the result of professional treatment, and therefore, not

insured under your medical malpractice insurance pol-

icy with this company. You are therefore advised at

this time that this company will pay no judgment nor

indemnify you for any judgment that you may pay aris-

ing out of the matters complained of in the Complaint

filed in this case.

We will continue to afford you a defense through-

out this case, but this can not be construed in any way

to be a waiver of our position that you are not entitled to

coverage on the facts involved in this case.

Very truly yours,

R. P. Volpe, Suit Representative

Phila. Claim Dept. Suit Unit

A-7

IN CHAMBERS

MR. DUNN: May I ask you a question, Your

Honor. As private counsel here, it is difficult to know

when to step in or to do it at all. As private counsel for

Mr., Dr. McCabe, of course, I have my own opinions,

all of which 100-percent totally disagree with Mr. Beas-

ley’s. I don’t even recognize the man he is talking

about. Putting that to the side —

THE COURT: Maybe you have the wrong client.

MR. DUNN: I must following his, what he just

said about him.

It is our position, as Mr. Beasley put it on this rec-

ord, that the only thing that happened here was that

his divorce and — her ring and his divorce didn’t coin-

cide and brought about this lover’s quarrel.

Of course, I have been involved with this case

longer than anybody has and both of them, so, I don’t

concern myself too much about the publicity, unless

Mr. Joseph feels for some reason —

THE COURT: Well, that has been ruled on.

MR. DUNN: That doesn’t disturb me too much.

THE COURT: I am glad to hear it for the record,

but —

MR. DUNN: Because]! don’t think it is important.

THE COURT: I also feel it is irrelevant.

MR. DUNN: I also feel this case, since Mr. Beas-

ley speaks of morality, I am thinking more in terms of

motive. Morality may lead into motive, but there is a lot

of reasons people do things, and this is not a particu-

larly earth-shattering type of a case in my opinion. It

happens every day, and sometimes they do and some-

times they don’t, but this is our position as private

counsel, and where I get into the act I don’t really know

here because Mr. Joseph really has carried the ball all

the way through and whether or not the Court will

permit me to cross-examine is also —

THE COURT: No. I will only permit one attorney

to cross-examine for one client.

A-8

MR. DUNN: Very well.

MR. JOSEPH: That puts us in a somewhat awk-

ward position because of the, you know, the coverage

problem which was raised earlier, sir.

MR. DUNN: The situation is that if in fact — my

recollection of the letter was they denied coverage.

Now, they got a copy of that letter too. They simply

denied coverage on the basis that Mrs. Greenberg had

done such a good job showing that she was criminally

assaulted, there was no longer any medicai matter in-

volved.

But that leaves us at the point where the address to

the jury at the end, I do get a crack at it, or don’t I?

THE COURT: Well, I will have to think about

that.

MR. DUNN: You would have in effect two attor-

neys addressing the jury on behalf of one defendant.

THE COURT: My inclination is that only one at-

torney gets a crack at the jury for one defendant.

MR. DUNN: Will I have the right to pose objec-

tions, Your Honor, throughout the trial?

We have the situation here where, aside from being

a district attorney, I have known this man for four

years. There is no way in the world that I could convey

to Mr. Joseph all of that which I know about this mat-

ter.

THE COURT: Well, you were aware that this

problem was going to arise. Do you have any authority

on this? Have you looked up any law? Have you at-

tempted to find any law?

MR. DUNN: I have none with me.

THE COURT: Then I will rule against you until

you find something.

MR. DUNN: Then you are ruling that I have no

right to participate in effect in the case.

THE COURT: That is right. If you don’t think

enough of your position to look up some law to give it to

me, then I don’t think enough of it to sustain your posi-

tion.

A-9

It is a most unusual kind of a situation. | would

certainly have thought that you would have given me

some law on that, but since you haven’t I will simply

rule against you until you find some law to the con-

trary.

MR. DUNN: Very well, sir.

A-10

AFTERNOON SESSION

(Reconvened in open court at 2:15 p.m.)

THE COURT: Are the jurors all here? Will you try

to take your seats as it were.

(The following took place at side-bar:)

MR. DUNN: O.K. Now, with reference to the con-

ference in the judge’s chambers, I held myself as rep-

resenting the individual defendant; in effect meaning

the defendant excess in case — whatever the limits.

Now, I thought perhaps I might have misled the

Court. Our position is here that he didn’t do anything.

Nothing wrong with what he did, but if he did do so it

was negligible and not intentional, and that there

should be coverage in effect.

THE COURT: That is not before me.

MR. DUNN: Well, I want it on the record anyway.

THE COURT: Well, that is all right.

MR. DUNN: Because it seems, at least as to Mr.

Beasley, I was in a peculiar position of being neither

fish nor fowl in this particular show, and in effect I am

here only as excess Carrier.

I might also put on the record: I am not supposed to

be here. I just got out of the hospital and there may be a

possibility I may have to just leave.

THE COURT: Yes, yes. I am not going to Sit this

afternoon. I am not going to stay in the Courthouse

because this heat is terrible.

MR. DUNN: If I feel O.K. I will come in.

THE COURT: However, the question of coverage

is for an entirely different proceeding. I mean, that is

for when there is garnishment, if there is a verdict, and

if there is no verdict for the plaintiff, the question of

coverage is moot.

MR. DUNN: I want it on the record for the pur-

pose of the coverage in the event a verdict comes in.

THE COURT: All right, sure. I understand.

(End of proceedings at side-bar.)

A-11

COMMONWEALTH OF PENNSYLVANIA

SS

COUNTY OF PHILADELPHIA

AFFIDAVIT

I, Jonathan Dunn, Esquire, being duly sworn ac-

cording to law, do depose and state that:

1) I am an attorney at law practicing at

Pennsburg, Pennsylvania, and I am admitted to

practice before the United States District Court for

the Eastern District of Pennsylvania.

2) I am a personal friend of Dr. Donald

McCabe and I have represented him on several oc-

casions. Dr. McCabe requested that I represent

him in this case as personal counsel. I had entered

my appearance in this case.

3) I had personally observed Dr. McCabe and

Mrs. Greenberg in their relationship.

4) I was prepared to cross-examine Mrs.

Greenberg concerning significant matters, which

would have impeached her credibility.

5) I would have, through cross-examination

and the calling of witnesses listed below have pre-

sented new and significant matters which would

have cast the relationship of Dr. McCabe and Gale

Greenberg in a different light more favorable to Dr.

McCabe.

a) Dr. McCabe on direct examination.

b) Barbara Ackerman, Dr. McCabe’s sister.

c) Natalie Haupt, another patient of Dr.

McCabe.

d) Eleanor McCabe, Dr. McCabe’s daughter. |

6) I had discussed the defense of this case

with Mr. Joseph since suit started. Prior to trial I

disclosed him my intention of calling the witnesses

mentioned herein and the outline of my participa-

tion in the defense.

A-12

7) No witnesses were presented for the peti-

tioner at the trial, Mr. Joseph resting his case at the

conclusion of Mrs. Greenberg’s case.

Forgoing statements are true to the best of my

knowledge, information and belief.

JONATHAN D. DUNN

Sworn to and subscribed

before me this 6th day of

June, 1979

SALLY MORRISON

Notary Public, Phila.,

Phila. Co.

My Commission Expires

April 19, 1982