Record and brief — Aetna Life & Casualty Co. v. Young

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IN THE SEP 14 |98)

Supreme Court of the United States

OCTOBER TERM, 1981

AETNA LIFE AND CASUALTY COMPANY, CRUM AND FORSTER, THE NORTH

RIVER INSURANCE COMPANY, ST. PAUL FIRE AND MARINE INSURANCE

COMPANY, THE TRAVELERS INSURANCE COMPANY,

Appellants,

Vv.

LINDA YOUNG, et al.,

Appellees.

On Appeal from the Superior Court of Connecticut,

Fairfield County

JURISDICTIONAL STATEMENT

LEWIS A. KAPLAN

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

345 Park Avenue

New York, New York 10154

(212) 644-8000

Attorneys for Appellant

Aetna Life and Casualty Company

ANNE LOUISE OATES

PAUL, WEISS, RIFKIND, WHARTON & GARRISON

New York, New York

MARVIN WEXLER

KORNSTEIN MEISTER & VEISZ

New York, New York

PETER MEAR

AETNA LIFE AND CASUALTY COMPANY

Hartford, Connecticut

(Other counsel listed on inside cover)

FREDERICK L. COMLEY

DION W. MOORE

PULLMAN, COMLEY, BRADLEY & REEVES

Bridgeport, Connecticut

Of Counsel

ALLAN B. TAYLOR

Day, BERRY & HOWARD

One Constitution Plaza

Hartford, Connecticut 06103

(203) 278-1330

Attorneys for Crum and Forster

and The North River Insurance Company

W. HUBERT PLUMMER

ROGERS, HOGE & HILLS

90 Park Avenue

New York, New York 10016

(212) 953-9200

Attorneys for St. Paul Fire

and Marine Insurance Company

JOHN J. COTTER

COTTER, COTTER & SOHON

Bridgeport, Connecticut

Of Counsel

EDWARD F. HENNESSEY

ROBINSON, ROBINSON & COLE

799 Main Street

Hartford, Connecticut 06103

(203) 278-0770

Attorneys for The Travelers

Insurance Company

QUESTIONS PRESENTED

Appellants have published, in national magazines and news-

papers, statements critical of our tort liability system and

urging reforms. This action, brought by individuals who are

plaintiffs in state court tort cases, seeks to enjoin further

publication of those statements and to recover damages on the

theory that the statements threaten ‘0 reduce, or have reduced,

the damages they may recover in their tort suits. Appellants’

motions to strike the complaint on the ground that it was

barred by the First and Fourteenth Amendments were denied,

and the Connecticut Supreme Court denied leave to appeal.

The questions presented are:

1. Whether the First and Fourteenth Amendments require

dismissal of this action?

2. Whether the characterization of appellants’ statements as

political or commercial speech depends solely on their content,

as this Court has held, or, as the court below concluded, on the

“motivation” of the speakers?

PARTIES TO THE PROCEEDINGS BELOW

Plaintiffs-appellees are Linda Young, Karen Cawley, Terry

Dugay and Kevin Naylor.

Defendants-appellants are Aetna Life and Casualty Com-

pany (“Aetna”), Crum and Forster, The North River Insurance

Company, St. Paul Fire and Marine Insurance Company (“St.

Paul”), and The Travelers Insurance Company (“Travelers”).*

* Pursuant to Rule 28.1 of the Rules of this Court, a list of all parent

companies, subsidiaries (except wholly owned subsidiaries) and affili-

ates of appellants is set forth in Appendix I.

D'Arcy McManus and Massius was also named in the complaint.

Plaintiffs voluntarily discontinued their action against that defendant.

TABLE OF CONTENTS

SD NUE: vvccecedenetvecedveccetcuede

PARTIES TO THE PROCEEDINGS BELOW...............

CONSTITUTIONAL PROVISIONS AND STATUTE INVOLVED.

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ARGUMENT:

1. THE CONSEQUENCES OF THE DECISION BELOW, IF

Not Now REVIEWED AND REVERSED BY THIS COURT,

WILL BE SIGNIFICANT AND SEVERE—BOTH FOR Ap.

PELLANTS AND FOR THE PUBLIC AT LARGE.........

Il. THE FEDERAL QUESTIONS ARE SUBSTANTIAL......

A. The Decision Below Squarely Conflicts With The

Decisions Of Five Different Federal Courts and

Creates A Conflict Within The Second Circuit

Between The Federal and Connecticut Courts... .

B. The Decision Below Also Conflicts With The

Ce. gc cenctérbueeneeoee

C. This Court’s Decision In Nebraska Press Associa-

tion v. Stuart Shows That The Complaint Should

ed hed is ue ected dhbeash

11]. THE DECISION BEI OW IS FINAL WITHIN THE MEAN.

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TABLE OF AUTHORITIES

Cases: PAGE

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ..... 8, 15

Bigelow v. Virginia, 421 U.S. 809 (1975) ............. l4n

Branti v. Finkel, 445 U.S. 507 (1980) ................ 20n

Chipman v. Aetna Casualty and Surety Co., No. 78-639

CA7 (W.D. Mich. May 22, 1980)................45. 9, 12

Construction Laborers v. Curry, 371 U.S. 542 (1963)... 23

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). .1, 13,

21-24

Crawley v. Brown, 4 Conn. Cir. 636, 238 A.2d 453

SE; GR Gee 8 de beec cdenscesssudevesneeenent 19n

Eastern Railroad Presidents Conference v. Noerr Motor

Fretets, Bee.. S95 US. 127 CURSED cc csvccescccceces l4n, 15

Bied v. Gavmn, G37 UD. BEF CIGFED c cc ccccccccccsess 2In

First National Bank of Boston v. Bellotti, 435 U.S. 765

Ps vie tdabdunacehoveseraceeeuten 14n, 16, 17, 20-21n

Friedman v. Rogers, 440 U.S. 1 (1979). .............. 14

Garrison v. Louisiana, 379 U.S. 64 (1964) .......... 8, 13-14

Gotthilf v. Sills, 375 U.S. 79 (1963). ...........20005- In

Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S.

PED 62.600 00 0.00006055360000040000000800"R 23

Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S.

ee GUE 6: ven susecesce dteuceedseeeeeaerueee 25

Landmark Communications, Inc. vy. Virginia, 435 U.S.

Se PU ns 6.0.0:6.v6040'00sue dsieeesense eee 13n

Linmark Associates, Inc. v. Township of Willingboro,

Se Wea: SSOP 666s co cckesentvenseuaeauesaues 14n

PAGE

Martin v. Struthers, 319 U.S. 141 (1943) ............. 2In

Mathews v. Eldridge, 424 U.S. 319 (1976) ............ 22

Mercantile National Bank v. Langdeau, 371 U.S. 555

settee esti se Mek eb él deenesceeeee 23

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

EEE ee ae 16, 23

Mills v. Alabama, 384 U.S. 214 (1966)... ............ 13

Nash v. Florida Industrial Commission, 389 U.S. 235

eee eee da eeeesebedeeee bees In

Naylor v. Case and McGrath, Inc., 585 F.2d 557 (2d Cir.

eer eek as pee ee dese seuéeeeeess 5

Nebraska Press Association v. Stuart, 423 U.S. 1327

(1975) (Blackmun, J.) (opinion in chambers)........ 24n

Nebraska Press Association v. Stuart, 427 U.S. 539

I ae eee ed weeeesene.ee ee} 40s 606s J3n, 17-20

New York Times Co. v. Jascalevich, 439 U.S. 1331

(1978) (Marshall, J.) (opinion in chambers)......... 24n

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ...7, 8,

14n, 16

North Dakota State Board of Pharmacy v. Snyder's

Drug Stores, Inc., 414 U.S. 308 (1977). ............ 24

Oklahoma Publishing Co. v. District Court, 430 U.S.

ae cece ch ewesedeeeseuseess 13n

Pickering v. Board of Education, 391 U.S. 563 (1968) . 12-13

Quinn v. Aetna Life & Casualty Co., 482 F. Supp. 22

(E.D.N.Y. 1979), aff'd, 616 F.2d 38 (2d Cir. 1980) ... .9-12,

17-19

Rutledge v. Liability Insurance Industry, 487 F. Supp. 5

(W.D. La. 1979), aff'd mem., — F.2d ____. (Sth Cir.

ee elas ac ews gee 6ouesweees 9, 11, 18

P4GE

Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) = 20n

State v. Higgs, 143 Conn. 138, 120 A.2d 152 (1956) ..18, 19n

United States v. Haldeman, 559 F.2d 31 (D.C. Cir.

1976), cert. denied, 431 U.S. 933 (1977)............ 2In

United States v. Robel, 389 U.S. 258 (1967) .......... 21n

Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, inc., 425 U.S. 748 (1976) ...... l4n, 15

Williams v. Florida, 399 U.S. 78 (1970) .............. In

Constitutional Provisions and Statutes:

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a er ere 5

RES Pe ey ee 5n

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Connecticut Unfair Trade Practices Act (*“CUTPA”),

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12, 21, 23

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Conn. Practice Book § 3164 (1978).................. In

DECISIONS OF THE COURTS BELOW

The unreported opinion of the Superior Court of Connecti-

cut is reproduced in Appendix A.* The unreported orders of

the Supreme Court of Connecticut denying appellants’ motion

for permission to appeal are set forth in Appendix B.

JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1257(2). Appellants’ motions to strike the complaint, which

is based principally upon the Connecticut Unfair Trade Prac-

tices Act (“CUTPA”),** drew “in question the validity of a

s*atute of any state on the ground of its being repugnant to the

Constitution,” and the decision below was “in favor of its

validity.” The motions were denied by the Connecticut Supe-

rior Court on May 26, 1981. Appellants then moved in the

Supreme Court of Connecticut for permission to appeal the

Superior Court's decision. Those motions were denied on June

i8, 1981.*** A Notice of Appeal was filed in the Connecticut

Superior Court, Fairfield County, on September 11, 1981. A

copy of that Notice is set forth in Appendix C.

As this Court’s decision in Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975), shows, the decision below is final for

References to the appendices are prefaced with the appendix letter

followed by the page number, e.g. (A-4).

** C.G.S. §§ 42-110a et seq.

*** Under the applicable rules of State procedure, no appeal could be

taken to the Supreme Court of Connecticut, the State's highest court,

without that Court's permission. C.G.S. §§ 52-263, 52-26Sa (1981);

Conn. Practice Book § 3164 (1978). Because that permission was

denied, the Superior Court was “the highest court of a State in which a

decision could be had” on the constitutional question presented. See

Williams v. Florida, 399 U.S. 78, 80 n.5 (1970); Nash v. Florida Indus.

Comm'n, 389 U.S. 235, 237 n.1 (1967); Gorthilf v. Sills, 375 U.S. 79,

80 (1963).

purposes of this Court's jurisdiction. This point is discussed

fully in Point Ill, infra.

Alternatively, the Court should treat this jurisdictional state-

ment as a petition for a writ of certiorari pursuant to 28

U.S.C. §§ 2103 and 1257(3), and the petition should be

granted. As we show below, (1) the appeal present® a constitu-

tional question of compelling public importance; and (2) the

decision of the Connecticut Superior Court conflicts not only

with prior decisions of tis Court, but also with the holdings,

on the very same cor iutional question, of five different

federal courts, including two United States Courts of Appeals.

Indeed, there is a direct conflict on this issue between the

Second Circuit and the Connecticut decision in this case.

CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED

U.S. Const., Amend. I:

“Congress shall make no law . . . abridging the freedom

of speech... .”

U.S. Const., «end. XIV, § |:

“No state .nall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law

CUTPA, C.G.S., §§ 42-110a-q (1981)*:

The full text of this statute is reprinted in Appendix H

hereto.

This appeal draws the constitutionality of CUTPA in question. 28

U.S.C. § 2403(b) may therefore be applicable. See Rule 28.4(c) of the

Rules of this Court.

STATEMENT OF THE CASE

The Facts

In 1978, appellants, all of whom are major insurance com-

panies, began publishing in nationally distributed newpapers

and magazines statements which urged reform of the tort law

system in this country. (Copies of the statements appear in

Appendix D.) The statements discuss the current state of the

tort liability system. Some report the particulars of certain

personal injury cases where, in appellants’ views, either the

verdicts were excessive or the benefits to the victim were

* jnadequate. Appellants argue in these statements that the

public is ill-served by the trend toward excessive verdicts.

The statements also urge reform of the system. Aetna’s

statements, for example, make the following concrete sugges-

tions for reform:

(i) Aetna urges that liability should not be assessed

where a defendant is not at fault. Aetna thus proposes to

do away with the concept of strict liability in tort. (D-3,

D-5).

(ii) Aetna urges that a personal injury claimant’s own

negligence should be considered, either as a complete or

partial defense. (D-3, D-5).

(iii) Aetna urges that awards should realistically reflect

the actual loss suffered and no more. Aetna thus chal-

lenges, inter alia, the concept of punitive damages and the

collateral source rule. (D-3, D-5).

(iv) Aetna urges the creation of a citizens’ commission

to study the tort liability system. (D-7).

Each of Aetna’s statements ends with a plea for political

action: “Don’t underestimate your own influence. Use it, as we

are trying to use ours.” (D-3, D-5, D-7).

The St. Paul statements also identify what St. Paul sees as

inequities in the system, and they urge the public to become

involved in the public debate on these issues and to tell their

legislators what their views are about the tort system. (D-12-

17). The Travelers statements similarly identify specific prob-

lems and urge public invuivement in finding solutions. (D-18-

21). The Crum and Forster statements share with the public

that company’s views of the reasons for risiny insurance costs.

(D-8-11).*

None of the statements ident.fies any product or service that

is for sale by the sponsoring insurance company or any other

company. None urges or suggests that the reader buy insurance

or any other service or product from the sponsoring company.

Prior Proceedings

This action was commenced in the Connecticut Superior

Court in 1978. It is the last of a number of actions which have

been brought across the country in an effort to penalize

appellants for making their tort reform statements and to stop

their publication. The plaintiffs in all these cases have claimed

that they have tort suits pending in the courts and that

appellants’ statements interfere with their ability to obtain

impartial juries in those tort cases. In each of the prior cases

decided on the merits, the court held that the action was barred

by the First and Fourteenth Amendments.

The complaint in this case contained four counts. (The

complaint appears in Appendix E.) Two sought damages and

an injunction, respectively, under CUTPA on the theory that

the views expressed in appellants’ statements were “unfair,

deceptive and/or misleading.” One sought an injunction under

the equity powers of the Connecticut courts. The last sought

relief under 42 U.S.C. § 1985(3).

Appellants removed the case to the United States District

Court for the District of Connecticut, pursuant to 28 U.S.C.

* The North River Insurance Company, the remaining defendani, is a

subsidiary of Crum and Forster. It published no statements of its own.

§ 1441(a) and (b).* The case then was consolidated with

Naylor v. Case and McGrath, Inc., a companion case com-

menced on behalf of the same alleged class of plaintiffs against

an advertising agency retained by Aetna.

In April 1978, the District Court dismissed the CUTPA

claims, both in this action and in Naylor. It held, as a matter of

Statutory iiterpretation, that CUTPA did not extend to the

statements at issue.

The plaintiffs in Naylor appealed.** The insurers defended

the District Court’s decision both on statutory grounds and,

alternatively, »n the ground that the complaint was barred by

the First and Fourteenth Amendments. But the Second Circuit

reversed, holding that the District Court should have ab-

stained. Naylor v. Case and MeGrath, Inc., 585 F.2d 557 (2d

Cir. 1978). Naylor and this case then both were remanded to

the Connecticut Superior Court.

Not long after the Second Circuit decided Naylor, the very

same constitutional issue came before it in another case.

Because that case did not present any novel issues of state law,

abstention was unwarranted. The Second Circuit therefore

reached the constitutional issue. It held that the Aetna state-

ments challenged here are fully protected political speech, and

affirmed the dismissal of the New York complaint, which was

substantially identical to the complaint at bar. Quinn v. Aetna

Life & Casualty Co., 616 F.2d 38 (2d Cir. 1980).

Relying on the Second Court’s decision in Quinn, and also

on decisions by four other federal courts dismissing challenges

to appellants’ statements, appellants then moved in the State

court to strike the complaint in this action. Appellants argued,

* The federal claim later was voluntarily withdrawn.

** Appellees in the case at bar were unable to appeal because the District

Court did not dismiss the third cause of action in this case, which seeks

an injunction against appellants’ speech under “common law princi-

ples of equity.” Accordingly, the order of dismissal was not a final

judgment under 28 U.S.C. § 1291. The Naylor plaintiffs were unable

to appeal because the Nay/or complaint did not contain such a claim.

inter alia, that their speech is fully protected by the First and

Fourteenth Amendments and that application of CUTPA to

that speech would be unconstitutional.

On May 26, 1981, the Connecticut Superior Court denied

appellants’ motions to strike the complaint. It held that

CUTPA applies to the challenged statements and that the First

and Fourteenth Amendments did not require that the com-

plaint be stricken.

At the heart of the Superior Court's decision was the

premise that the challenged statements could be enjoined if

they are “commercial speech.” It held that it could not deter-

mine from the face of the statements whether they are entitled

to full First Amendment protection, or are merely “commer-

cial speech” entitled to less protection. “[MJotivation of the

defendant-advertisers,” the Superior Court wrote, “is a neces-

sary determination preliminary to categorization of the adver-

tising as political or commercial speech.” (A-14).

The Superior Court expressly refused to follow the federal

decisions which held as a matter of law that the statements at

issue are not “commercial speech” and are entitled to the full

protection of the First Amendment, and which have dismissed

complaints substantially identical to the complaint at bar.

Rather, the Superior Court’s order contemplates that appel-

lants submit to discovery and trial concerning their motivation

in publishing the statements at issue. Evidently, if appellants

are found to have acted for commercial reasons in publishing

those statements, then appellants may be liable for damages

and future publication of the statements may be enjoined.

On June 18, 1981, the Connecticut Supreme Court denied

appellants’ motion for permission to appeal from the decision

of the Superior Court.

ARGUMENT

THE CONSEQUENCES OF THE DECISION BELOW, IF

NOT NOW REVIEWED AND REVERSED BY THIS

COURT, WILL BE SIGNIFICANT AND SEVERE—BOTH

FOR APPELLANTS AND FOR THE PUBLIC

AT LARGE.

This lawsuit is an attempt by advocetes on one side of a

public issue to penalize and silence the opposition. Tort claim-

ants would exclude the liability insurance industry from public

discussion of the tort liability system.

The First Amendment was designed to prevent any such

attempt. It reflects “a profound national commitment to the

principle that debate on public issues should be uninhibited,

robust, and wide-open.” New York Times Co. v. Sullivan, 376

U.S. 254, 270 (1964). By refusing to dismiss the complaint on

its face, and thus requiring appellants to participate in lengthy

and costly litigation to vindicate their right to speak out, the

Connecticut courts have turned their back on that commitment

and paved the way to self-censorship and suppression of

speech.

If review of that decision is not granted now, no review can

be had until after discovery and trial, and that delay necessarily

will chill—if not freeze—First Amendment rights.

The record below shows that the decision, if not overturned,

threatens to drive appellants out of the marketplace of ideas.

This litigation already has chilled appellants’ right to speak;

the cost of the litigation alone is a deterrent.

Crum and Forster has decided to avoid becoming enmeshed

in similar litigation by avoiding “advocacy advertising” until

its constitutionai right to speak out without harassment has

been recognized in Connecticut. Had Crum and Forster known

that its effort to explain its views of the problems with the

current workings of the tort system to the public would result

in the expense imposed on it by this litigation, it would not

have undertaken to make its views known.* The Superior

Court’s decision necessarily will cause other appellants to shy

away from their advocacy of tort law reform.**

Other corporate speakers, as they become aware of the

Superior Court’s holding, which essentially eliminates the pos-

sibility that a lawsuit challenging corporate statements on

public issues can be dismissed at the pleading stage, no doubt

will exercise similar caution. As this Court has written: “First

Amendment interests are fragile interests, and a person who

contemplates protected activity might be discouraged by the in

terrorem effect of the statute. . . . Indeed, such a person might

choose not to speak because of uncertainty whether his claim

of privilege would prevail if challenged.” Bates v. State Bar of

Arizona, 433 U.S. 350, 380 (1977).

Furthermore, it is highly significant, we submit, that the

speech at issue here lies close to the core of First Amendment

values.

At issue here is not a sportscast, a variety show or some

other species of entertainment protected by the broad reach of

the First Amendment.

Rather, at issue here are public statements about the ade-

quacy of our laws and public institutions. Appellants’ state-

ments “communicated information, expressed opinion, recited

grievances, [and] protested claimed abuses . . . [in regard to]

matters of the highest public interest and concern.” New York

Times Co. v. Sullivan, supra, 376 U.S. at 266. Speech of this

type “is more than self-expression; it is the essence of self-gov-

ernment.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).

* Affidavit of Albert C. Moore, sworn to June $, 1981, submitted in

support of appellants’ application to the Connecticut Supreme Court

for permission to appeal.

Affidavit of Douglas J. Alspaugh, sworn to June 9, 1981, submitted in

support of appellants’ application to the Connecticut Supreme Court

for permission to appeal.

To chill such speech—even for a day, not to mention the

months or years it would take to dispose of this case if this

appeal is not heard—would, we submit, substantially diminish

our democratic processes and freedoms.

In sum, if review is not granted now, serious damage would

be done to First Amendment values and hence to the public at

large.

THE FEDERAL QUESTIONS ARE SUBSTANTIAL

A. The Decision Below Squarely Conflicts With The Deci-

sions Of Five Different Federal Courts And Creates A

Conflict Within The Second Circuit Between The Federal

And Connecticut Courts.

The decision of the Connecticut Superior Court is directly

contrary to the rulings of five federal courts. Quinn v. Aetna

Life & Casualty Co., 482 F. Supp. 22 (E.D.N.Y. 1979), aff'd,

616 F.2d 38 (°d Cir. 1980); Rutledge v. Liability Insurance

Industry, 487 F. Supp. 5 (W.D. La. 1979), aff'd mem., _

F.2d ___ (Sth Cir. Jan. 29, 1981); Chipman v. Aetna Casualty

and Surety Co., No. 78-639 CA7, (W.D. Mich. May 22,

1980).*

Each of these courts held that Aetna’s statements are not

mere “commercial speech.”** Each of these courts held, as a

matter of law, that these statements are entitled to full First

Amendment protection. With one minor exception, each of

these courts dismissed complaints before the plaintiffs in those

cases had any discovery, for each of these courts held that the

plaintiffs could not prevail on any state of the facts.***

The unpublished decisions by the Fifth Circuit and by the Western

District of Michigan are reproduced in Appendices F and G hereto,

respectively.

** Rutledge reached the same conclusion with respect to the statements of

St. Paul, Travelers and Crum and Forster.

*** In Rutledge, the plaintiff obtained some document production from

St. Paul.

In Quinn vy. Aetna, 482 F. Supp. 22, 29-30 (E.D.N.Y. 1979),

the district court expressly rejected the reasoning used by the

Connecticut Superior Court below:

The speech involved in the present case is not commercial

speech removed from any “exposition of ideas.” Cha-

plinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct.

766, 86 L. Ed. 1031 (1942). The speech involved here is

fully protected political expression. The degree of protec-

tion afforded the expression is not lessened by the fact

that it is contained in a paid advertisement, Buckley v.

Valeo, 424 U.S. 1, 51, 96 S. Ct. 612, 46 L. Ed. 2d 659

(1976); New York Times Co. v. Sullivan, 376 U.S. 254,

265-66, 84S. Ct. 710, 11 L. Ed. 2d 686 (1964), or that the

speaker is a corporation rather than a natural person.

First National Bank of Boston v. Bellotti, 435 U.S. 764,

777, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). Nor is the

protection given to speech directed at issues of public

concern lost because of improper intent of the speaker.‘

See Eastern Railroad Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127, 139, 81S. Ct. 523, §

L. Ed. 2d 464 (1961). The First Amendment protects the

speech itself. See First National Bank, supra, 435 U.S. at

776-77, 98 S. Ct. 1407. The contents of speech cannot be

suppressed because we find the speaker biased or the

conclusions erroneous or misleading, “[T]he people in our

democracy are entrusted with the responsibility for judg-

ing and evaluating the relative merits of conflicting argu-

ments.” /d. at 791, 98 S. Ct. at 1424. It is presumed that

in evaluating such speech “the source and credibility of

the advocate” will be considered. /d. at 792, 98 S. Ct. at

1424.

4. The advertisements in question were not directed solely

to jurors but to the general reading public. Whether or

not defendant intended the advertisement to have the

effect of causing jurors to return lower awards, as plain-

tiffs allege, is irrelevant to the question of whether the

speech directed to the general public is protected. This

case does not present the situation where the information

presented in the advertisements is sent directly to the

jurors in a particular case or to those called for jury duty.

The district court’s decision in Quinn was affirmed, and the

opinion praised as “thorough and considered,” by the United

States Court of Appeals for the Second Circuit in Quinn v.

Aetna Life & Casualty Co., 616 F.2d 38, 40 (1980).

In Rutledge, supra, 487 F. Supp. 5, 8, the District Court

reached the same conclusion:

The ads make no attempt to sell insurance or to recom-

mend any particular type of insurance coverage; they

propose no commercial transaction. Speech is not

stripped of First Amendment protection merely because it

is made in the form of a paid advertisement; nor does the

fact that it reflects the advertiser’s commercial and finan-

cial interests deny it constitutional protection. Bigelow v.

Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600

(1975). These ads communicate information about the

insurance industry and disseminate that industry’s opin-

ion and position on matters of public concern, particu-

larly reform of the tort law.

I conclude that the ads in question should not be

characterized as “commercial speech.” See First National

Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407,

55 L. Ed. 2d 707 (1978); Bigelow, supra and New York

Times Co. v. Sullivan, 376 U.S. 254, 84S. Ct. 710, 11 L.

Ed. 2d 868 (1964).

The Fifth Circuit affirmed the District Court’s decision in

Rutledge without opinion. (F-1).

The United States District Court for the Western District of

Michigan also rejected the notion that these statements are

mere “commercial speech.” In direct contradiction of the

opinion below, that court held that appellants’ motivation or

intent is “irrelevant to the question of whether the ads directed

to national readers are protected by the First Amendment.”

Chipman v. Aetna Casualty and Surety Co., supra. (G-3).

The Connecticut Superior Court declared below that it was

“fully aware of” and had “examined in detail” each of these

federal decisions. (A-14). It nevertheless denied appellants’

motions to strike, holding in substance that CUTPA may

constitutionally be applied to enjoin these statements, or to

award damages against appellants, at least if it concludes that

appellants’ “motivation” is commercial.

In short, the decision below by the Connecticut Superior

Court is directly contrary to the decisions of five federal

courts, including two United States Courts of Appeals.

Moreover, there is a split within a federal judicial circuit on

the constitutional questions presented. The decision below is

directly contrary to the Quinn decision by the Second Circuit.

Because Connecticut is in the Second Circuit, the outcome of

an action like that at bar depends on whether the plaintiff files

his complaint in state or federal court. By filing a complaint in

the state courts, a party who opposes debate on a particular

issue is assured, at a minimum, of forcing the defendant

speaker to participate in a costly inquiry into his “motives” for

speaking out—whereas if the same complaint were filed in the

Connecticut federal court, it would be dismissed out of hand

on the authority of Quinn. In addition to all the other reasons

for hearing this case, this Court should take jurisdiction to

rectify this highly anomalous situation.

B. The Decision Below Also Conflicts With The Decisions

Of This Court.

1. The First Amendment was designed to protect speech

which calls to public attention what the speaker believes are

inequities and inefficiencies in our laws. Its “core value” is

“(t]he public interest in having free and unhindered debate on

matters of public importance.” Pickering v. Board of Educa-

tion, 391 U.S. 563, 573 (1968). Thus, this Court has written:

Whatever differences may exist about interpretations of

the First Amendment, there is practically universal agree-

ment that a major purpose of that Amendment was to

protect the free discussion of governmental affairs. This

of course includes discussions of candidates, structures

and forms of government, the manner in which govern-

ment is operated or should be operated, and all such

matters relating to political processes.

Mills v. Alabama, 384 U.S. 214, 218-19 (1966).

The statements challenged here fit squarely within the core

protection of the First Amendment. They consist of two

elements.

First, appellants’ statements discuss the current state of the

tort liability system. Such discussion of judicial proceedings is

absolutely protected. Cox Broadcasting Corp. v. Cohn, 420

U.S. 469 (1975). This Court there held that a broadcasting

company had a right to report “with impunity” the name of a

rape victim obtained from judicial records. /d. at 492. In so

holding, it explained the “critical importance to our type of

government,” id. at 495, of the dissemination of information

concerning the administration of justice. /d. at 491-92.*

The second element of appellants’ statements is argument

that the tort liability system should be reformed, and recom-

mendations for reform. Again, this is classic First Amend-

ment-protected expression. If the First Amendment stands for

anything, it stands for the proposition that a citizen has a right

to try to persuade his fellow citizens that a particular law

should be enacted or reformed. Such speech “is more than

* See also Landmark Communications, Inc. v. Virginia, 435 U.S. 829,

839 (1978) (“The operations of the courts and the judicial conduct of

judges are matters of utmost public concern.”); Oklahoma Publishing

Co. v. District Court, 430 U.S. 308 (1977); Nebraska Press Association

v. Stuart, 427 U.S. $39, $68 (1976).

self-expression; it is the essence of self-government.” Garrison

v. Louisiana, 379 U.S. 64, 74-75 (1964).

2. Appellants’ speech is not mere “commercial speech.”

This Court has affirmed and reaffirmed that commercial

speech is speech which “relates to a particular product or

service,” “does no more than propose a commercial trans-

action,” and “is used as part of a proposal of a commercial

transaction.” Friedman v. Rogers, 440 U.S. 1, 10, n.9 and 11

(1979).*

Appellants’ statements do no such thing. They describe no

products for sale and propose no commercial transactions.

They instead are full of “editorializ[ing]” and “general obser-

vations,” speech which “is categorically different from the

mere solicitation of patronage . . .” which characterizes com-

mercial speech. Friedman, supra, 440 U.S. at 11-12 and n.10.

They are part of the “free discussion of governmental affairs

[which] is at the heart of the First Amendment’s protection.”

Friedman, supra, 440 US. at 11, n.10.**

3. Contrary to the decision below, appellants’ motives in

speaking out are immaterial. The constitutional bar to in-

fringement of speech depends not upon some nebulous concept

of the speaker’s motive, but upon the rock of what the speaker

Accord, Linmark Associates, Inc. v. Township of Willingboro, 431

U.S. 85, 98 (1977) (commercial speech “does no more than propose a

commercial transaction”); Virginia State Board of Pharmacy v. Virgi-

nia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976) (com-

mercial speech is “dissemination of information as to who is producing

and selling what product, for what reason, and at what price”);

Bigelow v. Virginia, 421 U.S. 809, 820-21 (1975).

The fact that appellants are corporate citizens and that they paid for

their statements to appear does not diminish the protection to which

the statements are entitled. First Nat'l Bank of Boston v. Bellotti, 435

U.S. 765 (1978); New York Times Co. v. Sullivan, 376 U.S. 254,

265-66 (1964). Similarly, the fact that appellants’ statements concern a

public issue which relates to their business does not transform those

statements into commercial speech or otherwise lessen their protected

status. See Eastern R.R. Pres. Conf. v. Noerr Motor Freight, Inc. , 365

U.S. 127, 139 (1961); First Nat'l Bank of Boston, supra, 435 U.S. at

783-84 and n.20.

in fact says. Speech concerning a public issue is constitu-

tionally protected irrespective of the intent which motivates it.

For example, this Court has held in substance that a con-

spiracy to influence the government to take action adverse to

one’s business competitors is constitutionally protected even if

the conspirators’ sole purpose is to destroy their competitors.

Eastern Railroad Presidents Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127, 139 (1961) (“The right of the

people to inform their representatives in government of their

desires with respect to the passage or enforcement of laws

cannot properly be made to depend upon their intent in doing

so.”)

This Court has also made clear that whether speech is

“commercial” or otherwise is to be determined from the speech

itself, and nothing more. “If commercial speech is to be

distinguished it ‘must be distinguished by its content.’ ” Bates

v. State Bar of Arizona, 433 U.S. 350, 363 (1977), quoting

Virginia State Board of Pharmacy v. Virginia Citizens Con-

sumer Council, Inc., 425 U.S. 748, 761 (1976).

A contrary conclusion—a conclusion that freedom of speech

depends on the motive of the speaker—would materially sub-

vert the First Amendment. It would permit any statement on a

public issue to be challenged on the basis of a conclusory

assertion of improper intent.

The danger of a contrary view is well illustrated by this case.

Appellees’ contention, that appellants’ intent was impure,

springs from the fact that their statements about tort law

reform argue that the present law is contrary to the economic

welfare of the citizenry. According to appellees, then, debate

concerning public issues such as tort law reform must proceed

in a rarefied atmosphere in which only the most neutral

statements, divorced in particular from the audience's

economic interests, are permitted. More vigorous statements

raise the issue of what the speaker “really” intended to in-

fluence, and an impermissible intention will make that speech

actionable.

The fact, however, is that public issues are public issues

largely because they affect such concrete interests as people’s

economic welfare, and speech that discusses the effects of

various public policies upon private pocketbooks is among the

most valuable of political speech. If such speech were to be

disallowed—and the speaker subjected to suit—upon an argu-

ment that the speaker really had some improper objective in

mind, debate on public issues would be stifled. Appellees’

position thus would undermine the pr-nciple that the debate on

public issues should be “uninhibited, robust, and wide-open.”

New York Times Co. v. Sullivan, supra, 376 U.S. at 270.

Furthermore, appellees’ position—adopted by the Superior

Court below—proves much too much. If motivation were *4e

touchstone of constitutional protection, all corporate speech

would be mere “commercial speech.” Yet First National Bank

of Boston v. Beliotti, 435 U.S. 765 (1978), shows that that

simply is not so.

In short, appellants’ “motivation” is beside the point.

Finally, the argument has been made, here and in the other

cases, that appellants’ statements are false and misleading and

thai they may be regulated on that ground.

First, the allegation of unfairness and deception here

amounts to no more than the argument that appellants’ posi-

tion on the public issue of tort reform is, in appellees’ view,

utibalanced and wrong. Appellees allege, for example, that

appellants’ speech is misleading because it “suggests that

checks and balances do not exist in the judicial system to

prevent excessive awards. . . .” (E-7).

The claim, then, is that appellants have an obligation to

present what appellees would regard as a fair and balanced

view of the arguments for and against tort law reform. The

First Amendment, however, gives a citizen the right to speak

his own mind, no matter how that comports with the views

which others may have, and no matter how “unfair” (E-4, E-6,

E-9, E-10) someone else may think that speech is. E.g., Miami

Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).

The same argument that appellees make here was made and

rejected in the several other court challenges to these state-

ments. As the District Court wrote in Quinn:

The contents of speech cannot be suppressed because we

find the speaker biased or the conclusions erroneous or

misleading, “[T]he people in our democracy are entrusted

with the responsibility for judging and evaluating the

relative merits of conflicting arguments.” /d. at 791. It is

presumed that in evaluating such speech “the source and

credibility of the advocate” will be considered.

482 F.Supp. at 30, quoting First National Bank of Boston,

supra, 435 U.S. at 792.

C. This Court's Decision In Nebraska Press Association v.

Stuart Shows That The Complaint Should Be Dismissed.

As the federal courts have recognized, the case at bar is

governed by the reasoning of Nebraska Press Association v.

Stuart, 427 U.S. 539 (1976).

Nebraska Press involved a sexually-motivated mass murder

in a small town. The accused admitted his guilt to relatives and

confessed to public officials. Defense counsel and the State’s

Attorney both applied to the State trial court for an order

enjoining the publication of these admissions. The trial judge

made an express finding that there was “a clear and present

danger” that the publication, prior to trial, of the confession

could deprive the accused of a fair trial. On this finding, the

judge enjoined the press from printing accounts of the confes-

sion. 427 U.S. at 542-43.

This Court reversed. It acknowledged that the trial court

justifiably had concluded that publication of the confession

could undermine the accused’s right to a fair trial in the

absence of corrective action. Nevertheless, and although the

case involved a murder trial in which the punishment might be

death,* this Court held that measures short of infringment

* The accused in fact was found guilty of murder and was sentenced to

death. 427 U.S. at 546.

upon speech, such as careful voir dire and emphatic jury

instructions, were sufficient to ensure a fair trial. 427 U.S. at

563-65.

The case at bar is governed by Nebraska Press, for several

reasons:

(i) As the District Court said in Rutledge, supra, 487 F.

Supp. at 9: “Here, the threat to fair trial is more remote than

was the threat in Nebraska Press since these ads are not

directed to any specific case.”

{ii) As the District Court pointed out in Quinn, supra, 482 F.

Supp. at 30: “In Nebraska Press the speech sought to be

restrained [consisted of] accounts of confessions and admis-

sions of the defendant. . . .”

Consequently, those statements were likely to be highly

prejudicial to the party who sought to suppress them. Here, the

very opposite is true: the statements in question (if they were to

have any “influence” at all, which appellants deny) are likely

to be helpful to appellants; thus, the law generally presumes

that injecting insurance into tort actions will result in unduly

high verdicts in favor of plaintiffs because the jury will assume

that insurance companies, rather than the individual defen-

dants involved, will bear the cost of the verdict. Only supposi-

tion supports the notion that appellants’ statements will preju-

dice appellees.

(iii) As the District Court in Quinn also noted, 482 F. Supp.

at 30: “[T]he consequences for the accused in Nebraska Press

{i.e., the death penalty] were graver than the potential conse-

quences for plaintiffs here. . . .”

(iv) As all the federal courts have found, any slight biasing

influence appellants’ speech may have—and appellants submit

that there is none—is readily remedied by the traditional means

of protecting against bias in trial juries.* Certainly that is

Connecticut law provides rigorous and adequate safeguards against

potentially biasing influences. Connecticut law permits an extensive

voir dire of individual veniremen. C.G.S. § 51-240 (1981); State v.

[footnote continued on next page]

much more easily accomplished here than in Nebraska Press,

where this Court expressed confidence in the ability of those

protective devices to overcome the effect of the sensational

confession. 427 U.S. at 564. The District Court in Quinn,

supra, made the same point, 482 F. Supp. at 28:

The [contention] that plaintiffs’ remedies at law— which

include the right to voir dire, proper jury instructions,

and the jurors’ oath—are inadequate to overcome what

prejudicial effect these advertisements may have, is unten-

able. See Nebraska Press, supra, 427 U.S. at 563-65. . .

The courts regularly rely on such means to secure juries

untainted by newspaper coverage of much more pointed

prejudicial effect.

(v) The infringement upon speech sought by appeliees would

be less effective than the infringement sought in Nebraska

Press. With or without Aetna’s participation, public debate

concerning the reform of the tort liability system will continue.

To penalize appellants for participating in that debate would

serve only to muzzle one important side of the argument.

Surely that result would be both unconscionable and unconsti-

tutional.

Higgs, 143 Conn. 138, 120 A.2d 152 (1956). Should plaintiffs’ counsel

think it necessary, counsel can ask individual veniremen searching

questions on voir dire designated to elicit (a) whether they have read

particular magazines, or statements, and (b) whether they will follow

the judge’s instructions or whether they have some personal view

which might interfere with their obligation to decide the case on the

basis of the law as given by the trial judge. Counsel may also challenge

jurors, for cause or peremptorily. C.G.S. § 51-241 (1981); Crawley v.

Brown, 4 Conn. Cir. 636, 238 A.2d 453 (Conn. Cir. 1967). And, of

course, plaintiffs are entitled to clear and firm jury instructions

concerning the jury's duty to accept the law as given and to decide the

case on its merits—an obligation which each juror swears diligently to

fulfill. Furthermore, in the rare instance where a jury returns an unjust

verdict, the State courts can use their powers of additur and remittitur.

At the end of the process, the result is a verdict that has judicially been

determined to be fair. Appellees evidently do not dispute the adequacy

of these various safeguards; the complaint does not allege that they are

inadequate.

(vi) There is another important reason why the case for

unhindered speech is far more compelling here than in Ne-

braska Press. This case, after all, involves an appeal for law

reform, not merely the publication of a lurid confession. At

bottom, appellees’ complaint is that appellants may persuade

potential jurors that current tort law is wrongheaded and

contrary to their interests; such speech, appellees say, threatens

to convince citizens that they should ignore the law when they

serve as jurors and should not be permitted to accomplish that

result.

This is a most pernicious argument, one which points the

way to tyranny. It would silence debate on the worth of every

rule of law which ever comes before a jury, thereby freezing

both First Amendment rights and the state of those laws. It

would draw a curtain over some of the most significant of

public issues. On this theory, for example, we would end public

debate on the capital punishment issue for fear that the debate

itself might influence potential jurors in capital cases to disre-

gard the law as given to them by the trial judge. On this theory,

manufacturers could not urge limitations upon product liabil-

ity, nor could doctors argue for relief from malpractice doc-

trines.

That theory, Nebraska Press makes clear, is not the law of

this land.

We recognize, of course, that Nebraska Press involved an

injunction. However, the principles set forth in Nebraska Press

are equally applicable here.

It long has been a central tenet of First Amendment analysis

that speech may not be proscribed, punished, or restrained—

either before or after the fact, and even in furtherance of an

important state interest—unless there is no way to protect that

state interest by means less restrictive of First Amendment

values. This Court repeatedly has held those who would

abridge speech to this test.* It is a major theme in Nebraska

Press.

* E.g., Branti v. Finkel, 445 U.S. $07 (1980); Smith v. Daily Mail Pub.

‘o., 443 U.S. 97 (1979); First Nat'l Bank of Boston vy. Bellotti, supra,

{footnote continued on next page]

As the federal courts, following Nebraska Press, uniformly

have found, the various safeguards provided by state law

ensure that juries can be had which will fairly try appeliants’

personal injury actions. Voir dire, challenges for cause, pre-

emptory challenges, the trial court’s instructions to the jury,

the jurors’ oath, and judicial review (appellate and otherwise)

long have served this function well. Indeed, they have been

equal to the task even in notorious criminal cases where the

defendant’s interest was much stronger, the dissemination of

allegedly prejudicial information much wider, and the relation-

ship between pretrial publicity and the facts of a particular

pending case absolutely clear.* Regulation of appellants’ right

to publicize their views concerning tort law reform plainly is

not the least restrictive alternative available to further the

proffered interest.

That being so, CUTPA may not, consistent with the First

and Fourteenth Amendments, be applied to the sreech at issue

here, and the complaint at bar should be dismissed.

In sum, the decision below squarely conflicts with decisions

by five different federal courts on the very same issue, and it

also conflicts with the prior decisions of this Court.

THE DECISION BELOW IS FINAL WITHIN THE

MEANING OF 28 U.S.C. § 1257

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 482-87

(1975), shows that the decision below is final within the

meaning of 28 U.S.C. § 1257.

435 U.S. at 786; Elrod v. Burns, 427 U.S. 347, 369 (1976); United

States v. Robel, 389 U.S. 258, 268 (1967); Martin v. Struthers, 319

U.S. 141 (1943).

* E.g., United States v. Haldeman, $59 F.2d 31, $9-71 (D.C. Cir. 1976),

cert. denied, 431 U.S. 933 (1977).

In Cox an action was brought under a state law authorizing

suits against the press for publishing the name of a rape victim.

The state trial court granted summary judgment for the plain-

tiff, rejecting the defense contention that the statute violated

the First and Fourteenth Amendments. The Georgia Supreme

Court ruled, however, that the entry of summary judgment for

the plaintiff was erroneous, and the case was remanded for

trial.

Despite the fact that the decision of the Georgia Supreme

Court in Cox contemplated further state court proceedings,

this Court ruled that the finality requirement of Section 1257

had been met and took jurisdiction. The Cox opinion reviewed

the many cases where the finality requirement of Section 1257

had been deemed satisfied in such circumstances. The “core

principle” established by those cases is that the requirement

should be “construed so as not to cause .. . potentially

irreparable injuries to be suffered.” Mathews v. Eldridge, 424

U.S. 319, 331 n.1 (1976).

The Cox opinion noted that the finality requirement is

satisfied, among other circumstances,

where the federal issue has been finally decided in the

state courts with further proceedings pending in which the

party seeking review here might prevail on the merits on

non-federal grounds, thus rendering unnecessary review

of the federal issue by this Court, and where reversal of

the state court on the federal issue would be preclusive of

any further litigation on the relevant cause of action

rather than merely controlling the nature and character

of, or determining the admissibility of evidence in, the

state proceedings still to come. In these circumstances, if

a refusal immediately to review the state court decision

might seriously erode federal policy, the Court has enter-

tained and decided the federal issue, which itself has been

finally determined by the state courts for purposes of the

state litigation.

420 U.S. at 482-483. See also, Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241, 247, n.6 (1974); Construction Laborers

v. Curry, 371 U.S. 542, 550 (1963); Mercantile National Bank

v. Langdeau, 371 U.S. 555, 558 (1963); Hudson Distributors v.

Eli Lilly, 377 U.S. 386, 389, n.4 (1964).

Applying these principles in Cox, this Court wrote:

{E]ven if appellants prevailed at trial and made unneces-

sary further consideration of the constitutional question,

there would remain in effect the unreviewed decision of

the State Supreme Court that a civil action for publishing

the name of a rape victim disclosed in a public judicial

proceeding may go forward despite the First and Four-

teenth Amendments. Delaying final decision of the First

Amendment claim until after trial . . . will “leave un-

answered . . . an important question . . . under the First

Amendment,” “an uneasy and unsettled constitutional

posture that could only further harm” [First Amendment

rights]. [citation omitted] . . . On the other hand, if we

now hold that the First and Fourteenth Amendments bar

civil liability. . ., this litigation ends.

420 U.S. at 485-86.

This Court therefore concluded that according finality to the

state court judgment in Cox was “consistent with the prag-

matic approach we have followed in the past in determining

finality.” 420 U.S. at 486.

So, too, here. The State court has made a final determina-

tion that the United States Constitution does not require

appellees’ complaint to be dismissed on its face. Reversal of

that decision, of course, would end this case.*

* As we have noted, appellees have alleged a non-CUTPA cause of

action, under “common law principles of equity.” Of course, if their

CUTPA claim cannot pass constitutional muster and must be dismissed

as barred by the First and Fourteenth Amendments, their amorphous,

non-statutory claim falls @ fortiori.

On the other hand, as we have demonstrated, supra, Point I,

if the decision below is allowed to stand—for whatever period

of time—there necessarily will be a chilling effect upon pre-

cious First Amendment rights that wou/d—not “might,” Cox

Broadcasting, supra, 420 U.S. at 483—“seriously erode federal

policy.” Jd. For these reasons, this Court has jurisdiction of

this appeal.*

None of the interests served by the finality requirement

would be harmed by taking jurisdiction of this appeal. In

North Dakota State Board of Pharmacy v. Snyder’s Drug

Stores, Inc., 414 U.S. 156, 159 (1973), three such interests were

identified:

The finality requirement of 28 U.S.C. § 1257...

serves several ends: (1) it avoids piecemeal review of state

court decisions; (2) it avoids giving advisory opinions in

cases where there may be no real “case” or “controversy”

in the sense of Art. III; (3) it limits review of state court

determinations of federal constitutional issues to leave at

a minimum federal intrusion in state affairs.

1. There is little chance of piecemeal review in this case. Far

more likely, appellants will prevail at trial—but only after

enormous damage has been done to First Amendment values.

* This Court has jurisdiction despite the fact that the Connecticut

Supreme Court denied appellants’ application for permission to ap-

peal. Before the Connecticut Supreme Court could again be in a

position to review the Superior Court's decision, appellants will have

already suffered irreparable injury. Every day that the Superior Court's

decision remains in effect, their First Amendment rights are im-

paired—an intolerable situation. Moreover, subjecting appellants to

the burdens of this litigation in the Superior Court itself is a penalty

for the exercise of First Amendment rights. Appellants’ “inability. . .

to obtain timely substantive review by state courts of a serious First

Amendment issue, prior to incurring substantial coercive penalties”

justifies a determination that they have satisfied the jurisdictional

requirement of finality. New York Times Co. v. Jascalevich, 439 U.S.

1331, 1333-34 (1978), (Marshall, J.) (opinion in chambers). See a/so

Nebraska Press Association v. Stuart, 423 U.S. 1327, 1329-30 (1975).

(Blackmun, J.) (opinion in chambers).

2. The controversy at bar could not be more real. In this

case, as in the several other such challenges to appellants’

position papers which have been brought in courts around the

country, pei.onal injury litigants and their counsel are pitted

against several large insurance companies. The insurers want to

persuade the citizenry, among other things, to eliminate or

restrict punitive damage awards and to regulate contingent fee

arrangements more closely; the personal injury litigants and

their counsel not only oppose these reforms, but also seek to

quash public debate on these issues.

3. Taking jurisdiction in this case would not intrude upon

State affairs. If the United States Constitution bars this action,

the time to find that out is now—before the courts of the State

of Connecticut devote more time and attention to this case.

Surely, the State’s interests would not be served by a lengthy

litigation culminating in a determination that the complaint

should have been dismissed at the outset. Cf. Hughes Tool Co.

v. Trans World Airlines, Inc., 409 U.S. 363 (1973).

For all these reasons, then, this Court has jurisdiction over

this appeal pursuant to 28 U.S.C. § 1257(2).

CONCLUSION

For the reasons set forth above, this Court should note

probable jurisdiction of this appeal or, alternatively, treat this

jurisdictional statement as a petition for a writ of certiorari

and grant the petition.

Dated: September 15, 1981

New York, New York

Respectfully submitted,

LEWis A. KAPLAN

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

345 Park Avenue

New York, New York 10154

(212) 644-8000

Attorneys for Appellant

Aetna Life and Casualty Company

ANNE LOUISE OATES

PAUL, WEISS, RIFKIND, WHARTON & GARRISON

New York, New York

MARVIN WEXLER

KORNSTEIN MEISTER & VEISZ

New York, New York

PETER MEAR

AETNA LIFE AND CASUALTY COMPANY

Hartford, Connecticut

FREDERICK L. COMLEY

DION W. MOORE

PULLMAN, COMLEY, BRADLEY & REEVES

Bridgeport, Connecticut

Of Counsel

JOHN J. COTTER

ALLAN B. TAYLOR

Day, BERRY & HOWARD

One Constitution Plaza

Hartford, Connecticut 06103

(203) 278-1330

Attorneys for Crum and Forster

and The North River Insurance Company

W. HUBERT PLUMMER

ROGERS, HOGE & HILLS

90 Park Avenue

New York, New York 10016

(212) 953-9200

Attorneys for St. Paul Fire

and Marine Insurance Company

COTTER, COTTER & SOHON

Bridgeport, Connecticut

Of Counsel

EDWARD F. HENNESSEY

ROBINSON, ROBINSON & COLE

799 Main Street

Hartford, Connecticut 06103

(203) 278-0770

Attorneys for The Travelers

Insurance Company

Appendix A

Opinion of the Superior Court of Connecticut

SUPERIOR COURT

JUDICIAL DISTRICT OF FAIRFIELD (BRIDGEPORT)

May 14, 1981

No. 16 89 46

LINDA YOUNG, ETAL. Filed

Vs. May 26, 1981

Office of the Clerk

CRUM AND FORSTER, ETAL. Superior Court

—

MEMORANDUM OF DECISION ON MOTIONS

TO STRIKE OF DEFENDANTS

(1) CRUM AND FORSTER and NORTH RIVER INSURANCE

COMPANY;

(2) THE TRAVELERS INSURANCE COMPANY;

(3) St. PAUL FIRE AND MARINE INSURANCE COMPANY;

and

(4) AETNA LIFE AND CASUALTY COMPANY.

The motion to strike is a creature of the rules of the Superior

Court rather than of state statutes. By such motion the initiator

contests the legal sufficiency of the allegations of some plead-

ing. Conn. Pract. (M.&H.), 2d Ed. -1, §§ 151-158. The rules

pertaining to those motions are enhanced only by the statutory

A-2

requirement that they “distinctly specify the reason or reasons

why the pleading demurred to is insufficient.” C.G.S. § 52-92.'

To examine the history and function of the “motion to strike”,

we must examine the law developed under the rubric of demur-

rer, since, in reality, they are one and the same. “ ‘A demurrer is

not a mere procedural nicety, but is a precise instrument for the

final determination on the merits of justiciability under perti-

nent rules of law of an asserted cause of action or defense. It is

the formal mode of disputing the sufficiency in law of the

pleading to which it pertains.’ 71 C.J.S. 426.” Doherty v. Town

of Winchester, 18 Conn. Sup. 475, 478-9. “The function of a

demurrer is to test the sufficiency of [the] pleading” to which it

is directed. Mainolfi v. Zoning Board of Appeals of the City of

Derby, 146 Conn. 634, 636. A demurrer admits the facts averred

in the complaint as they are made (Ryan v. Knights of Colum-

bus, 82 Conn. 91, 92) and “for the purposes pertaining to it,

{the demurrer] must be taken as admitting the allegations of the

complaint”. Connecticut Rural Roads Improvement Associa-

tion v. Hurley, 124 Conn. 20, 25. It, therefore, follows that the

question before the court becomes whether those facts present a

cause of action. See, inter alia, Blakeslee v. Board of Water

Commissioners of the City of Hartford, 106 Conn. 642 and

Rutt v. Roche, 138 Conn. 605. “The court cannot, in consider-

ing the limits of a demurrer, ‘bring additional facts into the

record.’ State ex rel. Moriarty v. Smith, 72 Conn. 572, 574.”

Moore v. State of Connecticut, 15 Conn. Sup. 251, 252.

The issues presented in this case revolve around the law of

“commercial speech”. It is unnecessary to reach the defendants’

other arguments for striking because the resolution of the

“speech” questions is dispositive of the other issues.

l It should be noted that C.G.S. § $2-92 is concerned with demurrers,

while §§ 151-158 Conn. Pract. supra, deal with motions to strike. As

noted in the Authors’ Comments, /d., 231, infra § 151, while §§ 152-

158 replace the “demurrer”, they “change very little other than the

name of the pleading.”

A-3

When “commercia! speech” was first defined and given spe-

cial treatment in the early 1940s, the United States Supreme

Court used a balancing test to determine the constitutionality of

infringement upon it. The court balanced the degree of en-

croachment upon freedom of speech and of the press under the

First Amendment to the United States Constitution against the

interests of society which would be served by the subject en-

croachment. Although this test is employed today, there is now

a trend toward providing greater constitutional protection of

speech, be it commercial or political, unless the speech at issue

is plainly false or misleading or unless it is so harmful that it

would be against society’s interests to protect it.

The first case which distinguished commercial speech from

political speech is Valentine v. Chrestensen, 316 U.S. 52 (1942),

where the court upheld a New York city ordinance prohibiting

the distribution in the streets of a particular type of handbill.

The defendant, a Florida citizen, moored his former United

States Navy submarine, which he exhibited for profit, at a State

pier in the East River. The handbills he prepared and printed

advertised the boat and solicited visitors for a stated admission

fee. He was advised by the police commissioner that it was un-

lawful under the sanitary code to distribute in the streets hand-

bills containing “commercial and business advertising matter,

but was told that he might freely distribute handbills solely

directed to ‘information or a public protest.’ ” /d., 53. The de-

fendant then redrafted the original handbill, eliminating the

matter of the admission fee and consisting only of commercial

advertising on one side and on the other side a protest against

action of the City Dock Department in refusing him wharfage

facilities at a city pier for exhibition of his submarine but no

commercial advertising. He was advised by the police depart-

ment “that distribution of a bill containing only the protest

would not violate § 318 [of the Sanitary Code], and would not

be restrained, but that distribution of the double-faced bill was

prohibited. The respondent, nevertheless, proceeded with the

printing of his proposed bill and started to distribute it. He was

restrained by the police.” /d., 53. The court defined “commer-

cial speech” as advertising for “private profit”, or advertising

A-4

to “promote or pursue a gainful occupation in the streets”;

whereas “political speech” was defined as speech which in-

formed the public or protested a particular action. The court

continued and said that advertisements which were informative

or expressed a personal and, therefore, political point of view,

were protected by the First Amendment, but that those

published for the purpose of financial gain and, therefore, com-

mercial, were subject to some restraint.

The court balanced the benefit to be gained by the public

through the ordinance against the infringemeni on the entrepre-

neur’s limited right to freedom of speech. It concluded that the

city’s interest in maintaining the free use of the highways for the

public at large outweighed the businessman’s interest in distrib-

uting handbills for his own financial benefit. This case es-

tablished separate standards for the treatment of “commercial

speech” and “political speech”. Recognizing that a lesser degree

of protection was appropriate in the case before it, the Valentine

court weighed the benefit to society against encroachment on

free speech.

A year later in Murdock v. Pennsylvania, 319 U.S. 105, 106

(1943) the court, in striking down as being too broad an ordin-

ance of the Borough of Jeannette, pertaining to the licensing

and taxation of persons canvassing for or soliciting orders for

merchandise or delivery of them, excepting those “* . . . sell-

ing by sample to manufacturers or licensed merchants or

dealers doing business in said Borough of Jeannette’ ”, empha-

sized that the First Amendment freedoms of speech, press, and

religion were in a preferred position. The court based its deci-

sion on the fact that the ordinance included a prohibition

against religious solicitation and there, specifically, referred to

“Jehovah's Witnesses”. The court held that a community could

not tax or suppress views through such an ordinance. In deter-

mining whether such “speech” was commercial or political, the

court stated, at p. 111, that “the mere fact that the religious

literature is ‘sold’ by itinerant preachers rather than ‘donated’

does not transform evangelism into a commercial enterprise.”

In distinguishing this case from Valentine, supra, the court held

that just as distributing leaflets which contained both commer-

A-5

cial and political speech did not render them purely political,

the distribution of religious leaflets for a small fee did not nec-

essarily constitute commercial speech. Therefore, determina-

tion of whether literature was commercial or political would

depend on its essential purpose. In Murdock the solicitors’ goal

was to spread their religious convictions rather than to achieve

financial gain. Since freedom of religion is afforded a high de-

gree of protection by the United States constitution, the bor-

ough could not limit the rights of the religious solicitors simply

because there was some commercial aspect to their activity. Po-

litical speech, which includes any expression of personal views,

therefore, may be subject to First Amendment protection even

if there is a commercial aspect to it.

In 1951 the United States Supreme Court again dealt with the

degree of protection afforded commercial speech in Breard v.

Alexandria, 341 U.S. 622 (1951). The ordinance under review

there barred the door-to-door selling of magazines without the

prior consent of the householder. The court recognized that the

selling of periodicals was protected by the First Amendment but

also pointed out that the selling process brought the case within

the purview of commercial speech. It stated, at p. 642: “The

First and Fourteenth Amendments have never been treated as

absolutes. Freedom of speech or press does not mean that one

can talk or distribute where, when and how one chooses. Rights

other than those of the advocates are involved. By adjustment

of rights, we can have both full liberty of expression and an

orderly life.” Therefore, the constitutionality of the ordinance

was determined by balancing the householder’s right to privacy

against the solicitor’s right to sell publications, the court hold-

ing there that the citizen’s right to privacy outweighed the solici-

tor’s right of freedom in his commercial speech. When the con-

stitutional protection of commercial speech results in the denial

of some other fundamental right to the community at large, the

court will not support the commercia! enterprise. Here, again,

the court indicated that the constitution will not protect com-

mercial communications to the extent that it will protect other

fundamental rights.

A-6

The court again refused to apply a strict interpretation of

political and commercial speech in New York Times Co. v. Sul-

livan, 376 U.S. 254 (1964), involving a newspaper advertise-

ment containing statements about police actions during a stu-

dent demonstration. The respondent contended that there was

no First Amendment protection because the advertisement had

been paid for and, therefore, it should be considered commer-

cial speech. However, the court held that was political speech

because the goal of the individuals who paid for the advertise-

ment was tO express Outrage at certain claimed abuses by the

police and also to seek financial support. These matters were

considered to be of the highest public interest. The court em-

phasized that the purpose of the First Amendment was to en-

courage the spreading of information from any and all sources

and to encourage the free expression of ideas; also that the First

Amendment protection would not be removed simply because

there was a commercial aspect to the advertisement. Again,

here, the court examined both the political and commercial as-

pects of the subject advertisement. The greater the political con-

tent found, the greater would be the First Amendment protec-

tion afforded by the court.

A statute which prohibited the placing of pandering adver-

tisements in the mail was upheld in Rowan v. United States Post

Office Department, 300 ©.Supp. 1036 (C.D. Cal. 1969). The test

used was that used in Breard, supra. The court held that when

freedom of speech invades another right, such as the right to

privacy, there must be a balancing of the interests protected of

both those rights. The court, at p. 1040, quoted from Kovacs v.

Cooper, 336 U.S. 77, at 88:

“** * * The preferred position of freedom of speech in a

society that cherishes liberty for all does not require legis-

lators to be insensible to claims by citizens to comfort and

convenience. To enforce freedom of speech in disregard of

the rights of others would be harsh and arbitrary in it-

a*s?*”

A-7

The court, at p. 1044, stated:

“The degree to which the First Amendment applies to

protect speech varies with society’s interest in the content

of that speech. ‘Purely commercial advertising’ has never

received the same kind of constitutional protection as that

afforded to expressions of greater public concern. The

commercial element does not altogether destroy its quality

as protected speech, but it does substantially reduce the

weight of the expression on constitutional scales... .

Commercial advertising can be reasonably regulated

without offending the First Amendment. [citations omit-

ted].”

In that case the court indicated the weight to be accorded the

“commercial” aspect of speech.

The balancing of interests was again considered in Barrick

Realty, Incorporated v. City of Gary, Indiana, 354 F.Supp. 126

(1973) which involved an ordinance which prohibited the dis-

play of “For Sale”, “Sold”, or similar signs in residential areas

of Gary, Indiana. The District Court held that there was no

violation of the First Amendment. The court referred to the

signs as “purely commercial” without further discussicn as to

the meaning of that description, implying that the original defi-

nition of commercial speech as set forth in Valentine, supra,

was then understood to be the definition of commercial speech.

In Barrick the court found that such signs might encourage

panic selling and that in balancing the citizens’ interests in

maintaining their property values as against any infringement

on commercial speech, that type of ordinance met the consitu-

tional test.

Subsequent cases show a trend toward greater First Amend-

ment protection of commercial speech.

In Pittsburgh Press Co. v. Pittsburgh Commission on Hu-

man Relations, 413 U.S. 376 (1973), reh. den. 414 U.S. 881, an

ordinance which prohibited potential employers from indicat-

ing sex preference in their help-wanted advertisements was up-

held. Again, the court addressed the issue of whether such ad-

A-8

vertisements were commercial or political. Since the advertise-

ments did not express any opinion as to whether, as a matter of

social policy, positions should be filled by one sex or the other,

they were considered essentially commercial because they made

a proposal for gainful employment. Although Pittsburgh Press

argued that commercial speech should be afforded a higher

level of protection than it was accorded in Valentine, supra, the

court did not address that issue since the advertisements them-

selves were held to be illegal under the ordinance. However, it

did point out that the interests served by ordinary commercial

proposals might be found to outweigh a governmental interest,

thus paving the way for greater constitutional protection of

commercial speech. In his dissenting opinion, Chief Justice

Burger found that decision to be an expansion of the “commer-

cial speech doctrine” and, therefore, a disturbing limitation of

freedom of the press, since the effect of the ordinance was to

dictate to newspapers the structure of the layout of the help-

wanted advertisements.

Pittsburgh Press was the first indication that the Supreme

Court was beginning to concern itself with the degree of control

there ought to be over speech and press, even when such control

would be justified as to commercial speech and it enjoy less

protection.

In Bigelow v. Virgina, 421 U.S. 809 the First Amendment

was found to be violated by a Virginia statute which prohibited

the publication of any advertisement which encouraged abor-

tions. That court held that Virginia could not inhibit the com-

munication of information which was available to citizens of

other states. In setting oui a higher standard of protection, it

stated, at p. 826, that “[t}he relationship of speech to the

marketplace of products or of services does not make it value-

less in the marketplace of ideas.” The court reasoned that al-

though such advertisements had commercial aspects, the infor-

mation conveyed was of interest and value and, therefore, con-

stitutionally protected. It also balanced the state’s interest of

maintaining high-quality medical care against the invasion of

First Amendment rights, but found that the ordinance did not

protect any state’s interest.

A-9

Another Virginia statute was found unconstitutional in Vir-

ginia State Board of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748 (1976). The statute banned the ad-

vertising of prescription drugs. That court pointed out that

since Breard, supra, First Amendment protection had not been

denied to commercial speech and that since Bigelow, supra,

“the notion of unprotected ‘commercial speech’ all but passed

from the scene.” /d., 759. It emphasized that simply because an

advertiser’s interest was purely economic, he should not be dis-

qualified from First Amendment protection and that a con-

sumer’s interest in advertising may be as important to him as his

interest in some political issue. The court appeared to be putting

commercial information on the same footing as political speech

when it stated, at p. 765: “Advertising, however tasteless and

excessive it sometimes may seem, is nonetheless dissemination

of information as to who is producing and selling what product,

for what reason, and at what price.” The free flow of commer-

cial information is just as essential to society as any other type

of information. However, the court concluded that it does not

follow that commercial speech cannot be regulated in some

manner when there is a compelling state’s interest. False and

misleading statements or untruthful speech are given no consti-

tutional protection. Mr. Justice Rehnquist in the sole dissenting

opinion, however, maintained that the amount of protection

afforded “commercial speech” should still be balanced against

other protected interests of the public.

The following year by Linmark Associates, Inc. v. Township

of Willingboro, 431 U.S. 85 (1977), the Supreme Court struck

down an ordinance prohibiting the use of “For Sale” signs,

stating that the ordinance inhibited communication between

those who wished to sell or purchase. In this instance, the court

found that there was no evidence that such signs would have a

detrimental effect on the community. Therefore, it retained the

balancing test and weighed the infringement upon the constitu-

tional right of free speech against the harm done to the commu-

nity by the placing of such signs. However, the court demanded

(p. 92) that a strong state’s interest be shown to justify restric-

A-10

tion on “‘the free flow of commercial information.’ Virginia

Pharmacy Bd., supra, at 764.”

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the

First Amendment was held to be violated by a disciplinary rule

which prohibited the advertising of legal services, as inhibiting

the free flow of information, which would keep the public in

ignorance of useful information, i.e., the price of certain rou-

tine legal services. Using the traditional balancing test, the court

examined the reason for the rule and found there was not a

compelling state’s interest which justified the restraint of adver-

tising by attorneys. However, it still reserved to the state the

power to limit advertising which was false, misleading, or de-

ceptive, “recogniz[ing] that many of the problems in defining

the boundary between deceptive and nondeceptive advertising

remain to be resolved.” /d., 384. According to that court, the

very fact that an advertisement is truthful directly relates to the

benefit to be gained by society from it. There is no tolerance for

untruthfulness in commercial speech. Since the public has little

knowledge concerning legal fees and services, any misstatement

that might be considered unimportant in other circumstances

would be considered of serious import in the legal arena and,

therefore, would quickly lose First Amendment protection. In

Bates the court set up a high standard of truthfulness and

honesty at the risk of the loss of First Amendment protection.

In National Commission on Egg Nutrition v. Federal Trade

Commission, 570 F.2d 157 (1977), the court addressed the issue

of what influence false and misleading advertising had on the

right to protection of commercial speech under the First

Amendment. It upheld that Commission’s order prohibiting

advertisements which stated that eggs did not contribute to

heart disease as being false and misleading. There was no evi-

dence that eggs did not contribute to heart disease. The court,

at p. 162, said “that the protection afforded to speech of any

kind is to be determined by ‘assessing the First Amendment

interest at stake and weighing it against the public interest al-

legedly served by the regulation.’ Bigelow v. Virginia, supra,

421 U.S. at 826.” The interests of both the speaker of the com-

munication and that of society which receives it are protected

A-ll

by the First Amendment. The target audience of commercial

speech is the consumer. In that case the egg industry argued that

it was expressing an opinion on a controversial issue, but the

court found that the advertisements were not opinion (emphasis

added) but rather denials significant to a segment of society.

There the court balanced the harm that might be done by such

misleading advertising against the encroachment on the right to

free speech and found that the advertisements would be to the

ultimate detriment of society.

The Supreme Court in First National Bank of Boston v. Bel-

lotti, 435 U.S. 765 (1978), reh. den. 438 U.S. 907 (1978), struck

down a criminal statute which prohibited businesses from mak-

ing financial payments in order to influence voting. The court

stressed that even though a communication is paid for by a

corporation rather than an individual, it is not automatically

considered commercial speech. There was no evidence that the

subject contributions had any material effect upon the corpora-

tion’s business and so the court found that the communications

financed were an expression of opinion and, therefore, political

speech is allowable only when a compelling state’s interest in

shown. The effect of that statute in that instance would be to

inhibit the free expression of a political point of view. In fol-

lowing its then well-established pattern, the court found that

the political aspects substantially outweighed any personal gain

to the corporation and, therefore, the action relating to the

communications was afforded greater First Amendment protec-

tion. When the court examined what harm the community

would suffer by its upholding the corporation’s ri¢ht to voice its

views on political issues, it found that the communications

would serve to educate and inform the public even if they might

influence the outcome of the subject referendum voting; ac-

cordingly, there would be no justification for suppression. The

purpose of the First Amendment is to encourage the expression

of diverse views.

In the 1980 case of Village of Schaumburg v. Citizens for a

Better Environment, 48 LW 4162 (Feb. 20, 1980), the court

struck down an ordinance prohibiting door-to-door solicitation

of contributions by charitable organizations that do not use at

A-12

least seventy-five percent of their receipts for “charitable pur-

poses”, excluding from such purposes payments by those or-

ganizations of salaries or commissions to solicitors and their

administrative expenses. While recognizing that it is sometimes

difficult to distinguish between commercial and political adver-

tisements or solicitations, the court found that solicitations by

charitable organizations were not commercial speech because

they sought to inform the public on issues rather than seeking

financial support for their own personal needs. In footnote 7 on

p. 4165 the court points out that any prior decisions which ex-

cluded commercial speech were no longer to be considered good

law. However, when applying First Amendment protection to

an ordinance which encompasses both commercial speech and

political speech, a distinction still existed in that political speech

was entitled to greater protection. There would be times when

the distinction between commercial and political speech was im-

portant. The court again used the balancing test which permits

it to measure the harm done to the constitutional protection of

commercial speech against the injury to society and held the

ordinance to be unconstitutional.

In summary the Supreme Court since Valentine, supra, has

retained the definition of “commercial speech” as an advertise-

ment “to pursue gainful employment” or for “private profit”.

“Political speech” has been described as an advertisement

which was informational or which concerned a “public pro-

test”. These definitions have not been altered by case law but at

times it has been difficult to establish whether a particular ad-

vertisement was commercial or political speech because both

elements were present. In those instances the court examined

the intent of the advertising parties and if the publication was

for some commercial benefit, it was held to be essentially com-

mercial speech; if published for the purpose of expressing some

opinion or point of view, it was considered essentially political.

In earlier cases it was essential to distinguish between “com-

mercial speech” and “political speech” because courts afforded

A-13

greater protection to political speech. In the 1970s courts began

to take the position that in many instances commercial speech

was as valuable to the public as political speech because even if

it resulted in financial gain for an individual, the communica-

tion itself served to keep the public informed. Virginia State

Board of Pharmacy v. Virginia Citizens Consumer Council,

Inc., supra.

Three essential tests have developed in applying the constitu-

tional standards to commercial-speech situations. The first test

was set out in Valentine v. Chrestensen, supra, where the court

balanced two funda © natal interests: the state’s interest in keep-

ing highways safe and the individual's interest in the right to

disseminate information which might be in the public interest.

This simple balancing test allowed the court to decide which of

those two interests—safety to society or freedom of speech—

would be the most beneficial to «ciety at large. The Supreme

Court found that the state’s interest was of greater weighi on

the balance scale.

The balancing test is affected by consideration of whether the

essential purpose of the publication is political or commercial.

The greater the political motivation, the more compelling the

state’s reason must be for infringement on First Amendment

rights. Murdock v. Pennsylvania, supra. The same balancing

yielded that result in Breard v. Alexandria, supra. There the

court stressed that First Amendment protection was not abso-

lute, especially when there was an encroachment on another

fundamental right.

The second test, developed in Pittsburgh Press Co. v. Pitts-

burgh Commission on Human Relations, supra, emerged when

the courts recognized that commercial speech was often of

value to the public because it contained information valuable to

it. This gave increased protection to commercial speech. Bige-

low v. Virginia, supra. Pursuant to this test statutes prohibiting

certain types of advertising were struck down even though the

advertisements were clearly for financial gain. The courts pos-

tulated that the effect of these statutes was to prevent informa-

tion from being made available to the public. Bates v. State Bar

A-14

of Arizona, supra. This test required that more than mere in-

fringement on another fundamental right be shown. Thus,

commercial speech was on an almost equal footing with politi-

cal speech: an interference with a compelling state’s interest had

to be shown before commercial speech could be limited or pro-

hibited.

A third test was developed in Nationai Commission on Egg

Nutrition v. Federal Trade Commission, supra. There the ad-

vertisement—-commercial speech—was false and misleading.

The court reasoned that since false and misleading information

does not serve the public, and, in fact, may often be detrimental

to society, this type of commercial speech was afforded very

little protection: the harm caused by the deception was greater

than the harm caused by the infringement.

In the instant case, the court is unable to balance the compet-

ing interests based on what has been submitted to it. Sufficient

evidence must still be presented toward determination of the

issues. This need is underlined by the realization that motiva-

tion of the defendant-advertisers is a necessary determination

preliminary to categorization of the advertising as political or

commercial speech.

Even if it were conceded that commercial speech is entitled to

protection, under the more recent court decisions evidence is

required to determine whether there is a compelling state’s in-

terest which may justify placing some limits on this type of

advertising.

Crucially, there is no evidence before this court to demon-

strate whether the advertising is false and misleading as alleged

by the plaintiffs. Should facts be presented which demonstrate

that the advertisements in question are false and/or misleading,

this court would be unable to find the advertisements entitled to

constitutional protection.

This court is fully aware of, and has examined in detail, the

many federal decisions which seem to hold a position contrary

to that enunciated here. Even after such review, this court is

A-15

unable to agree that the issues are patent enough for resolution

on a motion to strike. It is clear that the law does not, and

should not, say that any and all speech is entitled to complete

constitutional protection. The exceptions to the right to com-

plete protection definitively include compelling state’s interests

and items which are false or misleading. Despite other court

rulings, this court is unable and unwilling to resolve the ques-

tion whether the speech in this action does or does not fall

within an exception without the presentation of further evi-

dence.

The defendants allege, on various grounds, that the statutory

claims in the first and second counts of the plaintiffs’ complaint

are either misdirected or without merit.

Defendants rely, in the first instance, on the argument that

the statutory provisions do not apply to insurance companies.

This contention cannot be accepted by this court. This court

does, however, accept the reasoning set forth in the case of

Stone v. Government Employees Ins. Company, Washington,

D.C. (GEICO), No. 04 19 50, Superior Court, Judicial District

of Fairfield (Stamford), May 21, 1980, wherein Cioffi, J.,

stated at pp. 3, 4:

“First, insurance cases are not included among the excep-

tions in 42-110c, nor is the remedy limited in Sections 32-

60 solely to that statute. Second, unfair trade practices

prohibited in 42-110b certainly seem to encompass those

set forth in Sections 38-61. Finally, although administra-

tive remedies exist in 42-110d and 38-62 to be enforced by

the respective commissioners, there is no indication that a

person must, as a prerequisite use that route, since 42-110g

and h allow private actions.”

The legislature could have, and would have, clearly exempted

insurance companies if it is saw fit to do so; however, the legis-

lature provided that the Unfair Trade Practices Act applied to

“any person”, not to some selected persons.

A-16

The defendants’ next line of argument claims that Connecti-

cut’s Unfair Trade Practices Act (hereinafter referred to as

“CUTPA”) applies only to direct loans or sales. This is patently

not the case. By a technical amendment, P.A. 79-210, the legis-

lature made clear that this was not the intent. CUTPA is a reme-

dial Act and, therefore, must be construed liberally. To adopt

defendants’ position that no cause of action can arise under

CUTPA until the amount of the loss is known is not a liberal

reading. However, dispositive of this argument is this court’s

holding that whether there is or is not a specific loss and

whether any loss, if there be one, is or is not known, are clearly

issues to be determined by the trier of the facts and are not

appropriate for resolution on a motion to strike.

The constitutionality of CUTPA is not an issue to be resolved

on a motion to strike. Connecticut’s Supreme Court has re-

peatedly noted that to determine the constitutionality of a stat-

ute the factual circumstances of application may bear heavily

on the determination. See, e.g., State v. Doe, 149 Conn. 216,

230. The party attacking the constitutionality of a statute must

Overcome a presumption of validity and prove unconstitu-

tionality beyond a reasonable doubt. See, e.g., Engle v. Person-

nel Appeal Board, 175 Conn. 127, 134. It is difficult for this

court to envision a set of circumstances under which this burden

of proof could be met on a motion to strike. Clearly, that bur-

den has not been met by the instant motions to strike.

Vil

The effect of ruling on motions to strike is unclear.

“Prior to 1978 there was an express rule that a party had

the right to plead over if his demurrer was overruled. That

rule was repealed in 1978 when the motion to strike re-

placed the demurrer, but the rule was not replaced with a

comparable rule pertaining to overruled motions to strike.

This failure of the new rules to cover the situation raises

A-17

the question whether a right to plead over exists now or

not. On the one hand, the repeal of an express provision

without the enactment of an analogous provision would

seem a conscious elimination of the right to plead over. On

the other hand, it could be argued that the elimination of

the old rule resurrected the preexisting Connecticut com-

mon law which permitted pleading over without an express

rule to that effect.”

Stephenson, 1 Conn. Civ.,Proc. (2d ed.), 1979 Cum. Supp.,

§ 119, pp. S86-S89. This court adopts the second analysis. The

right to plead over is fair and, more importantly, consistent with

modern-day practice which aims at eliminating the “sporting

theory” of justice. It would not serve the ends of justice to place

the party moving to strike at peril because the motion failed on

one point of many in issue.

For the above reasons, all of the captioned motions to strike

are hereby denied.

BURTON J. JACOBSON, J.

Burton J. Jacobson

Appendix B

Orders of the Supreme Court of Connecticut Denying Appel-

lant’s Application for Permission To Appeal

SUPREME COURT

STATE OF CONNECTICUT

June 18, 1981

No. 10850, 10851

>_>

LINDA YOUNG, et als.

Vs.

CRUM & FORSTER, et als.

_—

ORDER

THE DEFENDANT’S MOTION FOR PERMISSION TO

FILE INTERLOCUTORY APPEAL FROM A RULING ON

MOTION TO STRIKE PURSUANT TO PRACTICE BOOK

SECTION 3164 AND § 52-265 (a) OF THE CONNECTICUT

GENERAL STATUTES HAVING BEEN PRESENTED TO

THE COURT, IT IS HEREBY ORDERED DENIED.

By The Court

DONALD H. DOWLING

Chief Clerk

Notice

Koskoff, Koskoff & Bicder

Day, Berry & Howard

Cotter, Cotter & Sohon

Robinson, Robinson & Cole

Zeldes, Needle & Cooper

June 22, 1981

B-2

SUPREME COURT

STATE OF CONNECTICUT

June 18, 1981

No. 10850, 10851

LINDA YOUNG, et als.

vs.

CRUM & FORSTER, et als.

ORDER

THE DEFENDANT'S MOTION FOR AN EXPEDITED

APPEAL HAVING BEEN PRESENTED TO THE COURT, IT

IS HEREBY ORDERED DENIED.

By The Court

DONALD H. DOWLING

Chief Clerk

Notice

Koskoff, Koskoff & Bieder

Day, Berry & Howard

Cotter, Cotter & Sohon

Robinson, Robinson & Cole

Zeldes, Needle & Cooper

June 22, 1981

C-1

Appendix C

Notice of Appeal

IN THE

SUPERIOR COURT

OF THE STATE OF CONNECTICUT

Judicial District of Fairfield at Bridgeport

No. 168946

Filed >

September 11, 1981 LINDA YOUNG, et al.,

Office of the Clerk

Superior Court

Plaintiffs,

—against—

CRUM AND FORSTER, THE NORTH RIVER INSURANCE COM-

PANY, AETNA LIFE AND CASUALTY COMPANY, ST. PAUL

FIRE AND MARINE INSURANCE COMPANY, THE TRAVELERS

INSURANCE COMPANY,

Defendants

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that defendants Crum and Forster, The

North River Insurance Company, Aetna Life and Casualty

Company, St. Paul Fire and Marine Insurance Company and

The Travelers Insurance Company hereby appeal to the Su-

preme Court of the United States from the judgment of the

Superior Court of the State of Connecticut, Judicial District of

Fairfield at Bridgeport, denying defendants’ motions to strike

the complaint herein, entered in this action on May 26, 1981.

This appeal is taken pursuant to 28 U.S.C. Section 1257 (2).

C-2

Dated: Bridgeport, Connecticut

September 11, 1981

PULLMAN, COMLEY, BRADLEY & REEVES

By DION W. MOORE

Attorneys for Defendant Aetna Life

and Casualty Company

855 Main Street

Bridgeport, Connecticut 06604

(203) 334-0112

Day, BERRY & HOWARD

By ALLAN B. TAYLOR

Attorneys for Defendants Crum

and Forster, The North River

Insurance Company

One Constitution Plaza

Hartford, Connecticut 06103

(203) 278-1330

COTTER, COTTER & SOHON

By JOHN J. COTTER

Attorneys for Defendant St. Paul Fire

and Marine Insurance Company

195 Brooklawn Avenue

Bridgeport, Connecticut 06604

(203) 335-3131

ROBINSON, ROBINSON & COLE

By EDWARD F. HENNESSEY

Attorneys for Defendant The Trav-

elers

Insurance Company

799 Main Street

Hartford, Connecticut 06103

(203) 278-0700

C-3

PROOF OF SERVICE

This is to certify that a copy of the foregoing Notice of Ap-

peal was sent, postage prepaid, to:

Richard A. Bieder, Esq.

Koskoff, Koskoff & Bieder

1241 Main Street

Bridgeport, CT 06604

Attorney for the Plaintiffs

and to all other counsel of record:

John J. Cotter, Esq.

Cotter, Cotter & Sohon

195 Brooklawn Avenue

Bridgepoi:, CT 06604

Allan B. Taylor, Esq.

Day, Berry & Howard

One Constitution Plaza

Hartford, CT 06103

Edward F. Hennessey, Esq.

Robinson, Robinson & Cole

799 Main Street

Hartford, CT 06103

Robert Langer, Esq.

Assistant Attorney General

Consumer Protection Dept.

State Office Building

Hartford, CT 06115

A. Reynolds Gordon, Esq.

855 Main Street

Bridgeport, CT 06604

W. Hubert Plummer, Esq.

Rogers, Hoge & Hills

90 Park Avenue

New York, New York 10016

C-4

Lawrence Kanaga, Esq.

Zeldes, Needle & Cooper

333 State Street

Bridgeport, CT 06601

Lewis A. Kaplan, Esq.

Paul, Weiss, Rifkind,

Wharton & Garrison

345 Park Avenue

New York, New York 10154

Dated this 11th day of September, 1981.

S’ DION W. MOORE

Dion W. Moore

Commissioner of the

Supreme Court

D-1

Appendix D

Appellants’ Statements

“When awarding

‘damages in liability cases,

the jury is cautioned to

be fair and to bear in

mind that money does not

grow on trees. It must be

paid through insurance

premiums from uninvolved

porties,such as yourselves.”

a. "a. a 2 -

2 v2. *. . os

Too bad iudges cant

read this to a jury.

In a small Florida town, a decorative boulder rests on the

median of a road. A man with three drinks in him and no

sleep for 18 hours smashes his car headlong into it. A jury

orders the town to pay him $4.7 million in damages.

A truck without brake lights is hit from behind. For

D-3

“psychic damages” to the driver, because his pride was

hurt when his wife had to work, a jury awards $480,000

above and beyond his medical bills and wage losses.

Then there's the one...but you can probably provide

the next example. Most of us know hair-raising stories of

windfall awards won in court: Justified claims should be

compensated, of course. Etna’s point is that it is time to

look hard at what windfall awards are costing.

What can we do? Several things:

We can stop assessing “liability” where there really

was no fault—and express our sympathy for victims

throvgh other means.

We can ask juries to take into account a victim’s own

responsibility for his losses. And we can urge that awards

realistically reflect the actual loss suffered —that they be a

fair compensation, but not a reward:

Insurers, lawyers, judges—each of us shares some

blame for this mess. But it is you, the public, who can best

begin to clear it up. Don’t underestimate your own in-

fluence. Use it, as we are trying to use ours.

wants ae affordable.

"Thos case 6 being —— ity Cases are mje men tors. wep

by the town In addition to the pone dh pay dau ene millions more defend ‘ais rr hers who are targets

court awerded Semease two 2 4 by praguct of such awards Mg policynolders against aw = ‘or win soll awards

other defendants ithe contractor as heen e quentum leap in the sue The direct result = meng *For cramp it would help

andthe county /eettiedout ofcourt «sumber of ail kinds of suite fied = =premiums for sutomotile and { ures eere semply equi red

for an additional $1 '5 mulhon Praducts Lat lity Cases aoe. Nave wher liability verages The sie info account Payments the

Thos illustrates Pow eatravegant ncressed from SOU) @ eer in direct result 9 ‘oeher proces for amaert Des siready recerwed

See fan «| * he |9HO0 eto simost am jon @ gamisarcdeervaes press ehh ‘or medical hile and oy 00

dard for extravagant cel of cowrt ear now are Poosted ver The oh nder Se present swerem

Further Protaras may be obtained by contacting Henry L. Savage. |r Public Re lations 7 tna | he i s Senn

151 Farmington Avenue. Hartford. CT 06156. Telephone (203) 273-6545

§ 6 CASuatv

“When awarding

* damages in liability cases,

the jury is cautioned to

be fair and to bear in

mind that money does not

grow on trees. It must be

paid through insurance

premiums from uninvolved

, parties, such as yourselves.”

Too bad judges can't

read this to a jury.

A truck without brake lights is hit from behind. For “psychic

damages” to the driver, because his pride was hurt when

his wife had to work, a jury awards $480,000 above and

beyond his medical bills and wage losses.

A 67-year old factory worker loses an arm on the job.

His lawyer argues that he should receive wages for all the

D-§

remaining years of his life expectancy. He had been earning

about $10,000 a year. The jury awards him a sum equal to

almost $89,000 a year.

Then there’s the one...but you can probably provide

the next example. Most of us know hair-raising stories of

windfall awards won in court: Justified claims should be

compensated, of course. Etna’s point is that it is time to

look hard at what windfall awards are costing.

What can we do? Several things:

We can stop assessing “liability” where there really

was no fault—and express our sympathy for victims

through other means.

We can ask juries to take into account a victim’s own

responsibility for his losses. And we can urge that awards

realistically reflect the actual loss suffered—that they be a

fair compensation, but not a reward.

Insurers, lawyers, judges—each of us shares some

blame for this mess. But it is you, the public, who can best

begin to clean it up. Don’t underestimate your own in-

fluence. Use it, as we are trying to use ours.

1)-6

“And now, the big winners

in today’s lawsuits.”

Is this where were headec? At least 205 Americans have

now won damage suits wortii a million dollars or more.

In 1962 there was one; the next year, two; and as recently

as 1969, only three. But by 1976 the number of million-

dollar plus awards ballooned to 43. The stakes have gone up.

Were these awards justified by real losses and clear

fault? Or were they grand prizes in a lucrative game of chance

D-7

— America’s dis-tort-ed tort law system?’

We've reached the point where a person was actually

awarded well over a million dollars for “traumatic neurosis”

resulting from a false arrest for shoplifting.

If there were no losers in this game, we might dismiss

it as harmless fun, like a lottery. But every payer of liability

insurance premiums is a loser. And indirectly all of us lose,

as the soaring costs of settlements and insurance force up

the prices of the products and services we use.

Justified claims should be fairly compensated. But it’s

time to look at state laws that permit exe ssive and un-

warranted awards. California has done so hh a citizens’

commission created to help bring balance back to the system.

We urge other states to follow.

Insurers, lawyers, judges —all of us share some blame for

this mess. But it is you, the public, who can best begin to

clean it up—by making your views known to your elected

representatives. Don't underestimate your own influence. Use

it, as we are trying to use ours.

wants insuranceto be affordable.

‘fury Verdict Research Inc Mo the case. » 23-year old vague termes ere olten the bass ‘eae comhie me recent |

of Cleveiand Ome keepsrecords woman was arrested. ined. and | uge demands We Save month per od While these were

of million dollar plus awards found innocent of shoplifting In recently seen the filing of a $31 averages untry wide for many

These. however. are only the tip 3 turn. she sued the store and ts millon Maipractwe suit on the he ncregses @ere even more

MW the weherg Eatravegant pury special policeman Tocompensate grounds of mental distress severe in Calrforme recom

awarded damages set astandard herfor depression anaiety ner ‘Most awards are pani Oy mended increases for product

for out-of court settlements —the vousness. photia. fears. and neurance and any Atinuing abiity protection for clothin

real problem since most hatility oghtmares. the sury awarded nerease 7 the size or numberof manufacturers aemred 410% in

cases are settied out of court her $1.100.000 «9 damages in awards must De reflected in 976 while maipractce imeur

1A “tort strctly spesking. @ the past. awards for such intan Meuraence sts For cxamoie ance for some physicians

a wrongful actiotherthanbreach gible famages were reasonably product ar » Murance f acreased )3°*

M contract) for which demeges reiatedtoactual Tedcaicapenses Manufacturers and malpractice

Mey be recovered in court and economic tosses Today these = nsurance f OMyecwns more

There isn't

a product made

that can't be misused.

Evena safety pin manufac-

turer may not be safe today

from misuse of his product.

More than ever before,

manufacturers and sellers

are being held responsible

by the courts for product-

related injuries-even when

the victims contribute to

their own injuries.

A man who lifted a

rotary lawn mower to cut

hedges injured himself.

He sued the lawn mower

manufacturer and won.

The manufacturer of a

bench saw made in 1942

with the necessary safety

equipment was ordered

to pay $50,000 to a worker

injured using the machine

in 1971 The award wis

made despite testimony

that a dealer rebuilt the machine Insurance, after all, is simply a

without a guard. means of spreading risk. Insurance

In 1976 an estimated one million § companiescollect premiums

product liability claims were from many people and compensate

filed. And, in a recent eight-year those who have losses.

period, the average award rose The price of insurance must

by 567% from $12,000 to $80,000. reflect the costs of paying for

That's not pin money. those losses and the expenses of

Some huge awards have actually handling them.

caused plants to close and many No one likes higher prices.

people to lose their jobs. But we're telling it straight.

And the problem could get

mnich won 7 INDUSTRIAL INDEMNITY

one of the

THE POLICY MAKERS.

Industnal Indemruty Home Office San Franasco M4120

D-9

The jury smiled

when they made the award.

They didn't know it was coming

out of their own pockets.

They thought

they were giving

away the insurance

company’s money.

So it wouldn't

hurt to be generous.

Because insurance al “ys

companies can afford £y > ere

to pay big awards. — eS

All they have to do is

collect higher

insurance premiums.

From you.

And excessive

awards eventually cost you money. The pnce of insurance must

We don’t object to paying reflect the nsing cost of compensat-

fair awards. That's our business. ing those losses and the work

But paying exaggerated awards that goes into doing that.

inflates costs. And that includes the escalation

And can affect yourinsurance injury awards.

in other ways. Insurance That's why your premiums have

companies might be forced to been going up.

limit the kinds of coverage or No one likes higher prices

the number of policiesthey wnte. But we 'e telling it straight.

Insurance, after all, is simply a

means ot spreading risk. Insurance

companies collect premiums CRUM.\: FORSTER

from many people and compen. INSURANCE COMPANIES

sate the few who have losses THE POLICY MAKERS.

D-10

What's a broken nose

worth today?

If you were responsible

for his injury, it could

cost a lot more money than

youd like to think about.

Of course, there will

be bills to cover the high

costs of medicine, doctors,

and hospitalization. There

also may be substantial

legal fees.

And then there is

the question of whether

an award is to be made

for pain and suffering

above and beyond medical

costs. And if so, how much.

Fortunately, you have

liability insurance. But

because the costs of what

it covers have been rising,

your premiums have ,

been rising, too. ‘Z

Insurance, after all, is =

simply a means of spreading nsk.

Insurance companies collect

premiums from many people and

compensate the few who

have losses.

The price of insurance must

reflect the costs of paying for

those losses and the expenses of

handling them.

No one likes higher prices

But we're telling it straight.

CRUM.\: FORSTER

THE POLICY MAKERS.

Admunmtrath« Maadqunen Morn Toe nshuip “ew tency OW

+ Th

Lh]

ete

Poor Fem Or RTT

hs y?

- a

,you could

jos

o broke if youre sued

ora broken leg’

Thomas E. Hays, Independent Insurance Agent

Recently there's been a tremendous

increase in the size of settiements awarded to claim-

ants in liability cases.

This means your liability coverage may no

longer be enough to properly cover you

And if you were sued, you might have to pay part of

the setuement yourself

Independent insurance agents and

brokers are insurance professionals who are especially

Qualified to reevaluate your coverage They

represent many insurance companies, not just one. So

they can choose coverages from many insurance

companies and can obecuvely recommend

the coverage that best meets your indindual needs

Also remember. an independent agent isa

man who's running his own business. And dines!

it make sense that he'll do more to make sure you

Unuted Agencies, Inc

Los Angeles Pasadena, Califorrua

get the best coverage? After all, without your business

he's out of business

So speak to an independent insurance

agent or broker in your community and make sure

you have the insurance vou need to keep voursel!

fully protected. It may cost you a litUe more now. Dut

it could save you a lot more later

INDUSTRIAL INDEMNITY

one of the

CRUM.: FORSTER

INSURANCE COMPANIES

THE POLICY MAKERS.

D-13

And the average settlement is 200 percent

larger than it was 5 years ago.

This sue-somebody syndrome

pushed the cost of product liability

insurance t record levels.

All of us help manufacturers and

sellers meet their soaring product liability

insurance costs by paying more for their

Sometimes, a lot more.

So what's to be done?

On the one hand, the public

poor senha iad. ald y ma ml

tection against injury and damage

On the other hard, it is impossible

for manufacturers and «vers to anucipate

every mususe.

Should manufacturers and sellers be

held liable even when products are

misused? Or, should greater resputoibuicy

be placed on consumers to use products

properly, with reasonable care?

Furthermore, manufacturers are

being sued as long as 40 years after

leave their plants. Even when

altered by others and made unsafe.

Should manufacturers continue to be

held liable forever? Or, should ume limits

be established?

are

These are not easy questions.

But we at The Se Paul feel the

public must answer them.

How can you participate in making

these decisions?

Send for our “Enough is Enough”

consumer booklet. It's full of information

on the causes and the pro's and con's of

some ss cures for high insurance

rates. You'll find out how to register your

views where they ll count. Along with

some aps on how you can hold down your

OWN Insurance COSTS.

Then get involved Support the

action you want taken.

Write a letter to your legislators. Be

heard.

Or you can just do nothing and

figure the problem will go away. Of

course, if it doesn’t, better keep your

checkbook handy.

Enough is Enough

Write The St. Paul for your

Enough is Enough booklet. Or contact an

Independent Agent or broker repre-

senung The Sc. Paul. He's in this with you

and wants to help You li find him in the

Yellow Pages.

St. Paul Fire and Marine Insurance

Company, 385 Washington Sc,

Saint Paul, MN 55102.

Property & Liatulity

Ss Pow Fe ond Marne ineerema ( ompers We Paw Meroe isseremme | mpers "Se Pie innereeme ( ogame

SH Pew Cuartes imveremme Congees The S Paw insurance (Company of lion Property end Latin) 4) are The Pew ( om penen im let Pee MW neem D902

23648 Eo BT? &integ in USA

You really think

it’s the insurance

company that’s

paying for all

those jarge jury

“Sue thy Neighbor” is fast

becoming one of America’s favorite

pastimes. But who really foots the bill on

the “big pot” some lucky claumant

wins? We ull do.

Insurance is basally a systern for

sharing tisk among many.

Al of ws dup in wo dunce

money available when somebody gets hit

with a loss. Rates are based on

expected claums.

Most daums have a reasonable basis

and are settled fairly. But many people

feel that an increasing number of jury

awards are excessive. When awards are out

of line, everyone pays more. In the

form of higher insurance rates.

Frankly, unless something is done,

this could go on forever. As long as

you're willing to pay these higher costs,

insurance comparues can pay out bigger

and bigger awards

But we at The Sc. Paul teel the

trend toward excessive jury awards has

pushed insurance premiums to levels

that are tov

Whar can you do if you've had

Send for our “Enough is Enough”

consumer booklet. It's full of informa-

tion on the causes and the pro's and con's of

some possible cures for high insur-

ance rates. You'll find out how to register

your views where they ll count. Along with

some tips on how you can hold down

your OWN insurance costs.

Then get involved Support the

action you want taken.

Write a letter to your legislators.

Be heard

Or you aan > —o

figure the problem will go away

course if it doesn’t, better keep your check-

book handy.

Enough is Enough

. Write The Sc. Paul tbo

nough ts Enough booklet. Or contact an

Independent Agent or broker repre-

senting The Sc Paul He's in this with

you and wants w help. You'll find hum in

the Yellow Pages.

Sc Paul Fire and Marine tnsurane

Company, 385 Washington Sc, Saint Paul,

MN 55102.

aeeyelanity

SS. Pout Fie ond Marne insurance Comeney Pre “rorwry lecerener (Company "he Si Pret /teerenae ( omeers

‘SM Peet Gaartue insuremee Compnes The & Pew insurance Company of lines Progeny emt (ateery A)ague ot The ie Peat ( ompenes ime Saort Peat Menaemoe 19/0!

29049 Ce. 4-77 Printed in USA.

“When anything

goes wrong

for me...

somebody is

going to pay!”

“They owe me!”

D-17

So who is this “ somebody?”

It's “somebody” with plenty

of money, an unending ability to pay.

This “somebody” has the

responsibility to provide an extra

reward to a person for his

musfortune.

And “somebody” makes it

easy for us as jurors (and even the

judges) to overlook just who it is

that’s wrong, and base our decisions

on the assumption that 472)’ injury

or loss (real or imaginary) deserves

payment. And maybe a substantial

bonus as well.

So who is this benevolent

“somedudy?" It's you.

This growing “they-owe-it-

to-me” attitude may be just fine with

you. But if you want it to be

America’s standard, be prepared to

pay the bill In the form of higher

taxes, higher prices for goods and

services. higher medical costs. And,

yes, higher insurance rates. So, keep

your checkbook handy.

Because insurance is merely a

means of spreading risk among

many. So,when claums and

Ce a ee

fame Progeny oad | abe 48

26382 Ea 7? Printed in USA

settlements go up, rates can only

do the same.

This complex social issue and

its IMpact on insurance rates cannot

be resolved without an informed

public. Since you are the v!timate

paying party, you most certainly

have the right to be informed.

If that’s your wish, send for

our “Enough is Enough” booklet. It's

full of information on the issue, along

with action steps to help you register

your views where they count.

Enough is Enough.

Write The Sc. Paul for your

“Enough is Enough” booklet. Or

contact an Independent Agent or

broker representing The St. Paul.

He's in this, too, and wants to

help. You'll find him listed in the

Yellow Pages.

St. Paul Fire and Marine

Insurance Company, 385 Washing-

ton St., Saint Paul, MN 55102.

epenyGlabity

Po ee en eos ee ee |

Hinged The ty Pew (mpanen ime haw Mes Mmmm §*

D-18

We tiaimik at's time

ami mot just our rates.

We see a growing set of cir-

cumstances that is heving a poten-

tally disastrous eff=crnot only on

‘the insurance industry but on

every person in Amencan socety

Liability losses 12: both

‘and business arezs have moved

steadily and rapidly upward until

rates have gone beyond the reach

of many a And the cost of

paying ever larger and more

numerous losses results in higher

prices for many of the goods and

services that you buy.

...: Here are some examples of

situations that you pay for

In many parts of the country

the cost of a hospital room (not

including doctors, special nurses

and medicine) is approaching

$200 :

To automobile costs

$19,979 when bought part by

part as your repair shop must do,

according to the Journal of Ameri-

can Insurance.

In some parts of the country.

the burning oO:

epidemic proportions.

In the area of medical mal-

. EXHIBIT H

zutomobiles in order

to collect insurence has reached near-

practice suits, in one stets, ten

times as many million-doler

awards have been made since 1970

as in all the years befoze. (You

may want to go over that ons

again) The growing volume of

such suits is adding more than $3

billion to the nation’s annual cos: .

of health care, according to HEW.

_ During a recent five-year

period the average claim setile-

ment in product liability cases has

increased by 300%. The resultznt

astconomical liability protection

costs have put some manufactur-

ing companies out of business and

threaten still others.

Despite higher premiums,

the insurance industry, last year

alone, had an underwriting loss of

over $4 billion in caswalty-property

lines.

These are only the direct

costs and their effects. The indi-

irect effects hit every one of us, in

‘the form of higher produc: prices

higher costs for healt care, un-

availability of needed goods and

services, in hundreds of ways, in

every sector of our lives.

The next manufactured

D-19

we raised: Gur voice

roduct you buy may cost many

Lars more because the manufac-

turer’s liability protection costs

shot up. Further, these are dollars

that might have gone for engi-

neering improvements that could

bave leagthened its life.

Or your doctor bills.’In

many cases they've ae up

because of rising malpractice pre-

miums. And there are indications

they'll go even higher as doctors

are forced to turr. more and snore

to the practice of “defensive” medi

cine. That is, taking X rays,

ordering diagnostic tests, etc.,

ym dre ws a little

recognize ical need for

Who's at fault? We're all at

fault: How else could it happen?

But that isn’t the point. The

point is, none of us can go on pre-

tending it isn’t happening.

Is it hopeless? We don’t think

$o-In fact, all indications are that

this country is stirring itself

awake. And we intend to con-

tnue to raise our voice on these

Matters. Because the more you

know about the problems, the

more likely we can all work to-

gether toward effective solutions.

Were working with govern-

ment agencies, industry associa-

tions, and private companies to

do what we can to solve these

roblems. But we need your help.

Wed like to know what you think

and how you feel about insurance-