Opposition Brief — Cathey v. Metropolitan Life Insurance
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: | Supreme Court, U.S
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No. 90-1682 JUN 3° 1991
eeEE——————————
QFFICE OF THE CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
JAMES C. CATHEY and BETTE CATHEY,
~ Petitioners,
METROPOLITAN LIFE INSURANCE COMPANY,
THE Dow CHEMICAL COMPANY, and
MICHAEL H. MADDOLIN,
Respondents,
On Petition for a Writ of Certiorari
to the Supreme Court of Texas
CONSOLIDATED BRIEF IN OPPOSITION
WILLIAM J. TOPPETA
Counsel of Record
DAVID J. LARKIN, JR.
JAMES M. LENAGHAN
One Madison Avenue
New York, New York 10010
(212) 578-3317
Counsel for Respondent
Metropolitan Life Ins. Co.
ACE PICKENS A. J. HARPER IT
Counsel of Record Counsel of Record
BROWN, MARONEY, ROSE, KATHERINE D. HUNT
BARBER & DYE FULBRIGHT & JAWORSKI
1300 One Republic Plaza 1301 McKinney Street
Austin, Texas 78701 Houston, Texas 77010
(512) 472-5456 (713) 651-5151
Counsel for Respondent Counsel for Respondent
Michael H. Maddolin The Dow Chemical Company
SPOT SET
WILSON - Eras Printine Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. Are claims raised in the context of state-court pro-
ceedings that could have been raised in prior federal
proceedings precluded from being reheard?
2. Does the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), pre-empt state
laws providing remedies for alleged improper processing
of a claim for ERISA benefits?
(i)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........n..............cccccsccceseeceeeees i
TABLE OF AUTHORITIES. ......................c.c..c.cc.ccccs0. iv
py ese ls ay ie! |: Eee 2
REASONS THE PETITION SHOULD BE DENIED.. 7
I. BECAUSE THE QUESTION PETITIONERS
RAISE IS BARRED UNDER THE “CLAIM
PRECLUSION” DOCTRINE, PETITIONERS
RAISE NOTHING FOR THIS COURT TO
| Sibel ialeiiahaeigmnbisskobincndeehakabiinbtescseies 7
II. BECAUSE THE JUDGMENT OF THE SU-
PREME COURT OF TEXAS COMPORTS
WITH APPLICABLE DECISIONS OF THIS
COURT, THERE IS NOTHING “SPECIAL”
OR “IMPORTANT” FOR THIS COURT TO
TT thiedblntacseethinintsitsaeseetissndanicanccannnnncons ainevenciaaas 10
alii ialsaiennnnininttiainiaadbsainnsenensententen 21
LIST NAMING ALL PARENT COMPANIES AND
SUBSIDIARIES OF RESPONDENTS METROPOLI-
TAN LIFE INSURANCE COMPANY AND THE
DOW CHEMICAL COMPANY, AS REQUIRED BY
IE TE PE EOI GOP ancascscnscccssccsssccnscnsesnssassen la
(iii)
iv
TABLE OF AUTHORITIES
CASES Page
Anschultz v. Connecticut General Life Insurance
Co., 850 F.2d 1467 (11th Cir. 1988) .................... 14
Cathey v. Dow Chemical Co. Medical Care Pro-
gram, 907 F.2d 554 (5th Cir. 1990), cert. de-
nied, 59 U.S.L.W. 3562, 111 S. Ct. 964, 112 L.
i a i a ciated passim
Cathey v. Metropolitan Life Insurance Co., 805
I TI 1
Commercial Life Insurance Co. v. Superior Court,
47 Cal. 3d 473, 764 P.2d 1059, 253 Cal. Rptr. 682
(1988), cert. denied sub nom., Juliano v. Com-
mercial Life Insurance Co., USS. , 109
S. Ct. 2087, 104 L. Ed. 2d 651 (1989) _.............. 13, 14
Cramer v. Association Life Insurance Co., Inc.,
569 So. 2d 533 (La. 1990), cert. denied, 59 U.S.
L.W. 3652, 111 S. Ct. 1891, 113 L. Ed. 2d 447
(£ | RIRARISED aE OR San Ne tS Recaro Re eae 15, 16
Goodrich v. General Telephone Co., Cal. 3d
, 773 P.2d 450, 259 Cal. Rptr. 64 (1989)...... 14
Goodrich v. General Telephone Co. of Calif., 195
Cal. App. 3d 675, 241 Cal. Rptr. 640 (1987)... 13
Herendeen v. Champion International Corp., 525
ef Bev eI aI rei 8
Ingersoll-Rand Co. v. McClendon, US. ——,
111 S. Ct. 478, 112 L. Ed. 2d 474 (1990) ........... passim
Insurance Board v. Muir, 819 F.2d 408 (3d Cir.
BRIER Da ESD Se ens ue Barre oe aoe 20
Kanne v. Connecticut General Life Insurance Co.,
687 F.2d 489 (9th Cir. 1988), cert. denied,
U.S. ——, 109 S. Ct. 3216, 106 L. Ed. 2d 566
I ae ae aaa eeueetis 14
Kelly v. Sears, Roebuck and Co., 882 F.2d 453
Re SU oT eaeaneniontas 14
In re Life Insurance Co. of N. Am., 857 F.2d 1190
i a Dt ee aceasiconnenas 14
McClendon v. Ingersoll-Rand Co., 779 S.W.2d 69
(1989), rev'd, U.S. , 111 S. Ct. 478,
i: Si al ceenmeees 11
McManus v. Travelers Health Network of Florida,
742 F. Supp. 377 (W.D. Tex. 1990) ................ 14, 15, 18
Vv
TABLE OF AUTHORITIES—Continued
Page
Marrese v. American Academy of Orthopaedic
Surgeons, 470 U.S. 373 (1985) ...........0. 10
Massachusetts Mut. Life Ins. Co. v. Russell, 473
I a 13
Mayfield v. Hartford Ins. Co., 699 F. Supp. 605
(W.D. Tex. 1988), disapproved and withdrawn
sub nom., McManus v. Travelers Health Net-
work of Florida, 742 F. Supp. 382 (W.D. Tex.
UUEITUEE. scesessines iss chesseaitnnenenaventulachicshesintpbchaeeiataaianabelladiteinddadaione 15
Metropolitan Life Insurance Co. v. Massachusetts,
I a a aniieniss 19
Migra v. Warren City School District Board of
Education, 465 U.S. 75 (1984) 20.00... scone 7,8, 10
Moreno v. Marbin Productions, Inc., 296 F.2d 543
I a 8
Pilot Life Insurance Co. v. Dedeaux, 481 U. S. 41
IIIT <<ccisnssd-cneniseisahssscstenarsiedeienkedtiaacabinadahoosnauhaieiaiaiaaniain ainda passim
Ramirez v. Inter-Continental Hotels, 890 F.2d 760
SEIN scassh thoteithnitntanbadashcnibhesibidabanieinascaaashdhe oie lnsamia 11, 14, 16
Union Labor Life Insurance Co. v. Pireno, 548
Rg RE Nee A ll Soest MeN 19, 20
Vail v. Texas Farm Bureau Mutual Insurance Co.,
_ 5 &S p Bf | nen eneenenrenn 18, 19, 20
STATUTES, RULES
Federal
United States Supreme Court
NRE ERE AS Ce oe OS SE IEE — =
RIESE MCE Em Eee SEES - 8
Employee Retirement Income Security Act of 1974
(ERISA) [29 U.S.C. §§ 1001-1464] 200. i
fete Le Tek) |) | SRC ennene oe 11
Ss Se Riis Oh NOD assiccccncenkececcesncanceatnae 11
a aaa 3
§ 502(a), 29 U.S.C. § 1182(a) 0.0... 11, 12, 13, i5
I 11,12
ee Oe es ecascacenanisioncenrtons 10
§ 614(a), 29 U.S.C. § 1144(a) 0. 10
vi
TABLE OF AUTHORITIES—Continued
Page
§ 514(b) (2) (A), 29 U.S.C. § 1144(b) (2) (A)... 4, 11
§ 514(c) (1), 29 U.S.C. § 1144(c) (1) -.............. 10
McCarran-Ferguson Act [5 U.S.C. §§ 1011-1015] .4, 19, 20
State
Tex. Bus. & Com. Code Ann. [Deceptive Trade
STII «10s ssicnensanntennmannaneiassatenanennmenisid 3, 14,18
tee eracladalighintaantniadanesenanglil 8, 19, 20
ES EREREES SRR Neate tawenmer mers an 18
Bs es ID AMER, GIR, TERRE csccscccnecnccecnceeerseceerscntnese 18
I a ahalibansdinatilinbsiiieoen 8
EE Oe ee a SON 8
III TIE cinnsnosnasadsiemenhiivehsacsanbumieinnsninieaannn passim
Con rene en aR a oi 3, 20
asst ways inn atnniehlinidnensaieediaialatiah 8, 20
MISCELLANEOUS
18 C. Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure §§ 4408, 4404, 4406,
SITTIN i: on cacscinmannseieaeeinasestanmiannnaagtinameansht 7-8
Note, Consumer Protection—Breach of Warranty
Merger Doctrine No Defense to Deceptive Trade
Practices Suit for Breach of Express Warranty,
Alvarado v. Bolton, 749 S.W.2d 47, 20 St. Mary’s
I i ell alin eeliaeinidit 18
Note, Jnsurance—Deceptive Trade Practices—Pri-
vate Cause of Action for Unfair Insurance Claim
Settlement Practices Exists Under Texas Decep-
tive Trade Practices Act and Insurance Code, 20
es UD Gs WG UID ccccscecccccescscsscersdinessenns 18
Note, The 104(a)(2) Personal Injury Exclusion
and the Texas Deceptive Trade Practices Act: A
Possibie Exclusion, 41 Baylor L. Rev. 563
arr a cata aia eientaeiahbial 18
IN THE
Suyeoees Curt of the United States
OCTOBER TERM, 1990
No. 90-1682
JAMES C. CATHEY and BETTE CATHEY,
Petitioners,
Vv.
METROPOLITAN LIFE INSURANCE COMPANY,
THE Dow CHEMICAL COMPANY, and
MICHAEL H, MADDOLIN,
Respondents.
On Petition for a Writ of Certiorari
to the Supreme Court of Texas
CONSOLIDATED BRIEF IN OPPOSITION
The respondents, Metropolitan Life Insurance Com-
pany, The Dow Chemical Company, and Michael H. Mad-
dolin, respectfully request that this Court deny the peti-
tion for writ of certiorari, seeking review of the judg-
ment of the Supreme Court of Texas in this case. The
opinion of the Supreme Court of Texas is reported at 805
S.W.2d 387 (1991).
2
STATEMENT OF THE CASE
Petitioner James C. Cathey, a former employee of re-
spondent The Dow Chemical Company (“Dow”) (A. 2),'
and his wife, petitioner Bette Cathey, ask this Court to
grant them relief on a claim for “twenty-four (24) hour
a day nursing” care benefits under Dow’s “Employee
Benefit Plan” (R. 230; A. 2).2 Petitioners’ last request
for identical relief came to an end in February of this
year when this Court denied their petition for review of
the Fifth Circuit’s holding that “the Catheys are not en-
titled to around-the-clock nursing benefits” under the
same Dow Plan here at issue. Cathey v. Dow Chemical
Co. Medical Care Program, 907 F.2d 554, 556 (5th Cir.
1990), cert. denied, 59 U.S.L.W. 3562, 111 S Ct. 964, 112
L Ed. 2d 1051 (1991) (“Cathey-I); see also Petition
for a Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit, No. 90-960, (Dec. 12,
1990) (Petition, Cathey-I”).* Petitioners characterize
Cathey-I as affording them “no effective relief.” Petition
for a writ of Certiorari to the Supreme Court of Texas,
No. 90-1682, at 5, n.1 (April 30, 1991) (Petition,
Cathey-Il’’).
Cathey-I was filed in Texas state court and removed to
federal district court under the civil enforcement provi-
1 All “A.” references are to the Appendix of the Petiiton for a
Writ of Certiorari to the Supreme Court of Texas; all “R.” refer-
ences are to the Record on Appeal before the Supreme Court of
Texas.
2 The Dow Plan is sponsored by Dow (A. 2), with respondent
Metropolitan Life Insurance Company (‘‘MetLife’’) acting as “claims
administrator” (A. 2; R. 230). See also Cathey v. Dow Chemical Co.
Medical Care Program, 907 F.2d 554, 556 (5th Cir. 1990), cert. de-
nied, 59 U.S.L.W. 3562, 111 S. Ct. 964, 112 L. Ed. 2d 1051 (1991).
Mr. Cathey is retired. 907 F.2d at 555. The requested nursing
benefits are for Mrs. Cathey, a dependent beneficiary under the
Dow Plan. Id.
3 Only the plan itself—The Dow Chemical Company Medical Care
Program-—was named as defendant in petitioners’ federal action.
907 F.2d at 554.
3
sions of ERISA, section 502, 29 U.S.C. 1132. See 907
F.2d at 555.‘ By their present action, also commenced in
the state courts of Texas (‘Cathey-I/”), petitioners seek
to obtain relief under section 16 of article 21.21 of the
Texas Insurance Code (“section 16’).
Section 16 provides remedies to private litigants pur-
portedly injured by various “acts or practices” specified
by section 4 of article 21.21 of the Texas Insurance Code,
the regulations of the Texas State Board of Insurance,
and section 17.46 of the Texas Business & Commerce
Code, commonly known as the Texas Deceptive Trade
Practices Act.® See Petition, Cathey-I] at 5, 12. The
Catheys refused a court-ordered opportunity to amend
their Texas petition to “state an ERISA cause of action”
(A. 2; see also A. 32), notwithstanding the fact that they
voluntarily amended their Texas petition twice for reasons
of their own choosing (see R. 230). The Supreme Court of
Texas, citing controiling authority of this Court,* ulti-
mately held that petitioners’ section 16 claim was pre-
empted by ERISA because “[slection 16... provide[s]
recovery that was not included under ERISA” (A. 8).
The Texas Supreme Court therefore affirmed summary
judgment in respondents’ favor (A. 1, 9). It is that
grant of summary judgment, decided by the Supreme
Court of Texas “in a way that [comports] with appli-
cable decisions of this Court,” see Rule 10.1(b), U.S.
Sup. Ct. (1991), that petitioners ask this Court to re-
view for alleged error.
* By commencing their action for nursing benefits under ERISA,
petitioners necessarily conceded that the Dow Plan was an ERISA
plan.
5 Tex. Ins. Code Ann. art. 21.21 §16(a), (b) (Vernon Supp.
1991); see also id. $2(b) (defining “Board’’).
* E.g., Ingersoll-Rand Co. v. McClendon, US. , 111 S. Ct.
478, 112 L. Ed. 2d 474 (1990); Pilot Life Ins. Co. v. Dedeaur, 481
U.S. 41 (1987) (see A. 4, 6, 10-11).
4
By their Petition for a Writ of Certiorari in Cathey-l,
the Catheys asked this Court to consider the following
question:
Can ERISA preempt a state law regulating unfair
insurance practices that was enacted pursuant to the
McCarran-Ferguson Act, notwithstanding the lan-
guage of the “saving clause” in 29 U.S.C. § 1144
(b) (2) (A) that explicitly saves from preemption
“any law of any State which regulates insurance”?
Petition, Cathey-I at ii. Only four months ago, petition-
ers boldly stated, in their Reply to respondent’s opposition
to the Petition in Cathey-I, that “[t]he issue of [ERISA]
preemption is now ripe for consideration.” Petitioners’
Reply Brief, On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit, No.
90-960, 3 (‘“Reply, Cathey-I”) (emphasis added). This
Court denied that Petition, 59 U.S.L.W. at 3562, 111
S. Ct. at 964, 112 L. Ed. 2d at 1051, and should similarly
deny the Petition in the present, related case.
The question raised by the Petition in Cathey-II re-
works only slightly the above-quoted question from
Cathey-I to reflect petitioners’ continuing view that this
Court’s opinion in Pilot Life Ins. Co. v. Dedeaux, 481
U.S. 41 (1987), was too broadly decided:
Is this Court’s decision in Pilot Life Insurance Co.
v. Dedeaux properly read to require preemption of a
state law regulating unfair insurance practices, even
though § 1144(b) (2) (A) of ERISA expressly saves
from preemption “‘any law of any State which regu-
lates insurance”?
Petition, Cathey-I/J at i. Although the question as phrased
in Cathey-I did not explicitly refer to Pilot Life (which
petitioners now dub a “problem,” Petition, Cathey-II at
18), petitioners’ briefs in Cathey-I did. Then as now,
petitioners argued that whether section 16 was pre-
empted by ERISA “turn[ed] on the proper reading of
5
Pilot Life.” Reply, Cathey-I at 3; see also Petition,
Cathey-II at 3. Then as now, petitioners called on this
Court “to reconcile ERISA’s preemption and saving
clauses . . .,” Petition, Cathey-II at 3, by “explain[ing]
how” (as petitioners put it) “the saving clause can be
effectively read out of ERISA in deference to the preemp-
tion clause.” Reply, Cathey-I at 3.
Not only are the questions raised in both Cathey Peti-
tions the same,’ but there is only one set of facts present
—the facts scarcely referenced in the Catheys’ current
Petition. It should be remembered that arguments in both
Petitions relate to the Catheys’ contention that their
claim for 24-hour-a-day nursing care benefits under the
Dow Plan was wrongly denied—a claim the Fifth Circuit
previously laid to rest by rejecting it. 907 F.2d at 561. It
should also be noted that while neither the record in Cathey-
I nor the record in Cathey-II explain why, it was the
Catheys who selected the health benefits under Dow’s so-
called ‘New Plan” of which they continue to complain.*®
Moreover, while the Fifth Circuit held, ni Cathey-I, that
petitioners were “not entitled to around-the-clock nursing
benefits,” it nevertheless also held that they were “mini-
mally entitied to fifty home visits annually,” provided
that conditions for Plan coverage were otherwise met. /d.
It is that holding, in Cathey-I, which the Supreme Court
of Texas, in Cathey-II, acknowledged as affording peti-
7 Petitioners raised additional questions in Cathey-I, not relevant
to the instant Petition. See Petition, Cathey-I at ii.
8 The Fifth Circuit held that the Catheys were bound by “their
selection” of the benefits available under the “New Plan.” 907 F.2d at
560 (emphasis added). The reason for that selection, although not
explicitly stated, may be surmised. As the Fifth Circuit noted in
Cathey-I, the “Old” Dow Plan contained a “total lifetime maximum
of $50,000” on the nursing benefits here at issue, 907 F.2d at 556
(emphasis added), while the New Plan had no specific dollar cap on
nursing benefits other than the comprehensive plan limit of
$1,000,000 (R. 65), “albeit [the Plan does] not [cover] beyond fifty
home visits annually.” 907 F.2d at 561.
6
tioners “partial recovery on their ERISA claim” (A. 2,
n. 1), but which petitioners characterize as affording
them ‘‘no effective relief.” Petition, Cathey-IJ at 5, n.1.
The Cathey-II Texas petition sought to obtain what peti-
tioners would apparently deem “effective relief.” It de-
manded an award of “actual damages” under Texas state
law in excess of the “just sum of ONE MILLION DOL-
LARS ($1,000,000.00) for the [respondents’] breach of duty
to [petitioners]” (R. 234), plus “treble the amount of ac-
tual damages they may show themselves entitled to as a
matter of law” (R. 234), as well as ‘“‘exemplary damages in
the amount sufficient to punish [respondents] and to deter
others from being tempted to engage in the same or simi-
lar conduct” to that in which respondent purportedly en-
gaged (R. 235). While petitioners now seek to “limit this
appeal [sic] to their claims under the Texas Insurance
Code, article 21.21, § 16,” Petition, Cathey-IJ at 5, the
fact remains that petitioners demanded the forgoing re-
lief in part, as an “[a]lternative[]” to their request for
“payment of past, present and future benefits” under the
Dow Plan (R. 230, 232) (emphasis added).
Petitioners have already obtained relief under the Dow
Plan. 907 F.2d at 561. They simply consider it “ [in] ef-
fective.” Petition, Cathey-II at 5, n.1. That view reveals
the shallowness of petitioners’ arguments. Petitioners do
not call on this Court to balance “the need for prompt
and fair claims settlement procedures against the public
interest in encouraging the formation of employee bene-
fits plans’ which Congress achieved in enacting ERISA.
Pilot Life, 481 U.S. at 54. Rather, petitioners seek to
destroy that balance by grafting onto ERISA’s “exclu-
sive” remedial scheme® a string of statelaw remedies
which ERISA excludes but which petitioners—as opposed
to Congress—apparently deem “effective.”
® Pilot Life, 481 U.S. at 54, 57; Ingersoll-Rand Co. v. McClendon,
U.S. at , 111 S. Ct. at 485, 112 L. Ed. 2d at 487 (1990).
7
REASONS THE PETITION SHOULD BE DENIED
I. BECAUSE THE QUESTION PETITIONERS RAISE
IS BARRED UNDER THE “CLAIM PRECLUSION”
DOCTRINE, PETITIONERS RAISE NOTHING FOR
THIS COURT TO REVIEW.
Rule 10 of this Court permits the discretionary writ of
certiorari to be granted “only when there are special and
important reasons therefor.” (Emphasis added). Because
the present Petition raises no more than the question this
Court previously addressed and answered in Pilot Life
and Ingersoll-Rand Co. v. McClendon and declined to re-
visit in Cathey-I, there is nothing for the Court to recon-
sider which is either ‘‘special” or “important.”
Indeed, for the Court to review the question it previ-
ously declined to revisit in Cathey-I would defeat the doc-
trine of “claim preclusion,” endorsed by this Court in
Migra v. Warren City School District Board of Education,
465 U.S. 75, 77 n.1 (1984). Claim preclusion refers to “the
preclusive effect of a judgment in foreclosing litigation of
matters that should have been raised in an earlier suit.”
Id. As part of the doctrine of “res judicata,” it serves
the goal of leaving parties (and courts) who have worked
their way through facts and legal theories to judgment in
final repose.’°
Claim preclusion is properly enforced when the “gist”
of two actions is the same, or when the evidence required
in a prior proceeding ‘or which would have been required,
had al] claims relevant to the same transaction been
10 As the eminent authority on federal practice and procedure
has put it, doctrines under the umbrella of “res judicata’’—of which
“claim preclusion” is one—focus
on the need to protect a victorious party against oppression by a
wealthy, wishful, or even paranoid adversary. Some opinions
reflect an additional concern with protecting an unsuccessful
party against his own folly in risking a second try.
18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Proce-
dure § 4403 at 14 (1981). In Migra, 465 U.S. at 77 n.1, this Court
8
tested) is the same as in a subsequent proceeding." 18
C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure § 4407, 60-61 (1981); see also Herendeen v.
Champion Int’l Corp., 525 F.2d 130, 133-34 (2d Cir.
1975); Moreno v. Marbin Productions, Inc., 296 F.2d
543, 544 (2d Cir. 1961). It is enforceable by parties to
a second action who are either the same as those to a
prior suit or who “bore such a relationship to the first
suit or to the parties [to it]” that it is proper to preclude
new claims relating to the same transaction from being
litigated, thereby preserving the desired state of repose.
Migra, 465 U.S. at 84; 18 Wright, supra, § 4406 at 45,
47.
There can be no question that the “gist” of Cathey-I
and Cathey-II is the same or that the parties to both ac-
tions “bore such a relationship” to each other that it is
proper for the final judgment in Cathey-I to bar peti-
tioners from continuing to litigate the legal significance
of their invalid claim for 24-hour-a-day nursing care
benefits under the Dow Plan. Both actions alleged the
same entitlement to the same benefits under the same
employee benefit plan. Compare 907 F.2d at 555-56 with
R. 229-31. In both actions, petitioners maintained that
MetLife, acting through one of its agents (respondent
Michael H. Maddolin), wrongly denied their invalid
claim. Compare 907 F.2d at 555-57 with R. 229-31. The
petitioners in both actions are identical, and while the
referred to Wright et al., supra, as “helpful” in gaining a better
understanding of ‘“‘claim preclusion.”
11 A proceeding is “prior,” for purposes of claim preclusion, if a
judgment in that proceeding is rendered “prior” to the entry of
judgment in subsequent or parallel proceedings. Wright et al., supra,
§ 4404 at 23-24. In the present case, because the prior proceeding
arose under federal law, 907 F.2d at 555-56, this Court need not
consider the impact of claim preclusion under Texas law, as the
Court was required to do with regard to the prior Ohio proceedings
at issue in Migra. See 465 U.S. at 85-87.
9
named respondents differ,’* the Plan sued in Cathey-I
only acts through its fiduciaries and their employees—
namely, through Dow, MetLife, and employees such as
respondent Moddolin—a fact which the Fifth Circuit’s
opinion in Cathey-I made abundantly clear by referring,
either expressly or generically, to each respondent to the
present Petition. See 907 F.2d at 555-557. Absolute
privity among the parties to both actions therefore ex-
ists. Moreover, as Pilot Life, Ingersoll-Rand and a multi-
tude of other lawsuits demonstrate, many ERISA benefit
actions are brought against employers, as ERISA-plan
sponsors, or insurance companies, as either claims ad-
ministrators or insurers of the benefits that many plans
provide, rather than against the plan itself. See, e.g.,
Pilot Life, 481 U.S. at 43; Ingersoll-Rand, —— USS. at
, 111 S. Ct. at 481, 112 L. Ed. 2d at 481. In any
event, these petitioners had the opportunity to combine
their present allegations with an ERISA cause of action
(A. 32), they simply chose not to take it (A. 2). Nothing
separates Cathey-I from Cathey-I7 but petitioners’ own
refusal to amend their pleadings, in their attempt to try
the same case before different judicial forums, in the
hope that they would somehow obtain what they deem
“effective relief.”
Finally, and conclusively, it is irrefutable that peti-
tioners could or should have raised their section 16 claim
in the context of Cathey-I, because they did raise it, by
their prior Petition to this Court. Petition, Cathey-I at
ii. Petitioners’ suggestion that it is now time for this
Court “to reexamine and clarify its decision in Pilot
Life,” Petition, Cathey-II at 3, is a subterfuge."* That is
12 The federal action named only the Dow Plan as defendant; the
current state-court action names Dow, MetLife and Michael H.
Maddolin, a MetLife employee responsible for claim processing
under the Dow Plan, as defendants.
18 Petitioners overlook the fact that this Court did reexamine,
clarify, and staunchly adhere to its Pilot Life decision as recently
10
precisely what petitioners argued last time. Reply,
Cathey-I at 1, 3. What petitioners really want is a sec-
ond bite at the apple. They should not get it. There is
nothing in Cathey-IJ that should not or could not have
been addressed in Cathey-I, or vice-versa. Petitioners
may not squeeze under the claim-preclusion bar and
squander precious judicial resources by trying different
legal theories before different judicial bodies, in their
repetitive bid for disparate judicial relief. They are pre-
cluded, by the final judgment in Cathey-J, from further
pursuing their section 16 claim, which this Court previ-
ously declined to consider. See 59 U.S.L.W. at 3562, 111
S. Ct. at 964, 112 L. Ed. 2d at 1051; see also Migra, 465
U.S. at 77 n.1, 84-85; Marrese v. American Academy of
Orthopaedic Surgeons, 470 U.S. 373 (1985).
Il. BECAUSE THE JUDGMENT OF THE SUPREME
COURT OF TEXAS COMPORTS WITH APPLICA-
BLE DECISIONS OF THIS COURT, THERE IS
NOTHING “SPECIAL” OR “IMPORTANT” FOR
THIS COURT TO REVIEW.
ERISA “supersedes any and all State laws" insofar
as they may now or hereafter relate to any employee ben-
efit plan... .,” ERISA § 514(a), 29 U.S.C. § 1144(a)
as December of last year, when it found that ERISA preempts reme-
dies arising under the wrongful discharge laws of the very State
from which the present petitioners hail—Texas. Ingersoll-Rand,
US. at , 111 S. Ct. at 481, 485-86, 112 L. Ed. 2d 481-82,
487-88. Moreover, while the Petition in Cathey-I] makes no mention
of Ingersoll-Rand (except insofar as it is cited by the Texas Supreme
Court in materials contained in the appendix to the Petition), peti-
tioners did cite /ngersoll-Rand in their Reply in Cathey-I, indicating
that petitioners knew this Court had revisited its Pilot Life holding
only five months ago. See Reply, Cathey-I at 2.
14 For purposes of ERISA § 514, 29 U.S.C. § 1144, “ ‘State law’
includes all laws, decisions, rules, regulations, or other State action
having the effect of law, of any State... .” Id. §514(c) (1), 29
U.S.C. § 1144(c) (1).
11
(emphasis added), but saves from pre-emption “any
State law which regulates insurance, banking, or se-
curities.”** ERISA § 514(b) (2) (A), 29 U.S.C. § 1144
(b) (2) (A) (emphasis added). Petitioners concede (as
they must) that their section 16 claim ‘“‘relate[s] to”
Dow’s ERISA plan (see R. 231; see also Cathey, 907
F.2d at 555-56). They argue, however, that section 16
is saved from pre-emption by ERISA’s saving clause. Pe-
tition, Cathey-II at 14-28. According to petitioners, sec-
tion 16 “undeniably” regulates insurance. Petition,
Cathey-II at 17.
Petitioners’ assertion has previously been denied by the
Fifth Circuit, which held that section 16 does not “reg-
ulate insurance” within the meaning of ERISA’s sav-
ing clause. Ramirez v. Inter-Continental Hotels, 890
F.2d 760, 763 (1989). Moreover, this Court, only six
months ago, in holding that ERISA pre-empts the Texas
wrongful-discharge law insofar as it provides “‘a remedy
for the violation of a right expressly guaranteed by § 510
{of ERISA] and exclusively enforced by § 502(a),” unan-
imously reiterated that ERISA’s civil enforcement scheme
is “exclusive.” Ingersoll-Rand, —— U.S. at aan
S. Ct. at 486, 112 L. Ed. 2d at 488."* In reaching that
conclusion, this Court reversed the Supreme Court of
Texas, which had found to the contrary. See McClendon
v. Ingersoll-Rand Co., 779 S.W. 2d 69 (1989). It should,
therefore, come as no surprise that in Cathey-l] three
concurring justices of the Supreme Court of Texas made
15 ERISA defines “employee benefit plan[s]” to include “employee
welfare benefit plan[s].” ERISA § 2(3), 29 U.S.C. § 1002(3) (em-
phasis added). The latter include plans which supply “medical, sur-
gical, or hospital care or benefits.” ERISA §2(1), 29 U.S.C.
§ 1002(1).
16 All Justices joined in Part II-B of the Court’s opinion in
Ingersoll-Rand, which reiterates that ERISA’s civil enforcement
provisions are “exclusive.’”” ——— U.S. at , 111 S. Ct. at 480, 112
L. Ed. 2d at 481; see also 111 S. Ct. at 484-86.
12
special reference to this Court’s decision in Jngersoll-Rand,
calling Ingersoll-Rand (which had just been decided)
and Pilot Life into question (A. 10-11). What is equall
clear is that even the Texas Supreme Court justices who
concurred in Cathey-II “[(r]jecogniz[ed] that IJngersoll-
Rand... and Pilot Life . .. control this case...” (A.
10-11) and required them to ‘find that ERISA pre-empts
section 16 (A. 11).
Pilot Life held that, because the addition of state-
law remedies would destroy the delicate balancing of
interests Congress had achieved when it determined
which remedies should be available in ERISA benefit
actions, state-law remedies relating to claims for bene-
fits under an ERISA plan would be pre-empted. 481
U.S. at 55-57. That point was hammered home and ex-
panded by this Court’s decision in /ngersoll-Rand, which
held that although ERISA does not expressly pre-empt
all state-law remedies, under the doctrine of implied pre-
emption, state “cause[s] of action w[ill] be pre-empted”
if they “conflict[] directly with an ERISA cause of ac-
tion.” —— USS. at , 111 S. Ct. at 484-85, 112 L. Ed.
2d at 486.7 In reaching that conclusion, this Court noted
that it had “examined [section 502(a) of ERISA] at
some length” in Pilot Life, and set forth again, in its en-
tirety, the underpinning rationale it had previously
stated:
“(T]he detailed provisions of § 502(a) set forth
a comprehensive civil enforcement scheme that rep-
resents a careful balancing of the need for prompt
and fair claims settlement procedures against the
public interest in encouraging the formation of em-
ployee benefit plans. The policy choices reflected in
the inclusion of certain remedies and the exclusion
17 A statelaw remedy conflicts with ERISA if it provides a
remedy for rights “expressly guaranteed” by ERISA and exclu-
sively enforced by section 502(a), 29 U.S.C. § 1182(a). U.S. at
, 111 S. Ct. at 486, 112 L. Ed. 2d at 488. The rights at issue
in Ingersoll-Rand arose under section 510 of ERISA, 29 U.S.C.
§ 1140, which guarantees against interference with protected ERISA
rights. Id.
13
of others under the federal scheme would be com-
pletely undermined if ERISA-plan participants and
beneficiaries were free to obtain remedies under
state law that Congress rejected in ERISA. ‘The
six carefully integrated civil enforcement provisions
found in § 502(a) of the statute,as finally enacted
. . . provide strong evidence that Congress did not
intend to authorize other remedies that it simply
forgot to incorporate expressly.’” 418 U.S., at 54
(quoting Massachusetts Mut. Life Ins. Co. v. Rus-
sell, 473 U.S. 134, 146 (1985) ).
Ingersoll-Rand, —— U.S. at , 111 S. Ct. at 485, 112
L. Ed. 2d at 487 (emphasis in original).
The import of ERISA’s implied pre-emption of state-
law remedies has not been lost on any jurisdiction. The
State of California, for example, in finding that ERISA
pre-empted California statutory remedies similar to those
at issue in the present case, noted as early as 1988 that
[W]hile [ERISA’s] saving clause may allow states
to enact statutes that regulate the substantive terms
of insurance policies [citation omitted], the clause
does not allow states to enact statutes that provide
conflicting procedural remedies (see Pilot Life,
supra, 107 S. Ct. at pp. 1555-1558). A contrary rule
would undermine ERISA’s important policy of pro-
moting uniformity in employee benefit-law remedies,
by creating the potential for conflicting standards
of recovery. [Citation omitted. ]
Commercial Life Ins. Co. v. Superior Court, 47 Cal. 3d
473, 484, 764 P.2d 1059, 1066, 253 Cal. Rptr. 682, 689
(Cal. 1988), cert. denied sub nom., Juliano v. Commercial
Life Ins. Co., US. , 109 S. Ct. 2087, 104 L. Ed.
2d 651 (1989) (emphasis in original).’* Indeed, a year
18The “only case decided after Pilot Life’ to which peti-
tioners are able to point as alleged support for their request
that this Court reconsider its Pilot Life holding— Goodrich v.
General Tel. Co. of Calif., 195 Cal. App. 3d 675, 241 Cal. Rptr. 640
(1987)—is an intermediate California decision. That decision was
14
before this Court’s Jngersoll-Rand decision, the Fifth Cir-
cuit had already concluded that section 16 conflicted with,
and therefore was pre-empted by, ERISA’s “exclusive”
remedial scheme, 890 F.2d at 763-64 (citing Pilot Life).
Other jurisdictions have reached similar conclusions. Jn
\ re Life Ins. Co. of N. Am., 857 F.2d 1190 (8th Cir. 1988)
(Missouri statute prohibiting vexatious refusal to pay
insurance claims pre-empted by ERISA); Kanne v. Con-
necticut Gen. Life Ins. Co., 867 F.2d 489 (9th Cir.
1988), cert. denied, USS. , 109 S. Ct. 3216, 106
L. Ed. 2d 566 (1989) (California statute prohibiting un-
fair insurance claims processing pre-empted by ERISA) ;
Kelly v. Sears, Roebuck and Co., 882 F.2d 453 (10th Cir.
1989) (ERISA pre-empts Colorado bad-faith insurance
law); Anschultz v. Connecticut Gen. Life Ins. Co., 850
F.2d 1467 (11th Cir. 1988) (Florida statute providing
private right of action to persons injured by violations
of state’s insurance code pre-empted by ERISA); Mc-
Manus v. Travelers Health Network of Florida, 742 F.
Supp. 377 (W.D. Tex. 1990) (Texas common-law rem-
edies and remedies under the Texas Deceptive Trade
effectively overruled a year later by the definitive ruling of the
Supreme Court of California in Commercial Life, which held that
the same California statute at issue in Goodrich, which provided
remedies for “unfair methods of competition and unfair and decep-
tive acts or practices in the business of insurance,” was pre-empted
by ERISA, as required by this Court’s holding in Pilot Life. 47
Cal. 3d at 483-84, 764 P.2d at 1065-66, 253 Cal. Rptr. at 688-89. In
its discussion of the applicable law in Commercial Life, the Califor-
nia Supreme Court did not even refer to Goodrich, although it did
discuss Kanne, infra, and other decisions consistent with its hold-
ing. See 47 Cal. 3d at 482-83, 764 P.2d at 1064-65, Cal. Rptr. at 687-
88. It subsequently vacated the lower court’s opinfOn in Goodrich and
transferred the matter to the “Court of Appeal, Second Appellate
District, . . . with directions .. . to reconsider in light of Commer-
cial Life ....” Goodrich v. General Tel. Co., 773 P.2d 450, 259 Cal.
Rptr. 64 (1989). Hence, the case law to which petitioners point
ultimately estahlishes the remarkable unanimity of opinion on the
question they raise.
OEE |
15
Practices Act pre-empted by ERISA) ;' Cramer v. As-
sociation Life Ins. Co., Inc., 569 So. 2d 533 (La. 1990),
cert. denied, 59 U.S.L.W. 3652, 111 S. Ct. 1391, 113
L. Ed. 2d 447 (1991) (remedial provisions of Louisiana
Insurance Code pre-empted by ERISA). The State of
Texas, by virtue of its opinion in the present case, now
stands in line with that substantial body of law (A. 7-8,
10-11).
Petitioners nevertheless persist in alleging that some
act of respondents, which allegedly deprived them of 24-
hour-a-day nursing benefits under the Dow Plan (R.
230-31), entitles them to exploit state-law remedies under
section 16, even though the Fifth Circuit previously de-
termined that petitioners have no right to benefits for
around-the-clock nursing care. Cathey-I, 907 F.2d at 561.
Assuming, arguendo, that some act of respondents did
interfere with petitioners’ ERISA rights (and respond-
ents maintain that, pursuant to Cathey-/, no such allega-
tion is sustainable), petitioners are nevertheless barred
from obtaining state law remedies under section 16. The
claim of petitioners for section 16 remedies is, at bottom,
no more than a claim for ERISA benefits, or a claim
based on alleged interference with protected ERISA
rights. The “exclusive” remedy for both claims is section
-§02(a) of ERISA, 29 U.S.C. § 1182(a). Ingersoll-Rand,
—— US. at , 111 S. Ct. at 485, 486, 112 L. Ed. 2d
at 487, 488; Pilot Life, 481 U.S. at 56-57. Petitioners’
19 Petitioners cite to Mayfield v. Hartford Ins. Co., 699 F. Supp.
605 (W.D. Tex. 1988), as an “opinion that . . . correctly recognizes
that article 21.21 [of the Texas Insurance Code] fits within the sav-
ing clause as a law regulating insurance... .” Petition, Cathey-II
at 17. In McManus v. Travelers Health Network of Texas, the
United States District Court for the Western District of Texas,
with respect to its decision in Mayfield, stated as follows: “The
Court hereby disapproves of and withdraws that opinion.” 742
F. Supp. at 382. Petitioners do not acknowledge Mayfield’s with-
drawal.
16
section 16 claim therefore conflicts with ERISA causes of
action and is pre-empted by ERISA, see Ramirez, 890
F.2d at 763-64, a conclusion with which the justices of
the Texas Supreme Court agree (A. 1-3, 10-11). This
Court should accordingly decline petitioners’ invitation to
slide state-law remedies which “relate to” ERISA plans
under a legal microscope once again, as it did three and
a half months ago in Cathey-I, 59 U.S.L.W. at 3562, 111
S. Ct. at 964, 112 L. Ed. 2d at 1051 (with respect to the
same statutory provisions petitioners ask this Court to
reconsider), and as it did two months ago, with respect
to similar remedial provisions arising under the Louisi-
ana Insurance Code. Cramer, 569 So. 2d at 5338, cert. de-
nied, 59 U.S.L.W. at 3652, 111 S. Ct. at 1391, 113 L.
Ed. 2d at 447.° There is nothing to “reexamine and
clarify” with respect to ERISA pre-emption of state-law
remedies for alleged improper handling of ERISA benefit
claims or alleged interference with protected ERISA
rights which has not been amply and precisely disposed
of by this Court’s prior opinions in Pilot Life and Inger-
soll-Rand.
This Court’s controlling holdings with respect to
ERISA’s implied pre-emption of conflicting state-law
remedies are not the only bases under ERISA for denying
the present Petition. The private remedies available to
Texas consumers, which petitioners seek under section 16,
do not, in any event, “regulate insurance” within the
meaning of ERISA’s saving clause. In Pilot Life, this
Court confronted the question of whether a Mississippi
20 The opinion of the Louisiana Supreme Court, which concluded
that remedial provisions of the Louisiana Insurance Code were pre-
empted by ERISA, relied not only on Pilot Life but also on Ramirez,
in which the Fifth Circuit held that section 16 was pre-empted by
ERISA. Cramer, 569 So. 2d at 539.
17
cause of action based on the alleged bad-faith processing
of an insuranceclaim was saved from ERISA pre-
emption. 481 U.S. at 44. This Court found that while
the Mississippi law of “bad faith’ was “identified .. .
with the insurance industry,” id. at 50, its roots were
firmly planted in general principles of tort and contract
law. Jd. at 50. As a result, a “common sense” under-
standing of the phrase “regulates insurance” inescapably
required the conclusion that the broader base of “bad
faith” law in Mississippi could support any breach of
contract claim. Jd. Such comprehensive state laws do not
“regulat[e] insurance” within the meaning of ERISA’s
“saving clause” and are subject to ERISA pre-emption.
Id.
Section 16, like the Mississippi bad-faith law at issue
in Pilot Life, traces its roots to the law of torts and con-
tracts and was enacted by the Texas legislature specifi-
cally to alter or eliminate some defenses that had devel-
oped under the common law, thereby providing what
Texas deemed necessary consumer protections.*' See, e.g.,
21 In their Cathey-I] Petition, petitioners studiously avoid a firm
characterization of what lies at the heart of their section 16 claim,
undoubtedly because it resembles the Mississippi bad-faith claim
pre-empted in Pilot Life. Stray references to “representations”
allegedly made to petitioners, Petition, Cathey-IJ at 4, and to “mis-
representations” vaguely connected with insurance, id. at 12, 18,
however, indicate that “misrepresentation” of some sort is probably
at issue. A close reading of even the aforementioned loose allega-
tions indicates Dow is accused of representing that the Catheys
“were covered” under the employee benefit plan, td. at 4 (emphasis
added), and that MetLife, acting through its agent, then “refused
to continue paying for Bette Cathey’s [24-hour-a-day] nurse, despite
the earlier representations” of Dow. Jd. at 4. Dow’s “representa-
tion” was correct—the Catheys were covered under the Dow Plan.
Cathey-I, 907 F.2d at 555—and petitioners were not entitled to
24-hour-a-day nursing care. 7d. at 561. Petitioners’ arguments are
18
Note, Consumer Protection—Breach of Warranty Merger
Doctrine No Defense. to Deceptive Trade Practices Suit
for Breach of Express Warranty, Alvarado v. Bolton, 749
S.W.2d 47 (Tex. 1988), 20 St. Mary’s L.J. 689, 690-91
(1989); Note, Insurance—Deceptive Trade Practices—
Private Cause of Action for Unfair Insurance Claim Set-
tlement Practices Exists Under Texas Deceptive Trade
Practices Act and Insurance Code, 20 St. Mary’s L.J.
707, 707-09 (1989). Section 16 is simply one piece of an
overall statutory framework which focuses, in part, upon
the insurance industry but was designed to “encompass
virtually everv area of consumer protection” in the State
of Texas. Note, The 104(a)(2) Personal Injury Exclu-
sion and the Texas Deceptive Trade Practices Act: A
Possible Exclusion, 41 Baylor L. Rev. 563, 564 (1989).
It, together with the Texas Deceptive Trade Practices
Act,” were enacted to make clear that “disgruntled
Texas consumers have a powerful weapon in their
hands.” Jd. at 565. That “weapon” includes treble dam-
ages and attorney’s fees. Tex. Ins. Code Ann. art. 21.21
§ 16(b); see also McManus v. Travelers Health Network,
742 F. Supp. at 380-81 (remedy of treble damages un-
der Texas Deceptive Trade Practices Act pre-empted
by ERISA); Vail v. Texas Farm Bureau Mut. Ins. Co.,
754 $.W.2d 129 (Tex. 1988) (insured’s rights of reme-
dial relief under article 21.21 of the Texas Insurance
Code and under the Texas Deceptive Trade Practices Act
are not mutually exclusive; each incorporates the other).
Indeed, even petitioners concede that section 16, on
its face, sweeps into its scope all violations actionable
therefore not only fatally flawed as a matter of law, they are with-
out factual merit.
22 See, e.g., Tex. Bus. & Com. Code Ann. §17.50(a) (Vernon
1987) (indicating the actions consumers may bring to obtain dam-
ages, including actions pursuant to Article 21.21 of the Texas
Insurance Code).
ease ial
19
under section 17.46 of the Texas Deceptive Trade Prac-
tices Act (A. 12), which is aimed at all business entities
within its scope, not only at insurers, as the Supreme
Court of Texas, see Vail, 754 S.W.2d at 135, and the
Fifth Circuit, see Ramirez, 890 F.2d at 763, have recog-
nized (see also A. 8). Common sense dictates that sec-
tion 16 is therefore part of a comprehensive enforcement
scheme designed to redress all unfair or deceptive trade
practices in Texas, and as such is a law of general ap-
plication which cannot be saved from ERISA pre-emption.
Pilot Life, 481 U.S. at 50.
This Court has also adopted the McCarran-Ferguson
Act test as a tocol for determining when a state law
“regulates insurance” within the meaning of ERISA’s
saving clause. Pilot Life, 481 U.S. at 48-49. As the Fifth
Circuit previously found, section 16 fails that test. Ra-
mirez, 890 F.2d at 763-64.
Under the McCarran-Ferguson Act test, three criteria
are evaluated to determine if a particular practice falls
within the “business of insurance” and therefore “regu-
lates insurance” within the meaning of ERISA’s saving
clause. Pilot Life, 481 U.S. at 47, 51; Metropolitan Life
Ins. Co. v. Massachusetts, 471 U.S. 724, 742-43 (1985).
The three criteria are:
“TF lirst, whether the practice has the effect of
transferring or spreading a_ policyholder’s risk;
second, whether the practice is an integral part of
the policy relationship between the insurer and the
insured; and third, whether the practice is limited
to entities within the insurance industry.”
481 U.S. at 48-49 (emphasis in original) (quoting Union
Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129 (1982) ).
Section 16 fails to meet all three criteria. It does not
spread or transfer any risk. Ramirez, 890 F.2d at 763.
Risk spreading occurs when the parties to an insurance
contract enter into it, not when some after-the-fact event
20
occurs, such as the payment or denial of a benefit claim
under a previously-transferred risk or the commencement
of a lawsuit for such a benefit, as in the present case.
See Union Labor Life Ins. Co. v. Pireno, 548 U.S. 119,
130 (1982). Nor is section 16 “integral” to the relation-
ship between any insurer and an insured; rather, “it
declares only that, whatever terms have been agreed upon
in the insurance contract, a breach of that contract” may
in some cases entitle a “person” to treble damages, plus
attorney’s fees. Ramirez, 890 F.2d at 763; see also Pilot
Life, 481 U.S. at 51; Insurance Board v. Muir, 819 F.2d
408;>411-13 (8d Cir. 1987); Tex. Ins. Code Ann. art.
21.21 §16(b) (Vernon Supp. 1991). Finally, section 16
is not limited to entities within the insurance industry.
Petitioners themselves claim a “private” right of action
under the statute (Petition, Cathey-IJ at 12), which
sweeps into its scope unfair and deceptive trade prac-
tices in which virtually any business entity in the State
of Texas may engage. See Vail, 754 S.W.2d at 135; see
also Tex. Ins. Code Ann. art. 21.21 §16(a) (Vernon
Supp. 1991) (incorporating section 17.46 of the Texas
Business & Commerce Code). Because section 16 fails
each requirement of the McCarran-Ferguson Act test, it
does not “‘regulat{e] insurance” within the meaning of
ERISA’s saving clause and is not saved from ERISA
pre-emption. Piot Life, 481 U.S. at 50; Ramirez, 890
F.2d at 763.
21
CONCLUSION
Petitioners are precluded by the final judgment in
Cathey-I from litigating claims that could or should have
been raised in that action. Moreover, the decision of the
Texas Supreme Court, which petitioners ask this Court
to review, comports with the applicable decisions of this
Court. There is nothing “special” or “important”? under
Rule 10 for this Court to consider. The Petition should
therefore be denied.
ACE PICKENS
Counsel of Record
BROWN, MARONEY, ROSE,
BARBER & DYE
1300 One Republic Plaza
Austin, Texas 78701
(512) 472-5456
Counsel for Respondent
Michael H. Maddolin
Dated: New York, New York
June 3, 1991
Respectfully submitted,
WILLIAM J. TOPPETA
Counsel of Record
DAVID J. LARKIN, JR.
JAMES M. LENAGHAN
One Madison Avenue
New York, New York 10010
(212) 578-3317
Counsel for Respondent
Metropolitan Life Ins. Co.
A. J. HARPER II
Counsel of Record
KATHERINE D. HUNT
FULBRIGHT & JAWORSKI
1301 McKinney Street
Houston, Texas 77010
(7138) 651-5151
Counsel for Respondent
The Dow Chemical Company
APPENDIX
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APPENDIX
LIST NAMING ALL PARENT COMPANIES AND
SUBSIDIARIES OF RESPONDENTS
METROPOLITAN LIFE INSURANCE COMPANY
AND THE DOW CHEMICAL COMPANY,
AS REQUIRED BY RULE 29.1 OF THIS COURT
Metropolitan Life Insurance Company
ASSET MANAGEMENT INTERNATIONAL, INC.
ASSOCIATED ADVISORS FUND, INC.
CS FIRST BOSTON GLOBAL FUND MANAGERS
LTD.
DTSS INCORPORATED
EUROPEAN & PACIFIC INVESTMENT
MANAGEMENT
GENESIS SEGUROS GENERALES, SOCIEDAD
ANONIMA DE SEGUROS Y REASEGUROS
KOLON-MET LIFE INSURANCE CO., LTD.
MECCO HOLDING, INC.
MET LIFE INTERNATIONAL REAL ESTATE
EQUITY SHARES, INC.
METLIFE AGRICULTURAL CREDIT CORP.
METLIFE FINANCIAL SERVICES, INC.
METLIFE FUNDING, II, INC.
METLIFE HEALTHCARE NETWORK OF
CALIFORNIA, INC.
METLIFE HEALTHCARE NETWORK OF
NORTHEAST FLORIDA, INC.
METPARK FUNDING, INC.
METROPOLITAN LIFE FOUNDATION
METROPOLITAN MANAGEMENT COMPANY
METROPOLITAN SERIES FUND, INC.
METROPOLITAN STRUCTURES WEST, INC.
MONTREAL INVESTMENT MANAGEMENT
MORGUARD RESOURCES LIMITED
NATIONAL ELECTRONIC INFORMATION
CORPORATION
2a
PARKCOMMUNICATIONS, INC.
QUADREAL CORPORATION
SANTANDER MET, S.A.
SEGUROS GENESIS, S.A.
TORONTO INVESTMENT MANAGEMENT
UR HOLDING COMPANY, INC.
VANBRIT INVESTMENT MANAGEMENT
The Dow Chemical Company
Aardvark Limited
Agron Ine.
Airco Generon Systems LP
Anticorrosivos Industriales Limitada
Arabian Chemical Company Limited
Bear Mountain CoGen, Inc.
Biochimica Del Balento S.p.A.
Brea Canyon CoGen, Inc
BCC CoGen, Ine.
Canary Moving Limited
Carleton Shipping and Leasing Corporation
Carleton Shipping and Leasing Limited
Chalk Cliff CoGen, Inc.
Chimtrade
Compagnie des Services Dowell Schlumberger S.A.
Conklin IPP, Ine.
Corona Energy Corporation
CoGen Admin Services, Inc.
CoGen Kern Bluff, Inc.
CoGen Lime Rock
CoGen Lynchburg, Inc.
CoGen Lyondell, Inc.
CoGen Poso Creek, Inc.
CoGen Power, Inc.
CoGen Terrace Bay, Inc.
Cranley Corporation Limited
Cromarty Petroleum Co. Limited
CC CoGen, Inc.
CEC Prime, Inc.
8a
Dartigue Limited
Destec Energy, Inc.
Destec Engineering, Inc.
Destec Fuel Resources, Inc.
Destec Holdings, Inc.
Destec Operating Company
Destec Ventures, Inc.
Devonshire Underwriters Limited
Dexco Polymers
Donichem Chemical KFT
Double “C” CoGen, Inc.
Dow Chemical Iberica S.A.
Dow Corning (Korea) Ltd.
Dow Corning (Thailand) Ltd.
Dow Corning (UK) Management Ltd.
Dow Corning de Argentina S.A.I.C.
Dow Corning de Colombia, S.A. (Siliconas de
Colombia Limitad a)
Dow Corning de Mexico S.A. de C.V.
Dow Corning de Venezuela S.A.
Dow Corning do Brasil Ltde.
Dow Corning Africa Silicones Inc.
Dow Corning Australia Pty. Ltd.
Dow Corning Canada, Inc.
Dow Corning Construction S.A.
Dow Corning Coordination Center S.A.
Dow Corning Corporation
Dow Corning Enterprises, Inc.
Dow Corning Foreign Sales Corporation, Inc.
Dow Corning Foundation
Dow Corning France S.A.
Dow Corning GmbH
Dow Corning GmbH (Austria)
Dow Corning Hansil Limited
Dow Corning Hong Kong Limited
Dow Corning Iberica S.A.
4a
Dow Corning International Sales Corporation
Dow Corning Investment S.A.
Dow Corning Japan Ltd.
Dow Corning KK
Dow Corning Limited
Dow Corning New Zealand Ltd.
Dow Corning Opthamalmics, Inc.
Dow Corning S.p.A.
Dow Corning S.A.
Dow Corning Silicon Energy Systems, Inc.
Dow Corning STI Limited
Dow Corning STI, Inc.
Dow Corning Taiwan, Inc.
Dow Corning Wright Corporation
Dow Kakoh Kabushiki Kalsha
Dow Mitsubishi Kasel Limited
Dow-United Technologies Composite Products Inc.
Dowell Schlumberger (Asia) Limited
Dowell Schlumberger (Eastern), Inc.
Dowell Schlumberger (Far East), Inc.
Dowell Schlumberger (Middle East), Inc.
Dowell Schlumberger (Western) S.A.
Dowell Schlumberger de Chile Limitada
Dowell Schlumberger de Venezuela, S.A.
Dowell Schlumberger do Brasil Servicos Petroliferos
Ltda.
Dowell Schlumberger Argentina Sociedad Anonima
de Mineria
Dowell Schlumberger Canada Inc.
Dowell Schlumberger China, Inc.
Dowell Schlumberger Corporation
Dowell Schlumberger Inc.
Dowell Schlumberger International, Inc.
Dowell Schlumberger Italia S.A.
Dowell Schlumberger Participation
Dowell Schlumberger Peru, S.A.
Dowell Schlumberger Statistics Limited
DowElanco
5a
DowElanco (Malaysia) Sdn Bhd
DowElanco (NZ) Limited
DowElanco (Singapore) Pte. Ltd.
DowElanco de Colombia S.A.
DowElanco Argentina 8.A.
DowElanco Australia Limited
DowElanco B.V.
DowElanco Canada Inc.
DowElanco Chile S.A,
DowElanco China Ltd.
DowElenco Denmark A/S
DowElanco Export 8.A.
DowElanco GmbH
DowElanco Iberica S.A.
DowElanco Industrial Ltda.
DowElanco International Ltd.
DowElanco Italia S.r.L.
DowElanco Japan Limited
DowElanco Limited
DowElanco Mexicana, S. A. de C. V.
DowElanco Pacific Limited
DowElanco Pflanzenschutzmittel Vertriebsg.m.b.H.
DowElanco S.A.
DowElancoSverige AB
DowElanco Taiwan Ltd.
DowElanco Tarim S.A.
DowElanco Venezuela, C.A.
Drilling Services S.A.
DCU/LB Trust
DH Compounding Company
DS Technical Services, Inc.
Eagle Flying Limited
E! Dorado Terminals Company
Epoxital S.R.L.
Etoxilados del Plata S.A.
Etudes Et Fabrication Dowell Schlumberger
Eurosemences, S.A.
6a
Family Comercio e Industria de Produtos de Limpeza
Ltda.
First Chemical Factoring SpA
Fort Saskatchewan £thylene Storage Corporation
Fort Saskatchewan Ethylene Storage Limited
Partnership
Generon Systems
Generon Systems A.G.
Gruppo Lopetit S.p.A.
Gruppo Lopetit Trading SRL
Gurit Essex AG
H-D Tech. Ince.
Hammer Pharma 8.p.A.
Hartel Diensten B.V.
HEP CoGen, Inc.
Indian Hills Development Corp. of Carroll County
International Chemical and Mining Corporation
International Oilfield Contractors, Inc.
J.C.P. Laboratories Inc.
Joliet Marine Terminal Trust Partnership
Kern Front CoGen, Inc.
Laboratories Pharmaceuticals Biotic Maroc S.A.R.L.
Lakeside Laboratories, Inc.
Louisiana Gasification Technology, Inc.
Lucky Dow Chemical Ltd.
Marion Morrell Dow (Europe) A.G.
Marion Merrell Dow Inc.
Merrell Dow Belgium S.A.
Merrell Dow Espana S.A.
Merrell Dow France et Cie (SNC)
Merrell Dow France S.A.
Merrell Dow Funal K.K.
Merrell Dow Manufacturing Limited
Merrell Dow Pharma GmbH
Merrell Dow Pharmaceuticals (Canada) Inc.
Merrell Dow Pharmaceuticals (N.Z.) Limited
Merrell Dow Pharmaceuticals Australia Pty Ltd.
Merrell Dow Pharmaceuticals Inc.
el
7a
Merrell Dow Pharmaceuticals International Inc.
Merrell Dow Pharmaceuticals K.K
Merrell Dow Pharmaceuticals Limited
Merrell Dow Pharmaceuticals Pacific Limited
Merrell Dow Portuguesa Sociedade Quimica, S.A.
Merrell Puerto Rico, Inc.
N.V. Dow Corning S.A.
Northway CoGen, Inc.
NBW Industria E. Commercio Limitada
NKY Distribution Center Inc.
Oilfield International Equipment and Supplies, Inc.
Oilfield International Equipment and Supplies, Pty. Ltd.
P.T. Pacific Indomas Plastic Indonesia
Pacific Chemical (Pakistan) Ltd (PCPL)
Perennator GmbH
Petroquimica-Dow S.A. (Petrodow)
Promix System
Prosperity IPP, Inc.
Pumptech N.V.
PACLAN FB Haushaltsartikal Vertriebs GmbH
Recon Associates, Inc.
Rio Grande CoGen, Inc.
San Joaquin CoGen, Inc.
Scotdril Offshore Company
Services Conseils Dowell Schlumberger
Services Dowell Schlumberger S.A.
Sierra CoGen, Inc.
Sileover SpA
Siliconas de Chile Limitada
Siliconlas Del Peru S.A.
Siltech Limited
Site Services, Inc.
Societe Chimique Grevis S.A.
Stony Brook CoGen, Inc.
Suministradora de Productos Quimicos, S.A.
SJC CoGen, Inc.
Technical Consultants, Inc.
The Cynara Company
8a
Tower Assurance Company Limited
Ulsan Pacific Chemical Corporation
United AgriSeeds, Inc.
Vorakim Kimya Sanayi Ve Ticaret Anonim Sirketi
Wabiskaw Explorations Ltd.
Wickhen Products of Delaware, Inc.
Wickhen Products Inc.
Wm. H. Muller S.A.—Minerios, Comercio e Navegacao
Zhejiang Pacific Chemical Corporation
i
Be
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.