# Petitioners Reply Brief — Grinnell Mutual Reinsurance Co. v. Empire Fire & Marine Insurance Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1353%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 951

## Text

A
IN THE UNITED STATES n COURTERK

Office Supreme Court, U.S |
FILED

APR 14 1984

LEXANDER L STEVAS

SPRING TERM
CASE NO. 83-1586

GRINNELL MUTUAL REINSURANCE COMPANY,
AN IOWA CORPORATION,

PETITIONER,

vs.

EMPIRE FIRE & MARINE INSURANCE COMPANY,
A NEBRASKA CORPORATION, ET AL,

RESPONDENTS.

ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

— — — — — — — — — — — — — — — — — — — — —
— —— ——p— — — — D — ——— — ———̃ — — M— — —

Lowell A. O'Grady

O'GRADY, MORLEY & MORLEY, LTD.

P. O. Box 239

Grand Forks, ND 58206-0239
(701)772-7266

Attorneys for Petitioner

April 1984

i
TABLE OF CONTENTS
| Pages
Table of Authorities 11
Statement of Cages IL
Argument:

I. THE EIGHTH CIRCUIT'S
DECISION IS IN DIRECT
CONFLICT WITH THIS COURT'S
DECISION OF TRANSAMERICA

FREIGHT SYSTEMS, INC. V- 1 —5
SYSTEMS, INC., 423 U. s.

„ „„ „„ eee eee e eee 2

II. THE EIGHTH CIRCUIT'S
DECISION WITH THE
SUBSTANTIVE LAW OF. ILLINOIS
AND ONE OF ITS OWN PRIOR
DRCI SION. nc Ghar skcetcewess 3

3

111. THE EIGHTY CIRCUIT'S é
DECISION NEGATING THE 3
PETITIONER'S EXCLUSIONARY 4

CLAUSE IS IN DIRECT CONFLICT
WITH ILLINOIS LAW AND IN 3
CONFLICT WITH ERIE V „

. 1
J eri ey. = : 4
— ———— ——
;
- ~~
1

Sir ..... ce tN we weeds ; 5

ii

TABLE OF AUTHORITIES
Pages

United States Supreme Court Cases:

Erie R. Co. v Tompkins, 304

«We Bedees dees Pvecssce 5

Transamerica Freight Lines,

ct 229, 10 L. Ed 2d 169

CCG „„ 2
Other Federal Cases:

Wellmann v Liberty Mutual Ins.

Co., 496 F2d III TST Cir.
AS a 3
State Cases:

Krieder Truck Service, Inc.

St. Paul Fire & Marine Ins.

. * Tr + „
309, 370, NEZd 1058, 1061,
( eee ag bia GeO 4 0 6 6 5
Schedler v Rowl Interstate

Transp. Co., 5
A 3 f on

No. 83-1586

In The
SUPREME COURT OF THE UNITED STATES
Spring Term, 1984

Grinnell Mutual Reinsurance Company, an lowa
Corporation,
Petitioner,

Empire Fire & Marine Insurance Company, a
Nebraska Corporation, et al,

Respondents,
On Writ of Certiorari to the — 2 states 2
. Court of Appeals for the Eight H circuit 5
PETITIONERS REPLY BRIEF
fe

Be .

STATEMENT OF CASE
Respondents’ state that this Petitioner does not
eat eRe Sa etn at hey
language makes its coverage primary and Excelibur's
333 (Respondents’ brief, page 4). This statement i
“not correct. (See Petitioner's brief, page ii, issue II. aa

=i

2 7 +9 end 10). This is an important issue that is otly
snd has bean i depute throughout the na.

a
oe nid
*
. Be
y.

25

12 a | ota Se 8
a. 7 * en or, ae
ae ‘ . 1

5

ARGUMENT FOR ALLOWANCE OF THE WRIT

I.

THE EIGHTH CIRCUIT'S DECISION IS IN DIRECT
CONFLICT WITH THIS COURT'S DECISION OF
TRANSAMERICA FREIGHT SYSTEMS, INC. V BRADA
MILLER FREIGHT SYSTEMS, INC., 423 U.S. 2.

7 3 „ . |

Respondents Riechmann and Excalibur argue the Eighth

Circuit's Decision that a public carrier's statutory duty to

the public, under ICC regulations, is secondary to a
primary duty that can be superimposed by the law of a
state is correct. By implication they argue the Eighth
Circuit was correct when it used Illinois common law to find |
that driver Culver was the employee of Hamel, the owner, _
and Hamel were primarily responsible to the public, not
Riechmann, the common carrier and lessee of the transport
driver Culver was operating. (See Respondents' brief at 6
and the Eighth Circuit's Decision 722 F2d 1400, 1405). |
. The Eighth Circuit's Decision is in direct conflict m
this court's decision of Transamerica Freight Lines, Ine,

3 v. 8. 28. Justice Blackmun in his opinion at pp. 36
dates that while leasing is permitted, the primary ontrol
e the leased transport under ioc regulations is with —

_ Common carrier lessee, not the owner. 777
23 4

i a try 5
3 i 5 4 3 .
* 1 3 N
7 ee
at a i) Se

. ia.

3 It can be readily seen that if the Eighth Circuit's
decision is allowed to stand, it does in effect overrule this
court's Brada Miller decision. It would return the entire 3

interstate trucking industry to the many problems prior to
_ Brada Miller, supra, as outlined by Justice Blackmun at 423

U. 8. 37 of his opinion. Indeed, this case assumes national :
importance and the need for a writ can readily be seen. |
, Il.
THE EIGHTH CIRCUIT'S DECISION IS IN DIRECT
CONFLICT WITH THE SUBSTANTIVE LAW OF ILLINOIS
AND ONE OF ITS OWN n DECISIONS.
Respondents Riechmann and Excalibur argue that we
asserted in our petition that the Eighth Circuit's Decision 5
was in conflict with Decisions of other circuits. (See :
Respondents’ brief at page 6). a
Respondents are in error. We argued that the Eighth 4
Circuit's Decision was in conflict with this court's ths 3
Miller decision, supra, and two Illinois cases: yo
Rowley In „
and Krieger Truck Service, Inc. v Augestine, 304 Bese: 7
un em. 1919) and the Bighth Circuit's own prior decision —
ee? +

1

Psy

See is

Cir. 1974). = haere “i 2

2 40 oF n. eT. * ig. ag

4

r

*

—
1
om

In Krieder, supra, the Supreme Court of Illinois held

in compliance with Brada Miller that so long as the ICC
lease was in effect (as was true in our case), it would
follow Schedler, supra, and trovblesome agency and
independent contractor questions need not be determined
and that court held the interstate carrier liable to the
public because the ICC lease was in effect. The Eighth

‘Circuit, in its Decision, entirely either overlooked or
ignored this Decision. The Circuit applied Illinois common

law despite these two Illinois Decisions.

Agein, this case assumes national importance in the
sense that it returns the interstate trucking industry to all
the difficulties that it encountered prior to Brada Miller,

supra.
III.

THE EIGHTH CIRCUIT'S DECISION NEGATING TAB

j
3
;
;
é

*

*

PETITIONER'S EXCLUSIONARY CLAUSE IS IN DIRECT

CONFLICT WITH ILLINOIS LAW AND IN CONFLICT

WITH ERIE V_TOMPE! :

Riechmann and Excelibur argue the Bighth Circuit's

177. f

n is correct and cites two Decisions: « 1971

«ee

Federel District Court and ¢ 1917 |
Court decision.

a

.

*

i ay

| In an almost identical fact question to this case in St. ‘

Paul Fire & Marine Ins. Co. » Frankurt, 69 Ill. 2d 209,
No, NE2d 1058, 1061, 1062, that court held where an ICC ~

lease existed that a rental exclusion very similar to the
exclusion in the Petitioner's policy was valid even though
the transport was empty and driven by the owner on the
owner's business when the accident occurred.

Again, this case is in direct conflict with this court's
Erie R. Co. wv Tompkins, 304 U.S. 64 (1937). If the
Eighth Circuit's Decision is allowed to stand, it will impose —
federal common-law where the law of Illinois should prevail, a
It will create confusion and uncertainty throughout the _

insurance industry.
CONCLUSION
This case is one of national importance because:
First, the Eighth Circuit's Decision is in conflict with

; this court's Transamerica Freight Systems, Inc., supra, on
te basic and vital issue of control over a transport used 3

*
1
commerce ; ~/
+
Second, the Decision is in direct chte with
1

7 * *
D

a 299.

aa nee, | a

Third, the Decision is in direct conflict with the

_ Substantive law of Illinois on the rental exclusion contained

in the petitioner's policy and, hence, violates this court's
Erie R. Co. v Tompkins Decision.

pect fully submitted,
c ;
11 A. O'Gra
212 South 4th Street
P.O. Box 239

Grand Forks, ND 58206
Counsel for Grinnell

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1353%3A4. Public record. Not legal advice.