# Petition for Writ of Certiorari — Pacific Mutual Life Insurance v. Haslip

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 1

## Text

Sunreme Court, V26«

\ | |
89-1279, FILED
a i} eg 7 Be

JOSEPH F. SPANIOL, JR,

IN THE GrERK
Supreme Court of the Hnited-Stetes

OcTOBER TERM, 1989

PACIFIC MUTUAL LIFE INSURANCE COMPANY,
Petitioner,
vs.
CLEOPATRA HASLIP, CYNTHIA CRAIG,
ALMA M. CALHOUN and EDDIE HALGROVE,
Respondents.

ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA

PETITION FOR WRIT OF CERTIORARI

Of Counsel: BRUCE A. BECKMAN
VICKI W.W. LAI Counsel of Record
ADAMS DUQUE & HAZELTINE ADAMS DUQUE & HAZELTINE
523 West Sixth Street 523 West Sixth Street
Los Angeles, California 90014 Los Angeles, California 90014
(213) 620-1240 213) 620-1240
OLLIE L. BLAN, Jr. J. MARK HART
BERT S. NETTLES SPAIN, GILLON, GROOMS,
SPAIN, GILLON, GROOMS, BLAN & NETTLES
BLAN & NETTLES. 2117 Second Avenue North
2117 Second Avenue North Birmingham, Alabama 35203

Birmingham, Alabama 35203 (205) 328-4100
(205) 328-4100

Attorneys for Petitioner
Pacific Mutual Life Insurance Company

Lawyers Brief Service / Légal Printers / (213) 383-4457 / (714) 720-1510

oy PP

ie
QUESTIONS PRESENTED

The following questions are presented by the Petition
for Writ of Certiorari:

1. Whether Alabama Law, as applied below, violates
Due Process by allowing the jury to award punitive
damages as a matter of “moral discretion,” without ade-
quate standards as to the amount necessary to punish and
deter and without a necessary relationship to the amount
of actual harm caused.

2. Whether Alabama law violated Pacific Mutual’s
right to Due Process under the Fourteenth Amendment
by allowing punitive damages to be awarded against it
under a respondeat superior theory.

3. Whether the amount of punitive damages in this
case was excessive, in violation of Pacific Mutual’s Due
Process right to be free of grossly excessive, dispropor-
tionate damages awards.

4. Whether the suit below, although nominally civil,
must be considered criminal in nature as to the punitive
damages awarded therein, entitling Pacific Mutual to
protection under the Fifth, Sixth and Fourteenth Amend-
ments to the United States Constitution.

5. Whether Alabama law discriminates against those
defendants subjected to open-ended punitive damages by
limiting the amount of such damages which may be
awarded against other classes of defendants, without
rational basis.

6. Whether the constitutional defects in the award of
punitive damages against Pacific Mutual were cured by
judicial review and the potential for a remittur.

=
RULE 29.1 STATEMENT

Pursuant to Rule 29.1 of the Rules of this Court, peti-
tioner Pacific Mutual Life Insurance Company states that
it is a California mutual insurance company. It has no

parent company, nonwholly owned subsidiary or
affiliate.

- ili -

TABLE OF CONTENTS

Page
es i
yy re ii
TAmee GF AUTHORITIES. .........cccceees Vili
db obs p ects ecceseces 1
ee kes awed cen seccccces l
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED..................0-. l
STATEMENT OF THE CASE
ce eo ccc ce ses cece cccess 2
CME MEMO... ccc cscs es cccees 3
EE ee ee 3
es cee ose skeet e nee ees 3
3. Pacific Mutual’s Appeal............... 4
4. The Decision of the Alabama
TC cos kee ec ecscesccceces 4
5. Pacific Mutual’s Petition for Rehearing .. .4
C. STATEMENT OF FACTS................. 4
1. Respondents’ Prior Coverage........... 4
. Mr. Ruffin’s Solicitation .............. 4
3. Pacific Mutual Did Not Issue Group

as ks tee eee eee 5

- iv -

4. The Separate Applications to Union

Fidelity and Pacific Mutual......... ;

5. Issuance of the Separate Health

CE cc du ck aseuscteues

6. Pacific Mutual’s Agents’ Contract

Forbade Mr. Ruffin’s Conduct .......

7. Cancellation of Union Fidelity’s

Ee eee
Haslip’s Hospitalization............
“PRED Gn ct ke edhe sencceaus

ae SE rarer
A SC 6 seep ek deen cease y as

oo

c. The Punitive Damage Jury

RE ESE cao ne Meee Da
G wees 6 os bs bia ee eee
e. Pacific Mutual’s Appeal ........

f. The Alabama Supreme Court

RN I Pe laa Re UML AL

g. Pacific Mutual’s Petition for

CE eee Tee

REASONS FOR GRANTING THIS PETITION.. .11

I.

ALABAMA LAW, AS HERE APPLIED,
AND PUNITIVE DAMAGES DOCTRINE
GENERALLY, VIOLATES DUE PROC-
ESS BY ALLOWING THE JURY TO
AWARD PUNITIVE DAMAGES AS A
MATTER OF “MORAL DISCRETION,”
WITHOUT ADEQUATE STANDARDS
AS TO THE AMOUNT NECESSARY TO
PUNISH AND DETER AND WITHOUT
A NECESSARY RELATIONSHIP TO
THE AMOUNT OF ACTUAL HARM

GE Ro vc Neweeepeadeebeuneteuees

ae

Il.

Ill.

IV.

ALABAMA LAW VIOLATED PACIFIC
MUTUAL’S RIGHT TO DUE PROCESS
UNDER THE FOURTEENTH AMEND-
MENT, BY ALLOWING PUNITIVE
DAMAGES TO BE AWARDED
AGAINST IT UNDER A RESPONDEAT

SUPERIOR THEORY ..cccccccccccsces

A. Respondeat Superior Is Not a Constitu-
tionally Permissible Basis for the

Imposition of Punitive Damages......

THE AMOUNT OF THE AWARD OF
PUNITIVE DAMAGES IN THIS CASE
WAS EXCESSIVE, IN VIOLATION
OF PACIFIC MUTUAL’S DUE PRO-
CESS RIGHT TO BE FREE OF
GROSSLY EXCESSIVE, DISPROPOR-

TIONATE DAMAGES AWARDS.......

THE SUIT BELOW, ALTHOUGH
NOMINALLY CIVIL, MUST BE CON-
SIDERED CRIMINAL IN NATURE
AS TO THE PUNITIVE DAMAGES
AWARDED THEREIN, ENTITLING
PACIFIC MUTUAL TO PROTECTION
UNDER THE FIFTH, SIXTH AND FOUR-
TEENTH AMENDMENTS TO_ THE

UNITED STATES CONSTITUTION.....

A. The Controlling Test Established by

_ the United States Supreme Court .....

Page

-Vil-

B. In Alabama, Punitive Damages Are
Expressly Imposed for Punishment
and Deterrence and Therefore Meet

the Mendoza-Martinez Test .........

C. The Fact That Punitive Damages Are
Sought in These Cases by Private
Plaintiffs, Rather Than the Govern-
ment. Does Not Prevent the Actions
fr Seing Deemec Criminal in

.\W DISCRIMINATES
- DEFENDANTS SUB-
=\-ENDED PUNITIVE

DAMA LIMITING THE
\MOLNT OF SUCH DAMAGES WHICH
MAY BE AWARDED AGAINST OTHER
CLASSES OF DEFENDANTS, WITH-

OUT RATIONAL, Tes ssc sc cceneces

VI. THE CONSTITUTIONAL DEFECTS IN
THE AWARD OF PUNITIVE DAMAGES
AGAINST PACIFIC MUTUAL IN THIS
CASE WERE NOT CURED BY JUDI-
CIAL REVIEW AND THE POTENTIAL

a Rg PTT TE eee

| _ ER TREE RE CTECCUCETTE ECC CTS

-

Page

- Vil -

LIST OF APPENDICES

APPENDIX A
OPINION, JEFFERSON COUNTY CIR-
CUIT COURT, DATED DECEMBER 11,

PE Gases crises epee hue ihennee cas

APPENDIX B
OPINION, SUPREME COURT OF
ALABAMA, RELEASED SEPTEMBER

SG EE bas bveckbadutus suwdeseuwas -

It is submitted that judicial review does not and cannot cure
the constitutional defects in the punitive damages award in
this case. A procedure for review of a decision made under an
unconstitutional law does not and cannot cure the uncon-
Stitutionality of the law. [See Furman v. Georgia, 408 U.S.
238 (1972); cf. Greenbelt Coop. Publishing Assn. v. Bresler,
398 U.S. 6, 7-11 (1970).]

In Alabama, as in most states, extraordinary deference is
given to the jury’s decision as to punitive damages, and a jury
punitive damage award will only be disturbed if it is, in the
judgment of the reviewing court, so excessive as to show that
it must have been the product of bias, passion, prejudice,
corruption or other improper motive.

This standard of review leaves such a broad field for unfet-
tered jury discretion that it cannot cure underlying defects.

Unlike the appellate review process in criminal matters, in
punitive damages cases the appellate process itself lacks clear
and consistent standards. This fact creates a risk of its own
rather than curing the constitutional deficiencies found at the
trial stage. In 2-D’s Logging, Inc. v. Weyerhauser Co., 632
P.2d 1319 (Or. 1981), the appellate court made note of this
problem, stating at page 1326:

“Punitive damages doctrines have resulted in a
perplexing and contorted mode of judicial review

. which, in reality, is an imprecise pattern of
subjective judicial reactions mixed with some epi-
sodes of deference to jury verdicts.... At least in
cases where there is no specific statutory authoriza-
tion for their award, the imposition of punitive
damages involves a policy or value judgment.”

Because the jury was not instructed to adhere to any as-
certainable standard or to apply any specified set of factors, 1:
is impossible to determine whether the jury properly applied
or ignored any guidelines or set of factors. The award \s
therefore invalid.

- 29 .-

In Greenbelt Coop. Publishing Assn. v. Bresler, 398 U.S. 6
(1970), this Court stated the matter as follows, at page 13:

“For when it is impossible to know, in view of the
general verdict returned whether the jury imposed
liability on an impermissible ground, the judgment
must be reversed and the case remanded.”
[Citations omitted. ]

It is submitted that under the three-part test of procedural
Due Process set forth in Mathews v. Eldridge, 424 U.S. 319
(1976), the provision for remittitur by reviewing trial and
appellate courts does not satisfy the requirements of Due
Process for adequate limits on jury discretion.

The concern expressed by this Court, that there is a lack of
objective standards limiting the jury’s imposition of punish-
ment, and juries are left free to render awards without any
necessary relationship to actual harm, cannot be met by the
generalized, subjective and highly judgmental factors sug-
gested by the Alabama Supreme Court.

CONCLUSION

Punitive damages law, as presently applied, is overwhelm-
ingly lacking in fundamental fairness. The law gives no fair
notice of prohibited conduct because of the vague and largely
contentless criteria upon which the awards are founded. Juries
are sent io deliberate with no meaningful standards to guide
them as to the amount of punitive damages awardable. This
unbridled discretion leads to arbitrary and unpredictable
awards.

Under the jury instructions given in this case, which appear
typical, discussed above, the jury was left free

(i) to give free reign to biases and prejudices and to punish
selectively;

(ii) to allow others “guilty” of equally “reprehensible”
conduct to go unpunished;

= ee

(iii) to punish unpopular and target defendants, and;

(iv) to render awards with no necessary relationship to
actual harm caused.

Judicial review, in the absence of objective limits on jury
discretion, merely transfers discretion to the courts.

The unpredictability of the outcome of any punitive dam-
ages case submitted to a trier of fact has led to actions which
are in terrorem and extortionate in nature.

This situation requires remedy by this Court. It is submit-
ted that Pacific Mutual’s Petition should be granted.

February 7, 1990

Respectfully submitted,

Of Counsel: BRUCE A. BECKMAN
VICK! W.W. LAI Counsel of Record
ADAMS, DUQUE ADAMS, DUQUE & HAZELTINE
& HAZELTINE 523 West Sixth Street

Los Angeles, California 90014
(213) 620-1240

OLLIE L. BLAN, JR. J. MARK HART
BERT S. NETTLES SPAIN, GILLON, GROOMS,
SPAIN, GILLON, GROOMS, BLAN & NETTLES
BLAN & NETTLES 2117 Second Avenue North

Birmingham, Alabama 35203
(205) 328-4100

Attorneys for Petitioner
Pacific Mutual Life Insurance
Company

wih.

IN THE CIRCUIT COUKT OF
JEFFERSON COUNTY, ALABAMA

CLEOPATRA HASLIP, et al
Plaintiffs
VS.
PACIFIC MUTUAL LIFE
INSURANCE COMPANY, et al
Defendants

CV 82-2453

ORDER

The defendants’ motions for judgment notwithstand-
ing the verdicts or in the alternative for a new trial is
denied and the jury’s verdicts in favor of Cleopatra
Haslip, Alma Calhoun, Cynthia Craig, and Eddie
Hargrove, is to stand. Essential to this ruling is an
outline of the relevant facts and parties followed by
discussion of the legal issues raised by the defendants in
their motions.

I. FACTS:

In May, 1981 Roosevelt City seeking additional
health and life insurance for its employees, responded to
a Pacific Mutual advertisement, and contacted Mr.
Lemmie Ruffin, an agent of Pacific Mutual Life Insur-
ance Company. The purpose of this meeting was to have
issued a group health and life insurance policy for
participating employees. Mr. Ruffin presented the city
with a Pacific Mutual business card, utilized Pacific
Mutual brochures and displayed a Pacific Mutual sched-
ule of benefits, (which also had Union Fidelity’s name
typed in.) After the discussions, Ruffin issued a group

A 2.

policy for Roosevelt City, placing life insurance with
Pacific Mutual and health insurance with Union Fidelity.
The apparent reason for placing the health insurance
with Union Fidelity was that Pacific Mutual did not
write group health policies for municipalities. Though
Mr. Ruffin was an emplevee for Pacific Mutual, he had
additional licenses with other insurance companies,
including Union Fidelity. The participating employees
paid their premiums by way of payroll deductions and
the clerk of Roosevelt City wrote a check periodically to
cover the premiums. Mable Poindexter, the Clerk for
Roosevelt City, testified that Ruffin spoke only of
Pacific Mui.al and indicated that Union Fidelity was a
subsidiary of Pacific Mutual. On October Ist, unbe-
knownst to the participating employees, the policies
were cancelled for non-payment of premiums, because
the cancellation notice from both Union Fidelity and
Pacific Mutual were sent to Ruffin who continued to
collect premiums from Roosevelt City. Earlier, Mr.
Ruffin, with the aid of local Pacific Mutual office
manager, Mr. Patrick Lupia, had the cancellation notices
sent to him rather than Roosevet [sic] City. Conse-
quently, neither Roosevelt City nor its employees were
aware that the policies were cancelled and continued to
send premium payments to Mr. Ruffin. Only later, when
Ms. Cleopatra Haslip was hospitalized, was it discovered
that the policies were cancelled.

The individual parties and witnesses are as follows:
A. CLEOPATRA HASLIP

Ms. Haslip first met with Ruffin in August 1981 when
he represented himself as a Pacific Mutual agent.
Throughout their conversation about health insurance,
Ms. Haslip always believed that the insurance poli-;
would be furnished by Pacific Mutual. Beginning

~ * aabtrinatat

3
}

-A 3-

September 1, 1981, Ms. Haslip had her insurance
premiums deducted from her paycheck. These premiums
were deducted monthly and were effective from August
1981 through January 1982. Ms. Haslip only became
aware of her lack of insurance when she entered the
hospital on or about January 24, 1982. After incurring
$2500 in hospital debts and believing she was covered
by Pacific Mutual Insurance Company, she was shocked
to discover that her policy had been cancelled — espe-
cially since she had never asked Ruffin to cancel it.
Although Ms. Haslip had paid premiums from August
1981 to January 1982, in actuality she and the other
plaintiffs only had health insurance coverage for one
month (September 1981) and life insurance for two
months (October and November 1981).

While Ms. Haslip and the other plaintiffs had no
knowledge that their insurance had been cancelled,
Lemmie Ruffin knew of the cancellation, yet he contin-
ued to have the premium payments sent to him. In
September, 1981 Ruffin collected the first month’s
premium check (which was made payable to Union
Fidelity). The plaintiffs were covered their first month;
however, beginning October 1, 1981 the premiums were
made payable to Ruffin who continued to collect the
premiums. These payments were drawn on Roosevelt
City checks and were paid as follows: On August 26 a
check for $430.02 was made payable to Union Fidelity,
then twa checks which were later voided were written
and on September 4 a check was written to Pacific
Mutual in the amount of $149.16. On September 8
another check was made payable to Pacific Mutual for
$71.45. October 20 a check for $105.90 was made
payable to Lemmie Ruffin. On November 6 a check for
$268.68 was made payable to Lemmie Ruffin. Decem-
ber 11 a check for $76.90 was made payable to Lemmie
Ruffin and then again, a check for $268.68 was made

-A 4-

payable to Lemmie Ruffin on January 15. It is important
to note that at all times, Lemmie Ruffin collected the
premiums from Roosevelt City.

B. ALMA CALHOUN

Ms. Calhoun, the Sight Manager for the Elderly
Program for Roosevelt City, also discussed an insurance
program with Ruffin. Ruffin presented Ms. Calhoun with
Pacific Mutual brochures and a Pacific Mutual business
card. Ms. Calhoun filled out one application for a
package deal of health and life insurance, believing this
policy was with Pacific Mutual. She denies knowing
anything about Union Fidelity and did not receive a
lapse notice on her insurance policy. Like Ms. Haslip,
Ms. Calhoun paid her premiums monthly and only
learned oi the cancellation after news of Ms. Haslip’s
cancellation.

C. CYNTHIA CRAIG

Ms. Craig, a teacher’s aide with Roosevelt City, also
paid premiums from August 1981 through January of
1982. Her discussions with Ruffin led her to believe
that her health insurance was covered by Pacific Mutual.
She also was given no lapse notice, nor was Ms. Craig
told that her health insurance had been cancelled.

D. EDDIE HARGROVE

Mr. Hargrove was an employee in the Street Depart-
ment of Roosevelt City. He recalls discussing a “group
plan” insurance coverage with Ruffin, but decided to
purchase only life insurance from Ruffin and Pacific
Mutual. Mr. Hargrove paid premiums for life insurance

j

-A 5-

from September through January of 1982. As is the case
with the other plaintiffs, he received no lapse notice nor
notice of cancellation.

E. MABEL POINDEXTER

Mabel Poindexter is the Clerk for Roosevelt City who
wrote the premium checks to Mr. Ruffin. When, at first,
Ruffin asked her to make the checks payable to Union
Fidelity, she acquiesced upon his assurances that Pacific
Mutual was Union Fidelity’s parent company. Ms.
Poindexter never took out health insurance, nor did she
receive a lapse notice from Pacific Mutual. Ms. Poin-
dexter only learned of the cancellation when Ms. Haslip
contacted her, at which point Mr. Ruffin brought the
claim form to the city, (which turned out to be invalid
numbers). Ms. Poindexter then gave the claim forms to
Ms. Haslip’s daughter who brought them to the hospital.

F. DEBORAH AULT

Deborah Ault worked in a secretarial capacity for
Pacific Mutual, answering phones, receiving mail, typing
for agents and doing personal typing for Mr. Lupia. She
testified that she had seen insurance premium checks
made out to Lemmie Ruffin and she informed Mr. Lupia
of this news. She also recounted teiephone calls from
customers complaining about receiving premium notices
for premiums which they had already paid.

G. RALPH PASSMAN

In his deposition, Ralph Passman stated that his health
insurance policy began September 1 and was terminated
for non-payment of premiums on September 30, 1981,

-A 6-

that his termination notice was sent to Mr. Patrick Lupia,
at Mr. Lupia’s request, and further that another termina-
tion notice was sent to Mr. Lemmie Ruffin. He also
Stated that no other premiums were received for the
health insurance and that the cancellation notices sent to
Mr. Lupia and Mr. Ruffin were the only ones sent out.
In other words, the plaintiffs never received notice of
cancellation.

H. FRANK JOHNSON

Mr. Frank Johnson is a training director of Debit Life
Insurance Company, Protective Industrial Insurance
Company. Investigating a problem for a client’s mother,
Lennie B. Spencer, he discover [sic] that Mrs. Spencer
had been paying on a life insurance policy that did not
exist. Payments were made in the fall and winter of
1981 and 1982 and her agent was Lemmie Ruffin.

I. LIONEL WILLIAMS

Mr. Williams, a grocery store owner was also looking
for group health insurance for his employees and spoke
with Mr. Ruffin, as well. Mr. Williams testified that he
also was paying for insurance that he later discovered
did not exist. He recalled speaking with Mr. Lupia,
calling the main office of Pacific Mutual in California,
and then being referred locally. He was never satisfied
with his insurance, never had the medical bills paid, and
as a result, he lost an employee.

ye &
II. LEGAL ISSUES

A. CAN A PRINCIPAL BE HELD
LIABLE UNDER RESPONDEAT
SUPERIOR FOR FRAUD OF AN
AGENT?

The Supreme Court of Alabama has repeatedly stated
that a corporation is liable for the torts of its employees,
both agent and servant, based upon the principal of
Respondeat Superior, not the doctrine of agency. “The
actual question to be determined is whether the act
complained of was done either by agent or servant while
acting within the course and scope of his employment;
the corporation or principal may be liable in tort for the
acts of its servants or agents done within the scope of
employment, real or apparent, even though it did not
authorize or ratify such acts or even expressly forbade
them.” Autrey v. Blue Cross and Blue Shield of Alabama
481 So.2d 345 (Ala. 1985), National States Insurance
Company v. Jones, 393 So.2d 1361, 1367 (Alabama
1980) (Quoting from Old Southern Life Insurance
Company v. McConnell, 52 Ala. App. 296, So.2d 183,
186 (1974). The courts have further held the principal
liable for his agent’s fraud committed within the actual
Or apparent scope of his employment, even where the
fraud was committed strictly for the agent’s own benefit
and to the principal’s detriment. Henderson v. Croom,
403 F.Supp. 668 (1975). As stated in National States
Insurance Company v. Jones, 393 So.2d 1361, (Ala.
1980), “while the soliciting agent commits fraud, the
insurer’s liability is vicarious and the principal is liable
in spite of the fact that he did not participate in the fraud
or even forbade it.” National States Insurance Company
v. Jones, 393 So.2d 1381 (Ala. 1980). Gulf Electric v.
Fried, 218 Ala. 684, 119 So. 685.

-A 8-

As the above cases illustrate, the bulk of Alabama’s
law holds that a principal may be held liable in Respon-
deat Superior for the fraud of its agents. The issue as to
whether, Ruffin was an agent for Pacific Mutual was
properly given to the jury to decide, as was the abandon-
ment of agency issue. (See discussion below.)

B. ABANDONMENT OF AGENCY

Pacific Mutual based its defense on an abandonment
of agency theory. The defense argued that Lemmie
Ruffin acted on behalf of other principals at the time he
committed fraud, thereby abandoning his agency rela-
tionship with Pacific Mutual. The defense cited Hearing
Systems, Inc. v. Chandler, 512 So.2d 84, (Ala. 1987), a
hearing aid fraud case where one of the defendants was
affiliated with Montgomery Hearing Health Services
(MHHS), but was retained as a consultant for hearing
systems (HS). In reversing a verdict of fraud, the Court
held that defendant acted strictly as a consultant for HS
and made no representations on behaif of MHHS.
Further, the defendant did not receive any proceeds of
the sale to plaintiff. Hearing Ststems, [sic] Inc. v.
Chandler, 512 So.2d at 88. This case differs from the
case at bar, however, and such a verdict reversal is not
warranted here.

As stated in Brown v. Commercial Dispatch Publish-
ing Co., 504 So.2d 245 (Ala. 1987), “whether one is an
agent of another is ordinarily a question to be decided by
jury.” Also see American Pioneer Life Insurance Com-
pany v. Sandlan, 470 So.2d 657 (Alabama 1985). The
Court further charged the jury regarding abondonment
[sic] of agency. The Court clearly stated that “if, in fact,
he had abandoned that relationship, the agency principal,
the agent’s relationship between Pacific Mutual and
himself and it was reasonably apparent to everyone that

-A 9-

he was acting on behalf of another, that Pacific Mutual
cannot be held responsible for his acts committed as an
agent or within the line and scope of employment of
someone else, another insurance agency.” Trial excerpts
18-20. Having heard these instructions, the jury decided
that Lemmie Ruffin had not abandoned his agency
relationship with Pacific Mutual. The decision was not
erroneous considering the evidence before them. The
evidence showed that the plaintiffs believed that they
were dealing with Pacific Mutual. For example, Mr.
Ruffin presented the city with Pacific Mutual business
cards, distributed Pacific Mutual brochures and schedule
of benefits, and spoke as a Pacific Mutual representative.
Mrs. Haslip was always under the impression that she
was covered by Pacific Mutual, as were Alma Calhoun,
Cynthia Craig, and Eddie Hargrove. Unlike the defen-
dant in Hearing Systems, Inc. v. Chandler, Ruffin made
a definite representations [sic] that he was an agent with
Pacific Mutual.

C. FRAUD OF FUTURE ACTS

In its motion for JNOV, defendant alleges that there
was an insufficiency of evidence of material mis-
representation of a presently existing fact to each of the
plaintiffs. Where fraud is based upon a promise to
perform in the future, two elements in addition to the
fraud requirement, must be met: the defendant must
have had no intention of doing the promised act when he
made the alleged misrepresentation and he must have
had an intent to deceive. Coastal Concrete Co., Inc. v.
Patterson, 503 So.2d 824 (Ala. 1987). In the case at bar,
however, the misrepresentation is of an existing fact.
When an agent accepts the premium from a client, he is
in essence telling the client that there is a presently
existing policy. Thus, the agent is representing an

e -A 10-

existing fact, not a future act. Courts have held that
“payment of a premium is necess.u:, as a condition
precedent to an enforceable contract of insurance.
Johnson v. Dairyland Ins. Co., Ala. Civ. App. 398 So.2d
317, Queen Insurance Co. of America v. Bethell Church,
27 Ala. App. 443, 174, So. 638, cert denied, 234 Ala.
184, 174 So. 640 (1937). The premiums in this case
were in fact paid out of the employee’s paychecks and
were not merely promises to pay. By accepting these
premiums, the agent conveyed to the parties that their
policies were both present and existing.

Even if this were to involve future acts, the evidence
presented would prove that the agent had no intention of
fulfilling his promises and that he intended this decep-
tion. By accepting premiums on a policy which, un-
beknownst to the plaintiffs had been cancelled, the agent
exhibited his intentions not to perform his promises.

D. ADMISSIBLE STATEMENTS OF
WITNESSES

Deborah Ault was employed by Pacific Mutual in a
secretarial capacity, her duties composed of answering
the phone, receiving mail, typing for agents and Mr.
Lupia and doing proposals. Evidence of her phone
conversations with Ruffin’s clients was admitted at trial
and defendants contend this was inadmissible evidence
of prejudicial effect. This evidence was admissible,
however, not to prove truthfulness of the matter but to
prove Pacific Mutual’s notice »f the problem. Gamble,
McElroy’s Alabama Evidence §273.02 (3rd Edition
1977), states that: if it is material to prove that a person
at a specified time had been put on notice about a matter,
or entertained a specified belief, acted in good or bad
faith, had a specified motive to do or not to do an act
with a specified motive ... and which is c fered for the

-A 11-

purpose of showing notice, belief, good or bad faith,
motive or mental derangement is not violative of “the
Hearsay Rule.” Pannsylvania Cas. Co. v. Perdue, 164
Ala. 508. Ms. Ault’s testimony was not admitted to
prove Ruffin or Pacific Mutual’s faults, but rather to
show that Pacific Mutual had received notice of cus-
tomer complaints.

Similarly, the testimony of both Frank Johnson and
Lionel Williams was admissible to show a pattern in
Mr. Ruffin’s actions. On the issue of whether a party
did a fradulent act, proof may be made that such party
committed similar fraudulent acts against other persons
to show fraud, motive, scheme or intent. Gamble,
McElroy’s Alabama Evidence, §70.03 (1) (3rd Edition,
1977).

Both Johnson and Williams testified that each paid
Mr. Ruffin for insurance policies which did not actually
exist. This evidence simply illustrates a pattern of
behavior Mr. Ruffin engaged in. This type of evidence
was also admitted in a similar insurance fraud case. In
American Pioneer Life Ins. Co. v. Sandlin, 470 So.2d
657 (Ala. 1985), the court allowed the testimony of
several witnesses who had been sold plans oy the agent
“to show that representations by an agent as to recovery
of principal and accumulation of interest were false so as
to prove a fraudulent scheme.”

E. ACTUAL MONETARY DAMAGES
ARE NOT NECESSARY IN OR-
DER TO RECOVER PUNITARY
DAMAGES

One can recover punitive damages if the evidence
proves that the misstatements were made with an intent
to deceive or defraud. Best Plant Food Products, Inc. v.
Cagle, 510 So.2d 229 (Ala. 1987), Ex parte Lewis, 416

-A 12-

So.2d 410 (Ala. 1982). Following Curry Motor Co., Inc.
v. Hasty, 505 So.2d 347 (Ala. 1987), “punitive damages
may be recovered in fraud action if fraudulent mis-
representation was malicious, oppressive or gross or
made with knowledge of its falseness or so recklessly
made as to amount to the same thing or is made with
purpose of injuring plaintiff.” Curry Motor Co. Inc. v.
Hasty, 505 So.2d at 351; Code 1975, §6-5-101. The
evidence presented in the present trial indeed established
that Ruffin knowingly and intentionally committed fraud
by collecting insurance premiums on cancelled policies
and keeping the premiums for himself. Ruffin intention-
ally deceived not only Cleopatra Haslip, but also
deceived Alma Calhoun, Cynthia Craig and Eddie
Hargrove. All of the aforementioned names had pre-
miums deducted from their payroll for five months and
only received coverage for one month — the fraud
intentionally committed by Ruffin. This element of
intent is an important element which entitles the plain-
tiffs to punitive damages.

Punitive awards are also allowable even where only
nominal damages are incurred in fraud cases. However,
courts stress the intentional nature of the fraud and have
allowed large punitive damage awards where there was
evidence of “intentional, gross and oppressive” fraud.
American Pioneer Life Ins. Co. v. Sandlin, 470 So.2d
657 (Ala. 1985) at 669. So long as the verdict was not
SO excessive as to be considered the result of a jury with
“bias, passion, prejudice or some other improper motive,
a very large punitive damage award is not considered
excessive, especially when paired with strong evidence
of ‘ntentional fraud. Aetna life ins. co. [sic] v. Lavoie,
470 So.2d 1060 (Ala. 1985) at 1076.

-A 13-

F. JURY CHARGES

In charging the jury on the issue of fraud, the court
concedes that it erred in not distinguishing between legal
intent (a negligence standard where punitive damages
are not recoverable) and fraudulent intent (knows it is
untrue when he makes the representation.) It has been a
practice of the undersigned to instruct the jury without
notes in a conversational manner, rather than reading
verbatim from approved charges. Perhaps the phrase
“should have known” inadvertently crept into the oral
charge because of this practice, for the undersigned is at
a loss to understand why the phrase was included.
Although the “should have known” language should not
have been included, it is unlikely that this misleading
language materially confused the jury. Taken together
with the evidence, it is the opinion of this court, that the
misphrased jury instruction was not of sufficient scale to
substantially harm the defendant. Rule 61, Alabama
Rules of Civil Procedure, Wilk v. American Medical
Association, 719 F.2d 207 (7th Cir. 1983), Alabama
Farm Bureau Mutual Cas. Ins. Co., Inc. v. Smelley, 295
Ala. 346, 329 So.2d 54 (1976), Maslowski v. Beam, 288
Ala. 254, 259 So.2d 804 (1972).

In light of the above, it is important to stress that
Pacific Mutual did not base its defense of this case on
whether Lemmie Ruffin committed fraud. Rather,
Pacific Mutual focused on an abandonment of agency
theory. Pacific Mutual did not defend Ruffin. In fact,
Ruffin, a named defendant, did not even show up at trial.
Pacific Mutual simply defended its case by attempting to
show that Ruffin had abandoned his agency relationship
with Pacific Mutual. Again, the court stresses Pacific
Mutual did not defend Ruffin on his fraudulent acts.
Further, all evidence pointed to the conclusion that
Ruffin committed fraud, with malice aforethought.

-A 14-

Ruffin had the cancellation notices sent to him from
California, the premiums were still being collected after
its cancellation of its policy and Roosevelt City did no
[sic] know that the policies were cancelled. The conclu-
sion is inescapable that the fraud was intentional, gross,
oppressive and malicious.

In consideration of these facts, the jury was not
erroneous in finding fraud, the elements of which
include: “false representation of a material fact relied
upon by a party who is damaged as a proximate result of
alleged misrepresentation; [and] if fraud is based upon a
promise to perform or abstain from some act in future
... defendant’s intention at time of alleged misrepresen-
tation not to do act promised, coupled with intent to
deceive.” Coastal Concrete Co. v. Patterson, 503 So.2d
824 (Ala. 1987), Smith v. First Bank of Childersburg,
501 So.2d 1228. (Ala. Civ. App. 1987). Further, plain-
tiff may prove defendant’s intent to deceive through
“circumstantial evidence relating to events occurring
after representation was made.” Super Value Stores, Inc.
v. Peterson, 506 So.2d 317 (Ala. 1987).

G. MOTION FOR REMITTITUR

In Hammond v. The City of Gadsden, 493 So.2d 1394,
the Supreme Court made it incumbent upon the trial
judge to spread upon the record his reasons for granting
or refusing a remittitur of jury verdicts. The Court cited
certain factors to be taken into consideration by the trial
court in granting or refusing the remittitur.

As has been stated throughout this Order, it is the
opinion of this Court that the conduct in this case
evidenced intentional malicious, gross, or oppressive
fraud. In addition to the acts of Mr. Ruffin, the testi-
mony draws an inference that Mr. Patrick Lupia, Man-
ager of the local Pacific Mutual office, had notice of past

-A 15-

problems with Mr. Ruffin including, but not limited to,
prior acts of fraud, and that he participated in the deci-
sion to have the cancellation notice sent to the Pacific
Mutual agency rather than to the insured. It goes with-
out saying that it is highly desirable to discourage
others, similarly situated from similar conduct.

Although the award is for a great amount of money, it
is the considered opinion of this Court that it is not
excessive as a matter of law, though this Court would in
all likelihood have rendered a lessor amount; nor is the
verdict based upon bias, passion, corruption, or other
improper motive. The jury seems to fashioned [sic] their
awards in proportion to the damage done each plaintiff;
awarding the most damaged plaintiff, Cleopatra Haslip,
the larger award and the least damaged plaintiff, Eddie
Hargrove, the least award.

The jury was composed of male and female, white and
black and in the opinion of the Court, acted conscien-
tiously throughout the trial.

This Court has heard policy arguments against enrich-
ing a particular plaintiff under the guise of punishing a
defendant from wrongful conduct. It has been suggested
by some that punitive damage awards should not be paid
to the plaintiff as competent compensation. This Court
will leave to others the resolution of this argument, as it
is the present law that punitive damages are payable to
the particular wronged plaintiff. Though this result
might well be different under the recently enacted law,
this Court deems it imperative to follow the law as it
existed when the wrong was committed.

As stated in Hammond, supra: “We begin by recog-
nizing that the right to a trial by jury is a fundamental,
constitutionally guaranteed right, Art. I, § 11, Cost. [sic]
of 1901, and therefore, that a jury verdict may not be set
aside unless the verdict is flawed, thereby losing its
constitutional protection. It is only in those cases that a

-A 16-

trial court, pursuant to A.R.Civ.P. 59(f), and this Court,
pursuant to Code 1975, § 12-22-71, may interfere with a
jury verdict.”

As has previously been stated, this Court is not of the
opinion that the jury verdict is flawed to the point that it
should be disturbed and set aside by this Court.

DONE and ORDERED, this 11 day of December,
1987.

/s/_ Charles R. Crowder
Charles R. Crowder, Circuit Judge

APPENDIX B

= *

RELEASED SEP 15 1989
Clerk, Supreme Court of Alabama

THE STATE OF ALABAMA
JUDICIAL DEPARTMENT
THE SUPREME COURT OF ALABAMA
SPECIAL TERM, 1989

Pacific Mutual Life Insurance Company
87-482 v.
Cleopatra Haslip, et al.
Appeal from Jefferson Circuit Court
(CV-82-2453)

SHORES, JUSTICE.

The defendant, Pacific Mutual Life Insurance Com-
pany (hereinafter “Pacific Mutual”), appeals from
judgments, entered after a jury trial, in favor of the
plaintiffs, Cleopatra Haslip, Cynthia Craig, Alma
Calhoun, and Eddie Hargrove.

All four plaintiffs are employees of Roosevelt City
(hereinafter the “City”), a small incorporated community
in western Jefferson County. As many small communi-
ties do, Roosevelt City allowed its employees to pur-
chase a group health insurance policy through the muni-
cipality. Originally that policy was issued by Blue
Cross-Blue Shield. Some months prior to 1981, how-
ever, Blue Cross cancelled the policy when several City
employees dropped out of the plan, reducing the number
of eligible employees participating in the plan below the
minimum number of participants required by Blue Cross
to maintain a group policy.

Lemmie Ruffin was a soliciting agent for Pacific
Mutual. Ruffin sent a mail solicitation to the City
asking if it was interested in discussing insurance. The
City returned a card indicating that it was.

+. e

Ruffin first met with the mayor of the City, who gave
him permission to solicit business from the City’s
employees. Before apprcaching the employees, Ruffin
sought information about the employees from the city
clerk, Mabel Poindexter. As he was later to do with the
plaintiffs, Ruffin approached Mrs. Poindexter, telling her
that he was “with Pacific Mutual.” He handed her a
Pacific Mutual business card, and he explained that he
had been told that the City employees needed hospital
coverage. Testimony indicates that Ruffin never told
Mrs. Poindexter or the plaintiffs that Pacific Mutual
would not write health insurance.

In truth, while Pacific Mutual would issue individual
life policies, it did not write group health policies for
municipalities. Pacific Mutual did, however, allow its
agents to broker business with other insurance com-
panies, and Ruffin was a licensed agent of Union
Fidelity Life Insurance Company (hereinafter “Union
Fidelity”), which did issue group health insurance
through municipalities. Accordingly, Ruffin submitted a
proposal to the City on a Pacific Mutual letterhead; that
proposal indicated that he would place life insurance
with Pacific Mutual and health insurance with Union
Fidelity. While Union Fidelity and Pacific Mutual are
separate and distinct companies and have no affiliation,
Ruffin, when asked by Mrs. Poindexter, indicated that
Union Fidelity was a subsidiary of Pacific Mutual.

Employees who opted to participate in the insurance
plan paid their premiums by way of payroll deduction.
Periodically, Mrs. Poindexter collected the money
deducted from these employees’ paychecks and wrote
one check each month to cover the insurance premiums.
These checks were sent to, or were picked up by, Ruffin,
who prepared the billing each month on a Pacific Mutual
letterhead. Within a few months of the effective date
of the insurance policies, they were cancelled for

as Te

ncnpayment of premiums. Neither the City nor its
employees were made aware that the policies had lapsed,
because unknown to the City, Mr. Ruffin, with the help
of Pacific Mutual’s Birmingham manager, Patrick Lupia,
had had all correspondence between the insurers and the
City employees funnelled through Lupia’s Birmingham
Pacific Mutual office. In effect, the employees had been
paying Ruffin, but their payments had not been for-
warded to the insurers.

During this time, in January 1982, Cleopatra Haslip, a
participating member of the health insurance plan.
entered a hospital. After incurring $2,500 in hospita
bills and additional medical bills, she learned that her

insurance had been cancelled. The hospital demanded

$600 before it would agree to discharge her, and her
doctor eventually turned her case over to a collection
agency. In time, a deficiency judgment was rendered
against Mrs. Haslip. and, as a result, her credit was
adversely affected.

Mrs. Haslip and other members of the insurance plan
sued Pacific Mutual and Lemmie Ruffin. The case was
submitted to the jury on the plaintiffs’ claim of fraud;
on August 7, 1987, the jury rendered a verdict in favor
of each of the plaintiffs in the following amounts:
Cleopatra Haslip — $1,040,000; Cynthia Craig —
$12,400; Alma Calhoun — $15,290; Eddie Hargrove —
$10,288.

Pacific Mutual timely filed motions for a new trial, or
alternatively, a judgment notwithstanding the verdict.
The motions were denied by the trial court. Pacific
Mutual appeals from the judgment based on the verdict;
Lemmie Ruffin has not appealed.

Pacific Mutual raises eleven issues on appeal. To
facilitate our discussion, we address in the first section
several interrelated issues raised by Pacific Mutual.

oO4 and awards based upon a jury’s “wholly
Standardless discretion to determine the severity of
punishment.”°

In Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986),
a case which was appealed from this Court, the Court
noted that the argument “that the lack of sufficient
Standards governing punitive damages awards in
Alabama violates the Due Process Clause of the
Fourteenth Amendment” raised important issues that “in

> In o, the Court found that the due process issue had not been
suff y raised for the Court to consider it, but the Court did
not: “[WJe have never addressed the precise question presented
here: whether .e process acts as a check on undue jury discretion
to award punitive damages in the absence of any express statutory
limit.... That inquiry must await another day.” __U.S. at__, 109
S.Ct. at 2921. Justice Blackmun stated: “There is some authority in
Our opinions for the view that the Due Process Clause places outer
limits on the size of a civil damages award.” /d.

In Kelco, in a separate concurring opinion in which Justice
Marshall joined, Justice Brennan suggested that the due process
issue could be raised: “I join the Court’s opinion on the understard-
ing that it leaves the door open for a holding that the Due Process
Clause constrains the imposition of punitive damages in civil cases
brought by private parties.” | U.S. at __, 109 S.Ct. at 2923.

. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270-71
(1981).

> Gertz v. Welch, 418 U.S. 323, 350 (1974).

® Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, _, 108 S.Ct.

1645, 1656 (1988) (O’Connor, J., concurring in part and concurring
in the judgment).

-B 16-

an appropriate setting, must be resolved.” 475 U.S. at
837.

While the view I expressed in my dissent in /ndustrial
Chemical & Fiberglass Corp. was not sustained in
Kelco, | take heart that ultimately, when the due process
issue is properly presented to the United States Supreme
Court, that Court will hold that giving a jury a “standard-
less discretion” to award punitive damages in a civil case
violates the due pz:ocess clause of the Fourteenth
Amendment.

While I applaud the procedure this Court has adopted
to review and revise the jury’s decision based on its
“standardless discretion,”’ I cannot believe that pro-
cedure is sufficient to accord to litigants all the due
process protection the Constitution envisions.

Because I believe that the award of punitive damages
in this case violates the defendant’s due process rights
under the Fourteenth Amendment, I must respectfully
dissent as to that portion of the majority’s opinion.

Steagall, J., concurs.

7 Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986);
Harmon v. Motors Ins. Corp., 493 So. 2d 1370 (Ala. 1986); Alabama
Farm Bureau Mut. Cas. Ins. Co. v. Griffin, 493 So. 2d 1379 (Ala.
1986).

5 in various special concurrences and dissents, I have expressed

the view that punitive damzges awarded in wrongful death cases are
in a differe... category from punitive damages awarded in other
cases. See Alabama Power Co. v. Cantrell, 507 So. 2d 1295, 1306
(Ala. 1986), appeal dismissed, _ U.S. __, 108 S.Ct. 2008 (1988);
Industrial Chemical, supra.

The Legislature, in placing a “cap” on the award of punitive
damages in all cases other than wrongful death cases (except, of
course, the $1,000,000 cap in the Medical Liability Act) has
essentially recognized the distinction that I have made and do make.

APPENDIX C

ee

MAILING ADDRESS:

P.O. BOX 157

MO! "TGOMERY, ALABAMA 36101
TELEPHONE: 261-4609

OFFICE OF
CLERK OF THE SUPREME COURT
STATE OF ALABAMA
MONTGOMERY

Re: 87-482

Pacific Mutual Life Insurance Company
Appellant
VS.
Cleopatra Haslip, et al.
Appellee

You are hereby notified that the following indicated
action was taken in the above cause by the Supreme
Court today:

Appeal docketed. Future correspondence
Should refer tache above number.

Court Reporter granted additiona! time to file
reporter's transcript to and including
Clerk/Regist*r granted additional time to file
clerk’s recor. . ecord on appeal to and in-
cludin~

Appell___gra.'ed 7 ade ional days to file
driefs to and inc'uding

Appellant(s) granted 7 additional days to file
reply briefs to and including

Record on Appeal filed

C3.

Appendix Filed
Submitted on Briefs
Petition for Writ of Certiorari denied. No
opinion.
XXXX Application for rehearing overruled. No
opinion written on rehearing.
Permission to file amicus curiae briefs granted

11/9/89
bsa

/s/ Robert G. Esdaie
Robert G. Esdale, Clerk
Supreme Court of Alabama

APPENDIX D

-Dl1-

THE STATE OF ALABAMA
JUDICIAL DEPARTMENT
IN THE SUPREME COURT OF ALABAMA
DECEMBER 6, 1989 .

87-482
Pacific Mutual Life Insurance Company
v.
Cleopatra Haslip, et al.

Jefferson County Circuit Court
CV-82-2453

ORDER

The application for stay of judgment pending petition
for writ of certiorari to the United States Supreme Court
having been filed and duly suSmitted to the Court,

IT IS ORDERED that the application for stay of
judgment pending petition for writ of certiorari to the
United States Supreme Court is denied.

Hornsby, C.J., and Maddox, Jones, Almon, Shores,
Adams, Houston, Steagall, and Kennedy, J.J., concur.

I, Robert G. Esdale, as Clerk of the Supreme Court
of Alabama, do hereby certify that the foregoing is
a full, true and correct copy of the instrument(s)
herewith set out as same appear(s) of record in said
Court.

Witness my hand this 6th day of Dec. 1989.

/s/ Robert G. Esdale

Clerk, Supreme Court of Alabama

APPENDIX E

MEA ho ek eZ

si
SUPREME COURT OF THE UNITED STATES

No. A-452
Pacific Mutual Life Insurance Company,
Applicant,
v.
Cleopatra Haslip, et al.

ORDER

UPON CONSIDERATION of the application for stay and
the response filed thereto,

It IS ORDERE®=D that execution of the judgment of the
Supreme Court of Alabama in the above-entitled matter, case
No. 87-482, filed September 15, 1989, be and the same is
hereby stayed pending referral of the application to the Court

for consideration at the Conference on Friday, January 5S,
1990.

This order is further conditioned upon the supersedeas
bond currently postec with the Circuit Court of Alabama,
Jefferson County, Civil Action No. CV 82 2453, remaining
in effect.

IT IS FURTHER ORDERED that this stay shall continue
pending further order of the Court or of the undersigned.

/s/ Anthony M. Kennedy
Associate Justice of the Supreme
Court of the United States

Dated this 22nd day of December, 1989.

/ true copy JOSEPH F. SPANIOL, JR.
Tests
Clerk of the Supreme Court of the United States
By /s/ Francis J. Corsan
Chief Deputy

-E2- -E3-
SUPREME COURT OF THE UNITED STATES Cou.t of Jefferson County, Alabama, Civil Action
OFFICE OF THE CLERK No. CV 82 2453, remaining in effect.”

WASHINGTON, D. C. 20543
Very truly yours,

JOSE.H F. SPANIOL, JR., Clerk

JOSEPH F. SPANIOL, JR., AREA CODE 202
CLERK OF THE COURT 479-3011

- ae

By /s/ Francis J. Lorson

January 8, 1990 Francis J. Lorson
Chief Deputy Clerk

Mr. Bruce A. Beckman

Adams, Duque & Hazeltine ed |
523 West Sixth Street cc: Bruce J. Ennis
Los Angeles, CA 90014 Clerk, Supreme Court of Alabama

(Your No. 87-482)
Clerk, Circuit Court of Alabama,

RE: Pacific Mutual Life Insurance Company pe rs (Your No. CV 82 2453)
efferson County (Your No. C

v. Cleopatra Haslip, et al.
No. A-452

Dear Mr. Beckman:

The Court today entered the following order in the
abov--entitled case:

“The application for stay presented to Justice
Kennedy and ty him referred to the Court is
granted and it is ordered that execution and enforce-
ment of the judgment of the Supreme Court of
Alabama, case No. 87-482, is stayed pending the
timely filing and disposition of a petition for a writ
of certiorari. J:. wie event the petition for a writ of
certiorari is denied, this order terminates automati-
cally. Should the petition for a writ of certiorari be
granted, this order is to remain in effect pending
the issuance of the mandate of this Court. This
order is further conditioned upon the supersedeas
bond presently posted with the Clerk of the Circuit

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0717%3A02. Public record. Not legal advice.