# Petition for Writ of Certiorari — Mutual Life Insurance of New York v. Knowles

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 948

## Text

0-4 50

No. Supreme Court, U.S.
ti. . =

SEP 17 i938

JOSEPH F. SPANIOL, JR,
In THE CLERK

'
Supreme Court of the United States

OcToBeR TERM, 1986

MUTUAL LIFE INSURANCE COMPANY OF NEW YORK,

Petitioner,

JULIE D. KNOWLES,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

Barrett W. FREEDLANDER,
Nites, Barton & WILMER,
929 North Howard Street,
Baltimore, Maryland 21201,
(301) 539-3240,

Attorneys for Petitioner.

The Daily Record Co., Baltimore, MD 21202 iia

QUESTIONS PRESENTED

As a result of the jury’s answers to two written
interrogatories, the jury returned with a general verdict
for Petitioner. Invoking F.R. Civ. P. 59(e), the trial judge
(federal magistrate) reversed that general verdict favoring
the Petitioner and gave judgment to Kespondent. The
Questions presented are:

1. Whether the Federal magistrate violated the Seventh
Amendment — right to trial by jury in civil cases — by
reversing a jury verdict favoring Petitioner after he
determined (a) that Respondent was surprised by a
particular factual issue and therefore (b) such issue should
not have been submitted to the jury.

2. Whether the Federal Magistrate, in an effort to
correct what he perceived to be error in his jury
instruction, violated the Federal Rules of Civil Procedure
in utilizing Rule 59(e) — Motion to Alter or Amend a
Judgment — to reverse a jury verdict favoring Petitioner.

il

STATEMENT PURSUANT TO SUPREME COURT
RULES 21 AND 28.1
A list of all corporations affiliated with the Petitioner is
found in the Appendix p. 19a infra.

ill

TABLE OF CONTENTS

PAGE
I ST IIEINUMED cc csycacsacnevesercosesnsnsenevannsseonnsssss i
STATEMENT PurRSUANT TO SUPREME Court RULES
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CONSTITUTIONAL AMENDMENT AND FEDERAL
iu sdesssnavcencsenseseneresresessancess
LO re
REASONS FOR GRANTING THE WRIT:
It Is Necessary That This Court Affirm That
A Federal Magistrate Does Not Have Dis-
cretionary Authority To Invoke Rule 59(e)
Either To (1) Reverse A Jury Verdict Or (2)
Deprive A Party Of Its Right To A Jury
Trial Guaranteed By The Seventh Amend-
ment Of The U.S. Constitution ....................
Neen soi din ccrsasetascsdussvsewiverssceesses 13
APPENDIX:
Opinion Of The United States Court Of
Appeals For The Fourth Circuit. April 23,
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Memorandum Opinion Of The United States
Magistrate, February 14, 1985 .............0..... 8a
Corporate Affiliations Of Petitioner ............ 19a

lv

TABLE OF AUTHORITIES
Cases

Aetna Surety Co. v. Yeatts, 122 F.2d 350 (4th
pease iachee kaa one oaaoassakanucianes

Boaz v. Mutual Life Ins. Co. of New York,
146 F.2G S21 (Bt Cir. TGA) oiccccccvcccscecscessesess

Conway v. Chemical Leaman Truck Lines,
Inc., 687 F.2d 108 (5th Cir. 1982) ..........000...

Dimick v. Schiedt, 293 U.S. 474 (1935) o......00...
Dove v. Codesco, 569 F.2d 807 (4th Cir. 1978)

Garrison v. United States, 62 F.2d 41 (4th
Roe nace a ae eae a ee

National Car Rental Systems, Inc. v. Better
Monkey Grip Co., 511 F.2d 724 (5th Cir.
1975) cert. denied, 423 U.S. 894 and 423 U.S.
A UNNE dpanasvetcce taut gaa ceeela heer ees

Slagenhauf v. Holder, 379 U.S. 104 (1964) ........

Slocum v. New York Life Ins. Co., 228 US.
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ee AP BED neds ttissanoneeeinaes
Be RF PO iis eloctuciveieceeiipcssncerssterersenicene
BO rss i seinatnicsnarsncepsaniividenicinbiavaknlnuvnns

PAGE

9, 11

9,10

passim

PAGE

Rules

Federal Rules of Civil Procedure:
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BE i cisscncetuienssskckannnascabantiemncserocemteaciouaneaennsaecahe passim
PY occ is axapcans cota senesusaupavetaneerneaseasmorineunaionaess passim
IRCA ROY ROR Ne INE ane PP PP MN EAE 6

Treatises

J. Moore W. Taggart & J. Wicker Federal
Practice (2d ed. 1985) (cited as Moore’s
Federal Practice):

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Vol. GR TRG billet tickers 12

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Vie, Be FE 8 ikesiensascdvesieen teeing 10

Rak, Ti EE ictiiencnaccrduseeteriecmnaccuectiere )
Wright & Miller, Federal Practice &

Procedure:

Val. BS OeIs (ITE cities

Vos. @ Be (Gt OR) entiicsickoncdw 8

Vol. F1 $2006 1978 GB) eck cticcre 10

No.

IN THE

Supreme Court of the United States

OctToBeR TERM, 1986

MUTUAL LIFE INSURANCE COMPANY OF NEW YORK,

Petitioner,

JULIE D. KNOWLES,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

The Petitioner, Mutual Life Insurance Company of New
York, respectfully prays that a writ of certiorari issue to
review the judgment and opinion of the United States
Court of Appeals for the Fourth Circuit, entered in the
above-entitled proceeding on April 23, 1986. Rehearing
was denied July 14, 1986.

2

OPINIONS BELOW

The per curiam Opinion of the United States Court of
Appeals for the Fourth Circuit is reported at 788 F.2d
1038 and reprinted in the appendix p. la, infra. An
Application of the Petitioner for a Rehearing was denied
by Order, dated July 14, 1986.

The Memorandum decision of the United States District
Court for the District of Maryland (Goetz, Federal
magistrate) dated February 14, 1985, is unreported and
reprinted in the appendix (p. 8a infra).

JURISDICTION
The jurisdiction of this Court to review the judgment of
the Fourth Circuit is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AMENDMENT INVOLVED
AMENDMENT VII
(Trial by Jury in Civil Cases]

In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall
be preserved, and no fact tried by a jury shall be otherwise
reexamined in any Court of the United States, than
according to the rules of the common law.

FEDERAL RULES INVOLVED
Rue 50(b)
Motion for Judgment Notwithstanding the Verdict

Whenever a motion for a directed verdict made at the
cluse of all the evidence is denied or for any reason is not
granted, the court is deemed to have submitted the action
to the jury subject to a later determination of the legal
questions raised by the motion. Not later than 10 days
after entry of the judgment, a party who has moved for a

a

3

directed verdict may move to have judgment entered in
accordance with his motion for a directed verdict; or if a
verdict was not returned such party, within 10 days after
the jury has been discharged, may move for judgment in
accordance with his motion for a directed verdict. A
motion for a new trial may be joined with this motion, or a
new triai may be prayed for in the alternative. If a verdict
was returned the court may allow the judgment to stand
or may reopen the judgment and either order a new trial
or direct the entry of judgment as if the requested verdict
had been directed. If no verdict was returned the court
may direct the entry of judgmeni as if the requested
verdict had been directed or may order a new trial.

Rule 59. New Trials; Amendment of Judgments

(a) Grounds. A new trial may be granted to all or any
of the parties and on all or part of the issues (1) in an
action in which there has been a trial by jury for any of
the reasons for which new trials have heretofore been
granted in actions at law in the courts of the United
States... .

* * * * * *

(e) Motion to Alter or Amend a Judgment. A motion to
alter or amend the judgment shall be served not later than
10 days after entry of the judgment.

STATEMENT OF THE CASE

Respondent, the beneficiary of a $200,000 term life
insurance policy, brought this action to recover the
proceeds of the policy. Jurisdiction was based on Title 28
U.S.C. § 1332. The case was referred to a United States
Magistrate for trial pursuant to 28 U.S.C. § 636(c).

This Petition is grounded upon the trial court’s decision
to invoke F.R. Civ. P. 59(e) to reverse a jury verdict and
thereby deprive Petitioner of its right to a jury trial on one

4

of two crucial factual issues submitted to the jury for a
written finding. That one issue was decided in Petitioner's
favor resulting in a general verdict for Petitioner. After
the verdict, the Magistrate determined that he should not
have submitted that issue to the jury. Upon appeal, the
Fourth Circuit determined that a reversal of a jury verdict
under Rule 59(e) was within the discretion of the trial
judge.

SuBSTANTIVE Facts

On May 28, 1980, one Charles Spell, an insurance policy
applicant, gave the Petitioner’s agent an initial premium
check postdated to June 7, 1980. In return, the agent
delivered a policy which contained standard language
acknowledging receipt of the check. Mr. Spell accepted the
policy and the agent delivered it conditioned upon the
agent obtaining a letter from Petitioner's home office
affirming that Mr. Spell could benefit from conversion
rights (i.e. the right to convert the insurance from term to
life keeping his initial insurance age) if he purchased the
policy. This condition did not occur prior to Mr. Spell’s
death on May 31, 1980. Because of Spell’s death and
insufficiency of funds to pay the premium, the initial
premium due was never paid.

PROCEDURAL Facts

On the day following the conclusion of testimony,
Respondent moved that evidence of Spell’s conditional
acceptance of the policy be stricken from the case. She
claimed that she was “surprised” by Petitioner’s evidence
on that issue because it had not been specifically identified
in answers to interrogatories or in the pre-trial order. The
magistrate denied the motion and submitted the issue of
conditional acceptance to the jury.

5

Two written interrogatories were submitted and a
general verdict was requested pursuant to F.R. Civ. P.
49(h). As completed by the jury, the interrogatories were
as follows:

Date

SPECIAL INTERROGATORIES TO THE JURY

1. Based on the evidence in this case did David
Fleming have apparent authority to deliver the
policy in question in this case to Charles Spe!l on
May 29, 1980 in return for a postdated check?

Yes X No ae

If your answer to Question No. 1 is No, your
inquiry has ended and you must find for the
defendant.

If your answer to Question No. 1 is Yes, then
answer Question No. 2.

\

2. Did Charles Spell place a condition upon his
acceptance of the policy that he receive a letter
from the company authorizing him to convert the
policy to whole life?

Yes _X_ No Rat

If your answer to Question No. 2 is Yes, your
inquiry has ended and you must find for the
defendant.

If your answer to Question No. 1 is Yes and
Question No. 2 is No., then you must find for the
plaintiff.

Based upon the answers to the foregoing interrog-
atories, the jury finds in favor of the Defendant
(insert Plaintiff or Defendant)

January 10, 1985 Patricia McSwain
Forelady

Following the jury verdict for Petitioner, Respondent
filed motions requesting a judgment n.o.v. under Rule
50(b), a new trial under Rule 59, and relief from judgment

6

under Rule 60(b). By memorandum opinion dated Feb-
ruary 14, 1985, the Magistrate converted the Rule 60(b)
motion to a Rule 59e) motion as a device to vacate the
answer to written interrogatory #2, leaving the answer to
written interrogatory #1. The Magistrate then entered a
general verdict for Respondent. No mention was made of
either Rule 59(a), on which Respondent apparently relied
in her post-trial motion, or Rule 50(b).

The basis for the reversal of the jury verdict was that
the Magistrate perceived that Respondent was surprised
by the conditional acceptance defense and thus the factual
issue should not have been submitted to the jury.

Petitioner appealed this decision. The Fourth Circuit
ruled that a trial court has discretion under Rule 59(e) to
reverse a jury verdict.

Because the use of Rule 59(e) to reverse a jury verdict
was improper under its own terms and denied Petitioner
its right to a jury verdict on the conditional acceptance
issue in violation of the Seventh Amendment, Petitioner
requests summary reversal and remand for new trial.

REASONS FOR GRANTING THE WRIT

IT IS NECESSARY THAT THIS COURT AFFIRM THAT A FEDERAL
MAGISTRATE DOES NOT HAVE DISCRETIONARY AUTHORITY TO
INVOKE RULE 59%e) EITHER TO (1) REVERSE A JURY VERDICT OR
(2) DEPRIVE A PARTY OF ITS RIGHT TO A JURY TRIAL GUARAN-
TEED BY THE SEVENTH AMENDMENT OF THE U.S. CONSTITUTION

INTRODUCTION

The Magistrate determined that F.R. Civ. P. 59(e)
empowered him to reverse a jury verdict on a critical issue
of fact. Petitioner introduced substantial evidence at trial
to show that the policy of insurance was conditionally
accepted. That issue was submitted to the jury. After due
consideration, the jury decided the issue and rendered a

7

verdict in favor of the Petitioner. On the insistence of
Respondent that the verdict was in error, the Magistrate
vacated both the jury’s finding on this issue and the
verdict favoring Petitioner. He then rendered judgment in
favor of Respondent. This result constituted a violation of
the Seventh Amendment whose guarantee of a trial by
jury demands a new trial under these circumstances.
Slocum v. New York Life Ins. Co., 228 U.S. 364. 380, 397-8
(1913); National Car Rental Systems, Inc. v. Beiter Monkey
Grip Co., 511 F.2d 724, 730 (5th Cir. 1975), cert. denied,
423 U.S. 894 (1975) and 423 U.S. 986 (1975); Garrison uv.
United States, 62 F.2d 41, 42 (4th Cir. 1932). This result
was also contrary to the meaning and purpose of Rule
59(e).

The Magistrate’s decision and the affirmance by the
Fourth Circuit conflict in principle with established
authority dealing with the subject of the right <o jury trial.

To avoid allowing these constitutional and rule in-
fringements to become precedent, this Court should
re-confirm that only Rule 50(b) provides the mechanism
by which a jury verdict can be reversed. Further, this
Court should re-confirm that if a trial judge chooses to
disregard a verdict of the jury for a reason other than that
which satisfies Rule 50(b), then the trial judge must follow
the authority of Rule 59(a) which grants the litigants a
new trial. In the instant case, Magistrate Goetz dis-
regarded a jury verdict reasoning that it was based upon
improperly admitted “surprise evidence.” Petitioner denies
that Respondent was unfairly surprised by the evidence.
In any event, the only remedy for such occurrence is a new
trial under Rule 59(a).

8
Rute 50(b)

First with respect to Rule 5t** which allows a reversal
of a jury verdict, the standard :s.

“[W]hether the evidence is such that, without
weighing the credibility of witnesses or otherwise
considering the weight of the evidence, there can be
but one conclusion as to the verdict that reasonable
men could have reached.”

9 Wright & Miller, Federal Practice and Procedure § 2524
pp. 545-6 (1971). When this standard is met, the
constitutional right to a jury trial is not impinged upon
because the issue is one of law only. When this standard is
ignored, and the verdict of the jury is reversed, the
province of the jury to decide an issue of fact is invaded in
violation of the Constitution. Garrison v. United States,
supra at 42. Neither the trial court nor the Fourth Circuit
found that the Rule 50(b) standard was met in this case.
The standard could not have been met because, undis-
putedly, there was substantial evidence to support the
verdict.

The effect of the lower courts’ disregard of the Rule 50(b)
standard was to declare that a jury verdict could be
reversed under any standard that the trial judge in his
discretion believes ought to apply. This decision is
unprecedented and departs from the common law. As such,
it abrogates the Seventh Amendment’s right to a jury
trial.

Further, in its capacity as the ultimate interpreter of
the Federal Rules of Civil Procedure, Schlagenhauf v.
Holder, 379 U.S. 104, 112 (1964), this Court should declare
that the Federal Rules did establish in Rule 50(b) the only
two alternatives available to the judge who chooses to
vacate a judgment after the jury returns with its verdict.

F.R. Civ. P. 50(b) states: “If a verdict was returned, the
court may allow the judgment to stand or may reopen the

9

judgment and either order a new trial or direct the entry of
judgment, as if the requested verdict had been directed.”
Rule 50(b) (Emphasis supplied). Thus, only rules 50(b) and
59(a) can be invoked after the jury verdict. This principle
is not changed by the submission to the jury — as in this
case — of written interrogatories with instructions to
render a general! verdict under Rule 49:

When jury trial is of right, it is the verdict of the
jury, whether a general verdict or a verdict under
either of the procedures of Rule 49, that is the
definitive finding of fact, and a motion to set aside
such a verdict, or a part of it, must be a motion for
judgment notwithstanding the verdict or a motion
for new trial, or both, under Rules 50 and 59.

9 Wright & Miller, supra, § 2513 at 532-3.

Rute 59(a)

As indicated, because Magistrate Goetz did not rely on
Rule 50(b) the jury verdict in this case could then be
nullified only by reliance on Rule 59(a). If some irregu-
larity led to the jury verdict, as Magistrate Goetz
perceived, then the sole remedy would be to disregard the
jury’s verdict and allow a retrial.

The basis for this principle lies in the common law. The
Seventh Amendment provides that if the common law
establishes grounds for a new trial, that is the only form of
re-examination permitted today when those same grounds
are found to exist. Citing precedent from the common law,
the Fourth Circuit in the frequently-cited case of Aetna
Surety Co. v. Yeatts, 122 F.2d 350, 354 (4th Cir. 1941)
addressed the sole means available at common law to deal
with the precise issue of a claim of surprise after the
verdict has been rendered. '

‘ During the trial and before a verdict is rendered the proper
remedy in the event of surprise is a continuance. 6A Moore’s
Federal Practice {59.08[2], at 59-96; Conway v. Chemical
Leaman Truck Lines, Inc., 687 F.2d 108, 112 (5th Cir. 1982).
Respondent did not request a continuance.

10

The parties may be surprised by a case falsely
made at the trial, which they had no reason to
expect, and therefore could not come prepared to
answer. If unjust verdicts obtained under these and
a thousand like circumstances, were to be con-
clusive for ever, the determination of civil property,
in this method of trial, would be very precarious
and unsatisfactory. It is absolutely necessary to
justice, that there should, upon many occasions, be
opportunities of reconsidering the cause by a new
trial.

Id. at 354 (Emphasis in original). Accord, Conway v.
Chemical Leaman Tank Lines, Inc., 687 F.2d 108 (5th Cir.
1982) (a case very similar procedurally to the instant
case); 11 Wright and Miller, supra, § 2805 at 38 (1973 ed.).

Thus, in reversing the jury verdict the Magistrate
ignored the only remedy available at common law and in
effect re-examined the “surprise” evidence in determining
that it was unsuitable for submission to the jury. Lacking
a common law basis, this ruling thereby deprived
Petitioner of its constitutional right to a jury trial on a
crucial factual issue.

Finally, Petitioner’s position that a new trial is required
under the particular circumstances of this case, is
confirmed by Professor Moore. Included in the “catalog” of
irregularities remedied only by a new trial are the two
“judicial errors” found to exist in this case:

. permitting a party, over timely objection,’ to
present a claim or defense going beyond the issues
as framed at the pre-trial conference or in the
pleadings, where the objecting party is actually
surprised and prejudiced; the improper submission
or withdrawal of a material issue from the jury.

6A Moore’s Federal Practice £59.08[{1], at 59-81.

* In this case, the objection was untimely because it followed
the conclusion of the testimony.

1]

Rute 59(e)

To support his reversal of the jury verdict, the
Magistrate sought out and then applied Rule 59(e). The
authority he utilized for his ruling consisted of two cases
(App. 18a), both non-jury, which permit a judgment to be
vacated under Rule 59(e). The Magistrate equated
vacating a judgment with reversing a jury verdict. In fact,
if Rule 50(b) is not invoked, vacating a jury verdict
consists of setting aside the verdict preliminary to
granting a new trial.

The motion to set aside the verdict and grant a new
trial was a matter of federal procedure governed by
Rule. . .59. . . On such a motion it is the duty of
the judge to set aside the verdict and grant a new
trial, if he is of the opinion that the verdict... .
will result in a miscarriage of justice,. . .

Aetna Casualty and Surety Co. v. Yeatts, supra, 122 F.2d
at 352. (Emphasis supplied). Accord, Slocum v. New York
Life, Ins. Co., supra, 228 U.S. at 380. The restriction
against vacating the judgment without granting a new
trial is found in the Seventh Amendment.

And while the Seventh Amendment does not
preclude the rendition of a judgment n.o.v., where
the motion for directed verdict could have been
properly sustained, it does stand in the way of court
alteration or amendment of a verdict or a judgment
which is based upon a jury verdict.

6A Moore’s Federal Practice 59.04{2] at 59-17 (Emphasis
supplied).

It is the restriction of the Seventh Amendment to
common law precedent that precludes the use of Rule 59(e)
in this case. In Dimick v. Schiedt, 293 U.S. 474, 476

' The Fourth Circuit relied on Dove v. Codesco, 569 F.2d 807
(4th Cir. 1978) which is also a non-jury case permitting a Rule
60(b) motion to be converted to Rule 59(e).

12

(1935), as part of a lengthy discourse on the motion for
new trial, this Court said

In order to ascertain the scope and meaning of the
Seventh Amendment, resort must be had to the
appropriate rules of the common law established at
the time of the adoption of that constitutional
provision in 1791.

We have shown in the previous section that surprise and
erroneous instructions required a new trial at common
law. Rule 59(e) standards, whatever they may be, could
not comply with this prerequisite of common law pedigree
because Rule 59(e) was enacted, not to codify the common
law, but to take care of the situation that arose in Boaz v.
Mutual Life Insurance Co. of New York, 146 F.2d 321 (8th
Cir. 1944) in which the trial judge wished to change his
own ruling prior to verdict and after he had discharged the
jury. Thus, lacking both common law lineage and
legislative intent to change the common law, Rule 59e)
cannot be used either as a vehicle for reversal of a jury
verdict or a grant of a new trial.

The full impact of the ruling of Magistrate Goetz and
the constitutional violation that occurred is highlighted by
Professor Moore’s listing the various situations in which
the Seventh Amendment permits a party to be deprived of
a jury verdict: (1) Issues arising in equity, (2) Use of a
master’s report as evidence, (3) Summary judgment, (4)
Employment of Rule 49 rules, (5) Directed verdict, (6)
Judgment n.o.v. under Rule 50(b) and (7) A new trial
under Rule 59(a). 5 Moore’s Federal Practice ©38.11{3] at
38-74-5. Thus, the limited role of Rule 59(e) is clear: it
“deals only with alteration or amendment of the oriiinal
judgment in a case and does not relate to a judgment upon
motion as provided in Rule 50(b).” 6A Moore’s Federal
Practice 59.01[6] at 59-7. There can be no doubt that the
error in this case is Magistrate Goetz’s equating Rule 59/e)
with Rule 50(b).

13

CONCLUSION

In this case, a Federal Magistrate deprived the Peti-
tioner of a jury trial. He substituted a jury verdict in favor
of the Defendant insurance company (Petitioner) with his
verdict in favor of the Plaintiff (Respondent). In doing so,
he violated the Petitioner’s constitutional right to a jury
trial and also the provisions of the Federal Rules of Civil
Procedure. As stated above, if the Magistrate believed the
jury verdict to have been improper, he should have
granted a new trial.

The Petitioner prays that this Court grant this Petition
for Writ of Certiorari and consider summarily reversing
the judgment of the Fourth Circuit and remanding for a
new trial.

Respectfully submitted,

Barrett W. FREEDLANDER,
Nives, BARTON & WILMER,
929 North Howard Street,
Baltimore, Maryland 21201,
(301) 539-3240,

Attorneys for Petitioner.

14

CERTIFICATE OF SERVICE

I Barretr W. FREEDLANDER, a member of the Bar of this
Court, hereby certify that on the day of September,
1986, three copies of the Petition for a Writ of Certiorari
in the above-entitled case were mailed first class, postage
prepaid to Dale A. Cooter, Esq., Cooter & Gell, 1333 H
Street, N.W. Washington, D.C. 20005, counsel for the
Respondent.

Barrett W. Freedlander
Niles, Barton & Wilmer
929 North Howard Street
Baltimore, Maryland 21201
(301) 539-3240

Attorney for Petitioner.

la

APPENDIX A

United States Court of Appeals
For the Fourth Circuit

No. 85-1275

Julie D. Knowles,
Appellee,
versus

The Mutual Life Insurance Company of New York,
Appellant.

Appeal from the United States District Court for the
District of Maryland, at Baltimore. Clarence E. Goetz,
Magistrate. (JH83-1134)

Argued: October 9, 1985 Decided: April 23, 1986
Before HALL and CHAPMAN, Circuit Judges, and
HAYNSWORTH, Senior Circuit Judge.

Barrett W. Freedlander (Niles, Barton & Wilmer on brief)
for Appellant; Dale A. Cooter, (Linda G. Griffith (Cooter &
Gell on brief) for Appellee.

Per CurRIAM:

This action in the diversity jurisdiction was brought to
collect the proceeds of a life insurance policy. By
agreement, it was tried before a magistrate who submitted
two special interrogatories to the jury. The jury answered
the interrogatories, finding that the defendant’s agent had
apparent authority to accept a postdated check for the first
premium but that the insured had not unconditionally
accepted the insurance policy. Judgment for the defendant

2a

would have followed upon the finding of conditional
delivery, but after the discharge of the jury, the magis-
trate determined that the plaintiff had not been given
notice of the conditional delivery defense and that the
issue had been unfairly tried. He struck the jury’s answer
to that interrogatory and entered judgment for the
plaintiff.

On the defendant’s appeal, we affirm.

I.

On December 17, 1979 Charles Spell filed a written
application for a $200,000 term life insurance policy with
Mutual Life Insurance Company of New York and paid a
premium of $53.39. A policy as applied for was issued but
was not delivered, apparently because of Spell’s uncer-
tainty that he wanted it. MONY’s agent, David Fleming,
obtained a check with which to refund the $53.39 paid by
Spell in December 1979, and, on the evening of May 28,
1980, he called his friend Spell to arrange to deliver the
refund check. He found that Spell was still interested in
taking out the insurance, and the two met at Spell’s house.
It turned out that Spell wanted the term insurance, but he
also wanted the right to convert it to a whole life policy
with premiums based on age 39. For that reason, he
wanted the policy with its December 1979 date. Fleming
told him that he would have such a conversion right, but
Spell insisted that he wanted an official letter from
MONY confirming his conversion right.

The conversation then turned to payment of the first
premium of $373.73. Spell stated that he had only $282 in
his bank account, but it was egreed that he would pay the
initial premium by giving Fleming a check in that
amount, endorsing MONY’s refund check back to MONY,
and paying the difference in cash.

3a

As he was writing the check, Spell said that he would
like to postdate it to June 7, the day after his next
aniicipHrd puylay. Meurding te Meming, hr nasnanded.
“Do us both a favor and date it today.” He explained that
the check could not go through MONY’s channels and be
presented at Spell’s bank until well after June 7. Again
according to Fleming, Spell said that he wished to
maintain a balance in his checking account to avoid a
service charge, to which Fleming responded that he would
pay the service charge if one was imposed on Spell. He
said that Spell then said “O.K.” and went back to writing
the check.

The check was completed, postdated as of June 7, and
placed by Spell upon a pillow between the two men.

Fleming delivered the insurance policy to Spell and then
applied himself to the completion of a form to change the
beneficiary from Spell’s son to his fiancee, the plaintiff.

The check was accepted without comment by Fleming,
though Fleming said he did not look at it and was
unaware until later that it was postdated.

Actually Spell had less than $282 in his bank account
on May 28. He had issued other postdated checks in
anticipation of the June 6 deposit of his monthly salary.

Spell was fatally shot during the night of May 31-June
1.

IT.

The defendant's defense that the insurance policy had
not been accepted by Spell is based upon Spell’s insistence
that he have a letter confirming his conversion rights as
explained to him by Fleming.

4a

At a pre-trial conference, the defendant’s defenses were
said to be that a postdated, or worthless, check is not a
premium payment, and that Spell knew that Fleming had
no actual authority to accept such a check. Several days
later, the magistrate received a letter from counsel for the
defendant supplementing its proposed jury instructions
and amending its request for special interrogatories to put
before the jury its claim of conditional delivery.

At the opening of the second day of trial, after the close
of evidence but before argument to the jury, the plaintiff
objected to the conditional delivery defense, claimed
surprise, and asked that the question not go to the jury.
The magistrate, under the mistaken belief that the
plaintiff's lawyer had received a copy of the letter
requesting submission of the interrogatory under appro-
priate instructions, overruled the objection. At the hearing
on the post-trial motion, the magistrate was correctly
informed that the plaintiff’s lawyer was unaware of the
conditional delivery defense until after the opening of the
trial. The magistrate then struck the jury’s answer to the
second interrogatory and, upon its finding that Fleming
had apparent authority to accept a postdated check,
entered judgment for the plaintiff.

Under these circumstances, we think the magistrate
reasonably determined that the plaintiff was unfairly
surprised by the assertion of the conditional acceptance
defense at trial and that she had no reasonable oppor-
tunity to prepare to meet it. Having made that deter-
mination, it was well within his discretion to alter the
judgment under Fed. R. Civ. P. 59(e).

The plaintiff’s post-trial motion was for relief under
Rule 60(b), but it had been made within ten days after the
entry of judgment and was appropriately treated as a
motion made under Rule 59(e). Dove v. Codesco, 569 F.2d
807, 809 (4th Cir. 1978).

5a

If.

The question of Fleming’s apparent authority to accept
the postdated check in part payment of the first premium
was submitted to the jury under proper instructions, and
we must accept the jury’s finding of apparent authority
since there is an evidentiary basis for it.

Spell and Fleming were friends. Some years before,
Spell had purchased a policy through Fleming when
Fleming was representing another insurance company.
Even if the jury accepted most of Fleming’s version of the
events of the evening of May 28, Fleming did not tell Spell
that he had no authority to accept a postdated check; he
asked that Spell not postdate the check as a “favor” to
both. After the check was written and placed on the pillow
for Fleming to pick up and examine, some time elapsed
before Fleming’s departure. The jury reasonably could
have found that before delivering the insurance policy to
Spell, Fleming would have examined the check and would
have noticed the date, since the dating of the check had
been a matter of active discussion. Finally, the jury might
reasonably have believed that if Spell had known that
Fleming had no authority to accept a postdated check and
could not deliver the policy until the first premium had
been fully paid, he would have made other arrangements
for the payment of that premium and obtained effective
delivery of the policy before his death on the night of May
31-June 1.

IV.

Before trial, MONY’s principal defense seems to have
rested upon the position that there had been no payment
of the first premium during Spell’s lifetime. This is based
on two subsidiary contentions that delivery of a check that
is worthless or postdated is not payment.

6a

It is not now clear that the check was worthless. There
were insufficient funds in Spell’s bank account to cover it
when it was issued and given to Fleming on May 28, but it
could not have been presented before June 7. If Spell had
lived and made a deposit of his salary check on June 6 in
his accustomed manner, there is no indication that the
check would not have been honored when presented on
June 7 or later.

There is no doubt, however, that it was postdated. It was
like a note, a promise to pay on or after June 7. We may
thus accept MONY’s premise that it should not be
regarded as a present payment on May 28, or at any time
during Spell’s lifetime.

The magistrate refused to permit MONY to present that
defense. He held that MONY was estopped to claim
nonpayment by the recital in the policy of payment. He
relied upon an old Maryland case, Consolidated Real
Estate & Fire Insurance Co. v. Cashow, 41 Md. 59 (1874).

In Consolidated, an insurer of a building against loss by
fire had reinsured half the risk. After loss of the building
by fire, the reinsurer refused payment of its proportion of
the loss upon the ground that its premium had not been
paid before the loss. The Maryland Court of Appeais held
that it was estopped to claim nonpayment because its
policy of reinsurance contained a recital that the premium
had been paid.

The case is a history one, but nothing in subsequent
decisions in the Maryland Court of Appeals suggests that
that court would not apply the same rule today. Non-
payment of the premium would not foreclose MONY’s
claim for the amount of the premium, but the recital in
the policy does foreclose MONY’s claim after Spell’s death
that the policy was never effective. Since Fleming’s
delivery of the policy to Spell was admittedly uncon-

7a

ditional, the policy’s recital of “the payment of premiums
as provided” forecloses a claim of invalidity for
nonpayment.

MONY argues that the “as provided” language in the
recital refers to the “plain stipulation” that the premium
be paid during Spell’s lifetime. This, however, is simply
the nonpayment argument that the Consolidated case
prevents.

The defendant contends that Spell had defrauded
Fleming and the defendant and that his fraud should
except this case from the Consolidated rule. The claim of
fraud is premised first upon the contention that Spell
knew Fleming was unauthorized to accept a postdated
check, but that contention is inconsistent with the jury’s
finding. If Spell reasonably believed that Fleming had the
authority to accept a postdated check, his delivery of a
postdated check to Fleming could not have been intended
to defraud him. Spell’s misrepresentation of the balance in
his bank account on May 28 is simply irrelevant. The
postdated check could not have been presented before June
7, and there is nothing to suggest that it would not have
been good on that date if Spell had lived.

V.

Finally, the defendant objects to the award of prejudg-
ment interest.

The policy, itself, provided for the payment of its face
amount together with interest on the unpaid balance for
up to two years. MONY contends that it should not be held
liable for interest for a longer period than its contract
required.

Maryland law, however, gives a trial judge the discre-
tionary right to award prejudgment interest to place the
injured party in a breach of contract case in the same

8a

position she would have occupied had the defendant not
broken its promise. Here, the defendant’s wrongful refusal
to pay deprived the plaintiff of the use of the insurance
proceeds for more than the two years of MONY’s
contractual commitment. It was an appropriate situation
for the magistrate to exercise his discretion as he did. See
I. W. Berman Properties v. Porter Brothers, 276 Md. 1,
19-20, 344 A.2d 65, 75-77 (1975); Brethren Mutual
Insurance Co. v. Filsinger, 54 Md. App. 357, 364-55, 458
A.2d 880, 884-85 (1983). |

VI.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

In The United States District Court
for the District of Maryland

Civil Action No. JH-83-1134

Julie D. Knowles
Ds,

The Mutual Life Insurance Company of New York

MEMORANDUM

Plaintiff in the above-captioned case has moved for
Judgment N.O.V. pursuant to Rule 50 of the Federal
Rules of Civil Procedure; for relief from judgment under
Rule 60(b); and for a new trial under Rule 59.

The case has been in the Court since April of 1983. At
dispute is whether a policy of insurance in the amount of
$200,000.00 on the life of Charles J. Spell, Sr. was in effect

9a

at the time of Mr. Spell’s death on May 31, 1980. The
action is brought by the ramed beneficiary, Julie D.
Knowles, against Mutual Life Insurance Company of New
York (MONY), which company denies that the coverage
was ever in force. Not in dispute are the facts that on May
28, 1980, an agent of MONY physically delivered to Mr.
Spell the policy in exchange for a premium payment, part
of which payment was made by a check post-dated to June
7, 1980.

After the filing of the complaint in this case (Paper No.
1), discovery proceeded forthwith, plaintiff having pro-
pounded interrogatories and defendant having answered
by early August of 1983. Plaintiff’s Interrogatories No. 2
and 3 read as follows:

2. State whether it is your position that MONY
Policy No. 1097-22-84 NY, on the life of Charles J.
Spell, Sr., was in full force and effect on the date of
his death, May 31, 1980.

3. If your answer to Interrogatory No. 2 above was
negative:

a. State with specificity all facts providing a basis
for this position.

b. Identify any and all documents in your custody
or control pertaining to the validity of the subject
policy on May 31, 1980.

c. Identify any and all persons who have knowledge
of facts pertaining to the validity of the subject
policy on May 31, 1980.

(Paper No. 7).

The answers to the above-cited interrogatories were as
follows:

Answer to Interrogatory No. 2

It is the position of MONY that the aforesaid
policy was not in full force and effect on May 31,
1983 [sic].

10a

Answer to Interrogatory No. 3

a. 1. Mr. Spell did not have sufficient funds with
which to pay the premium.

2. Mr. Spell dated the initial premium payment
check, June 7, 1980.

3. Mr. Spell did not intend to pay his initial
premium until June 7.

4. Defendant requires that premium checks be
honored in order for insurance to be in effect,
i.e. issued; it simply never was in effect.

b. There is no question that a valid policy was
prepared, so it is not clear, what if any,
documents the Plaintiff is seeking.

c. We incorporate the answer to paragraph 3b and
having indicated a valid policy was prepared, the
names of individuals having such knowledge
would not be relevant even if they can be
ascertained.

(Paper No. 9).

Early in September of 1983, plaintiff moved for
summary judgment (Paper No. 12). Early in October of
1983, defendant answered (Paper No. 17) and filed its own
motion for summary judgment supported by a mem-
orandum of law (Paper No. 18). Plaintiff replied (Paper
No. 21) and defendant replied to the reply with a
memorandum of law (Paper No. 26). A hearing on the
motions was held in December of 1983. Pursuant to the
direction of the Court, plaintiff filed a supplementary
memorandum of law in December of 1983 (Paper No. 29)
and defendant submitted a supplementary memorandum
of law (Paper No. 30) as well as a reply memorandum to
plaintiff's supplemental memorandum (Paper No. 31)
early in January of 1984. On January 13, 1984, the Court
filed a Memorandum and Order in which plaintiff's
motion for summary judgment was denied and defendant’s

enacts niailiialaiiidiiaiiea

lla

motion for summary judgment was granted in part and
denied in part. Three days later, defendant submitted a
motion for reconsideration, again supported by a mem-
orandum of law (Paper No. 33) which was opposed by
plaintiff (Paper No. 34). The Court affirmed its previous
Memorandum and Order by another Memorandum and
Order filed February 3, 1984 (Paper No. 35). The case
subsequently was set for trial in June of 1984. Near the
date of trial, research by the Court into jury instructions
for the case disclosed case law previously uncited by either
party, which case law appeared to be controlling and
which would have the effect of substantially limiting the
issues for trial. Both sides were apprised of the precedent
discovered by the Court, trial was postponed and the
parties were requested to brief the issue raised by the
Court. Plaintiff filed a memorandum of law late in June of
1984 (Paper No. 40) as did defendant (Paper No. 41). This
was followed by a reply memorandum from defendant in
July of 1984 (Paper No. 42), from plaintiff early in August
of 1984 (Paper No. 43) and then a “Final Memorandum”
from defendant in September of 1984 (Paper No. 44). On
September 26, 1984, the Court held a hearing at which
oral arguments were presented and on October 5, 1984,
the Court filed a Memorandum and Order in which the
Court again denied motions for summary judgment and
established that trial would be limited by pretrial order to
the issue of the apparent authority of the MONY agent to
deliver the policy in return for the payment he received,
which issue would be submitted to the jury by way of
special interrogatory as provided in Rule 49 (Paper No.
45). A pretrial conference was held December 18, 1984, at
which time a pretrial order was agreed as amended (Paper
No. 57) and defendant provided to the Court proposed jury
instructions. There was no indication from the parties at
the pretrial conference or in the agreed pretrial order that
the defendant intended to establish at trial that no
insurance contract existed because the decedent had

iii ell

12a

placed a condition upon acceptance of the contract, which
condition was unfulfilled at the time of death. The pretrial
order, in fact, stated:

Defendant proposes to prove or to rely upon as a
defense the fact that Charles Spell indicated his
intent to pay for insurance on or after June 7, 1980
by providing David Fleming with a post-dated,
worthless check.

Charles Spell was on notice that David Fleming
lacked authority, actual or apparent, to deliver the
policy in question in return for a post-dated check.
Despite this knowledge, Charles Spell post-dated
the check constituting part payment.

Legal theory: Neither a post-dated check nor a
worthless check constitute payment of the initial
premium.

(Paper No. 57, p. 3). Subsequent to the pretrial conference,
however, defense counsel caused to be delivered to the
Court a letter dated December 21, 1984, which stated:

Following the deposition of yesterday and discus-
sions with opposing counsel, we supplement our
instructions with the enclosed.

Enclosed was Proposed Instruction No. 15 which reads:

Conditional Delivery

If you find that Charles Spell imposed a condition
upon his acceptance of the insurance policy,
namely, a letter from the Defendant stating that he
could convert this policy to a whole life policy just
as he could have done with his other policy with
New York Life Insurance Company, and such letter
had not been received by Mr. Spell at the time of
his death, then you must find for the Defendant.

Also submitted to the Court by defendant was an amended
request for special interrogatories, the amendment being
the addition of No. 4 which reads:

l3a

Did Charles Spell advise David Fleming that he
would accept the insurance policy upon the condi-
tion that David Fleming obtain for him a letter
from the Defendant relating to the conversion of
this policy to a whole life policy?

The cover letter sent with the enclosures indicates a
carbon copy to Linda G. Griffith, Esquire, plaintiff’s
co-counsel along with Dale Cooter, Esquire. Beneath the
notation of a carbon copy to Ms. Griffith is the notation
“Enclosures.” The Court garnered the impression from
this letter:

1) That some fact had come to light at a deposition
December 20, 1984, following the pretrial conference
which gave rise to the defense posited in the jury
instruction and special interrogatory set forth above.

2) That counsel had discussed the matter between
them.

3) That a copy of defense counsel’s letter to the Court
and the enclosures therein had been sent to plaintiff’s
counsel contemporaneous with its delivery to the Court.

This impression of the Court was reinforced in chambers
before trial on the opening dav of the trial when the Court
made reference to two issues going before the jury and no
objection was heard. At the opening of the second day of
trial, after the close of evidence but before argument to
and instruction of the jury, plaintiff’s counsel objected
strenuously to the late entry of the conditional acceptance
defense, claimed unfair surprise and urged that the
question not go to the jury. Mr. Cooter told the Court that
he had heard mention of conditional acceptance for the
first time in this case in chambers prior to trial on the
previous day and assumed at that time that it had to do in
some way with the post-dated check. Instead, claimed Mr.
Cooter, defense counsel had put forth in his opening

——————oorrrererereeree

l4a

statement the claim that the acceptance of the policy by
Mr. Spell was conditioned upon the receipt of a letter from
the insurance company assuring that the term policy was
convertible to whole life and that, as the letter was never
received by Mr. Spell, the condition was not fulfilled and
there was no acceptance by him of the policy. Mr. Cooter
told the Court that his initial reaction to the argument
was that somehow he had missed a vital point in the
pleadings. He said, however, that a review of the case file
after the first day of trial failed to reveal any prior
mention of the new legal theory being espoused by the
defense. Consequently, he asked the Court to strike all
evidence relative to conditional acceptance and instruct
the jury that the issue was not to be considered by them.

In reply, defense counsel made the following statement:

This is a theory that came to me while I was
preparing for this case subsequent to the answers

to interrogatories — even subsequent to the
pretrial . . . In preparation for the case — at the
last moment, almost ...I uh... that theory

came to me and as you may recall I actually
submitted this instruction after 1 submitted the
other instructions because that’s how late it came
to me. .

I received no new information which would require
supplementation of responses. If you look at Rule
26(e) — and which we did, we studied it and
anticipated this — we felt that it was absolutely
not covered.

The Court then asked defense counsel why he had not
sought amendment of the pretrial order, to which defense
counsel replied:

Well, looked at the pretrial order and thought that
it was covered under the general feeling Mr. Spell’s
intent. . . what was his intent with respect to this
particular insurance.

15a

The Court was of the opinion at that time that it was
rather late in the proceedings for plaintiff to be raising the
objection which it had raised, in light of the Court’s belief
that plaintiff’s counsel, or one of them, had received the
proposed jury instruction and special interrogatory nearly
three weeks before trial and should have been aware of
the issue generated by them. The Court thought it
possible, and even likely, that there had been a failure of
communication between plaintiff’s co-counsel. Moreover,
the Court had intended to and did submit the case to the
jury by way of special interrogatories and the Court
realized that if the jury were to find for the defendant on
_ the first question as to lack of apparent authority or for
plaintiff on both questions, then plaintiff's claim of
surprise would be moot. The Court denied plaintiff's
motion to strike the evidence as to conditional acceptance
and remove the issue from consideration of the jury and
advised plaintiff’s counsel that if, in fact, the jury found
for defendant solely on the issue of conditional acceptance
the Court would entertain a motion for Judgment N.O.V.
The special interrogatories to the jury were:

1. Based on the evidence in this case did David Fleming
have apparent authority to deliver the policy in
question in this case to Charles Spell on May 28,
1980 in return for a postdated check?

2. Did Charles Spell place a condition upon his
acceptance of the policy that he receive a letter from
the company authorizing him to convert the policy to
whole life?

(Paper No. 64). The jury found for plaintiff as to Question
No. 1 and for defendant as to Question No. 2, and,
therefore, found for defendant solely on the issue of
conditional acceptance.

On February 5, 1985, the Court held a hearing on
post-trial motions filed by plaintiff’s counsel. The plead-
ings pursuant to those motions, particularly the incorrect

16a

contention of plaintiff’s counsel that the Court had been in
receipt of the proposed instruction on conditional accept-
ance since the day of the pretrial conference, raised in the
mind of the Court the serious doubt as to whether
plaintiff’s counsel had been in receipt of the letter of
December 21, 1984 and its enclosures. At the hearing on
post-trial motions, defense counsel informed the Court
that its impressions had been wrong — on all counts:

1) The evidence supporting the legal theory advanced
by the defense as to conditional acceptance was not
uncovered at the deposition December 20, 1984.

2) There was no discussion prior to trial between
opposing counsel as to the defense of conditional accept-
ance raised by defendant.

3) Plaintiff's counsel was not sent copies of the
enclosures in the letter of December 21, 1984. It appears,
in fact, that plaintiff's counsel had never seen those
documents and was unaware of their nature until the
February 5 hearing.

The Court finds it unnecessary to determine whether
the misimpression was a creature of design or inad-
vertence. It is sufficient to state that the Court was misled
by defense counsel’s letter as would have been any person
of reason. Had the Court been raced with a pretrial
objection to the eleventh hour interposition of the
conditional acceptance defense, the objection likely would
have been sustained and special interrogatory No. 2 would
not have been before the jury. The basis of that decision
would have been the recognition of this Court of the
importance of the integrity of the discovery process and
the pretrial order. The Federal Rules were not drafted
with caprice or in a vacuum. Rather, they are the
embodiment of the intent of the federal judicial system
that the proceedings therein be open and aboveboard, with

17a

the hope that such openness will produce judicial economy
and substantial justice. Surprise is alien to the process.
Unnecessary surprise is unacceptable. Planned surprise is
an abomination. In this case, experienced trial counsel for
defense, as revealed by his own statement in court,
considered whether this admittedly new legal theory had
to be revealed to plaintiff either through supplementation
of answers to interrogatories or amendment of the pretrial
order. He made the studied decision that he could get by
without either. His decision represents an affront to the
rules of the court and to the dignity of its trial processes. It
is clearly within the discretion of this Court to hold a
litigant estopped by its litigation conduct to have an issue
considered by a trier of fact and this is particularly so
when a party has failed to identify an issue for inclusion
in the pretrial order when under a clear duty to do so.
Matter of Intercontinental Properties Management, 604 F.2d
254 (4th Cir. 1979).

Federal Rule 8(f) provides that all pleadings shall be so
construed as to do substantial justice. Plaintiff has
submitted timely motions under both Rules 59 and 60.
Although plaintiff has not sought specifically the relief
provided by Rule 59(e), it has been recognized that there is
substantial overlap between Rule 59(e) and Rule 60(b),
with one signficant distinction being that Rule 59 motions
must be filed no later than ten days after the entry of
judgment. Judgment was entered in this case January 11,
1985 (Paper No. 66) and plaintiff’s motions were filed
January 16, 1985 (Paper No. 67). Consequently, the Court
is going to read plaintiff’s motion for relief under, Rule
60(b) as a motion for relief under Rule 59(e). Bank of
California v. Arthur Andersen & Co., 709 F.2d 1174 (7th
Cir. 1983). The Court mistakenly thought that plaintiff
was or should have been aware of the conditional
acceptance defense interposed by defendant and that
plaintiff should have but failed to object before trial. This

18a

mistake of fact led the Court to submit the issue of
conditional acceptance to the jury which would not have
been done otherwise. Under the Federal Rules the trial
court is possessed of the authority to alter or vacate
judgment if, in the exercise of its broad discretionary
powers, the Court finds such action to be necessary in
order to accomplish justice. Harman v. Pauley, 678 F.2d
479 (4th Cir. 1982); McCarthy v. Manson, 714 F.2d 234 (2d
Cir. 1983). Pursuant to Rule 59e), this Court will enter an
Order separately altering the judgment to that which
would have been rendered had the issue of conditional
acceptance not been before the jury. Judgment, then, will
be for plaintiff in the amount of $200,000.00 plus the rate
of interest set forth in the contract for the period covered
by the contract and at the legal rate of interest in
Maryland thereafter.

CLARENCE E. Goetz,
United States Magistrate.

Dated February 14, 1985

In The United States District Court
for the District of Maryland

Civil Action No. JH-83-1134

Julie D. Knowles
US.

The Mutual Life Insurance Company of New York

ORDER

In accordance with the foregoing Memorandum, IT IS,
this 14th day of February, 1985, by the United States
District Court for the District of Maryland, ORDERED:

19a

1 That judgment be entered in favor of the plaintiff in
the amount of $200,000.00 plus costs and interest at the
rate provided by the policy for the period provided in the
policy and at the legal rate thereafter.

2. That this altered judgment shall serve in place and
instead of the judgment entered herein on the 11th day of
January, 1985.

3. That the Clerk mail copies of the judgment and this
Memorandum and Order to counsel for the parties.

CLARENCE E. Goetz,
United States Magistrate.

MONY CORPORATE ORGANIZATION CHART

THE MUTUAL INSURANCE COMPANY OF NEW
YORK

MONY LIFE INSURANCE COMPANY OF AMERICA
MONY LEGACY LIFE INSURANCE COMPANY
MONYCO, INC.

MONY LIFE INSURANCE COMPANY OF CANADA
MONY PENSION INSURANCE CORPORATION
MONY SERIES FUNDS, INC.

MONY PREFERRED HEALTH, INC.

MONY GENERAL PPO, INC.

MONY SECURITIES CORP.

MONY ADVISERS, INC.

MONY CREDIT CORPORATION

MONY REINSURANCE CORPORATION

1740 VENTURES, INC.

20a

KELLY & ASSOCIATES, INC.

MONY REALTY MANAGEMENT, INC.

MONY REALTY PARTNERS, INC.

MONY FINANCIAL PLANNING, INC.

UNIFIED MANAGEMENT CORPORATION

MONY AGRICULTURAL FINANCIAL SERVICES, INC.
BELL INVESTMENT ACQUISITION CORPORATION
DUFF FARM MANAGEMENT SERVICE, INC.
MONY-RE GROUP, INC.

MONY-RE MANAGEMENT, INC.

EVALUATION ASSOCIATES, INCORPORATED

EAI RESOURCE INVESTMENTS, INC.

THE KEEP, INC.

EVALUATION ASSOCIATES INVESTMENT MAN-
AGEMENT COMPANY

MONY-ROCKVILLE/GP, INC.
MONY BLOOMFIELD HILLS, INC.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2486%3A1. Public record. Not legal advice.