Appendix — Blue Cross & Blue Shield of Maryland, Inc. v. Weiner

89-250.

No.

In Tue

Supreme Court of the Uni

OcrosnerR TERM. 1989

BLUE CROSS AND BLUE SHIELD

OF MARYLAND, INC..,

Petitioner,

V.

ROBERT WEINER, SR... MARGARET WEINER, MARK WEINER,

wwp ROBERT WEINER. SR. as Personat REPRESENTATIVE

oF THE Estate or STEVEN WEINER,

Respondents.

On Petirion vor A Wrir or Certriorart tO THE UNITED STATES

Court or APPEALS FOR THE ELEVENTH Cireurt

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Of Counsel: Leonarp E. Cones

Arruur R. Mincer Counsel of Record

1525 Massachusetts Avenue ANN L. Lampin

Cambridge, Massachusetts 02138 FRANK, BERNSTEIN, CONAWAY

(617) 495-4111 & GOLDMAN

300 E. Lombard Street

Baltimore, Maryland 21202

(301) 625-3500

Attorneys for Petitioner

August 14, 1989

The Daily Record Co., Baltimore. MD 21202

1

TABLE OF CONTENTS

PAGE

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pe EE ee ER tty ot Bel of Dot 8 «ho ey Sd 3

NS TRS A a ae ere eae 11

INTER Soe tia er ee as te eee 23

oA hee Cee eee kg TOR sae 25

pO) ES a ee ere Se ee o eek: 29

pS SE a i eee peek ares ae eee cree ae 41

APPENDIX A

Pursuant to Rule 28.1, following are the corporate

affiliates of Blue Cross and Blue Shield of Maryland, Inc.:

Blue Cross and Blue Shield of Maryland

Finance Company, Inc.

Employers Compliance Services, Inc.

Sterling Health Services, Inc.

Maryland Medical Services, Inc.

DBG Holdings, Inc.

Community Health Services, Inc.

Free State Health Plan, Inc.

Healthline, Inc.

PerTek, Inc.

Benefit Services International, Inc.

Free State Management, Inc.

LifeCard, Inc.

Columbia Medical Plan, Inc.

Health Management Corporation, Inc.

Willse and Associates, Inc.

Columbia Free State Management, Inc.

Twin Knolls Pharmacy, Inc.

Patuxent Medical Group, Inc.

Columbia Dental Plan, Inc.

Patuxent Surgicare, Inc.

Greenspring Mental Health Services, Inc.

Judgment Process Company, Inc.

Columbia Optical Management, Inc.

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 88-6290-Ryskamp

BLUE CROSS AND BLUE SHIELD

OF MARYLAND, INC.,

Plaintiff,

BLUE CROSS AND BLUE SHIELD

OF FLORIDA, INC.,

Plaintiff-Intervenor,

VS.

ROBERT WEINER, SR., MARGARET

WEINER, MARK WEINER, and

ROBERT WEINER, SR., as

Personal Representative of

the Estate of Steven Weiner,

Defendants.

ORDER DENYING MOTION FOR

PRELIMINARY INJUNCTION

Procedurai Background

This cause is before the court upon plaintiffs’? motion for

preliminary and permanent injunction against the Weiners

(hereinafter the “defendants”) enjoining them from taking

' “Plaintiffs” refer to Blue Cross and Blue Shield of Maryland and Blue

Cross and Blue Shield of Florida, the latter of which has filed an unop-

posed motion to intervene and is similarly situated with BCBS (Mary-

land) before this court. Where distinctions are necessary, the labels

“Maryland” and “Florida” will be used.

any further action’on appeal or for enforcement of the judg-

ment and award of attorneys’ fees rendered in the Circuit

Court of the 17th Judicial Circuit in and for Broward

County, Florida* (hereinafter “state trial court”), which is

now on appeal to the Fourth District Court of Appeal in the

State of Florida (hereinafter “state appellate court”)®. In the

state trial court action, the defendants sought damages

against Maryland, their insurer, and Florida, their servicing

agent, for fraud, intentional infliction of emotional! distress

and negligence. After two years of discovery and eighteen

(18) days of trial, a jury returned a verdict in the defendants’

favor on September 15, 1986, and final judgment was

entered thereon. In the action filed in this court, plaintiffs

seek a declaratory judgment that the state trial court’s judg-

ment and award of attorney fees are nuli and void.

Arguments Presented

Plaintiffs claim that the insurance policy at issue in the

state trial court qualifies as a “welfare plan” or “employee

benefit plan” under the Employee Retirement Income Secu-

rity Act (hereinafter “ERISA”), 29 U.S.C. Sec. 1002 (West

1985). Accordingly, plaintiffs maintain that the defendants’

(as employees to the plan) state common law tort claims—

upon which the state trial court’s judgement are based—are

preempted by ERISA, 29 U.S.C. Sec. 1144(a), and as such,

the state trial court’s judgment may be collaterally attacked

because it did not have subject matter jurisdiction over the

case. In response, the defendants assert that the insurance

* The case is Weiner, et al v. Blue Cross/Biue Shield of Maryland, et al.

Case No. 84-00840 CH.

3 The case is Blue Cross/Blue Shield of Maryland, Inc., et al., Case No.

4-86-2927 and Blue Cross/Blue Shield of Florida, !nc., v. Weiner, et al., con-

solidated case Nos. 4-86-2294, 4-86-2925, 4-86-2926, and 4-86-2899.

vo en Sen Heli enim

policy was not an ERISA plan, the state trial court’s judg-

ment may not be collateraly [sic] attacked, and that on the

facts of this case there is a strong policy in favor of abstention.

Both parties spent considerable time in their memoranda

of law and during oral argument before this court arguing

the issue of whether the insurance plans under examination

qualifies as an ERISA plan. The court makes no determina-

tion of this issue. The threshold question here is whether the

state court in the first instance may resolve this ERISA

issue. After a careful review of the pleadings in this case, the

supporting and opposing memoranda of law, and after con-

ducting extensive oral argument on the issues presented,

the court denies the petition for preliminary injunction.

Discussion

The determination of whether to grant a preliminary

injunction is based on a review of four factors: (1) whether

the plaintiff will suffer irrevocable harm if a preliminary

injunction is not granted; (2) whether the plaintiff has a sub-

stantial probability of succeeding on the merits; (3) whether

the threatened harm to the plaintiff outweighs the harm a

preliminary injunction will cause to the defendant; and (4)

whether the public interest is served by a preliminary

injunction. See Buchanan v. United States Postal Service, 508

F.2d 259, 266 (5th Cir. 1975); Wright & Miller, Federal Prac-

tice and Procedure, Sec. 2948 at 430-31 (1973). Although

there is no mechanical application of these factors, “|pler-

haps the single most important prerequisite for the issuance

of a preliminary injunction is a demonstration that if it is

not granted the applicant is likely to suffer irreparable

harm before a decision on the merits can be rendered.”

Wright & Miller, Federal Practice and Procedure, Sec. 2948

at 431 (1973). Contrary to plaintiff's comparison between

the federal and state fora, the state courts are fully capable

and competen. to properly adjudicate the threshold ERISA

jurisdiction issue presented by this case.

On May 3, 1988 plaintiffs appeal will be heard by the

Fourth District Court of Appeals. In this appeal, plaintiffs

will raise for the first time in the state courts the ERISA

jurisdiction issue. (Appendix in support of defendants’ mem-

orandum in opposition to plaintiffs’ motion for preliminary

injunction at 10-15.) The plaintiff did not raise the ERISA

jurisdiction issue in the state trial court. On April 6, 1987,

the Supreme Court held for the first time that state common

law causes of action asserting improper processing of claims

under employee benefit plans are preempted by ERISA. See

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. — —, 95 L.Ed.2d 39

(1987); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. — -, 95

L.Ed.2d 55 (1987). This ruling came after the final judgment

in the state court action and forms the basis of defendants’

contention that the state trial court was without jurisdiction

to hear the alleged ERISA case. This jurisdiction issue can

be raised at anytime—even on appeal. Therefore, far from

being “irreparably harmed” in denying the application for a

preliminary injunction, plaintiffs will present its ERISA

jurisdiction issue to a competent appellate panel.

Further, the “public interest” will not be served by a pre-

liminary injunction. Plaintiffs state that “one of the main

goals of ERISA is the development of a national, uniform

law” and concludes that by “(e|njoining [defendants] from

requesting the Florida courts to exceed their jurisdiction

and render a decision impermissible under ERISA is cer-

tainly in the public interest.” (Maryland memorandum of

law in support of preliminary injunction at 22). Plaintiffs

self-serving conclusions, however, do not follow from its

premise. As stated above, state courts have the power and

competency to resolve the threshold ERISA jurisdiction

question, and in so doing this court is confident that the

state courts will preserve the development of the national,

uniform ERISA law. In fact, by not allowing state courts to

determine the jurisdiction issue presented in cases similar

to the one at bar, federal courts would disserve the public

interest by ignoring the all-important principles of “federal-

eo

ism” and comity. This court wili abstain from interfering

with the ongoing state court proceedings under the author-

ity of Younger v. Harris,* 401 U.S. 37, 91 S.Ct. 746, 27

L.Ed.2d 669 (1971) (strong federal policy against federal

court interference with pending state judicial proceedings

absent extraordinary circumstances). See Colorado River

Water Conservation District v. United States, 472 U.S. 800, 96

S.Ct. 1236, 47 L.Ed.2d 483 (1976) (where case is within

Younger, no discretion to grant injunctive relief); Juidice v

Vail, 480 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977):

Middlesex County Ethics Committee v. Gorden, 457 U.S. 423,

102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Pennzoil Co. v. Texas,

Inc. -U.S.{, 107 S.Ct. 1519 (1987) (state courts must be given

the proper respect to resolve federal questions presented in

the state forum).

Finally, the court makes no judgment as to whether the

plaintiffs have a “substantial probability of succeeding on

the merits.” In their action for declaratory relief, plaintiffs

request that this court declare the state trial court judgment

null and void because the state trial court acted beyond its

subject matter jurisdiction. Every court—even the state

* As a condition precedent to abstaining this court found that plaintiffs’

request for injunctive relief is an attempt to enjoin ongoing state proceed-

ings, that plaintiffs had an opportunity to present their federal claims in

the state forum, and that important state interests are involved in the

state court proceedings. See. e.g., Browning Corp., 624 F. Supp. at 557 (abil-

ity to effectively enforce their insurance laws is an important state inter-

est). Moreover, this court finds that enjoining the state court proceedings

is not authorized under Bagget v. Department of Professional Regulation,

717 F2d 521, 524 (11th Cir. 1983). In Bagyet, the court did not abstain

because preemption was “readily apparent”. Upon a review of the memo-

randa of law filed with this court and judging from the oral argument on

the issue, at this stage of the proceedings preemption is a far cry from

being “readily apparent”.

courts of limited jurisdiction—is granted the power to deter-

mine its own jurisdiction, and once made, principles of res

judicata operate to make the court’s decision binding unless

reversed on appeal.” Insurance Corp. of Ireland, Ltd. v. Com-

pagnie des Bauxites de Guinea, 456 U.S. 694, 702 n.9, 102

S.Ct. 2099, 2104 n.9, 72 L.Ed.2d 492, 500 n.9 (1982) (no coi-

lateral attack because res judicata applies to subject matter

determinations); Chicot County Drainage District v. Baxter

State Bank, 308 U.S. 371, 376, 60 S.Ct. 317, 319, 84 L.Ed.

329 (1940), Lambert v. Conrad, 536 F.2d 1183, 1185 (7th Cir.

1976). There are exceptions to this general rule. See Kalb v.

Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940).

Although the parties dispute whether this court can collat-

erally attack the state trial court judgment, the court will

not resolve this issue because the court declines the invita-

tion to issue a preliminary injunction based on the grounds

given above.

Conclusion

Under the facts of this case this court concludes that the

state courts have both the power and competency to resolve

the threshold ERISA jurisdiction question presented. Plain-

tiffs’ argument that ERISA preemption is so powerful that it

displaces the authority of the state courts to decide the juris-

° Plaintiffs’ failed to raise their ERISA jurisdiction issue in the state

trial court proceeding. Even so, res judicata still applies. Lambert, 536

F.2d at 1185.

9

diction issue is not supported by law and flies in the face of

principles of “federalism” and comity. Accordingly, it is

hereby: |

ORDERED and ADJUDGED that:

(1) plaintiffs’ motion for preliminary injunction is

DENIED.

(2) defendants’ motion to dismiss plaintiffs’ declaratory

action is DEFERRED.

(3) all further proceedings in this court are STAYED

PENDING RESOLUTION OF THE CASE BY THE STATE

COURTS. in

DONE and ORDERED in chambers in Miami, Florida,

this 17th day of May, 1988.

/s/

UNITED STATES DISTRICT JUDGE

cc: all counsel of record.

11

APPENDIX C

BLUE CROSS AND BLUE SHIELD OF MARYLAND, INC.,

Plaintiff-Appellant

BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.,,

Plaintiff-Intervenor,

V.

ROBERT WEINER, SR., MARGARET WEINER,

MARK WEINER, and ROBERT WEINER, SR..,

as Personal Representative of the

Estate of Steven Weiner,

Defendants-Appellees.

NO. 88-5518

United States Court of Appeals,

Eleventh Circuit.

April 5, 1989.

Appeal from the United States District Court

for the Southern District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges,

and MARKEY *, Chief Circuit Judge.

HATCHETT, Circuit Judge.

Blue Cross and Blue Shield of Maryiand, Inc. (BCBS-

Maryland) appeals the district court’s denial of its motion for

preliminary injunction and the court’s abstention from its

claims for permanent injunctive and declaratory relief. We

* Honorable Howard T. Markey, Chief U.S. Circuit Judge for the Federal!

Circuit, sitting by designation.

12

affirm the district court’s denial of preliminary injunction

and its decision on abstention, but remand to the district

court with instructions that it dismiss the request for per-

manent injunction for lack of subject matter jurisdiction.

FACTS

BCBS-Maryland provides health insurance coverage for

Robert Weiner and his dependents, Margaret Weiner,

Stephen Weiner, and Mark Weiner. In the summer of 1982,

Stephen Weiner became seriously ill and Mark Weiner suf-

fered permanent injuries in an automobile accident. Stephen

and Mark Weiner incurred substantial medical expenses.

BCBS-Maryland provided coverage for these expenses until

August 8, 1983, when it concluded that the insurance plan

no longer covered their expenses.

In September, 1983, the Weiners filed suit against BCBS-

Maryland and Blue Cross and Blue Shield of Florida (BCBS-

Florida) in a Florida state court, alleging a breach of the

duties of good faith and fair dealing, a breach of fiduciary

duties, fraud, and a statutory violation. Responding to this

action, BCBS-Maryland reinstated coverage in March, 1984,

and paid all back claims to the Weiners. BCBS-Maryland

has continued to pay all claims under the insurance policy

since March, 1984.

In December, 1984, the Weiners amended the complaint to

seek a declaration of their past, present, and future rights

under the insurance contract. In addition, the amended com-

plaint sought compensatory and punitive damages for

breach of contract, breach of the duty of good faith, statutory

violations, wrongful death, intentional infliction of emo-

tional distress, and fraud. In December, 1985, the Weiners

filed a second amended complaint alleging three tort claims:

fraud, intentional infliction of mental distress, and negli-

gence.

The case proceeded to trial on the tort claims. After find-

13

ing BCBS-Maryland liable for fraud, intentional infliction of

mental distress, and negligence, the jury awarded the Wei-

ners $500,000 in compensatory damages and $5,000,000 in

punitive damages. The jury additionally found BCBS-Flori-

da liable for fraud and intentional infliction of emotional

distress. On these claims, the jury awarded the Weiners

$200,000 in compensatory damages and $1.5 million in

punitive damages. Based on the jury’s liability determina-

tions, the Florida court awarded the Weiners $1,411,600 in

attorney's fees.

After the Florida court entered its judgment for the Wei-

ners, the United States Supreme Court decided two cases

which hold that the Employee Retirement Income Security

Act (ERISA) preempts state common law claims alleging an

improper processing of employee benefit plan claims. Pilot

Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95

L.Ed.2d 39 (1987); Metropolitan Life Ins. Co. v. Taylor, 481

-US. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Arguing pri-

marily that ERISA preempted the Florida causes of action,

BCBS-Maryland and BCBS-Florida appeaied the judgment

and attorney’s fees award in a Florida appellate court. The

Florida appellate court heard oral argument on May 3, 1988,

but has not rendered a decision.

PROCEDURAL HISTORY

On April 14, 1988, relying on Pilot Life and Metropolitan

Life, BCBS-Maryland filed suit in the Southern District of

Florida to enjoin the Weiners from further appealing or

enforcing the Florida court’s judgment and attorney’s fees

award. In addition, BCBS-Maryland requested that the dis-

trict court declare the judgment void and unenforceable.

BCBS-Florida intervened seeking the same relief. The Wei-

ners moved the district court to dismiss BCBS-Maryland’s

and BCBS-Florida’s complaint, or alternatively, to abstain

from interfering with the state court proceedings.

14

The district court denied the preliminary injunction. The

court concluded that BCBS-Maryland and BCBS-Florida did

not demonstrate any irreparable harm because the Florida

appellate court could decide the preemption issue. Further-

more, the district court found that a preliminary injunction

would not serve the public interest, but rather would harm

the public interest because interfering with the state court

proceedings wou!d disregard the principles of federalism and

comity.

The district court deferred decision on the declaratory

relief claims, staying all federal proceedings pending the

Florida courts’ resolution of the preemption issue. The dis-

trict court abstained after concluding as follows: BCBS-

Maryland’s injunctive relief would enjoin ongoing state pro-

ceedings, BCBS-Maryland could present its federal claims

in the Florida appellate court, and the Florida court’s pro-

ceedings involved important state interests. See Younger v.

Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (fed-

eral courts should generally refrain from enjoining pending

state proceedings); Browning Corp. Int'l. v. Lee, 624 F. Supp.

555, 557 (N.D.Tex.1986) (state courts must have ability to

determine if ERISA governs particular employee benefit

plan to effectively enforce state insurance laws).

CONTENTIONS

BCBS-Maryland contends that the district court abused

its discretion in denying the preliminary injunction because

it satisfied the four elements for obtaining a preliminary

injunction: (1) BCBS-Maryland demonstrated a substantial

probability of prevailing because ERISA preempts the Wei-

ners’ common law tort claims, and the Florida trial court

lacked jurisdiction over the ERISA claims; (2) the denial

will cause BCBS-Maryland irreparable harm because it will

lose its right to have a federal court decide the preemption

issue; (3) BCBS-Maryland’s threatened harm outweighs the

Weiners’ harm because the Weiners will not incur any

injury; and (4) the preliminary injunction would serve the

15

public interest by promoting a national uniform interpreta-

tion of ERISA.

Turning to the permanent injunction and declaratory

relief, BCBS-Maryland contends that the district court

improperly abstained because this case does not involve a

sufficiently vital state interest to warrant abstention. Fur-

thermore, BCBS-Maryland contends that it properly collat-

erally attacked the Florida court’s decision.

The Weiners contend that the district court must dismiss

the action because BCBS-Maryland cannot collaterally

attack the Florida court’s judgment for two reasons: (1) the

district court lacks subject matter jurisdiction under the

Rooker-Feldman doctrine, and (2) res judicata precludes the

district court from deciding the preemption issue. Alterna-

tively, the Weiners contend that the district court properly

denied the preliminary injunction because BCBS-Maryland

failed to establish any of the four requirements for a prelimi-

nary injunction.

The Weiners further contend that the district court prop-

erly abstained from granting the requested permanent

injunctive and declaratory relief. According to the Weiners,

BCBS-Maryland’s attempt to enjoin the enforcement of the

Florida court’s judgment and attorney’s fees award impli-

cates vital state interests.

ISSUES

The parties raise the following issues on appeal: (1)

whether the district court lacked subject matter jurisdiction

because BCBS-Maryland’s claims require the district court

to exercise appellate jurisdiction over the state court pro-

ceedings; (2) whether res judicata precludes BCBS-Mary-

land from collaterally attacking the state court judgment;

(3) whether the district court improperly abstained from

granting declaratory relief; and (4) whether the district

court abused its discretion in denying the preliminary

injunction.

16

DISCUSSION

The Weiners challenge the district court’s subject matter

jurisdiction over BCBS-Maryiand’s federal claims. The Wei-

ners contend that the district court’s decision necessarily

entails reviewing the Florida trial court’s judgment in viola-

tion of Supreme Court authority expressly prohibiting dis-

trict courts from exercising such appellate review. We

agree.**

I. The Rooker-Feldman Doctrine

[1] The Supreme Court first prohibited a district court

from reviewing a state court decision for alleged federal law

errors in Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct.

149, 68 L.Ed. 362 (1923). In Rooker, after the action pro-

ceeded through the Indiana courts, the unsuccessful party

filed suit in federal district court arguing that the state

courts relied on an unconstitutional statute. The Supreme

Court held that the district court did not have jurisdiction to

correct the alleged constitutional ,error in the Indiana

Supreme Court’s decision. Rooker, 263 U.S. at 415, 44 S.Ct. at

150. The Court found such review improper for two reasons:

(1) district courts can only exercise original jurisdiction, and

(2) the Supreme Court has the exclusive authority to review

state supreme court decisions for alleged federal law errors.

Rooker, 263 U.S. at 416, 44 S.Ct. at 150; see 28 US.C.A.

§§1257, 1331 (West 1966 & Supp. 1988).

Sixty years later, the Supreme Court reaffirmed the

Rooker holding in District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206

(1983). The District of Columbia Court of Appeals denied

Feldman’s petition for admission to the District of Columbia

Bar, refusing to waive the District of Columbia rule that

required individuals to graduate from an American Bar

Association accredited law school. Feldman filed suit in dis-

**Because this issue disposes of this action, we do not address the other

issues.

17

trict court, seeking a declaration that the District of Colum-

bia Court of Appeals’s [sic] refusal to admit him to the bar

violated the fifth amendment and the Sherman Act. In addi-

tion, Feldman sought injunctive relief either requiring

immediate admission to the District of Columbia Bar or

allowing him to sit for the bar examination. The Supreme

Court concluded that the district court lacked jurisdiction to

hear Feldman’s fifth amendment and federal antitrust chal-

lenges to the District of Columbia Court of Appeals’s [sic]

denial of his petition. Feldman, 460 U.S. at 486, 103 S.Ct. at

1316, 75 L.Ed.2d at 225. Citing Rooker, the Court held that

the district court could not decide these federal issues

because they were “inextricably intertwined” with the Dis-

trict of Columbia Court of Appeals’s [sic] decision. Feldman,

460 U.S. at 486-87, 103 S.Ct. at 1316-17, 75 L.Ed.2d at 225.

In contrast, the Supreme Court held that the district court

properly exercised jurisdiction over Feldman’s general con-

stitutional challenge to the accreditation rule because

reviewing such an attack would not amount to reviewing the

District of Columbia Court of Appea!s’s [sic] decision. 460

U.S. at 487, 103 S.Ct. at 1316-17, 75 L.Ed.2d at 225-26.

Thus, although federal district courts have jurisdiction over

general constitutional challenges, Rooker and Feldman pro-

hibit such courts from exercising jurisdiction to decide fed-

eral issues that are inextricably intertwined with a state

court’s judgment.

II. Application of the Rooker-Feldman Doctrine

BCBS-Maryland contends that the Rooker-Feldman doc-

trine does not apply to this action because it has merely

asserted a non-constitutional challenge, the Florida trial

court did not address the preemption issue, and the preemp-

tion issue is not inextricably intertwined with the Florida

court’s judgment. Contrary to BCBS-Maryland’s arguments,

we find that the Rooker-Feldman doctrine compels the dis-

trict court to dismiss this action for lack of jurisdiction.

A. Non-Constitutional Challenges

{2} BCBS-Maryland argues that the Rooker-Feldman doc-

18

trine does not apply because it has asserted a non-constitu-

tional challenge to the Florida trial court’s judgment. We

disagree. Neither the Supreme Court [sic] not this court has

limited the Rooker-Feldman bar to constitutional claims. In

Feldman, the Court held that the district court lacked sub-

ject matter jurisdiction over Feldman’s fifth amendment and

Sherman Act challenges. The Feldman Court never distin-

guished between the constitutional and non-constitutional

federal claims. Feldman, 460 U.S. at 464, 103 S.Ct. at 1305,

75 L.Ed.2d at 225 (“{district courts] do not have jurisdiction,

however, over challenges to state-court decisions in particu-

lar cases arising out of jucicial proceedings even if those

challenges allege that the state court’s action was unconsti-

tutional.”).

This court has similarly applied the Rooker-Feldman bar

to non-constitutional federal claims. See, e.g., Staley v. Led-

better, 837 F2d 1016 (11th Cir. 1988). Staley sought to

regain custody of her adopted child in the Georgia court sys-

tem. The Georgia juvenile court and the Georgia Court of |

Appeals affirmed the termination. After the Georgia

Supreme Court denied Staley’s writ of certiorari, Staley

brought a section 1983 action claiming violations of her

equal protection and due process rights, and her statutory

rights under the Child Welfare Act of 1980. We affirmed the

district court’s dismissal for lack of jurisdiction of all of

Staley’s claims, including the non-constitutional federal

claim. In reaching this conclusion, the court stated, “[a fed-

eral district court] may not decide federal issues that are

raised in state proceedings and ‘inextricably intertwined’

with the state court’s judgment.” Staley, 837 F.2d at 1018

(emphasis added) (quoting Wood v. Orange County, 715 F.2d

1543, 1546 (11th Cir. 1983), cert. denied, 467 U.S. 1210, 104

S.Ct. 2398, 81 L.Ed.2d 355 (1984)): see also Berman v. Flor-

ida Board of Bar Examiners, 794 F.2d 1529, 1530 (1ith Cir.

1986) (affirming district court’s dismissal of federal plain-

tiff’s claims and stating that district courts lacked jurisdic-.

tion over challenges “based on constitutional or other

grounds |to| a state court’s judicial decision in a particular

19

case ... denlying] ... admission to a particular bar appli-

cant.” (Emphasis added)). Therefore, the Rooker-Feldman

bar applies even though BCBS-Maryland only raises non-

constitutional federal claims to attack the Florida proceed-

ings.

B. Issue Not Raised in Trial Court

{3] BCBS-Maryland also contends that the Rooker-Feld-

man doctrine does not apply because the federal court will

only address the preemption question, an issue which the

Florida trial court did not decide. The Weiners concede that

the Florida trial court did not decide the preemption issue.

The Weiners argue, however, that the Rooker-Feldman bar

applies because BCBS-Maryland had a reasonable opportu-

nity to raise, and did raise, the preemption issue to the Flor-

ida appellate court.

Supreme Court and Eleventh Circuit authority refutes

BCBS-Maryland’s asserted limitation. In Feldman, the

Supreme Court noted that a district court could not exercise

jurisdiction over constitutional claims inextricably inter-

twined with a state court’s judgment simply because the fed-

eral plaintiff failed to raise such claim in the state court.

Feldman, 460 U.S. at 482 n.16, 103 S.Ct. at 1315 n.16, 75

L.Ed.2d at 223 n.16. Interpreting this broad proposition, this

court concluded that the Rooker-Feldman doctrine applies

when the federal plaintiff had a reasonable opportunity to

raise the federal claim in the state court proceedings. Wood,

715 F.2d at 1546-47.

The problem then becomes determining the scope of the

term “reasonable opportunity.” This court has rendered sev-

eral relevant decisions. In Wood, the court indicated that a

party’s ability to raise a claim on appeal constituted a rea-

sonable opportunity to raise the claim. Wood, 715 F.2d at

1548 (district court had jurisdiction only because the federal

plaintiff did not have a reasonable opportunity to raise his

claim; he lacked a reasonable opportunity to appeal the

judgment, and the opportunity for a post-judgment attack

did not substitute for an appeal). More importantly, in a

20

nearly identical) case to the present action, this court

affirmed the district court’s dismissal for lack of jurisdiction

because the party had the opportunity, and in fact availed

himself of such opportunity, to raise his federal claims in his

state court appeal of a state trial court’s decision. Rolleston v.

Eldridge, 848 F.2d 163, 165 (11th Cir. 1988); see also Hollins

v. Wessel, 819 F.2d 1073, 1074 (11th Cir. 1987) (district court

lacked jurisdiction where federal plaintiff appealed state

trial court’s decision because such plaintiff had the opportu-

nity to raise his federal claims).

As in Rolleston and Hollins, BCBS-Maryland had the

opportunity to assert, and did assert, the preemption issue

in its state court appeal. Because the Florida appellate court

is an appropriate forum for determining whether the state

trial court had jurisdiction, the Rooker-Feldman bar applies

to BCBS-Maryland’s preemption claim. See Key v. Wise, 629

F.2d 1049, 1055 (5th Cir. 1980), cert. denied, 454 U.S. 1103,

102 S.Ct. 682, 70 L.Ed.2d 647 (1981) (lower federal court

lacks power to vacate Mississippi Supreme Court's decision

approving jurisdiction of Mississippi trial court).

C. Inextricably Intertwined

[4] BCBS-Maryland finally contends that the district

court had jurisdiction because the preemption issue is not

“inextricably intertwined” with the Florida trail [sic] court’s

judgment.

BCBS-Maryland’s preemption claim would require the

district court to decide whether ERISA preempted the Wei-

ners’ tort claims. The district court would not merely decide

the general issue of whether ERISA preempts all state tort

claims. Rather, the district court would have to determine

whether ERISA preempts the tort claims in this case by

determining whether ERISA governs the Weiners’ insur-

ance plans. As the Weiners note, the Florida trial court liti-

gated the factual issues upon which BCBS-Maryland’s claim

of ERISA preemption depends, including the nature of the

Weiners’ insurance policy, the circumstances under which

the Weiners purchased it, and the relationship between their

21

tort claims and the administration of benefits under+the pol-

icy. Thus, the district court would necessarily review these

essential components of the Florida trial court’s judgment.

Such review exemplifies the zone of appellate review from

which federal district courts are forbidden.

D. Applicable to Injunctive and Declaratory Relief

[5] Finally, we note that the Rooker-Feldman bar applies

to BCBS-Maryland’s request for injunctive relief in addition

to its request for declaratory relief. Both the Supreme Court

and this court have dismissed injunctive relief claims under

the Rooker-Feldman doctrine. See Feldman, 460 U.S. at 468,

103 S.Ct. at 1307, 75 L.Ed.2d at 214: Hollins, 819 F.2d at

1074; Wood, 715 F.2d at 1545. We emphasize this point

because a prior binding decision held that Rooker did not

apply to requests to enjoin state court proceedings. Gresham

Park Comm. Organ. v. Howell, 652 F.2d 1227, 1236 (5th Cir.

Unit B 1981). Relying on Feldman, however, this court

expressly abandoned Gresham’s restrictive interpretation of

Rooker. Wood, 715 F.2d at 1546.

CONCLUSION

Because BCBS-Maryland’s requested relief would require

the district court to decide a federal issue inextricably inter-

twined with the Florida trial ccurt’s judgment, the district

court lacked subject matter jurisdiction. Consequently, we

affirm the district court’s denial of the preliminary injunc-

tion and its order of abstention, but remand this case to the

district court with instructions to dismiss the action as it

relates to the request for permanent injunction for lack of

subject matter jurisdiction.

AFFIRMED AND REMANDED WITH DIRECTIONS

23

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 88-5518

BLUE CROSS AND BLUE SHIELD

OF MARYLAND, INC.,

Plaintiff-Appellant,

BLUE CROSS AND BLUE SHIELD

OF FLORIDA, INC.,

Plaintiff-Intervenor,

versus

ROBERT WEINER, SR.,

MARGARET WEINER, MARK WEINER,

and ROBERT WEINER, SR., as Personal

Representatives of the Estate of

Steven Weiner,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING IN BANC

(Opinion April5,1989 ,11Cir,198 , Fd

)

24

Before KRAVITCH and HATCHETT, Circuit Judges, and

Wa caipeints MARKEY*%, Chief Circuit Judge.

PER CURIAM:

( X ) The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active ser-

vice on the Court having requested that the Court be polled

on rehearing in banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of

Rehearing In Banc are DENIED.

) The Petition(s) for Rehearing are DENIED and the

Court having been polled at the request of one of the mem-

bers of the Court and a majority of the Circuit Judges who

are in regular active service not having voted in favor of it

(Rule 35, Federal Rules of Appellate Procedure; Eleventh

Circuit Rule 35-5), the Suggestion(s) of Rehearing In Banc

are also DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause in banc,

and a majority of the judges in active service not having

voted in favor of it, Rehearing In Banc is DENIED.

ENTERED FOR THE COURT:

/s/

United States Circuit Judge

ORD-42

*Honorable Howard T. Markey, Chief U.S. Circuit Judge for the Federal

Circuit, sitting by designation.

25

APPENDIX E

IN THE CIRCUIT COURT OF THE

17TH JUDICIAL CIRCUIT IN AND

FOR BROWARD COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO.: 84-00840 CH

ROBERT WEINER, MARGARET WEINER,

MARK WEINER, and ROBERT WEINER

as Personal Representative of

the Estate of STEVEN WEINER,

Plaintiffs,

VS.

BLUE CROSS OF MARYLAND, INC.,

BLUE SHIELD OF MARYLAND, INC.,

BLUE CROSS and BLUE SHIELD OF

MARYLAND, INC. and BLUE CROSS

BLUE SHIELD OF FLORIDA, INC.,

Defendants

FINAL JUDGMENT

THIS CAUSE came on to be heard before the Honorable

Robert L. Andrews, one of the Judges of the above-styled

Court, and a jury of six true and lawful men and women,

who, having been first duly sworn according to law, and hav-

ing heard the evidence, the arguments of counsel and the

charges of the Court, and having retired to consider their

verdict, returned in open Court the following verdict, to-wit:

We, the jury, return the following verdict:

1. Did Blue Cross/Blue Shield of Maryland misrep-

resent the coverage available under its group health

plan for Mark or Steven Weiner, which was a legal

26

cause of injury to the plaintiffs?

YES X_ NO.

2. Did Blue Cross/Blue Shield of Florida misrepre-

sent the need for or terms of continuing coverage for

Mark Weiner, which was a legal cause of injury to the

plaintiffs?

YES X_ NO

3. Were there intentional or reckless actions of

either Blue Cross/Blue Shield of Maryland or Blue

Cross/Blue Shield of Florida that caused severe emo-

tional distress to the plaintiffs?

As to Blue Cross/Blue Shield of Maryland:

YES X_ NO

..As to Blue Cross/Blue Shield of Florida:

YES X_ NO

4. Was there negligence on the part of either Blue

Cross/Blue Shield of Maryland or Blue Cross/ Blue

Shield of Florida in the administration of the group

health plan which was a !egal cause of damage to the

plaintiffs?

As to Blue Cross/Blue Shield of Maryland:

YES X_ NO

As to Blue Cross/Blue Shield of Florida:

{Sen NO X

(If you have answered NO to questions 1, 2, 3

and 4, your verdict is for the defendants and

you should not proceed further except to date

and sign this verdict form and return it to the

courtroom. If., however, your answer to any

part of any one or more of questions 1, 2, 3 or 4

is YES, you should proceed to answer question

5.

5. What is the total amount (100%) of the injury or

damages sustained by each of the plaintiffs by virtue

27

of the defendant and/or defendants’ acts?

As to Blue As to Blue

Cross/Blue Cross/Blue

Shield of Shield of

Maryland Florida

Robert Weiner $100,000.00 $50,000.00

Margaret Weiner 5100,000.00 $50,000.00

Mark Weiner $150,000.00 $50,000.00

Estate of

Steven Weiner $150,000.00 $50,000.00

\If your answer to any part of any one or more of

questions 1, 2 or 3 is YES, you should also proceed to

answer question 6. |

6. As punitive damages against the defendants, the jury

assesses the following sums:

Blue Cross/Blue Shield —$5,000,000.00

of Maryland

Blue Cross/Blue Shield —$1,500,000.00

of Florida

SO SAY WE ALL this 25th day of September, 1986.

s/ Willie Woods _

Foreperson

it is therefore

ORDERED AND ADJUDGED that Final Judgment be

and it it [sic] hereby entered in this cause in favor of the

plaintiffs and against the defendants, and the plaintiff, Rob-

ert Weiner, shall have and recover from the defendant, Blue

Cross/Blue Shield of Maryland, the sum of One Hundred

Thousand Dollars ($100,000.00) and from the defendant,

Blue Cross/Blue Shield of Florida, the sum of Fifty Thousand

Dollars ($50,000.00), lawful money of the United States of

America; the plaintiff, Margaret Weiner, shall have and

recover from the defendant, Blue Cross/Blue Shield of Mary-

land, the sum of One Hundred Thousand Dollars

28

($100,000.00) and from the defendant, Blue Cross/Blue

Shield of Florida, the sum of Fifty Thousand Dollars

($50,000.00), lawful money of the United States of America;

the plaintiff, Mark Weiner, shall have and recover from the

defendant, Blue Cross/Blue Shield of Maryland, the sum of

One Hundred Fifty Thousand Dollars ($150,000.00) and

from the defendant, Blue Cross/Blue Shield of Florida, the

sum of Fifty Thousand Dollars ($50,000.00), lawful money of

the United States of America; the plaintiff, the Estate of

Steven Weiner, shall have and recover from the defendant,

Blue Cross/Blue Shield of Maryland, the sum of One Hun-

dred Fifty Thousand Dollars ($150,000.00) and from the

defendant, Blue Cross/Blue Shield of Florida, the sum of

Fifty Thousand Dollars ($50,000.00), lawful money of the

United States of America;-and the plaintiffs shall recover as

punitive damages from the defendant, Biue Cross/Diue

Shield of Maryland, the sum of Five Million Dellars

($5,000,000.00) and as punitive damages from the defend-

ant, Blue Cross/Blue Shield of Florida, the sum of One Mil-

lion, Five Hundred Thousand Dollars ($1,500,000.00), law-

ful money of the United States of America; and FOR WHICH

LET EXECUTION ISSUE.

IT IS FURTHER ORDERED AND ADJUDGED that the

Court shall retain jurisdiction of this cause and the parties

thereto for determination of the question of taxation of costs

and attorneys fees.

DONE AND ORDERED in Chambers at Fort Lauderdale,

Broward County, Florida, this 26th day of September, 1986.

Ig/

CIRCUIT COURT JUDGE

Copies furnished to:

Stewart Tilghman Fox & Bianchi, P.A.

Esler & Kirschbaum

Walton Lantaff Schroeder & Carson

Podhurst Orseck Parks Josefsberg

Eaton Meadow & Olin

29

APPENDIX F

IN THE CIRCUIT COURT OF THE

17TH JUDICIAL CIRCUIT IN AND

FOR BROWARD COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO.: 84-00840 CH

ROBERT WEINER, MARGARET WEINER,

MARK WEINER, and ROBERT WEINER

as Personal Representative of

the Estate of STEVEN WEINER,

Plaintiffs,

VS.

BLUE CROSS OF MARYLAND, INC.,

BLUE SHIELD OF MARYLAND, INC.,

BLUE CROSS and BLUE SHIELD OF

MARYLAND, INC. and BLUE CROSS

BLUE SHIELD OF FLORIDA, INC.,

Defendants.

ORDER ON PLAINTIFFS’ MOTION FOR

ATTORNEYS’ FEES AND JUDGMENT THEREON

THIS CAUSE coming on before the Court on November

20, 1986, on the Plaintiffs’ Motion for Attorneys Fees and

the Court having conducted a hearing and considered the

testimony and evidence presented at such hearing, and the

Court being fully advised in the premises, hereby makes the

following findings of fact and conclusions of law.

FINDINGS OF FACT

1. The Court finds that the matters of coverage, interpre-

tation of the insurance policies involved and the policy

claims of the defendants were the mainstay of contention

30

and the central core of the trial of this case and of much of

the discovery and pretrial proceedings that preceded the

trial. The Court has carefully examined the time itemiza-

tions submitted on behalf of plaintiffs’ counsel and has spe-

cifically excluded time involved in travel as well as time that

the Court has found to be duplicative. The Court has also

specifically excluded over 500 hours of paralegal time in

accordance with the holding in Rivers Trailers, Inc. v. Miller,

489 So.2d 1139 (Fla. lst DCA 1986).

Taking all of the foregoing into account, the Court finds

that the reasonable amount of hours expended by plaintiffs’

counsel in this case with respect to the matters of coverage,

interpretation of the insurance policies involved and the pol-

icy claims of the defendants is as follows:

Colson, Hicks & Ridson 158.5

Larry S. Stewart 800.0

David W. Bianchi 900.0

In arriving at these figures, the Court has considered the

fact that the insurance benefits resulting to the plaintiffs by

reason of this action, may well exceed several million dol-

lars. At the time that the defendants began to process plain-

tiffs bills in March, 1984, there was outstanding approxi-

mately $150,000 in unpaid medical bills. During the

progress of the litigation, the defendants asserted that the

entire coverage was void by reason of plaintiffs’ misrepresen-

tation and that alternatively certain services were not cov-

ered benefits. The insurance coverage consists of three poli-

cies: physician services coverage in an unlimited amount,

hospital services coverage in an unlimited amount and

major medical coverage with a primary limit of $1,000,000

per person. The plaintiff, Mark Weiner, is a quadriplegic and

will undoubtedly require medical care in excess of

$1,000,000. The plaintiffs, Robert and Margaret Weiner,

have in the past and most probably will in the future require

medical care.

The Court also notes that while these amounts of time in

the abstract appear large, the Court finds that a great deal

31

of this time was necessitated by the defendants’ conduct in

pursuing obstructionist discovery tactics, asserting non-

meritorious policy positions and a non-meritorious affirma-

tive defense all of which resulted in extensive discovery

which would otherwise have been unnecessary. Consistent

with the purpose of Chapter 627.428, Florida Statutes, to

discourage contesting of insurance matters, the Court finds

that all of such time expended by plaintiffs’ counsel in deal-

ing with those matters should be included in arriving at a

reasonable fee. The Court also notes with respect to the rea-

sonableness of the time involved by plaintiffs’ counsel, that

the defense attorneys in this case cumulatively spent in

excess of 2800 hours. Although that time included all issues,

it strongly buttresses the reasonableness of plaintiffs’ coun-

sels’ time on the insurance issues.

2. In arriving at a reasonable hourly rate, the Court has

taken into account the skill and expertise of the counsel

involved as well as the testimony of the expert witnesses.

The Court finds that a reasonable hourly rate for Larry S.

Stewart is $350 per hour; that a reasonable hourly rate for

David W. Bianchi is $200 per hour; and that a reasonable

hourly rate for the time of the firm of Colson, Hicks & Rid-

son, which consists primarily of the services of Dean Colson,

is $200 per hour.

3. Based on the foregoing the Court determines that the

lodestar for Larry S. Stewart is Two hundred eighty thou-

sand Dollars ($280,000.00); that the lodestar for David W.

Bianchi is One hundred eighty thousand Dollars

($180,000.00); and that the lodestar for Colson, Hicks &

Ridson is Thirty-one thousand, six hundred Dollars

($31,600.00).

4. In consideration of the expert witness testimony and

the Court’s own personal observation of the trial of this

cause, the Court finds that there should be an upward

enhancement based upon the “contingency risk factor”

delineated in Florida Patients Compensation Fund v. Rowe,

472 So.2d 1145 (Fla. 1985). Based on the Court’s observa-

a —

32

tions of the file, pretrial hearings and the trial itself, the

Court finds that the likelihood of success at the time the

‘case was initiated was unlikely. From the very outset, up to

the trial itself, the defendants took the position of stonewall-

ing, of delaying and going into collateral matters to divert

the search for the truth. In the hands of lesser counsel there

would in all probability have been no success at all. The

unlikelihood of success is also borne out in part by the fact

that Blue Cross/Blue Shield of Maryland never made any

offer of settlement and Blue Cross/Blue Shield of Florida

stated it would consider only a minimal offer of settlement

before trial. Based on the foregoing, the Court finds that as

to the services performed by Larry S. Stewart and David W.

Bianchi, the lodestar should be enhanced by a multiplier of

3.0. As to the services of Colson, Hicks & Ridson, the Court

does not find a multiplier to be applicable.

5. Multiplying the lodestar figure for the services of Larry

S. Stewart and David W. Bianchi by 3.0 and including the

lodestar for Colson, Hicks & Ridson, the Court determines

the reasonable attorneys’ fee in this case to be One Million,

Four Hundred Eleven Thousand, Six Hundred Dollars

($1,411,600.00).

CONCLUSIONS OF LAW

Based upon the foregoing, it is hereby

ORDERED AND ADJUDGED that the Plaintiffs [sic]

Motion for Attorneys Fees be and the same hereby is granted

and attorneys fees are hereby awarded to the plaintiffs in

the sum of One Million, Four Hundred Eleven Thousand, Six

Hundred Dollars ($1,411,600.00).

JUDGMENT ON ATTORNEYS FEES

It is hereby ORDERED AND ADJUDGED that a judg-

ment of attorneys fees be entered in favor of the Plaintiffs,

Robert Weiner, Margaret Weiner, Mark Weiner, and Robert

Weiner as Personal Representative of the Estate of Steven

Weiner, and against the Defendants, Blue Cross of Mary-

33

land, Inc., Blue Shield of Maryland, Inc., Blue Cross and

Blue Shield of Maryland, Inc. and Blue Cross/Blue Shield of

Florida, Inc., and the Plaintiffs shall have and recover as

attorneys fees from said Defendants the sum of One Million,

Four Hundred Eleven Thousand, Six Hundred Dollars

($1,411,600.00), lawful money of the United States of Amer-

ica, and for which let execution issue.

DONE AND ORDERED in Chambers Fort Lauderdale,

Broward County, Florida this 24th day of November, 1986.

CIRCUIT COURT JUDGE

Copies furnished to:

Mr. Carl E. Jenkins

WALTON LANTAFF SCHROEDER & CARSON

Robert C. Josefsberg

PODHURST ORSECK PARKS JOSEFSBERG

KATON MEADOW & OLIN, P.A.

Joel L. Kirschbaum

ESLER & KIRSCHBAUM, P.A.

Larry S. Stewart

STEWART TILGHMAN FOX & BIANCHI, P.A.

|

34

APPENDIX F (cont'd)

IN THE CIRCUIT COURT OF

THE 17TH JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY,

FLORIDA

GENERAL JURISDICTION

DIVISION

CASE NO.: 84-00840 CH

ROBERT WEINER, MARGARET WEINER,

MARK WEINER, and ROBERT WEINER

as personal representative of

the estate of STEVEN WEINER,

Plaintiffs,

VS.

BLUE CROSS OF MARYLAND, INC.,

BLUE SHIELD OF MARYLAND), INC.,

BLUE CROSS and BLUE SHIELD OF

MARYLAND, INC.

Defendants.

ORDER ON PLAINTIFFS’ MOTION FOR

ATTORNEYS FEES BY REMAND FROM

THE 4TH DISTRICT COURT OF APPEAL

THIS CAUSE is before the Court on remand from the 4th

District Court of Appeal, following an appeal by the Defen-

dants, regarding an award of attorney fees in favor of the

Plaintiff. In that appeal, the Court reversed the judgement

of attorney fees against Florida, and remanded so that this

Court may reapportion attorney fees as to Maryland alone.

35

FINDINGS OF FACT

The facts of this case are as follows. In March of 1982, Mr.

Weiner purchased health insurance for himself and his fam-

ily. That policy was sponsored by Blue Cross/Blue Shie!d of

Maryland (Maryland). Blue Cross/Blue Shield of Florida

(Florida) was at all times Maryland’s agent for the purpose

of servicing claims arising in this state.’ Tragically, in

August [19]82, Mark Weiner was involved in an accident and

became a quadriplegic. That same summer Steven Weiner

was diagnosed with a fatal illness. As the insurance cover-

age called for, Maryland began making payments for hospi-

talization and nursing care. In August of 1983, Mr. Weiner

was informed that all coverage was being terminated. When

negotiations to reinstate coverage proved fruitless, a suit

was instituted in which Mr. Weiner prevailed against both

Defendants. This Court, on plaintiff’s motion, then awarded

the Weiners attorney’s fees as called for by Florida Statute

627.428.* Florida appealed to the 4th District Court of

Appeal which reversed both the judgment and the award of

attorney’s fees as to Florida but affirmed the judgment as to

Maryland. It is now this Court’s responsibility to consider

the issue of reapportionment of the award of attorney’s fees

as to Maryland alone.

The issues surrounding attorney fees have seen ample

exposure in this State. It is well settled in Florida that attor-

ney’s fees may only be awarded by contract, when an attor-

' The 4th District Court of Appeal itself expressly noted that Florida

was Maryland's agent.

Florida Statute 627.428 Attorney's Fees

(1) Upon the rendition of a judgment of decree by any of the courts of

this state against an insured and in favor of any named or omnibus

insured ... the trial court or, in the event of an appeal in which the

insured or beneficiary prevails, the appellate court shall adjudge or decree

against the insurer and in favor of the insured or beneficiary a reasonable

sum as fees or compensation for the insured’s or beneficiary's attorney

prosecuting the suit in which recovery is had.

36

ney creates or brings a special fund into the court, or as in

this case, by statute. McElhiney v. Ash Properties, Inc., 411

So.2d 291 (Fla. Ist Dist. Ct. App. 1982), City of Miami Beach

uv. Town of Bay Harbor Islands, 380 So.2d 1112 (Fla. 3rd Dist.

Ct. App. 1980). The remedy stated in Florida Statute

627.428 has existed in some form or another for many years.

The aim of this statute, and the underlying public policy is

to dissuade insurers from contesting insurance coverage,

especially when the insureds, such as the plaintiffs, are in

such dire straits. Feller v. Equitable Life Assurance Soc., 57

So.2d 581,586 (Fla. 1952) (en banc), Florida Rock and Tank

Lines, Inc. v. Continental Insurance Co., 399 So.2d 122,124

(Fla. lst Dist. Ct. App. 1981). In cases such as these, the stat-

utory provisions awarding attorney's fees is in the nature of

a penalty, and must be strictly construed by the court. Wil-

mington Trust Co. v. Manufacturers Life Insurance, 749 F.2d

694, 700 (11th Cir. 1985), Travelers Indemnity Co. v.

Chisholm, 384 So.2d 1360 (Fla. 2d Dist. Ct. App. 1980),

American National Insurance Co. v. de Cardenas, 181 So.2d

359, 361 (Fla. 3rd Dist. Ct. App. 1965).

It is Maryland’s position that time expended by Plaintiff's

attorneys in relation to Florida should not be assessed

against them. To support this position Maryland cites Vul-

can Socieity [sic] of Westchester Cty. v. Fire Department, 533

F. Supp. 1054 (S.D.N.Y. 1982). That case states that when

certain aspects of litigation are attributable solely to one or

more defendants, that fairness requires those matters to be

identified, and divided among only responsible defendants.

Id at 1064. What the Defendants overlook is that they and

not Florida were solely responsible for the Plaintiff’s insur-

ance coverage being canceled. It was for this exact reason

t iat the Court of Appeal reversed the judgement as to Flor-

ida. It is also for this reason that attorney fees accumulated

by the plaintiffs concerning their insurance coverage should

be paid by Maryland.

Strictly construing the language of Florida Statute

627.428 gives guidance to the Court in awarding a prevail-

37

ing insured attorney's fees in a suit involving coverage

issues. The statute does not call for apportionment of attor-

neys fees between two insurers who caused a suit regarding

coverage to be instituted. The Statute does however

impliedly call for the apportionment of attorneys fees when

there are other claims in a suit besides the interpretation of

the policy and the determination of coverage, but that is not

the case here. In this case, the issues involved fall squarely

within the scope and public policy of Florida Statute

627.428.

Maryland also cites Nash v. Chandler, 848 F.2d 567 (5th

Cir. 1988) for the proposition that fees expended for unsuc-

cessful claims should be segregated from the fee award

against Maryland. However, the Court in Nash ultimately

found that “(t]he unsuccessful claims were not so distinct

from the successful claims as to be severed for the purpose of

awarding attorney fees”. Jd at 572. In the present case, the

claims presented against both Defendants were identical,

and all arose from the insurance coverage sponsored by

Maryland. Had the claims against the Defendants been sep-

arate and distinct then the fee award would properly be

divided among those claims, but this is not the case.

Both the Trial Court and Court of Appeal held that mat-

ters of coverage and interpretation of the insurance policy

were the “central core” of the trial. The United States

Supreme Court with reference to a civil rights case has held

that:

[ijn some cases a plaintiff may present in one lawsuit

distinctly different claims for relief that are based on

different facts and legal theories. In such a suit, even

where the claims are brought against the same

defendants ... counsel’s work on one claim will be

unrelated to his work on another claim. Accordingly,

work on an unsuccessful claim cannot be deemed to

have been “expended in pursuit of the ultimate result

achieved” . . . lt may well be that cases involving such

unrelated claims are unlikely to arise with great fre-

quency.... In other cases the plaintiff’s claims for

38

relief will involve a common core of facts or will be

based on related legal theories. Much of counsel’s time

will be devoted generally to the litigation as a whole,

making it difficult to divide the hours expended on a

claim-by-claim basis. Such a lawsuit cannot be

viewed as a series of discrete claims. Instead the dis-

trict court should focus on the significance of the over-

all relief obtained by the plaintiff in relation to the

hours reasonably expended on the litigation.”

Hensley v. Eckerhart, 103 S.Ct. 1933, 1940, 461 U.S. 424, 435

(1983).

The theories above are aptly summarized in Chrysler

Corp. v. Weinstein, 522 So.2d 895 (Fla. 3rd Dist. Ct. App.

1988). That case as in the instant one had two defendants

and one plaintiff. In Weinstein the Appellate Court states

“(When claims arose from the same common core of facts

the apportionment between claims is not necessary”. The

Court in Weinstein felt that if separate and distinct causes of

actions are present rather than alternative theories of liabil-

ity, apportionment would be appropriate. In this case, every

cause of action raised against Maryland was properly raised

against Florida. This was due to the tactics of the Defen-

dants in both the initial discovery and pretrial proceedings.”

It was not until after formal proceedings began that this

Court could have concluded that Florida was merely acting

as an agent for the benefit of Maryland. It is for reasons such

as these that the judgment of attorney fees should be

assessed against Maryland alone.

The other cases cited by Maryland are also inapplicable

since they involve apportionment between several defen-

* The tactics used by Maryland and Florida resulted in liability for the

infliction of emotional distress. Florida was relieved from liability by the

4th District Court of Appeal because the Court found that as an agent,

Florida only relayed the decisions of its principle (Maryland). The judge-

ment against Maryland along with liability for fraud is now final.

39

dants and isolated causes of action not all of which allow the

prevailing party attorneys fees.

It is Maryland’s contention that this court reconsider the

entire issue of attorney’s fees as if the previous proceedings

never occurred. This view however is inconsistent with Flor-

ida case law, and would serve only to further tax an already

overworked judicial system. This Court has already con-

ducted hearings, considered testimony, and examined evi-

dence concerning the award of attorneys fees, as required by

Florida Patient's Compensation Fund v. Rowe, 472 So.2d

1145 (Fla. 1985). This Court has also considered those fac-

tors set forth in Rowe and in its discretion, found that the

circumstances made the $1,411,600.00 assessment of attor-

neys fees reasonable. In addition, the amount of the assess-

ment was not found to be unreasonable, and has been

upheld.

CONCLUSIONS OF LAW

For the reasoning demonstrated above the Plaintiffs

Motion for Attorneys Fees is hereby granted against Mary-

land alone.

JUDGEMENT ON ATTORNEY FEES

It is hereby ORDERED AND ADJUDGED that a judge-

ment of attorneys fees be entered in favor of the Plaintiffs

Robert Weiner, Margaret Weiner, Mark Weiner, and Robert

Weiner as Personal Representative of the Estate of Steven

Weiner, against BLUE CROSS OF MARYLAND, INC.,

BLUE SHIELD OF MARYLAND, INC., BLUE CROSS and

BLUE SHIELD OF MARYLAND, INC., and the Plaintiffs

shall have and recover as attorneys fees from said Defendant

the sum of One Million, Four Hundred Eleven Thousand,

and Six Hundred Dollars ($1,411,600.00), lawful money of

the United States of America, and for which let execution

issue.

40

DONE AND ORDERED in Chambers Fort Lauderdale,

Broward County, Florida this 31st day of July 1989.

/s/

CIRCUIT COURT JUDGE

Copies Furnished to:

Larry S. Stewart

STEWART TILGHMAN FOX & BIANCHI, P.A.

G. Bart Billbrough

WALTON LANTAFF SCHRODER & CARLSON

Joel L. Kirschenbaum

ESLER & KIRSCHBAUM, P.A.

Robert C. Josefsberg

PODHURST ORSECK PARKS JOSEFSBERG

EATON MEADOW & OLIN, P.A.

Alan C. Sundberg and Sylvia H. Walbolt

CARLTON, FIELDS, WARD, EMMANUEL,

SMITH, CUTLER & KENT, P.A.

4]

ai: aa et ealatad

APPENDIX G

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF

FLORIDA FOURTH DISTRICT

JANUARY TERM 1989

BLUE CROSS/BLUE SHIELD

OF FLORIDA, INC.,

Appellant,

V.

ROBERT WEINER, MARGARET

WEINER, MARK WEINER and

ROBERT WEINER as Personal

Representative of the

Estate of STEVEN WEINER,

BLUE CROSS OF MARYLAND,

INC., BLUE SHIELD OF

MARYLAND, INC., BLUE CROSS

AND BLUE SHIELD OF

MARYLAND, INC.,

Appellees.

NOT FINAL UNTIL TIME

EXPIRES TO FILE

REHEARING MOTION

AND, IF FILED,

DISPOSED OF.

CASE NOS. 4-86-2899

4-86-2924

4-86-2925

4-86-2926

and 4-86-2927.

Opinion filed April 26, 1989

Consolidated appeals from the

Circuit Court for Broward County;

Robert L. Andrews, Judge. .

ticccaiiaiiceamiitaiainiaaaiaiaiail

42

Alan C. Sundberg and Sylvia Wabolt

of Carlton, Fields, Ward, Emmanuel,

Smith, Cutler & Kent, P.A., Tampa;

Esler & Kirschbaum, P.A., Fort

Lauderdale; Podhurst, Orseck, Parks,

Josefsberg, Eaton, Meadow & Olin,

Miami; for appellant.

Joan Fowler and G. Bart Billbrough

of Walton Lantaff Schroeder & Carson,

West Palm Beach, for Blue Cross/Blue

Shield of Maryland, Inc., Blue Cross

of Maryland, Inc., and Blue Shield

of Maryland, Inc.

Larry S. Stewart and James B. Tilghman,

Jr., of Stewart Tilghman Fox & Bianchi,

P.A., Miami, for Appellees-Weiner.

STONE, J.

This is a consolidated appeal from a final judgment in

favor of the Weiners, the insureds, against Blue Cross and

Blue Shield of Florida (Florida) and Blue Cross and Blue

Shield of Maryland (Maryland). The jury retwrned a verdict

against both companies on claims of fraud and intentional

infliction of emotional distress, and against Maryland on

negligence as well.

The claims arose out of a denial of coverage by Maryland.

Maryland had issued a group health insurance plan which it

sold to individual gasoline service station retailers through

an independent marketing company, ASFI, supposedly in

cooperation with the national and state service station deal-

ers associations. Maryland retained Florida as its agent to

service those accounts in this state. Maryland wrote the pol-

icies, and prepared a National Account Enrolled Group Sum-

mary (NAEGS), which set out guidelines to be followed by

the servicing agents in each state in administering the

group policy.

The plaintiff joined Service Station Dealers of America

and purchased health insurance coverage for his family

se mbna

43

through ASFI, which became effective in March 1982. At

that time the policy covered his sons, Mark, age 18, and

Steven, age 20, who was enrolled as a full-time student.

Tragically, on August 21, 1982, Mark, as a result of an acci-

dent, became a quadriplegic. During that same summer,

Steven was diagnosed as having a fatal illness and did not

return to school. Both required hospitalization and extensive

nursing care. In August 1983, a decision was made by Mary-

land, and communicated to plaintiffs through Florida, that

Mark was not covered since the accident occurred after his

i9th birthday, and that Steven was not covered because he

was no longer a full-time student.

In fact, the benefits book prepared by Maryland provided

that children were covered until the end of the calendar year

in which they turned 19 and that full-time students were

covered until the end of the calendar year in which they

turned 23. However, the NAEGS provided that, where a 19

year old, or older, child was incapable of self support due to

physical incapacity, that child would remain covered, pro-

vided the incapacity occurred prior to the child’s 19th birth-

day.

The Weiners’ nursing service terminated home care as to

both children when they learned that coverage was no longer

available. The plaintiffs’ attorney contacted Florida and was

told that the question of coverage was Maryland’s decision.

The attorney was referred to a Maryland executive, who

advised him that Maryland had terminated coverage. The

result was loss and suffering by the family from the !ack of

nursing care. Florida did offer, and did furnish, a conversion

policy as to Mark, which did not include major medical cov-

erage. It did not advise plaintiffs of their right to a conver-

sion policy for Steven.

In October 1983, the Weiners filed suit, alleging the fol-

lowing counts: I.) fraud as to Maryland; II.) fraud as to Flor-

ida for falsely representing to the plaintiffs that they needed

to purchase a conversion policy for Mark after his 19th

birthday; III.) intentional infliction of mental distress as to

44

both companies; IV.) negligence as to Maryland; and V.) neg-

ligence as to Florida. In March 1984, Maryland agreed to

reinstate the coverage. The jury found in favor of Florida on

the negligence claim and in favor of plaintiffs on all other

counts. The verdict against Maryland was for $500,000 com-

pensatory damages and $5,000,000 punitive damages, and

against Florida for $200,000 compensatory and $1,500,000

punitive damages.

With respect to the fraud claim, Florida contends that

there was no evidence that the conduct of its employees was

anything more than negligent. Florida argues that it was

entitled to rely upon what it was told by its principal, Mary-

land, and by ASFI, as it did not have the contract, even if a

copy of the booklet was in Florida’s possession. We concur,

and conclude that Florida was entitled to a directed verdict

on the fraud claim. Recovery for fraud requires proof of

intentional and knowing misrepresentation of material fact,

designed to cause detrimental reliance. See First Interstate

Development Corp. v. Ablanedo, 511 So.2d 536 (Fla. 1987);

A.S.J. Drugs, Inc. v. Berkowitz, 459 So.2d 348 (Fla. 4th DCA

1984). As an agent, Florida relayed the decisions of its prin-

cipal to plaintiffs and their attorney. There was no proof of

any intentional misrepresentation or any actual knowledge

Ly Florida that Mark and Steven remained covered by the

Maryland policy.

While the failure of Florida to provide broader benefits in

the conversion contract may have been negligent, or a

breach of contract, there is no proof of fraud. The evidence

reflects that even prior to the accident, ASFI, which had no

connection to Flurida, had advised plaintiffs of the impend-

ing expiration of coverage upon Mark’s 19th birthday and

directed the insured to contact Florida about conversion to a

non-group plan for Mark, and that this advice was subse-

quently repeated to plaintiffs by ASFT. It is further apparent

from the record that once Maryland decided to terminate

coverage, Florida had a contractual duty to offer the alterna-

tive coverage. Thus, the plaintiffs failed to establish that

45

Florida knew that any of its representations, either as to the

need for a conversion policy or as to coverage under either

policy, were false.

With respect to the intentional infliction of emotional dis-

tress claim against Florida, we also reverse. In Metropolitan

Life Insurance Co. v. McCarson, 467 So.2d 277 (Fla. 1985),

the supreme court applied these comments given in the

Restatement (Second) of Torts, 846 (1965):

d. Extreme and outrageous conduct

... lt has not been enough that the defendant has

acted with an intent which is tortious or even crimi-

nal, er that he has intended to inflict emotional dis-

tress, or even that his conduct has been characterized

by “malice,” or a degree of aggravation which would

entitle the plaintiff to punitive damages for another

tort. Liability has been found only where the conduct

has been so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community. Generally, the

case is one in which the recitation of the facts to an

average member of the community would arouse his

resentment against the actor, and lead him to

exclaim, “Outrageous!”

g. The conduct, although it would otherwise be

extreme and outrageous, may be privileged under the

circumstances. The actor is never liable, for example,

where he has done no more than to insist upon his

legal rights in a permissible way, even though he is

well aware that such insistence is certain to cause

emotional distress.

There, Metropolitan Life issued a group insurance policy

to McCarson, which covered employees of his shop, including

his wife. Mrs. McCarson became incapacitated the next year

with Alzheimer’s disease, and the insurer stopped payment

of her benefits, claiming her condition was preexisting.

McCarson filed suit and Metropolitan Life was found in

46

breach of contract and ordered to provide coverage. Mrs.

McCarson later needed continual nursing care, for which

Metropolitan was responsible until the policy lapsed or she

became eligible for Medicare. The insurer requested proof of

ineligibility for Medicare, and discontinued payment of ben-

efits when it received no response. Looking at the facts in

the light most favorable to the plaintiff, the supreme court

ruled that they were not, as a matter of law, “ ‘so outrageous

in character, and so extreme in degree, as to go beyond all

possible bounds of decency: ” McCarson at 279.

Here, there was no evidence that Florida had the authority

to make independent coverage decisions with respect to

Maryland’s policy, and it initially double checked the cover-

age question with Maryland. In any event, it is undisputed

that, when questioned about the coverage issue, Florida

referred plaintiffs’ counsel to Maryland, and that all further

discussions were between them. The proof simply failed to

reach the heavy burden required for recovery on this tort.

See Metropolitan Life Insurance Co. v. McCarson; Swinarski

v. Keller, 529 So.2d 1208 (Fla. 4th DCA 1988); Davis v. Gulf

Life Insurance Co., 502 So.2d 1012 (Fla. 3d DCA 1987). See

also Campbell v. Prudential Insurance Co., 480 So.2d 666

(Fla. 5th DCA 1985). Cf. Dominguez v. Equitable Life Assur-

ance Society of the United States, 438 So.2d 58 (Fla. 3d DCA

1983).

Therefore as to Florida, we conclude that the trial court

erred in denying Florida’s motion for directed verdict as to

the plaintiffs’ claims for fraud and intentional infliction of

emotional distress, and reverse.

With respect to Maryland, we first find no error in the

instruction to the jury that ASFI was an agent of Maryland

in connection with the group health plan. Ordinarily the

existence of an agency relationship is a question of fact.

Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491 (Fla.

1983); Folwell v. Bernard, 477 So.2d 1060 (Fla. 2d DCA

1985), rev. denied, 486 So.2d 595 (Fla. 1986). However, here

the relationship between Maryland and ASF, in the devel-

47

opment of and the national marketing of the group plan, in

distributing Maryland’s benefit book, and in other acts pur-

suant to the agreement between them, is susceptible of only

one interpretation. See Jaar v. University of Miami, 474

So.2d 239 (Fla. 3d DCA 1985), rev. denied, 484 So.2d 10 (Fla.

1986). Therefore, the trial court did not err in concluding as

a matter of law that ASFI was acting on Maryland’s behalf.

As to Maryland, we are satisfied that there was sufficient

evidence in the record, when considering inferences that

may be drawn from the proofs, to submit the issue of fraud to

the jury. See U.S. Home Corporation, Rutenberg Homes Divi-

ston v. Metropolitan Property and Liability Insurance Co., 516

So.2d 3 (Fla. 2d DCA 1987); Needle v. Lowenberg, 421 So.2d

678 (Fla. 4th DCA 1982), rev. denied, 427 So.2d 737 (Fla.

1983); Nantell v. Lim-Wick Construction Co., 228 So.2d 634

(Fla. 4th DCA 1969). Cf. Sun Life Assurance Company of

Canada v. Land Concepis, Inc., 435 So.2d 862 (Fla. 4th DCA

1983); First National Bank of Stuart v. Jackson, 267 So.2d

697 (Fla. 4th DCA 1972). We also find no error in submitting

the issue of punitive damages to the jury. First Interstate

Development Corp. v. Ablenado, 511 So.2d 536 (Fla. 1987);

Rappaport v. Jimmy Bryan Toyota of Fort Lauderdale, Inc.,

522 So.2d 1005 (Fla. 4th DCA 1988); Ruding v. Thompson,

517 So.2d 706 (Fla. 4th DCA 1987)

The appellees argue that Maryland’s motion for directed

verdict on the punitive damage issue did not question the

sufficiency of proof on the fraud and emotional distress

claims. However, we need not examine this point, nor

whether the evidence supports the jury’s findings that Mary-

land’s actions amounted to an intentional infliction of emo-

tional distress. The verdict form used here does not contain

separate findings for damages for each count pled. As the

verdict may be sustained on any one of the theories submit-

ted to the jury, reversal is improper where no error is found

as to one of those theories. See Colonial Stores, Inc. v. Scar-

brough, 355 So.2d 1181 (Fla. 1978); Florida Patient's Com-

pensation Fund v. Sitomer, 524 So.2d 671 (Fla. 4th DCA

48

1988); Howell v. Woods, 489 So.2d 154 (Fla. 4th DCA 1986);

Getelman v. Leve , 481 So.2d 1236 (Fla. 3d DCA 1985).

Maryland’s principal assertion on appeal is that there is a

lack of jurisdiction over the subject matter because the plain-

tiff’s claim is preempted by the Employee Retirment Income

Security Act of 1974, 29 U.S.C. §1001-1461, (“ERISA”), and

that state courts do not have concurrent jurisdiction. See

also Pilot Life Insurance Co. v. Dedeau, 481 U.S. 41, 107 S.Ct.

1549, 95 L. Ed. 2d 39 (1987). However, we find that ERISA

does not apply to this policy.

ERISA regulates employee benefit plans, including ones

providing for medical and hospital care, if the plan is estab-

lished or maintained by an employer or employee organiza-

tion, or both. ERISA §4(a), 29 U.S.C. §1003(a). Here, the rec-

ord does not support a conclusion that there was an employee

plan. The record does not reveal any agreement between the

service station dealers associations and Maryland or AFSI.

The evidence, although disputed, reflects that the plaintiff

here was a sole proprietor who simply purchased a group pol-

icy for his family. See Xaros v. U.S. Fidelity and Guaranty

Co., 820 F. 2d 1176 (11th Cir. 1987); Donovan v. Dillingham,

688 F. 2d 1367 (11th Cir. 1982); Taggart Corp. v. Life and

Health Benefits Administration, Inc., 617 F. 2d 1208 (5th Cir.

1980). Here there was no plan, or even an informal agree-

ment, established or maintained by an employer or an

employee organization. Nor were any fiduciary responsibili-

ties created by this insurance marketing scheme, which sim-

ply made group insurance available to members of the orga-

nization.

Maryland contends that attorney’s fees were improperly

taxed under section 627.428, Florida Statutes. However, it

appears that this action involved additional issues other

than those presented on appeal regarding the plaintiffs’ tort

claims. The trial court found that matters of coverage and

interpretation of the policy were the “central core” of the

trial. The trial ccurt acknowledged that the sums sought

and amount of hours appeared large, but were in part neces-

49

sitated by obstructionist tactics. Generally claimants are not

entitled to attorney’s fees under section 627.428 in a tort

action. E.g., United General Life Insurance Co. v. Koske, 519

So.2d 71 (Fla. 5th DCA 1988); United Services Automobile

Association v. Kiibler, 364 So.2d 57 (Fla. 3d DCA 1978). How-

ever, the trial court determined that this award was founded

on the hours utilized in resolving coverage. Nor has Mary-

land shown that the amount of the fee was clearly excessive.

See Good Samaritan Hospital Ass'n v. Saylor, 495 So.2d 782

(Fla. 4th DCA 1986). See also State Farm Fire & Casualty Co.

v. Palma, 524 So.2d 1035 (Fla. 4th DCA 1988).

As we are reversing the judgment against Florida, the

award of attorney’s fees in favor of the insured must be

reversed as to Florida. We therefore reverse (1c judgment of

attorney's fees and remand in order that they may be reap-

portioned as to Maryland alone.

We find the other issues raised by Maryland also to be

without merit. Therefore, the final judgment is affirmed as

to Maryland and reversed as to Florida. We remand so that

an amended judgment against Maryland may be entered

accordingly.

DOWNEY and LETTS, JJ., concur.