Opposition Brief — United States Fidelity & Guaranty Co. v. National Screen Service Corp.

- WT otice supreme Court, u.s. |.

FILED

- 9cT 201966 -

- JOHN F. DAVIS, CLERK

— Court of the Murited

a October Term, 1966

on saz Me

States

UNITED STATES FIDELITY AND GUARANTY

a NX,

° . Petitioner,

against

NATIONAL SCREEN eaiidlate CORPORATION,

‘Respondent. |

~

On Petrrion ror. a Warr or Certionant To. THE UNrrTep

States Court or Apprals FoR THE SECOND CiRcuIT

4

—~

~~

_ RESPONDENT'S. BRIEF—IN OPPOSITION

Louis Nuk, ©

Watrze S. Bzox,

Attorneys for Bepandoat,

oes 1501 Broadway,

Se Poe ot Rew York City.

* _PHILLIPs,' Nisan, es Kam & Buszos,

. of Counsel.

-&

' Argument: es.

J The Law of New York Governs the Construction

-* to be Applied Herein ............ gaeteevedes

‘Under New York Law—Particularly Concerning

Exclusionary Provisions—Any Reasonablé In-

_terpretation Favorable to the Insured, Must Be

Adopted nies cap bemmad Ccolvocescigbececcocee

* General Casualty Co. of. America v. Azteca Films,

Inc. (278 F. 2d 161; C. A. 9th)—which Petitioner .

ecntends constitutes a conflicting Court of Ap-

peals authority, was decided on the basis of

* California law—and therefore is ) neither con-

flicting nor apposite ...... apeebetqccedmmevaw

Since it. is Indisputablé That the Decision Herein

Was Determined Under Applicable NewYork

Law—and the. Allegedly Conflicting Case Cited.

by Petitioner, i i.e. General Casual Company of

America v. Azteca (Supra) Was Decided Pur-

om. ©. co

10

suant to Applicable California Law—No Con- ~

flict Exists Deserving of Review by This Hon-

orable a rine Diastasa .

2B

14

ii

Table of Cases Cited

Erie R. Co. v. Tompkins, 304 U.S. 64 ..0.......06.5 18,14

Fleet Messenger Service v. Life Insurance a

of North America, 315 F. 2d 593, 2d Cir. 1963 ..., 7,8,9

General Casualty Co. v. Azteca Films, Inc., 9th Cir,

278 no tr i ee en eae 6, 7, 10,13 .

. National Safe Deposit Co. v. Stead, 232 U.S. 58 . 6

Ruhlin v. New York Life Insurance iii 4 304

ene lucevesLvekias baxtensnets 6, 13

Sincoff v. Liability Mutual Ins. Co., 11 N.Y. 2d 386

| | 6, 9, 10, 11

Co

D4

ce

_— Court uf the United - States E

October Term, 1966 oft;

No.

ray

Vv

Unirep Sratres Fmerity anp Guaranty Oontramry,

_ Petitioner,

against

N ATIONAL SorEEN Service Corporation,

Respondent.

f j -

Own Dineen FOR A Warr OF CERTIoRaRr TO THE UNITED

‘Srarzs Court or APPEALS FOR THE SECOND Cmeourr

4).

Vv

RESPONDENT'S BRIEF—IN OPPOSITION |

Preliminary Statement .

| Respondent herein, since about its inception, has at all

times been engaged in servicing and licensing to and for use:

-by motion picture. exhibitors—of abbreviated previews

(commonly referred to as ‘‘trailers’’), and othér motion

picture advertising and display material employed by ex-

hibitors to publicize coming attractions in advance of the

actual exhibition of a motion picture (App. 2).

The ‘‘trailers’’ and advertising material. in Gasntion are

never sold by Respondent, but merely licensed for use by

the exhibitor, until after the picture has been exhibited at.

the theatre in question, and then the advertising material, —

including the trailers, are returned to Respondent which.

? &

RP sa ites

owns the trailers, sata and othér materisi in question

(App. 2). | :

Petitioner is an insurance company which, on December

2.

31, 1953, issued to Respondent ‘its policy known as a.

“ CoMPREHENSIVE GeneraL Liasmiry ‘Po.icy’’—insuring

Respondent against claims asserted against the assured

for property damage or bodily injury or both, allegedly

sustained by reason of the insured’s negligence (Appellee’s

Ex. 1, 268a, ff).

The policy in suit, issued on Decenibed 31, 1953, for

a term of one year, insured against all claims and liability

which may be asserted by third parties against Respondent

for its alleged negligence in connection with the operation

of its business, which is described on the face of the very

first page of the policy as follows:

“Morton Picrurz Previews-Dispiays”’. (Id. 269a).

In. the section of the policy (appearing on the next

page) entitled ‘‘Insurrnc Acrezments’’, the Petitioner

agreed (in par. II entitled:: ‘‘Dzrenssz, SETTLEMENT, Sur-

_PLEMENTARY PayMENTS’’) to:.

‘defend any suit against the Insured alleging such

injury, sickness, disease or destruction and seeking

damages on account thereof, even if such suit is

groundless, false or fraudulent ; but the Company

may make such investigation, negotiation and settle-

’ ment of any claim or suit as it’ deems expedien a

Id. 269a, Sheet 2).

In a further provision entitled Coverage — Petitioner

agreed:

‘«To pay on behalff of the Insured ail sums which

_ the Insured sha e legally obligated to pay as

damages becauSe of injury to or destruction of prop-

erty, er | the loss of use thereof, caused by

268a, Sheet 2.)

. accident” a

- —— ee

a

' 3

The instant action arose out of Pétitioner’s refusal to

assume the defense of numerous actions brought against

Respondent herein, and Southern Railway, instituted in

the Courts of North Carolina, in which the third party

claimants in those actions charged the Southern Railway ©

and the Respondent herein, with negligence in connection

with Respondent’s shipping scrap motion picture flm—

which the third-party claimants contended was involved

in the fire which oceurred on June 24, 1954, in the ware-

_house of Southern Railway. at Charlotte, North Carolina—

‘damaging claimants’ property.

Concerning the facts’ involved in Respondent’s shipping

the scrap film, by Southern Railway, to-Eastman Kodak

Company in Rochester, New York, for Eastman’s purchase

of this serap film for silver salt salvage—the Court found,

and it is not disputed, that the ‘‘film was shipped by trans-

portation selected and paid for by National ( Respondent),

to Kodak’s Rochester facility * * *. Kodak had the right,

however, to reject any shipment”’ (App. 2-3).

_Petitioner’s Alleged Ground for Disclaimer.

More than four months after the fire, i:e., on N ovember 3.

1954, Petitioner disclaimed any duty to defend the actions

or to pay any judgments which might be recovered against

‘the Respondent herein, stating that:

. tion was turned over to the Southe

oy and was im the possession of the Southern

ay at the time of the explosion on June 24,1954.

’ Your policy does not afford protection for this situa-

tion.’’ (Emphasis added)

‘Our investigation discloses the property in ques-

rn Railway Gom-

Petitioner contemds that its obligation under the policy -

terminated ‘‘after the insured has relinquished possession _

thereof to others and away from premises owned, rented

or controlled by the insured * * * , Petitidner contends |

: 4

that the ‘*products hazard’’ exclusionary rider so provides.

‘*Products hazard’’ is defined in the policy as follows:

Plases term ‘préducts hazard’ means;

_ (1) The handling or use of, the existence of any

. : ane in or a warranty of goods or products

ae manufactured, ‘sold, handled’ or distributed by the.

named insured, other. than equipment rented to or

located for use ‘of others but not sold, if the accident -

thereof. to others and away from premises owned,

rented or controlled by the Insured or on premises

for which the classification stated in Division (a) of.

the declarations or in the company’s manual ex-

cludes any part of the soregyns” (App. 3-4).

; “

- Petitioner ielaniel that deliv ery: of the ‘scrap film to

- Southern RailWays’ representative constituted relinquish-

" ing ‘‘possession’?.0f Respondent’s scrap and that such act

- relieved Petitioner of liability—by reason of the condition _ -

' vin the ‘‘Products Hazard’’ exclusionary rider to the policy,

Respondent contended that ‘‘Products Hazard’’ cover- :

age was wholly inapplicable to its business—a contention

which the iearned Trial Court sustained.( App. 6)—and-that

_ even if-such coverage had been required, Respondent had ~

not ‘relinquished possession in delivering the scrap to the ~

railroad’”’ since it owned title thereto and therefore had

- constructive possession of the. scrap until Hastman Kodak

received and accepted the scrap film at its plant. -in

' Rochester, New York—a contention which both the, learned

Court of Appeals as well as the Trial Court sustained (App,

6). In this connection, Circuit Judge Anderson, writing

for the majority, said: °

“The central issue thus'i is whether National had

possession of the film at the time of the loss, and that

question in turn depends upon whether the word

‘possession’ as. used ih the policy clause should be

‘Tead to include the concept of ‘constructive posses-

' sion’ as well as actual _— r

|

o¥

occurs after the insured has relinquished possession .

“Ww

4

5

‘The trial judge held that (1) National’s busi--

ness, was such that, it was ‘not ina position to re-

quire it to purchase products liability coverage and -

that as such the products. hazard exclusion would

have no application to the facts present ...’’ He

also found that, in any case, the word ‘possession’,

as used in the exclusion clause, included constructive - .

as well as actual possession, and that therefore, since

National still retained constructive possession of the -

drums at the time of the loss, USF&G remained liable -

on the policy. Ey.

_ ‘*We think that it is not necessary. to reach the ©

_ question of whether National’s business was such

_ that it should have’ carried products liability insur-

-ance, as it is our opinion that. the products hazard

exclusion did not affect’ the, coverage in,this case”’

(App. 6). ! ee

9?

6

Questions Presented

. Did not the learned Court of Appeals and the Dis-

trict Trial Court correctly determine that in construing an —

exclusionary provision in a ‘‘Comprehensive General Liabil-

ity policy’’—covering ‘‘all risks’’—under New. York law, an

insurer cannot escape liability unless ‘its own construction

_was the only one that fairly could be placed’’ on the exclu-

sionary provision (Sincoff v. Liberty Mutual Ins. Co., 11

‘-N. Y. 2d 386)—and since as this Honorable Court held—

‘‘there is no word more ambiguous in its meaning than

possession . . . interchangeably used to describe actual

possession or constructive possession which so often shade

into one another that it is difficult to say where one ends

and the other begins” (National Safe Deposit Co. v. Stead,

) 232 U. S. 58)—that in view of Respondent’s business, ‘‘It

is hardly likely that it-was the reasonable expectation of

the ‘insured, or its purpose, to purchase liability i insurance

to cover its product only while it was inside the gates of

its own plant and that it would become its own insurer

while the product was in the hands of a delivery man and

@ commion carrier ... when the chance of injuries to third

persons was even “greater” (App. 10), and that therefore

‘*it is apparent that the general rules of interpretation of

insurance policies adopted by the New York Courts lead

to the conclusion that the word ‘possession’ as used @n the

exclusion clause of the policy in question should be con-

strued to include ‘constructive possession’ ’’ (App. 10; 6)?

2. ‘Applying the principle announced by this Honorable

- Court in Ruhlin v. New York Life Insurance Company,

304 U. S. 202, 206 that: ‘‘As to questions controlled by

State law, however, conflict amongst circuits is not of itself

‘va reason for granting a writ of certiorari. The conflict

may be merely corollary to a permissible difference of opin-

ion in the State Courts’’—should not Certiorari be denied

herein, since, in the conflicting Circuit Court’s case—

General Casualty Co. v. Azteca Films, Inc., 9th Cir., 278

“ees

ee

F. 2d 161, the ‘‘contrary result was reached under California

law’’—(App: 12)—whereas, as in the instant case, ‘the

learned Court of Appeals held that ‘‘the governing law,of

New York is so strong that we are constrained to reach a

‘different result from Azteca” (App. wd

Weioncaet

The Law of New York Governs the Construction

to be Applied Herein.

It is conceded that the pulley 3 in question was issued by

Petitioner from.its principal office in New York and that-

therefore the law of New York’ governs the construction

to be applied to Petitioner’s exclusionary ‘‘Products

Hazard’’ provision. Fleet Messenger Service v. Life In-

surance Company of North America, (315 F. 2d 593, 2d

Cir. 1963). -

» Petitioner contends, however, that_the leariieéd 3 inadovtiy

of the Court of Appeals who affirmed the judgment below,

erroneously interpret the applicable New York law—which

Petitioner argues is the same as California law which

the Court of: Appeals for the Ninth Circuit expressly ap-

plied in the allegedly conflicting ease—General Casualty

Co. v. Azteca Films (278 F. 24-161).

However, the affirming majority of the Court of a"

herein, rejected Petitioner’s view of the New York law

concerning which Circuit Judge Anderson: said: ee

‘*The appellant insurance company does not

dispute that the ‘appellee had constructive posses- |

sion, as the trial court found, but asserts that. the

word ‘ possesssion’ in the exclusion clause does not

include ‘constructive possession’. New York: law, |

however, calls for a liberal interpretation of .the

terms of i insurance policies i in favor of the insured.

| ‘in Sincoff v. Liberty Mutual Ins. Co. 11 N.Y. 2d

‘ 386, 230 N.Y.S. 2d 13 (1962) the New York Court: of .

Appeals held that where. there is an ambiguous word ©

.

‘

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~

ant insurer must carry is to show that the construc-

tion it urges is such ‘that it’would be unredsonable

for the average man reading the policy to conclude’

_ that a meaning other than that urged by the insur-

anve company was possible and ‘that its own con- -

' | gtruction was the only one that fairly could be placed

_ .on'the policy’ 230 N.Y.S. 2d at 16. Thus, it-would

seem that in New York the insurance company can

-avail itself of the plain meaning’ rule only in those

cases. where ‘such a definition. was. the only one that

could ‘fairly be placed thereon. (Emphasis in orig-

*jnal:) 230 N.Y.S. 2d at 15. See also Hartol Products

' Corp. v. Prudential Ins. Co, supra, 290 N.Y. at 49-50.

The appellant has not met that test in this case.

When that condition is not satisfied the rule is, that

where an ambiguous word is used, ‘such ambiguity

. should... [be] resolved in favor of the insured’. Sin-

coff v. Liberty Mutual Ins. Co.; supra, 230 N.Y.S. 2d |

at 16; Fidelity & Casualty. Co. of N. Y. v. Groth, 296.

N.Y. 788, 71 N.E. 2d 470 (1947); Janneck v.“Metro-

politan Life Ins. Co., 162 N. Y. 574 (1900). And as,

‘the New York Court noted in Sincoff, supra, ‘this

rule [of favoring the insured] ‘has particular applica-

tion where exclusions are involved’. 230 N.Y.S. 2d .

at 16. See also Shneiderman v. Metropolitan Qasu-

alty Company of N. Y., 14 App. Div. 2d 284, 2897220 —

N.Y.S. 2d 947, 951 (1961) ; Sperling v. Great Ameri-

can Ins. Co., 7 N.Y. 2d 442, 447, 199 N.Y:S. 2d 465, 469

(1961) ; Birnbaum v. Jamestown: Mut Ins. Co., 298 ~

N.Y. 305, 313, 83.N.H. 2d 128 (1948). The rule would

seem to have special vigor when applied to a policy

such as the one involved here which is by its own

_ terms denominated a ‘comprehensive general liability

. policy’. Cf..Sincoff, ‘supra, 230 N.Y.S. 2d at 16, where

it was said that ‘a vague exclusion . . . should§not be

permitted to prevent indemnity’ where the palicy was

of the kind denominated ‘all risks’ by the insurance

company. : : :

‘‘Appellant relies heavily upon the decision of

_ the Ninth Circuit in General Casualty Co. v. Azteca

‘ Films, Inc., 278 F’. 2d 161 (1960), a case which pre-

sents a set of facts virtually identical to those in the

=

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in an insurance policy the burden which the defend- 9

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' present case, and in which a contrary result was

reached under California law. We feel, however, that

the governing law of New York is so strong that we

are constrained to reach a different result from

‘Azteca’’. (App. 10-12)...

UNDER NEW -YORK LAW—PARTICULARLY CON-

CERNING EXCLUSIONARY PROVISIONS—ANY REA-

SONABLE INTERPRETATION FAVORABLE ‘TO THE

_ INSURED, MUST BE ADOPTED :

In Sincoff v. Liberty Mutual Fire Insurance Co. (11

. N. Y..2d 386), the defendant insurer declined to pay a claim -

for damage done by carpet beetles, on the ground that the

policy expressly excluded liability for all ‘damage done by | ,

‘moths, vermin and inherent vice’’.” The insurer argued |

‘that ‘‘carpet beetles’’ fell within the category of vermin,.

as that term was used in the policy. ee ate

“Reviewing the varying dictionary definitions of the word

‘‘vermin”’, the New York Court of Appeals said: . °

' “The burden was on the defendant in this case to

establish that.the term ‘vermin’ not only was sus-

ceptible of -beizg defined by the average man so as «

to include carpet beetles, but that such a definition

’ was the only one that could ‘fairly be placed thereon’...

’ (Hartol Products Corp. v. Prudential Ins. Co., 290 »

N. Y. 44, 49-50, 47 N. E. 2d 687, 690-691; Bronx Sav. -

Bank v. Weigandt, 1 N. Y. 2d 545, 551, 154 N. Y. S.

2d 878, 882, 136 N. E:.2d 848, 851, 60 A. L. R. 2d 1422;

see also, Piliero v. Allstate Ins. Co., 12 A. D. 2d 130,

134, 209 N. Y. S. 2d 90, 93; D’Agostino Excavators.

v. Globe Ind. Co.,7 A. D. 2d 483, 485, 184 N. Y. S. 2d

378,380). It was not sufficientfor the defendant to..

‘* demonstrate that a purchaser ofthe policy involved ©

herein might have construed ‘vermin’ té include.

carpet beetles. Defendant, to derive any benefit,from

the exclusory clause, was obliged to show (1) that .

- it would be unreasonable for the average man read-

ing the policy to conclude that non-parasitic carpet

beetles were not vermin and (2) that ats own con-

z ‘ &-

_ystruction was ten only one that “tainly onda be placed

ne . on the policy. This the me reas was unable to: do.

ee (Emphasis added). :

nate ‘‘This rule re oii application where’ ex-

_. elusions are involved. (Schneiderman v. Metropoli-

- tan Cas. Co. of N. Y., 14 A. D..2d 284, 289, 220-N. Y. 8.

2d 947, 951; Matsuo Yoshida v.. Liberty Mut. Ine. Co. ws

9 Cir. :240 F. 2d 824, 826; Mohawk Val. Fuel Co. v.

. Home Ind. Co., 8°Mise,-2d 445; 165 N. Y. S. 2d 357;

Sperliag v. Great Amer. Ind. Co., 7N. Y. 2d 442, 447,

199 N. Y. S..2d-465, 469, 166 N. E. 2d 482, 484; Birn-

baum v. Jamestown Mut. Ins. Co., 298 N: Y. 305, 313,

‘83 N. E. 2d 128, 132. haa (Empasis added).

at Thus it is clear that under New York law, the insurer

must establish that the 8nly interpretation which can be

given to the- ‘language of its exclusionary provision is the

be gue upon which the insurer predicates its disclaimer, .

- This basic principle of xonstruetion | in favor of an ‘as.

. sured—is the applicable law in the overwhelming majority

_of jurisdictions—except in California, in which jurisdiction

. General Casualty Co. of America-v. ‘Azteca Films, Inc.

(278 F. 2d 161; C. A. si A which Petitioner —

was determined. ss

‘ General Casualty Co. of America v. Asbéon F ‘ime,

Inc. (278 F. 2d 161; C. A. 9th)—which Petitioner

coritends constitutes a conflicting Court of Appeals

authority, was decided on the basis of California Pe

law—and therefore is neither a ‘nor —

apposite. —

Under California law ( ihichs the Court. expressly woliited

‘ out had to be applied), unlike the New York rule, the mean- ~

ing to be attributed to language in an.insurance policy

_. was ‘‘what a reasonably prudent person * * * would have — -

understood. them to mean”’, (id. 168) and the ‘‘concept of

" Sonstructive possession is the sort of concept that would

more likely occur to a lawyer” sia p. 168). |

; “ e 11

w As previously noted—the ‘*Opinion’’ expressly points

out that the Court’s coriclusion was arrived at by applying

California law-since? ee Sos aah ie

-. **The policy was executed inthe State of Cali-

fornia and it is agreed that the laws of the State of |

California control in the construction of the policy” -

‘ (id. p. 163). ih Ree a eh ice ty, :

. ‘‘The test t be applied by the Court in determin-,

ing whether there is ambiguity is not what the insurer

. intended its words to mean, but what a reasonably

“ prudent person applying for insurance would have

, + understood them to:mean. Trousdell v.. Equitable

_ Infe Ass. Soc, of U. 8., 55 Cal. App. 2d 74, 130 P. 2d .

. 173; N. Y. Life Ins. Co. v. Hiatt, 9 Cir. 140 F. 2d

Se, ‘752. In other. words, the criterion is ambiguity from’

the standpoint of a layman, not from that of a

lawyer’’. eee

a

‘‘ Applying these rules to the instant exclusionary

: clause, it would ‘seem that the word ‘possession’ as

” . » ’. here. used would convey to the ordinary mind, the .

layman, the idea of actual possession. The concept

' of constructive possession is the sort of concept that

~ would more likely occur to a lawyer’ (pp.-167-8):

. °\. ” In dramatic contrast, as previously not ga, the applicable .

New York law which is the standard for construction of

exclusionary ‘provisions, as expressed by the New York

Court of Appeals in Sincoff v. Liberty Mutual Fire Ins. Co.

(11 N.Y. 2d, 886) is: Sa Pa age

‘‘Defendant, (referring to insurer) to derive any

benefit from the exclusory clause, was obliged to

“show * * * that its own construction was the only one

_ that fairly could be placed on the policy?’

“This rule has particular application where ex-

clusions are involved.’’ (citing cases) (p. 391;-Em-

phasis added).

’

12°

os: the instant case, if Respondent were to AE the

~. construction which the Petitioner insurer. urges, namely

to interpret. phrase ‘‘relinquish possession’? to mean the

mere handing over of the physical custody: of an article,

such a construction would not only wipe out the insurance

. coverage which the policy in suit herein expressly grants,

but would render the: policy meaningless. The" policy in-

sures the Respondént—not only at its branch office in the

. particular ‘State’ in-which ‘it is located, but also ‘‘elsewhere

in the State of North Carolina’’.* In an attempt to reconcile

6: this , patent contradiction between coverage ‘*elsewhere e

in the State’’ and Petitigner’s view that mere relinquish-

ing of physical custody of an article is sufficient to justify.

disclaimer, Petitioner’s ‘counsel—in addressing the Jury,

clearly implied that what Respondent could have done

in-order to remain covered by the policy, was to send its

representatives along: with Respondent’s advertising

material—wherever such articles were shipped. to a cus-

tomer .‘‘elsewhere in the State’’. It would be difficult .

to €onceive of a more unreasonable interpretation, for,

as ‘Petitioner views it—every time that Respondent shipped

any advertising material for display, or a motion picture

_ trailer to an exhibifor for preview screening, Respondent

- would be obligated to have its own representative accom-

pany the carrier, in order that Respondent5s ‘‘Comprehen-

sive General Liability Policy’’ coverage might not thereby

be rendered wholly ineffective.

Accordingly, in the ingtant case, to adopt the construc-

tion which Petitioner urges herein, would not merely nullify -

* Similar: throughout-the-state coverage is expressly provided in

- the coverage schedules, for the States of North Carolina, Ohio,

Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Washington,

Wisconsin, California, Colorado, Connecticut, District of Columbia,

Georgia, Illinois, Indiana, Iowa, Louisiana, Michigan, Massachu-

setts, Minnesota, Missouri, Nebraska, New. Jetsey and New York.

(See Schedules attached to Ex. 1, immediately following 280a.)

_

13. Dancer |

other express provisions in the policy, but would completely

frustrate the obvious purpose of the insurance coverage .

for which Respondent paid very substantial premiums.

Settled canons of construction applicable even in ordinary

contracts (let alone insurance policies to which more rigid

‘standards apply), forbid any construction which destroys

or frustrates the purpose for which the contract was en-

tered into, — a

. State of N ew York. °

The Opinion by the Court of Appeals for the 9th Cir- |

. cuit, expressly reveals that its decision in the General Casu-——-

——-—alty-case, was arrived at by the application of California

law. ; o

Accordingly, Respondent respectfully submits that Peti-

ner’s claimn of conflicting Cireuit Court decisions—is .

tified. There is, therefore, no opportunity fdr this *

Honorable Coyrt “to secure uniformity of decision’’, which

is the tunctional reason for the granting of Certiorari when ,

truly conflicting Circuit Court decisions have been made.

In this connection, this: Honorable’ Court said, in Ruhlin v.

New York Life Insurance Co. (304 U.S. 202) :

o“"As to questions controlled by state law, how-

ever, conflict among circuits is not of itself a reason

for granting Certiorari’’ (p. 206). eo

poli¢y of insurance herein was issued and delivered in the

10

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14.

* For obvious reasons, since the principle of Erie R. Co.

v. Tompkins (supra), makes ‘‘uniformity of decision’’ im-

‘possible where the respective States’ laws are different—

the agai herein should: be’ ‘denied.

CONCLUSION

Respondent. respéctfully sidiiin. that for all of

the foregoing reasons, Petitioner’s application for a

— Writ of Certiorari, should be in all respects denied.

e

8

ey submitted,

eNotes — Nur,

-Waurer 8. Bec, .

Attorneys for Respondiee

1501 Broadway,

* New York City.’

_ Pamuurs, Nuzzp, Bensamin, Karim & ey :

of Counsel. » tees Me eta

| ‘ea. ae

- Sue Court of the *Buited States

OCTOBER TERM, 1966 a sale ee Sea

No, 584 be = ~ Dititts Cie |

A aay 2

‘Ustre Srares Fibenrry AND Guaranty Coscrane, |

; ; ee a. aon ae aay cate Sones _ Petitioner, . eg ee

ae J TP —against— : ) ER eke, See

es , ie ' -> : Je . i. A re

N ATIONAL SCREEN SERVICE Corporation, ee a oe ee 7

‘Respondent.

er ees

t

—_—

On AppeaL FroM THE Uniren Svares Disrsicr Courr _ SNE We Nees

FOR THE SOUTHERN District or NEw cia ta ROE oar xen ae

a

REPLY BRIEF

ale _. JaMEs P. SHANNON é

ee Seite miei for Petitioner | et ae ‘

we 100 Maiden Lane ee a ne toee ‘

ON ew York, New York °

. « . JAMES M. G@mteraN, © — *

Of Counsel

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