# Brief in Opposition to Petition for Writ of Certiorari — Schreffler v. Prudential Insurance Co. of America > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0951%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 389 U.S. 1005 ## Text : SUPREME COURT.U.& | | OCT 9) ies SUPREME COURT oe 2 aoe UNITED STATES October Term, 1967 CASE No. 687 : GENEVIEVE D. ‘SCHREFFLER, Petitioner, ~ Vs, THE PRUDENTIAL INSURANCE. COMPANY. OF . AMERICA, Respondent. RESPONDENT'S BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS. FOR THE or CIRCUIT 4a JAMES A. DIXON 900 Dade Federal Building Miami, Florida 33131 _—s Attorney for Respondent INDEX Opinion Below .. Jurisdiction Questions Presented Constitutional Provision Involved .. Vv | Statement of the Case ‘Reasons For Denying The Writ - Conclusion Certificate of Services 1 a Page 10 10 a TABLE, OF CITATIONS | | | “ ne | = V. New + York Life Insurance Company (Fa, - 1956), 88 So.2d 915, 917°. es 2 Cf. Dimick v. Schiedt, 293 US. 444. : - _ “Dick v. New York Lifé Ins. Co., 359 US. 437 en : 8 ‘Ohio Ex Rel. Seney v, Swift & Co, 260US.146..... 9 ee ae ya , & +] SUPREME COURT OF THE ‘UNITED STATES October Term, 1967 %: CASE No. 687 |. os as GENEVIEVE D. SCHREFFLER, aie : _ Petitioner, 7) THE PRUDENTIAL INSURANCE COMPANY OF - _ AMERICA, | | Respondent. | RESPONDENT'S BRIEF IN OPPOSITION TO ,_. PETITION FOR A WRIT OF CERTIORARI TO “> THE-UNITED STATES COURT OF APPEALS o + FOR THE FIFTH CIRCUIT | — Petitioner prays that a writ of certiorari issue to review the judgment below of the United States Court . ie of Appeals for the Fifth Circuit. o _. NOTE: Unless otherwise indicated, all emphasis is supplied. - ~ ae - © . : “ ‘OPINION BELOW ‘The opinion of the United States Court of iounts for the Fifth Circuit is meine at 376 F.2d 397. J URISDICTION - . Jurisdiction of this. Court i is invoked Shier 928 U. S.C. : - Section 1254(4). The judgment of the Court of Appeals - was entered -on April 25,\1967. Petitioner’s timely peti- tion for rehearing as app lee below was Gentes on June | 8, 1967. . QUESTIONS PRESENTED According -to petitioner, ! the petition preserits the ' following questions: ' 2 oni 6 » Whether the judgment of the Court of Appeals denied Petitioner her right to trial by jury, as guaranteed by the Seventh Amendment to. the United States Constitution, and further whether | this deprived her of due process of law, as guar- anteed -by the Fourteenth Amendment to the United States Constitution. TL. Whether it is proper where federal jurisdiction ’. is based on diversity of citizenship for the Court of Appeals to use the federal test of sufficiency. _, of the evidence to review a jury verdict. “ s 4) .. CONSTITUTIONAL PROVISION INVOLVED | The Seventh. Amendment provides: * “In suits at common law, where the value in controversy shall exceed twenty dollars, the right. ee of trial by jury. shall be preserved, and no i tried by a jury shall be otherwise re-examined ~- 2 _in any Court of. the United States, than ac- - ones to the rules of the common law.” STATEMENT OF THE CASE aren Petitioner sued cienmndens in a Florida trial court. Respondent removed the case to the United States Dis- trict Court in and for the Southern District of Florida. Petitioner sought to recover under the double indemnity , ‘provisions of a group life insurance policy respondent had. issued on the life of her seen The facts as ‘stated by’ the Court of Appeals below . include the Snowing: “The insured, aoe Schreffler, had suffered from asthma and pulmonary emphysema for the ten years preceding his death. Pulmonary em- _physema is a chronic and progressive disease ' which destroys normal lung tissue and prevents =~ transfer of oxygen to the bloodstream in usual amounts. From 1954 until his death in 1962, . Schreffler was treated by Dr. ered D. White, * his family physician. - On the morning of April’ 24, nn ne ~ s ee ae or _ (taking the view of the evidence most favor- “able to plaintiff) tripped and fell at home, break-’ ing his hip. He was admitted to the hospital by. Dr. White and underwent surgery to set the _ fracture.» The surgeon was Dr. George Rich- _ards,. who testified at trial. ‘The surgery was successful, but- following it Schreffler’s lung - condition worsened and he died on May 3.” 376 F2d at 399. ‘ . “PART IL Accidental Death and Dismember- : . ment Benefits. Tf the Insured, while this Policy is in f seen sustains an accidental bodily’ injury which re- sults, directly and independently of all other causes, in the loss of life, sight or limb by such person within ninety days after: ‘the date such ” injury is. sustained ieee é Exceptiins ‘in Seiesinde suites to Part sh For the purposes of this Part II, no loss | shall be considered a loss due to,accidental bodily injury if such loss is caused or contributed to by (1) bodily or mental infi ity or disease; or .~ (2) any infection, other than a pyrogenic infec-. tion occurring through and at the time of an - Cas” accidental cut or wound.” % 876 - Pld | at 398, - Emphasis and editing the Court’s.] - Tie wie a on defined “accidental death” as | follows: : e SD “ Petitioner obtained a favorable.j Jury verdict and final e . - ‘ “The. qasetion of what (mata justify the setting ‘aside of a jury reh. den. 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d_ 1375 (1958); ABC-Paramount Records, Ince. v. Topps Record’ Distributing Co., 5 Cir. 1967, 374 F.2d 455; Shirey v. Louisville & N ashville R.Co., > 5 Cir. 1964, 327 F.2d 549; Braud. v. Baker, 5 Cir: : 1964, 324 F.2d 213; 5 Meore, FederakePractice ' 150.06 at Ps 2350 (2d Ed. 1966). ” 376 F.2d at 399. “The Florida Supreme Court’ has, construed. mm : stantially similar language it in the policy. thus: 2 VO Pei indemnity: policies imposing liability P | when death results from hedily injury effected solely by external, violent and _ac- cidental means ‘generally contain an,exémp- tion from such liability if ‘death results di- erdict, like other ques- tions concerning the judge-jury relationship in the federal courts, is governed by federal law. Byrd v. Blue Ridge Rural Electric Co-Operative, ~~-1958, 356 U.S. 525, 78 S.Ct. 898, 2 L.Ed.2d 953, judgment in the trial court (R. 253-254). The Court of Appeals reversed, holding that the proofs were insuf- ‘ficient to come within the policy. definition of “accidental death”. In reaching this conclusion, the Court of Appeals said nena : _The ew below. then enenins the liberal federal rules concerning the sufficiency of the evidence to create © a jury question and analyzes the evidence in detail. Hav- . ing walked “the last mile to pay every heed to the jury’s verdict”, thé Court of Appeals goes on a to hold: , ea 6 rectly from iia or bodily infirmity. When such provisions are construed togeth- er or if the accidental injury and the pre- existing disease or infirmity cooperate in causing the death of insured, doubled in- demnity can not be recovered even though the injury is an active, efficient and procur- ing cause, provided the disease or infirmity . _ .contribute& either directly or indirectly to - causing insured’s death.’ ; a Berg v.. New York Life Insurance Company, Fla. Sup.Ct.1956, 88 So.2d 915, 917. The Mac- — ‘ cabees v. Terry, Fla.Sup.Ct.1953, 67 So.2d 193. In Decker v. New York Life Insurance Co., 5 Cir. 1964, 328 F.2d 650, 652, a case quite similar----- - "to the’ present 7 we said in interpreting Flor- ‘ida law: | €* * * TIjt does not follow that death re- sulted directly and independently of all other causes from the accidental injury merely because the treatment of the injury impaired the treatment of the heart con- - dition with the result that the heart condi- - tion took a fatal turn. The decedent died of | a preexisting heart condition and hence it “- was a cause of death. This, we think, is so even though the injury and the treatment of it were active and contributing causes, - With the preexisting heart condition, whether called a disease or infirmity, .con- tributing to the insured’s death, there can _ be no recovery on the double indemnity pro- visions of the ‘Policy.’ 7 | “es as Dr. White did not testify that the accident and operation, as isolated contemporary occurrences, brought about the insured’s death. Indeed, con- 'strued in the light of the standard. expressed in . _these cases, Dr. White’s testimony admits of - no other interpretation than that the insured’s _ -. death was brought about in part, or contributed — to, by the chronic disease. The most tolerant’: ‘semanticist could not brook any other construc- ‘tion of the expression that ‘the method or mode of dying’ was the illness. This is also the clear meaning of Dr. White’s other explicatory state-- ment that ‘the reason he died after the opera- — tion was, in my best judgment, the spssstahacanal | of his pulmonary emphysema’. =~ We therefore conclude that the jury had no basis ‘in the evidence ‘to conclude that the insured’s - death resulted from an. accident ‘directly and ~~ independently of all other causés’ within the policy’s meaning. Pherefore we hold that the trial court should have granted judgment for - Prudential notwithstanding the verdict. ” 376 F.2d at 401-402. REASONS FOR DENYING THE WRIT | 1. Florida substantive jaw clearly provides that _, there can be no double indemnity under the present. policy “if the accidental injury and the preexisting disease or infirmity cooperate in causing the death of the insured ° - +. even though the injury is an active, efficient and .procuring cause. .. . ” BERG v. NEW YORK LIFE. IN- SURANCE COMPANY (Fla.1956), 88 So.2d 915, 917. Pe- 8 titioner cannot and does not question this Florida insur- ance law definition of “accidental death” under the in- stant policy. Accordingly, the opinion below correctly Interprets local law in a diversity case. hen 2. The satasien basis for the conclusion below that “the insured’s death was brought about in part, or contributed to, by the chronic disease” is set out in foot- - note 1 of. the opinion below. 376 F.2d at 399-400. Dr.. White’s testimony was the most: favorable testimony for the petitioner. The most that can be said for his testi- mony is that the accidental fall was the “producing cause”. . . or “triggering mechanism” which resulted in ‘a death in which chronic asthma and pulmonary emphysema were also contributing causes. While the insured could have obtained insurance with-a different definition of “acci- dental death”, the Sant remains that he did not so do. 3. Petitioner’s’claim that she has been denied rights under the Seventh ‘and Fourteenth Amendments are . wholly lacking in substance. /The Fourteenth Amendment is inapplicable since no “state” action is involved. The Seventh Amendment expressly permits appellate reversals for insufficient evidence “according to the rules at com- mon law.” Cf. Dx v. erent = U.S: 474. 4, There i is admittedly a conflict among the circuit courts as to whether the sufficiency of the evidence to - gustain a verdict in a diversity case is tested by state or federal law. DICK v. NEW YORK LIFE INS. CO., 359 U.S. 487. While petitioner now claims that “The question of the sufficiency of the evidence to sustain.a jury verdict . in diversity cases should be governed by state law” (Pe-. tition, p. 13), petitioner claimed the exact contrary below: 9. “The question of the initia of the evidence - to sustain the jury verdict is controlled by fed- eral law. Braud v. Baker (5th Cir.1963), 324 F.2d 213, .216; Shirey v. Louisville & Nashville Rail- . , Toad Compaiay (5tif Cir. 1964), 327 F.2d 549, 552; Royal Indemnity Co. v. Curtis, (5th Cir. 1958), 256 F.2d 329, 331. In resolving this issue the evi- _ dence should be viewed in a light most favorable to the Appellee and she is entitled to the benefit of. every legal rational inference. Continental Ore Co. v. United Carbide and Carbon Corp., — (1962) 370 U.S. 690, 696; Atlantic Greyhound Corp. y. Crowder, (5th Cir.1949), 177 F.2d 633.” ere Brief as Appellee below, page 5.) The doctrine of invited error clearly precludes peti- tlesiee from now claiming that state law is controlling. “Generally, at least, suitors may not maintain a position here which conflicts with that taken below; ...” OHIO EX REL. SENEY.v. SWIFT & co., erin 146, ida test of ‘the sufficiency of the evidence differs from the federal test. Likewise, petitioner has not shown and does not claim that the: Florida. rule is more favorable to her position than the federal law. Petitioner’s second question poses a purely academic point and.is a classic example of harmless error. .. 3 6. The decision below is correct, in ‘probable accord with this Court’s prior decisions, and does substantial justice between the parties. Under the Seventh Amend-'. ment, federal courts are under just as much of a duty to ° a : > TF 10. * & set aside verdicts in “no evidence” cases as they are to uphold verdicts which are supported by “some” evidence. CONCLUSION It is respectfully submitted that the petition for a writ of.certiorari to the United States Court of apres for the Fifth Circuit should be denied. — Respectfully submitted, — | JAMES A. DIXON ps - 900 Dade Federal Building. . @ Miami, Florida 33131 ed CERTIFICATE OF SERVICE I HEREBY CERTIFY that a frue copy of the fore- going, Respondent’s Brief in Opposition to Petition for a Writ of Certiorari to the United States Court of Appeals '.for the Fifth Circuit, was mailed to the attorneys for © ‘the Petitioner, THOMAS H. ANDERSON, ESQ., and | . RICHARD M. LESLIE, ESQ., 1000 First National.Bank | Building, Miami, Florida 33131, this_4 day of October, ° 1967. ‘ | ‘ eee _ JAMES. A. DIXON --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0951%3A2. Public record. Not legal advice.