Brief in Opposition to Petition for Writ of Certiorari — Seguros Tepeyac, S. A. Compania Mexicana de Seguros Generales v. Jernigan

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JOHN F. DAVIS, CLERK

IN THE _. Be 8

| Supreme Court of the Huited States

OcronEn | Term, 1969 i

No. 468 Cad

SEGUROS TrEPEYAC, S.A, CoMPANIA MEXICANA

‘DE SEGUROS GENERALES, Petitioner

Vv.

‘James L. JERNIGAN _

BRIEF OPPOSING PETITION FOR A”

: WRIT OF CERTIORARI

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CorNnELIUS C. O’BRIEN, JR.

316 Three Penn Center Plaza

Philadelphia, Pennsylvania 19102 -

_ Attorney for Teepencens i

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CITATIONS. ra aa

> Bostrom v. "Seguros Fepeyac, S.A. Compania Mexicana

‘Ys __ de Seguros Generales, N.D: Texas, Ft. Worth Div.

ay "1963, 305 F. Bape. 2b. ss is eee 2

ed. Trade Comm. ’v. Minh. “Honeywell Regulator OGD ear

~~ B44-US, 206, 211 26. ere eee tee ee ee teen eres -

ee ” Hartford Accident ‘and Indemnity Co. v. Bunn. (Ass.

sees - 1932), 285 Te MOO. abc vcccureprrrs er Crp tee.

2° Hill v. Chicago & ER. Co. (Ill. 1891), 140 U.S. 52 . $3

Sek Linkenhoger v. American Fidelity & Casualty Co., 260 °< .

AS SW. 2d 884 2... eee tee e rede eed eee eeees >

ae ® Rust Land, ete. Co. v. Jackson (Miss. , 1949), 250 U.S. > ee

: % - Seguros Tepeyac, S.A. Compania Mexicana v. Bostrom

sign" 4 3 (5 Cir. 1965), 347 F. 2d 168 ......--.-- verre eee 2, 5°

“4. Smith v. Transit, Casualty Co. (E.D. Texas 1968), 281

wes > + F. Supp. __. Eereern rae aN ROOT pyres ee Tere ree e.

: "Toledo Scale Co. v. ‘Computing Scale Co. (1923), 261

sane VS. 899 cere tere cece cee eiercesege re enree fee

Universal kat Shavias Insurance Co. v. Calbersion, 86

8.W. 2d 72%, reh. den'a Si ©. ad 475 resus a ky

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IN THE

‘Supreme Court nf the Huited States

OcToBeR TERM, 1969

No. 468

Srauros Tepryac, S.A. CoMPANIA MEXICANA

\.. DE SEGUROS GENERALES, Petitioner

JAMES L. JERNIGAN

BRIEF OPPOSING PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

JURISDICTION ©

The jurisdictional time for filing a Petition for

Writ. of Certiorari in a civil case is ninety (90). days

from the date of the judgment (in this case ninety (90)

days from the date that the Petition for Re-hearing was

denied, to-wit May 7, 1969), as provided in 28 U.S.C.

2101(c) (App. 1 hereto attached.)

OFFICIAL AND UNOFFICIAL 1a

The opinion of the United States Court of Appeals

for the Fifth Circuit ‘attached to Petitioner’s Petition

as Appendix ‘‘A’’ is No, 25651 .in the United States

_ Court of Appeals for the Fifth. Cireuit.

The original suit of the injured party _ the in-

surance company is Bostrom v. Seguros Tepeyac, S:A.

Compania Mezicana de Seguros Generales, N.D, Texas,

Ft. Worth Div. 1963, 225 F. Supp. 222, and Seguros

Tepeyac, S.A. Compania Mexicana v. Bostrom 6 Cir.

1965), 347 F. 2d 168.

‘The original judgment in, the suit of Bostrom v.

Jernigan was entered in the U.S: District Court, N.D.

Texas, Dallas Division, jn the amount of $270,000, on

February 12, 1962, being Cause No. 8536. No appeal

was taken from this judgment.” | -‘s

REASONS FOR DENYING THE WRIT

I. |

As indicated in the Petition for the it the judg- -

ment ef the Court of Appeals was entered on April 15, |

1969; and re-hearing was denied on May 7, 1969. The

judgment of April 15, 1969 and Mandate are attached

hereto as Appendix 2. Copy of original Judgment of

the US. District Court is attached hereto as Appen-

dix 3. The time for filing a Petition for Writ of Certi-

orari expired on August 5, 1969. The Petition here

was filed ori August 13, 1969. There;has been no exten-

sion of time and no tolling of the period of limitations. .

It has often been held by this Court that the period |

of time for filing a Petition for Writ of Certiorari is

jurisdictional. Fed. Trade Comm. v. Minn.-Honeywell

Regulator Co.,.344 U.S 206, 211; Hartford Accident

and Indemnity Co. Bunn (Miss. 1932), 285 U.S. 169

at 177; Toledo Scale Co. v. Computing Scale Co., (1923)

961 U.S. 399 at 418; Rust Land, etc. Co. v. Jackson

(Miss. 1919),.250 U.S; 71 at.76; Hill v. Chicago & E.R.

Co. (Ill. 1891), 140 US. 52.

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Petitioner states that the main question presented is

the way the Court of Appeals has applied the Declara-

tory Judgment Act in-that it held that Jernigan, the

ar insured, may collect not only the $10,100 paid by him

to Bostrom the injured party, but also.all sumis he may

pay Bostrom in the future. That Judgment is found

-at R. 525-528, and App. 3. :

In claiming error, Petitioner relies upon the case of

Smith v. Transit Casualty Co., (E.D. Texas 1968) 281

F. Supp. 661. That case does not support Petitioner’s

position. In the Smith case, recovery was denied as to

a particular’ payment on the ground that the traus-

action was a sham, was not bona fide, and should not

be approved. In the instant case, the bona fides of

this’transaction was litigated extensively, and the jury

- found specially that the payment was made and was

made in good faith. (R. 525)

Strangely enough, the U.S. Court of Appeals, Fifth

Circuit, relies also upon the Smith case where declara-

tory relief was granted despite the fact that the orig-

inal payment was found to be a sham payment and the

Court there stated: ,

“Tt would be a useless waste of time and effort

for the Plaintiffs to be required to come back into

this court seeking an order of reimbursement each

time a payment is made on the excess judgment

_. . Therefore, in addition to a money judgment

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Te. court deems this an appropriate situa-

tion to grant a declaratory judgment, The remedy

is fully available in ‘Texas and is al8o an impor-

tant element of Fedgral practice.” 281 F..Supp. —

670 (App. A. 19a) |

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Petitioner argues’ that the doétrine of collateral

estoppel was wrongfully applied by. the lower /court

since the parties were not-identical. The Court of

Appeals: deals effectively with that argument, com-

_ mencing at Page 16-A of Appendix ‘‘A’’ to the Peti-

_ tion, although it.is obvious that the Petitioner, or the

printer misplaced, the last line.of p. 17a or the last

line of p. 16a.

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_ Finally, ~Petitioner argues that the court’ did: not

properly resolve and apply the provisions of the;Texas °

and Mexico statutes of limitations. The’ court simply

held, which is apparent from a reading of the two Opin-. ;

ions, that the cases of Linkenhoger v. American Fidel-

ity & Casualty Co., 260 S.W. 2d at 885-886, and Uni-:

versal Aut ile Insurance Co. vy. Culberson, 86 S.W.

2d 727, Reh. Dey’d, 87 S.Ws 2d 475, read together; hold -

that there was no cause of action in this type of situa-

tion, in the insuréd, unless and until he — paid some-

thing on’ the judgment against ‘him. Since the Court

of Appeals dealt with this argument in some detail, it

is deemed unnecessary to review the rationale in this

Brief. (App. A. 18a-20a).

as for the Mexico Statute of Limitations, it seems

abundantly clear that. limitation statutes of the Re- |

public of Mexico have nothing whatever to do with

this type of suit, which ‘is a tort action based upon

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negligence, that the negligence sical} in the iat of

Texas, that the tort was completed in the state of

Texas, and that the lawsuit brought was not brought

upon the policy itself, in contract, but rather in tort,

in the state of Texas, where the cause of action arose.

The. U.S. District Court for the Northern District of

Texas and the Court of Appeals for the Fifth Circuit

had previously determined that Texas law and not

- Mexican law applied to the original action, in tort, by

the injured -patty against the insurance company, .

Seguros Tepeyac, etc. vy. Bostrom, 347 F. 2d 168 at; 175.

“ CONCLUSION: _

In short, the Petition for. Writ of Certiorari herein

“should be denied because:

a * ,It has been filed: too late:

B. Under Rule 19 of the,Supreme Court nabs

.. which provides the guidelines, Petitioner has not shown

how this decision of the Court of ‘Appeals ofsthe Fifth

Circuit is in conflict with the decision of any other .

Court of Appeals in the same matter (no citations hav-

ing been given), or has decided an important state. ;

‘question if: conflict with applicable state law, or has

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decided an important question of Federal law’ which — -

has not been settled. by this Court, or has deeided a

Federal question in-a way - in conflict with applicable

decisions of this Court, or in any other manuer calls

for review by this Court.

Respectfully submitted,

e CORNELIUS C. O’Brien, Jk.

316 Three Penn Center Plaza

Philadelphia, Pennsylvania 19102

Attorney for Respondent

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APPENDIX 1 (fae e

§ 2101. . Supreme Court: time for appeal or certiorari;

docketing; stay gia.

(a) A direct appeal to the Supreme Court from any

_ decision under sections 1252, 1253 and 2283 of this title,

holding unconstitutional in whole or in part, any Act of

Congress, shall-be-taken within thirty days after the entry

of the interlocutory or final order, Audgment or decree.

The record shall be made up and the case docketed within

sixty days from the time such appeal is ‘taken under rules

prescribed by the Supreme Court.

, (b) Any 6ther direct appeal to the Supreme Court which

is authorized by law, from a decision of a district. court in

any civil action, suit or proceedings, shall be taken within |

thirty days from the judgment, order or decree, appealed

from, if interlocutory, and within sixty days if final.

~ to bring any judgment or decree in a civil. action, suit or

proceeding before thé Supreme Court for review shall be

taken or applied for within ninety days after the entry of

such judgment or decree. A justice of the Supreme Court,

for good cause shown, may extend the time for applying .

for a writ of certiorari for a period not exceeding sixty ©

days. |

(d) The time for appeal or sfiation for a writ of

certiorari to review the judgment of a State court in a

crimirial case shall be as prescribed by rules of the Supreme

Court. ’ . :

(e) An application to the Supreme Court for a writ of

-certiorari.to review a case before judgment has been ren-

_ dered in the court of appéals may* ‘be made at any time

before Jjudginent,

(f) In any case in which the final judgment or i diicie of

any court is subject to review by the Supreme Court on

writ «of certiorari, the execution and enforcement. of. such

judgment or decree may, be stayed for a reasonable time

a®

to enable the party aggrieved to obtain a writ.of certiorari

from the Supreme Court. The stay may be granted by a

judge of the Supreme Court, and may ‘be conditioned on

the giving of security, approved by such judge or justice,

that if the aggrieved party fails to’make-application for ~

such writ within the period allotted therefor, or fails to

_ obtain an order granting his application, or fails to make

his plea. good in the Supreme Court, he shall answer for

all damages and costs which the other part} may sustain

by reason of the stay. June 24, 1948, c. 646, 62, Stat. 961;

May 24, 1949, ¢. 139, § 106,°63 Stat. 104.

APPENDIX2

(Filed July 2, 1969)

U NiTED STATES COURT. OF APPEALS _

- FOR THE FIFTH CIRCUIT

< - OcroseR TERM, 1968

i No. 25651

‘D. C. Docket No. CA 4772

_ SEGUROS: TEPEYAC, S. A. Compania MEXICANA DE

SEcuRos GENERALES, Appellant,

a ae | versus ee Coens

gars So J ERNIGAN, Appellee.

Appeal from the-‘United States District Court for the

Northern District of Texas.

Before Gewis, 1 Pumurs* and Gotpsere, Circuit J nudges.

ae ; Judgment

Thi3 cause camé on to'be heard on the transcript of the

record from the United States District Court for the North-

- ern District of Texas, and was argued by. counsel ;

* Judge Harry Phillips of the a Circuit, sitting -

designation.

a 3

eed

ON ConsIpERATION Wueneor, It is now liere ordered and

adjudged by this Court that the judgment of the said Dis- -

trict Court’ in this cause be, and the same’ is hereby,

affirmed; |

It ‘is further ordered that soll wea to schon the

* costs on appeal to be taxed by the Clerk of this Court.

rae ; "April 15, 1969

Issued as Mandate: June 30, 1969 a

A true copy _ 2 oe

Teste; Epwarp W. WapswortH

* Clerk, U. S. Court of Appeals,

Fifth Circuit

By Ly. G. ComBERREL ®

Deputy ~

SHUI EE

New Orleans, Louisiana

June 30,1969

; APPENDIX 3 2

ae u ~Sudgment = ao, ee

| Filed Aug. 31, 1967. &§

“IN THE UNITED STATES DISTRICT COURT FOR’ THE ‘NORTHERN

DISTRICT OF TEXAS, FORT WORTH DIVISION.

Civil Action 4-772.

James L, Jernigan, Plaintiff,

ve |

SEGUROS Cacaent. S. A. ComPants MExIcana DE

SEGUROS Gunmnanae” Defendant.

On the 21 day of. August 1967 came on to be heard the

above cause and came the Plaintiff in person and by his

,, attqrney and the Defendant by its representative and at-

torney, and all parties having announced ready for trial,

a jury was selected consisting of Fred Bosworth, Foreman,

and eleven other jurors, and the evidence having beef’ sub-

- mitted and the argument having been heard, and the Court’s

charges having been given to the Jury, the Jury retired to

_consider its verdict and in response tothe —— given, -

the Jury gave the following answers:

Question No. 1—Do you. find from a preponderance of the

evidence that the Defendant Insurance Company was guilty

of negligence in not initiating and attempting to bring.

about a settlement of the claim of Bostrom against the ‘in-

sured,’ Plaintiff Jernigan; within the $5,000.00 limits of the

' public liability policy in question?

Answer: ‘‘It was negligent. "

Question No. 2—Do you find from a preponderance of the

‘evidence that the failure of the Defendant Insurance Com-

“pany, in not initiating and attempting to bring about a

settlement of the claim of Bostrom against Plaintiff Jerni-

| gan, was a proximate cause of the judgment for $270,000.00

in favor of Bostrom and against Jernigan and Sullivan,

_ jointly and severally, which has been admitted in evidence

in this case. :

Answer: ‘‘It was.”’

Question No. 3—Do you find oivin a preponderance of

the evidence that.the insured, Jernigan, was guilty of con-

tributory negligence in failing to communicate to the De-

-fendant Insurance Company the $5,000.00 offer of settle-

ment on the Bostrom claim against him and Sullivan.

Answer: ‘‘He was not.’’

. Questign No. 4—(If you answer ‘‘He was” to the-fore- _

going question, then, but not otherwise, answer the follow-

ing question.) Do you find from a preponderance of the

evidence that such negligence, if any, was a proximate

cause of the judgment for $270,000.00 in favor of Bostrom

and against Jernigan and Sullivan, jointly and severally,

which has been admitted in this case. #

Answer: (Not answered.)

Question No. 5—Do you find from a preponderance of

evidence that there was an offer made to the. Plaintiff

_ Jernigan, by the attorney for the injured party, Bostrom,

in the month.of June 1960, to settle the claim of Bostrom

against Jernigan for the sum of $5,000.00.

' Answer: ‘‘Yes,”’

Question No. 6—Do you find from a preponderance of

evidence that the Plaintiff Jernigan made a bona fide pay-

ment of the sum of $10,100.00 for the benefit of Bostrom

and to his credit, in’ partial satisfaction of the $270,000.00

judgment. ; |

Answer: ‘‘ Yes,’

And the Court finding that answers to said questions

entitle the Plaintiff to the following relief,

It is therefore, Ordered, Adjudged and ‘Decreed that the

Plaintiff James L. Jernigan do have and recover of the

Defendant Seguros Tepeyac, S. A. Compania Mexicana de

Seguros Generales the sum of ten thousand one hundred

dollars ($10,100.00) together with interest thereon at the

rate of six percent (6%) per annum from date and,- ;

It is further Ordered, Adjudged and. Decreéd that the ~

Plaintiff James L. Jernigan do have and recover from the

Defendant Seguros Tepeyac, S. A. Compania Mexicana de -

Seguros Generales such sums as and when he may herein-

after pay on the judgment recovered against him by May-

nard Bostrom until said judgment is fully satisfied. The —

‘Plaintiff is also awarded his costs against the Defendant, '

for all of which let execution issue.

Entered this 30 day of August 1967.

Ernest Guinn, =

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.