Petition for Writ of Certiorari — Berman v. Group Health Ass'n

In The

SUPREME COURT OF THE WIITED STATES

October Term, 1973

toe 7 B-"1962

JOSEPH BERMAN,

Petitioner,

Ve

GROUP HEALTH ASSOCIATION, INC.,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

Joseph Rerman, Petitioner

9039 Sligo Creek Parkway

Silver Spring, Md. 20901

After July 30, 1974

address will be:

5200 Boardwalk, Apt. 11-3

Ventnor, ".J. 04806

TABLE OF CONTENTS

Page

Petition for Writ of Certiorari 1

Opinion Below. -- 2

Jurisdiction 2

Questions Presented ----- 2,3

Constitutional Questions Involved --------. 3

Statutes Involved ----- a |

Statement of the Case 4n7

Reasons for Granting the Writ - 7

I, THE DISTRICT OF COLUMBIA COURT OF AP-

PEALS DID NOT COMPLY WITH THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT TO THE

CONSTITUTION IN NOT DISMISSING THIS CASE

ON THE ISSUE OF JURISDICTION. IT FURTHER

ERRED FOR NEGLECTING TO EVEN CONSIDER AND

RULE ON CT &

OR COURT HAS JURISDICTION OVER A

MARYLAND CITIZEN NOT DOING BUSINESS IN

THE DISTRICT OF COLUMBIA, AND CONCERNING

FUNDS WHICH HAVE NO CONNECTION WITH THE

DISTRICT OF COLUMBIA.

II, THE COURT BELOW ERRED IN GRANTING

SUMMARY JUDGMENT,-DENYING TRIAL BY JURY;-

A. WITHOUT ANY EVIDENCE FOR RES-

PONDENT, WHILE DISREGARDING ALL

THE EVIDENCE PRODUCED BY PETITIONER;

B. HOLDING PETITIONER RESPONSIBLE

FOR THE PRODUCTION OF THE ORIGINAL

BYLAWS, WHEN IT WAS CLEARLY EVIDENT

THAT RESPONDENT WOULD BE THE ONLY ONE

ae

IN POSSESSION OF THEM,-AND DID NOT PRO-

DUCE THEM WHEN REQUESTED TO UNDER CIVIL

RULE 34 AND THE SUBSEQUENT ORDER OF THE

SUPERIOR COURT; AND

C., WITHOUT CONSIDERING THE ACTS OF WAIVER

ON THE PART OF RESPONDENT TO ESTOP RESPON-

DENT, OR TO AT LEAST, REMAND FACTS FOR A

4 JURY.

Appendix:

A. Decision of the District of Columbia Court

of Appeals, pp. 1-3-

B, Order, filed April 3, 1974, denying petition

for rehearing of the District of ones

Court of Appeals decision.

Sic Hiteniana es Gs edly ann 9S te ces

TABLE OF AUTHORITIZS —

Cases

Page

v. Veterans Co-op Ass'n, 9 A. 24

513, D.C. Mun. App. (1953) 15

Beacon Theatres v. Westover, 359 U.S.

Capron v. Mandell, Ct. App. Md. (1968) 9

ee ve Yo 243 A. 24 559,

S16-(I9e8) 9

Hanson v. Denckla, 357 U. &. 235,

78S. ct. 1225 — 11,12

ee Wall and Beaver St. Co es

pt F, 9 UeSe Appe D.C. { Ou) 8

Rachal v. Hill, 435 F. 2a 59 (1970) 16

White v. Group Health Association, Inc.

20u Ae 2a r D.C. App. ) 13,14,16

Constitution

Amendment VII 2,3

Amendment XIV 3,10, 16

Statutes

28 U.S.C. par. 125% 2

D.C. Code Section 13-423(a), (»b) 4,10,11,16

144

Legislation

Page

Senate Report No. 405, Qlist Congress,

lst Session (1969) 8

House of Representatives Report No. 707,

Qlst Congress, (1970) 10

Miscellaneous

District of Columbia Superior Court

Civil Rule 56(e) 5,6,14

iv

ea ae ae

NOe

IN THE

SUPRENE COURT OF THE UNITED STATES

October Term, 1973

JOSEPH BERMAN,

Petitioner,

Ve

GROUP H#ALTH ASSOCIATION,

a" es

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

Joseph Berman, defendant in the Superior Court

of the District of Columbia and Appellant in the

District of Columbia Court of Appeals, petitions

Joseph Berman also petitions for a writ of

certiorari to review the decision of the Dis-

trial to petitioner and affirming the summary

judgment of the Superior Court of the District

of Columbia assessing liability on the finding;

SRO OT i SG a BEALL ANSE LOE ALIA - —

PPS LOL LISLE ONCE E PILL AA RD MME THE RESTO EL DNS IOP ELT

2.

*#, on the reeord brought here there wes no

genuine issue ef material fact such as would

have preeluded the grant of partial summary

judgment on the issue ef appelant’s liebility

to GHA.

OPINION SELOW

The opinion of the court of appeals (App.A,

infra pp. 1-3) is net reported. It affirmed as

to liability of defendant (petitioner here) to

GHA (respondent here), but was vacated as to dan-

ages on basis of the vielation of the Seventh An-

endment to the Constitution, and remanded to the

Superior Court of the Distriet cf Columbia for

jury trial as to damages. The jury trial has not

been scheduled.

JURISDICTION

The judgment of the Distriet of Columbia Court

of Appeals was entered on Mareh 20, 1974. (App.A,

infra, pp. 1-3). A petition fer rehearing was

denied, per euriam, April 3, 1974 (App.B). The

Se ag oe eof this Court is invoked under 28

U.S.C. 125%,

QUESTIONS PRESENTED

1. Whether the Distriet ef Columbia Court of

Appeals correetly ignored and refused to rule on

whether the Superior Court ef the Distriet of

Columbia properly accepted personal jurisdiction

over a Maryland resident (Petitioner) and the

funds reeeived by the ‘land resident from a

Conneeticut corporation.

2. Whether the eourt below erred in;

A. Granting sumaary judgment, denying trial by

jury without any evidense for respondent while

3°

disregarding all evidence produced ‘by peti-

tioner;

B, Holding petitioner responsible for the pro-

duction of original bylaws, when it was clear-

ly evident that respondent would be the only

one in possession of them, and did not produce

sane when petitioner officially requested then

under Civil Rule 34 of the Superior Court of

the Distafes ef Columbia;

C. Not considering the acts of waiver on the

part of respondent, or at the very least, re-

mand to hive issues submitted to a jury as

petitioner requested,

CONSTITUTIONAL QUESTIONS INVOLVED

The power of the various States and the Dis-

trict of Columbia, as te jurisdiction, is to be

exercised only to the extent allowed under pro-

visions of the Due Process clause of the Four-

teenth Amendment te the Constitution.

It is basic under the Seventh Amendment to the

Constitution that a trial by jury is a must,

where there ié an issue to be tried.

T/Respondent and the court below have tacitly

admitted that the court had no jurisdiction over

the funds paid by the Connecticut corporation.

Respondent made no claim against the Connecticut

corporation, and only made claim against peti-

_ tloner approximately fifteen months after the

fact, while all this time fully knowledgeable of

the cae corporation obligation. (R.61,

"Ete auth wcthe etude de 21 is es

tei to the Distriet of Columbia Court of Appeals

from the Superior Court.

4,

STATUTES INVOLVED

The District of Columbia Leng-Arm Statute,

13-D.C. Code par. 423(a),1 and (bd).

STATEMENT OF THE CASE

Petitioner (Joseph Berman) became a partici;

pating family member of the prepaid (R. 30, 64)*

Group Health Association,Inc., (GHA), the respon-

dent on March 2, 1953. (R61). At that time the

bylaws of GHA contained no “double coverage"

provision (R.61), and, in fact, encouraged

maintenance of secondary insurance (R.61). Pet-

itioner remained a member of GHA until Septea-

ber 1, 1970 (R.30,79). Petitioner, during much

of this period, maintained and paid for a secon-

dary insurance by Aetna Life and Casualty Co.,

a Connecticut Corporation. Respondent had full

knowledge of this Aetna insurance, repeatedly

facilitated petitioner to collect from Aetna

and made no claim for any of these funds over

approximately a ten year period (R.%1,%2,83).

On, or or about, June 26, 1961, the GHA Board

of Trustees “a ed and adopted” par.2:5(5) of

their bylaws. However the bylaws then in ef-

fect (up to June 26, 1961) s i torbade

the Board of Senaheen te aie GEE Gee tela

(TR.01,00 par.d). Thus the bylaw upon whieh this

suit was initiated is, on its face illegal, a

fact not denied by the respondent in this case,

For approximately a ten year period after the

illegal “promulgation” of this bylaw, respondent

continued to assure petitioner that this bylaw

would not be activated as far as he was concern-

ed. (R61, par. 3,R,80 par. 4

5 j Respondent never presented any data, either

as evidence or otherwise, as to the date of

eX RS eee SRST TREES TT REED BO ERS ae = SRP oer A

5e

Respondent had its administrative offices in

the District of Columbia with clinics in Mary-

land and the District of Columbia. Petitioner

lived in the District of Columbia until June 30,

1967 (R.16), at which time he moved into the

state of Maryland. The funds in dispute are

those collected by petitioner in 1970, while a

Maryland resident, from Aetna Insurance Company,

a Connecticut corporation. Respondent had no

control over the collection of these funds by

petitioner from Aetna. Petitioner could have

put in a claim for $1.00 or $1,200.00, or no

claim at all; respondent admittediy had no con-

trol of this. 7

Because the question of liability evidentiy

hinged on the production of the original con-

tract (bylaws), in that the court below stated:

Appellant, for reasons best known to himself,

did not append a copy of the contract to his

opposition to the motion tor partial summary

judgment as required by Super. Ct. Civ. R.

5 (e).

“promulgation” of this so-called “double-cover-

age” bylaw. This did not seem to bother the

District of Columbia Superior Court. However,

petitioner presented its accepted history. It

the case had gone to trial, petitioner was pre-

pared to present evidence that the bylaw quoted

had never been voted on in the proper manner,

and that active deceit ot the members was prac-

ticed in this situation, (R.61,602,60)

4Y It was not activated for approximateiy 10

years, although there were many opportunities

to do so. One might reason that respondent, at

these early dates assured petitioner that this

bylaw would not be applied to him so as to tore-

stail litigation at that time, while the iliegal-

ity was "fresh",

6.

Let us look into the efforts made to secure

such a document.

1. Defendant (petitioner) ras never issued a

complete copy of the original bylaws and never

received a modified copy until November, 1972.

(R.79, pared).

2. Although never having issued a complete

copy of the original bylaws, GHA (Respondent)

continued to transact business with petitioner

on basis of original bylaws, not later modifi-

cation. (R.80 par.d).

3. Since respondent never issued original by-

laws to petitioner, and they (GHA) were the log-

ical, and only, custodian of such bylaws, peti-

tioner formally requested, on July 18, 1972, in

accordance with Civil Rule 34, that Respondent

produce same, (R.24 par.(1)d). Having found

that, contrary to reply of respondent, the orig-

inal contract or modifications were not forth-

coming, petitioner requested the court to order

their production, The court did so (R.3#+). On

October 24, 1972, although not specifically ans-

wering petitioner’s request, or the courts order

of September 19, 1972, respondent submitted an

affidavit to the effect; (R.39)

That we have no other documents that have not

been turned over to the defendant (petitioner)

in this case,

If petitioner had put in a claim to Aetna

for $1.00 and was subsequently paid by Aetna,

respondent would, if at all, admittedly have

made a elainm for only $1.00.

& It could be strongly argued that Rule 56(e)

could be easily interpreted otherwise, If there

is no contract available, can we not look at the

next best evidence?

7°

Apparantly respondent is making the suprising

statement that this multi-million dollar corp-

oration maintains none of its previous bylaws.

REASON FOR GRANTING THE WRIT

I. THE DISTRICT OF COLUMBIA COURT OF APPEALS

ERRED IN NOT DISMISSING THIS CASE ON THE ISSUE

OF JURISDICTION. IT FURTHER ERRED FOR NEGLECTING

TO EVEN CONSIDER AND RULE ON WHETHER THE DISTRICT

OF COLUMBIA SUPERIOR COURT HAS JURISDICTION OVER

A MARYLAND CITIZEN NOT DOING BUSINESS IN THE DIS-

TRICT OF COLUMBIA, AND CONCERNING FUNDS WHICH

HAVE NO CONNECTION WITH THE DISTRICT OF COLUMBIA.

II. THE COURT BELOW ERRED IN GRANTING SUMMARY

JUDGMENT ,-DENYING TRIAL BY JURY:~

A. WITHOUT ANY EVIDENCE FOR RESPONDENT, WHILE

DISREGARDING ALL THE EVIDENCE PRODUCED BY

PETITIONER;

B, HOLDING PETITIONER RESPONSIBLE FOR THE PRO-

DUCTION OF THE ORIGINAL BYLAWS, WHEN IT WAS

CLEARLY EVIDENT THAT RESPONDENT WOULD BE THE

ONLY ONE IN POSSESSION OF THEM,-AND DID NOT

PRODUCE THEM WHEN REQUESTED TO UNDER CIVIL RULE

34 AND THE SUBSEQUENT ORDER OF THE SUPERIOR

COURT; AND

C. WITHOUT CONSIDERING THE ACTS OF WAIVER ON

THE PART OF RESPONDENT TO ESTOP RESPONDENT, OR

TO AT LEAST, REMAND FACTS FOR A JURY.

Jurisdiction:- The petitioner has been a resident

of the state of Maryland since July 1, 1967. This

litigation arises out of medical services in 1970.

The funds involved have nothing to do with the

District of Columbia and respondent admits as much.

It is true that petitioner did have a contract

with the respondent for a number of years, and

respondent does have its main office(and I believe

is incorporated) in the District of Columbia. How-

ever petitioner did not seek a contract with res-

STATS, =

8.

pondent because he was located in the District.

Petitioner had no control over where the head

office was located, as it is the only such pre-

pay medical and hospitalization in the area.

Petitioner had no control of where the surgery

or hospitalisation would be performed. In fact

petitioner was very reluctant to have any surgery.

Payment for the services is not in dispute, Res-

dent admits it was paid on a monthly basis.

&.30,61 ). The very connotation “pre-paid” indi-

cates that members pay in advance for services

rendered. Petitioner made such payments from

March, 1953 to September, 1970. Consequently

the only question remains is who is to receive

the funds claimed by petitioner, a Maryland res-

ident, from Aetna Life and Casualty Co., a Con-

necticut corporation, Respondent has no control

over the amount of these funds, Petitioner paid

for the right to collect, and petitioner main-

tains control over how much to collect,- fron

zero dollars to a limited maximun, If petition-

er chose not to claim, or even chose to return

the funds to Aetna, Respondent, by their om

theory, would have nothing to collect. Respon-

dent made no adjustment to petitioner's pre-

miums so as to deserve a windfall from petition-

er‘s payments for other insurance,

The so-called long-arm statute of the District

of Columbia had no intention to eliminate all

restrictions on personal jurisdiction of State

courts. The District of Columbia courts are,

of course, on the same level as State courts.

King v. Wall and Beaver Street Corp., 145 F. 2d

377, UseSe Apps DeCe- (i944). In discussing this

long-arm statute when er in 1969, the U.S.

Senate, in Senate Report No. eo Qlst Congress,

lst Session (1969) stated (p.35

Chapter 4 more specifically grants ex-

panded basis of jurisdiction and modes

TS SRI me bal eB AT A

9.

of service identical to or reciprocal

with those provided under the laws of

the nearby State of Maryland for the

courts of that State,***.

The power of the various States and the Dis-

trict of Columbia, as to jurisdiction, is to be

exercised only to the extent allowed under pro-

visions of the due process clause of the Four-

teenth Amendment to the Constitution, The

courts in the State of Maryland have consistent-

ly so held, In Eastham v. Young, 243 A.2d 559,

250 Ma. 516 (1968) the stated:

Ordinarily one is entitled to be sued

in the county of his residence, in

equity or in law.

* * * * i. * & +

An ordinary suit for a specific per-

formance against a sole defendant must

be brought in the county wherein that

defendant resides, ***.

In Ce mn Ve Mandell, Ct.app. Md. (1968), the

co stated (p.895)3

The privilege of a defendant to be

sued only in the county of his res-

idence is s substantial right***,

These findings, supra, are situations even with-

in a state.

Unilateral activity of GHA with the petition-

er, a Maryland resident cannot satisfy the re-

quirement that one must purposefully avail hin-

self of the privilege of conducting business

within the District of Columbia. True, peti-

tioner is a resident of Maryland, relatively

close by the District of Columbia. If he were

a resident of Denver, Colorado, would it still

be "due process" to permit a District of

Piiarntinwne..

10.

Columbia corporation to sue this Colorado res-

ident in the District? Petitioner believes it

would not be, Who is to decide the geographic

limitation? There is a great difference between

a foreign corporation transacting, or soliciting

business in the District of Columbia, and-a non-

resident individual paying fees for services

supplied by a corporation that incidently has

its administrative office in the District. Sup-

pose GHA were to move its offices to Alabama?

To the petitioner herein, the location of res-

pondent’s office in the District of Columbia was

of no advantage, and he did not deliberately

seek out the District of Columbia as a locale

to transact his business. For GHA to have insti-

tuted suit in Maryland, where it maintains of-

fices and clinics, and where petitioner resides,

would not have done violence to the principle of

“due process” of the Fourteenth Amendment to the

Constitution.

The court's finding that it had jurisdiction.

because;

## the defendant (petitioner) was

employed in the District of Columbia

until 1970, ##*,(R.23)

4s obviously in error. Petitioner's Federal.

Government employment has nothing to do with

the issues in this litigation. Congress meant =

to specifically exclude such tenuous jurisdic-

tional claims. In the House of Representatives,

report H.R.Rep. No. 707, JYist Cong., 2d Sess.,

1970 (p.163) states jurisdiction is;--

te be limited to claims arising from

the specified connection.

Paragraph 13-423(b) of the D.C. Code (Supp.IV,

ll.

1971) states:

When jurisdiction over a person is

besed solely upon this section, only

a claim for relief arising from acts

enumerated in this section may be

asserted against hin.

The long-arm statute does not authorize the

court to enter judgment in respect to property

over which the court has no jurisdiction. The

subject judgment is for funds which petitioner,

a Maryland resident, received from Aetna Insur-

ance, a Connecticut corporation. There is no

dispute over GHA’s obligation. They have admit-

ted that they were obligated. (R.11 par.5).

There is no dispute over petitioner's pre-pay-

ment of premiums. GHA has admitted that they

were d. (R.14 par.2; R.30 par.2; R41 par.

1&2). The word “reimbursement” by respondent

is a semantic by-play. They are admittedly only

asking for the money paid by Aetna, the Connec-

ticut corporation, to petitioner, a Maryland

resident, GHA had no control over how much that

sum would be. As far as GHA, the respondent, is

concerned, it could be any figure from $1.00

to $1,500.00. Petitioner need not have collected

one cent and respondent admits that, in such case

there would be no claim by respondent. It ap-

pears that respondent's claim is an effort to

intimidate individuals, not necessarily for the

benefit of respondent, but more for the benefit

of Aetna Insurance. Over this transaction the

District of Columbia Court has no jurisdiction.

The petitioner did not engage in any persistent

course of conduct in the District of Columbia.

In Hanson v. Denckla, 357 U.S. 235 (p.250)

the court said Tp.25i):

Beasties: ew actrees igs ‘

12.

*##the requirements for personal jur-

4sdiction over non-residents have evolved

from the rigid rule of Pennoyer v. Neff,

95 U.S. 714 to the flexible standara or

International Shoe Co. Vv. fase esi3

326 U.S. 310. But it is a nis e to

assume that this trend heralds the even-

tual demise of all restrictions on the

personal. jurisdiction of state courts.

See Vanderbilt v. Vanderbilt, 354 U.S.

416, 415. Those restrictions are more

than a guarantee of immunity from incon-

venient or distant litigation. They are

a consequence of territorial limitations

on the power of respective states.

The same Court also stated (p.253):

The unilateral activity of those who

claim some relationship with a nonresi-

dent defendant cannot satisfy the re-

quirement of contact with the forum State.

The concepts, supra, are directly applicable

to the instant case wherein respondent unilat-

erally acted in soliciting premium payments

from petitioner, a non-resident. If the Super-

4or Court's action as to jurisdiction were up-

held in the instant case, then the same reason-

ing would allow Sears Roebuck and Company to

bring suit within its home jurisdiction, Phila-

delphia, against any one of ite thousands of

customers, throughout the land. Is this the

"due process" as required by the Constitution?

Petitioner thinks not and the courts have agreed.

Petitioner contends that on this issue the

court below erred in not considering or ruling

on jurisdiction (App. A, infra), and in not dir-

ecting the Superior Court to grant petitioner's

Motion to Dismiss, (R.16 par.2).

13.

er GST eet Respondent, in its argument,

r on the case of mR White v,

G Health Association, Inc.,4 294 A. od 870,

D.C. App.(1972). The case was litigated in the

Superior Court of the District of Columbia (not

reported) and affirmed in the District of Col-

umbia Court of Appeals. Respondent presents no

facts in respect to that case, and makes no at-

tempt to correlate the facts in the case at bar

with that case. Petitioner does investigate the

facts in the record (R. 61,79,80) and found;

A. The bylaw respondent relied on, and quotes

in his brief, and from which the District of

Columbia Court of Appeals (App. A, infra, p.2)

makes the statement that;

The validity of such 2 provision was

upheld in White v. Group Health Asso-

ciation, **,

was not a matter of litigation in the White

case. (ibid). That case was tried on an affi-

davit, by an executive «. the respondent herein,

accompanying a motion for summary judgment to

which White's attorney neglected to file an o

sition, (R. 84+,85,8). Riscs the affidavit was

not challanged,-White's attorney failed to file

an answer, and since it was not objected to in

the pleadingsY, no question was raised in that

case as to the legality of the so-called "double

coverage" bylaw, The court of appeals assumed

that it was legal and said as much in a footnote,

I cannot conceive of this Court condemning all

future litigants to be penalized by the neglect

or incompetence of an attorney in an earlier

case, together with an assumption of legality by

a court below,

?/ This is not in the record but is referred to

in its argument to the Superior Court and in its

brief to the Court of Appeals.

Dire DB cad

CPE ERE 0D

els So Ses wel eatin ht aS wl

alt ide i Cote:

14,

The evidence in this case is to the effect

that this bylaw, which is the core of respon-

dent's case, was illegally “promulgated” (R.62,

80 par. a), and respondent does not deny this,

The evidence also shows that, by its acts and

its statements to petitioner (R.61, 0253,4,

R. 64,65,66,67,80 par. ad & f, 81,82, by Trespon-

dent did not consider it a legal entitity and

did ev in its power, over almost a ten

year period, (until this litigation) to prevent

petitioner from raising the issue,

All the uncontroverted evidence,supra, is in

the record. However, it was completely ignored

by the District of Columbia Court of Appeals and

the trial court. Based on the evidence, the

courts certainly could have granted summary

judgment to petitioner, but to grant summary

judgment to respondent, the courts must have

necessarily ignored the evidence,

B. The District of Columbia Court of Appeals

in its affirmation of summary judgment for res-

pondent complains (as a primary factor in grant-

ing summary judgment), in denying any weight to

petitioner's affidavit which distinguishes his

individual contract from a group contract (App.

A, infra, Pe2)s

Has was the case in White. Appellant for

reasons best known to himself, did not

append a copy of the contract to his op-

position to the motion for partial summary

judgment as required by Super. Ct. Civ,

R. 56 (e), and it does not appear that any

such contract was ever brought to the atten-

tion of the trial court,

¥ Where it did not appear,

~— ee e - sal . Krak. herds Deas,

15.

The evidence in the case at bar is directly con-

trary to the court's statement. On pages 4,5

and 6 of this petition the evidentiary facts are

set out. It may also be of interest here in

pointing out that a previous District of Colum-

bia court has, in Backus Vv. Veterans aad

Aes'n., 96 A.2a 513, Doce Mun. App.

stated; (p.514)

Burden of establishing terns of contract

rests upon party suing there-on,.

Respondent, the sole custodian of such contract 7

never produced it either in response to petition-

er's official requests (Re24,32,33,72) or the

court's order (R.34).

Cc. R ted acts of waiver, if the bylaw sued

on is e S$ accepted as Legal, were committed.

These acts began by respondent in 1961, and con-

tinued uninterrupted each year thereafter until

August 1971. These acts reflect waivers as to

situations identical to the one here being lit-

igated. Respondent does not deny these acts of

waiver set out in the evidence, (R.61,63,64,65,

66,67,79 perec,81,82,83), nor did the trial court

address itself to these acts of waiver. The

appeals court ignored any mention of them, Many

court cases have been litigated as to waiver with

the consequental estoppel therefrom. Petitioner

has presented clear unrefute? evidence in this

case, and the courts below certainly should have

considered this evidence.

J The trial court accepted the existence of

this original contract because in its ruling on

jurisdiction (R.23), the court referred to this

“written contract" as the main basis of its

order.

) 16.

CONCLUSION

4 Petitioner feels that the trial court has in-

: properly interpreted the extent of the District

\ of Columbia so-called Long-Arm statute (D.C.Code

i par.13-423) and has violated petitioner's right

: . to. due process as required by the Fourteenth

{ Amendment to the Constitution. Petitioner con-

; tends that the District of Columbia Court of

Appeals erred in not considering this issue,

4 _ not considering the evidence thereof, and not

: ’™ ‘guling on the S ciediction problem in this case.

4 Petitioner also feels that the court below

y erred in affirming the granting of summary judg-

‘ment to respondent,- respondent who presented no

evidence to refute or deny the preponderant evi-

; dence presented by petitioner. In this case, the

\ courts below have accepted the doctrine of col-

zs lateral estoppel in favor of respondent although

the evidence clearly shows that (in White v,

Group Health Association, Inc., supra) petition-

er, and in fact White, had no opportunity to

; litigate the issue of the legality of the by-

; law on its merits. See Beacon Theatres v.

‘ Westover, 359 U.S.500,79 S. ct.940 (1959) and

4 V. Hill, 435 F. 2d 59 (1970).

The instances of waiver and consequent estop-

‘pel as to respondent are numerous and repeated

in the evidence, They have been summerized and

the evidence referred to supra. It is indeed

difficult to understand how the courts below

simply ignored them to the detriment of peti-

tioner.

3

H

4

3

y

3

}

8

AEE EERIE RE SS YER eh

1?.

Wherefore petitioner prays that this Court

grant the writ of certiorari sought herein.

Appendix:

A. Decision of the District of Columbia Court

of Appeals, ppel-3 ------ 7 rr

B. Order, filed April 3, 1974, denying petition

for rehearing of the District of Columbia

Court of Appeals decision.- ----- - -

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 7356

JOSEPH BERMAN, APPELLANT,

Vv.

GrouP HEALTH ASSOCIATION, INC., APPE!

Appeal from the Superior Court

of the District of Columbia

(Argued December 6, 1973 Decided March 20, 1974)

Joseph Berman, pro se.

Joel M. Savits, with whom William H. Seckinger was

on the brief, for appellee.

Before GALLAGHER, PAIR and YEAGLEY, Associate

Judges.

PAIR, Associate Judge: This appeal is from a judg-

ment entered in the Civil Division of the Superior Court

granting Group Health Association (GHA) recovery for

moneys received by appellant under a health insurance

policy with another insurer. Appellant makes numerous

claims of error but we find it necessary to consider only

whether the court erred in (1) granting GHA’s motion

for partial summary judgment, and (2) denying him a

jury trial.

GHA complained against appellant demanding “any

payments or benefits received by him under any accident

or health plan other than that of G.H.A.” In his answer

[278]

es a =_ enn eee <a

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:

2

to the complaint, appellant admitted that he had received

benefits under a health and accident insurance policy car-

ried by the Aetna Life and Casualty Company, but in-

sisted that he, not GHA, was entitled to the moneys.

By Article II, Section 2:5(5) of the Bylaws of GHA, it

was provided:

Any person accepting medical or dental treat-

ment or attendance or hospitalization services

procured by GHA shall be deemed by so doing to

have... (5) agreed that, if the member or de-

pendent receives benefits under an accident or

health plan, other than through a plan of GHA,

for services provided at GHA’s expense, GHA

reserves the right to obtain reimbursement from

the member (and/or dependent) for the cost of

the services provided (and/or reasonable value

of the services provided) ....

The validity of such a provision was upheld in

White v. Group Health Association, D.C.App., 294 A.2d

870 (1972). Appellant contends, however, that White

is distinguishable because his was an individual contract

with GHA and not a group health contract as was the

case in White. Appellant, for reasons best known to

himself, did not append a copy of the contract to his

opposition to the motion for partial summary judgment

as required by Super. Ct. Civ. R. 56(e), and it does not

appear that any such contract was ever brought to the

attention of the trial court. We cannot, of course, con-

sider any matter not of record.’

Thus, on the record brought here, there was no genuine

issue of material fact such as would have precluded the

1 Dietz v. Miles Holding Corp., D.C.App., 277 A.2d 108, 110

n. 3 (1971).

[279]

ner

grant of partial summary judgment on the issue of ap-

pellant’s liability to GHA.

While the entry of the summary judgment determined

that appellant was answerable to GHA for some amount,

it did not determine the amount. Thus, the extent of

appellant's liability to GHA remained the subject of in-

quiry. Barber v. Turberville, 94 U.S.App.D.C. 335, 218

F.2d 34 (1954).* The trial court thereupon caused the

case to be set down on the nonjury calendar for trial on

the issue of damages only, and at the completion thereof

a judgment in the amount of $1,203.11 was entered in

favor of GHA.

What the record discloses, however, is that appellant

filed a timely demand for a jury trial and that a de

posit was accepted by the clerk of the court. Such a

trial is basic under the Seventh Amendment to the Con-

stitution, and the action—whether characterized as one

for the recovery of moneys or a suit on a contract—is

triable by jury. See Simler v. Conner, 372 U.S. 221

(1963). See also 47 Am. Jur. 2d Jury §§ 42-44 (1969).

There is no showing in the record that appellant withdrew

his demand for a jury trial nor is there any showing of

a waiver—expressed or implied—of the jury trial which

had been demanded.

Because the record is barren as to the reason, if any,

for denying appellant a jury trial, we vacate the judg-

ment as to damages and remand the record with direc-

tions to reinstate the jury demand and for further pro-

ceedings not inconsistent with this opinion.

Affirmed in part, reversed

in part, and remanded.

2 See also Aetna Ins. Co. v. Kennedy, 301 U.S. 389 (1937).

[280]

| Soeneon AMA

District of Columbia 5 174

Court of Appealgy ED APR Py. a,

Mhrend~ om

No. 7356 Janvany Teem, 19 74

JOSEPH BERMAN,

Appellant,

Vv. CA-2119-72

GROUP HEALTH ASSOCIATION, INC.,

Appellee.

BEFORE: Gallagher, Pair and Yeagley, Associate Judges.

On consideration of appellant's petition

for rehearing, it is

ORDERED that appellant's petition is denied.

PER CURIAM.

Copies to:

Honorable Milton D. Korman

Judge, Superior Court of the District of Columbia.

Clerk, Superior Court of the District of Columbia.

} seph Berman

9939 mine Creek Pkwy.

lver Spring, MD 20901

lant Pro Se. _—

rs. Joel M. Savits and

William H. Seckinger

O09 l7th Street, N.W. 20006

ttorney for Appellee.

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