Memorandum — Berman v. Group Health Ass'n

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S eumenenennmeeamenmmedt

No. 73-1962

S ceenenenmeneeeemeel

JOSEPH BERMAN, Petitioner

v.

Group Hzatrn Association, Ino.

ee

On Petition for a Writ of Certiorari to the District of Columbia

Court of Appeals

—————

MEMORANDUM FOR THE RESPONDENT

IN OPPOSITION

eg an ds Ce, eR a ee Lie ed

IN THE |

Supreme Court of the United States

_ Ocroser Term, 1973

No, 73-1962

JosEPH BERMAN, Petitioner

v.

Group Heaurn Association, Inc.

On Petition for a Writ of Certiorari to the District of Columbia

Court of Appeals

MEMORANDUM FOR THE RESPONDENT

} IN OPPOSITION

Group Health Association, Inc. (@HA) brought this

action to recover from petitioner, a member of GHA,

a payment made to him by Aetna Life and Casualty

Company for medical services rendered petitioner by

GHA. Such recovery is specifically authorized by the

by-laws of GHA:

Any person accepting medical or dental treatment

or attendance of hospitalization services procured

by GHA shall be deemed by so doing to‘have * * *

2

(5) agreed that, if the member or dependent

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 pro-

vided (and/or reasonable ‘value of the services

provided) * * * with the proviso, however, that

benefits received from such third source which are

predicated solely on items of special damages (such

as loss of income) which cannot be allocated to

hospital and/or medical expenses shall not be

subject to a claim for reimbursement by GHA;

** & &

Article IT, 12:5(5) (see Pet., App. A, p. 2).

Petitioner contends, as he did in the courts below,

that the Superior Court of the District of Columbia

lacked personal jurisdiction over him as a resident of

Maryland, despite applicable provisions of the District

of Columbia “long-arm”’ statute.” Petitioner further

contends that the application of the ‘‘long-arm”’

statute to obtain jurisdiction over his person violates

‘‘due process’? concepts (Pet. 7-12). The court

below considered these issues so insubstantial as not to

warrant any comment (Pet. App. A, p. 1).

Petitioner also asserts that the courts below com-

mitted error in entering and affirming summary

judgment for GHA on the issue of liability. Peti-

tioner asserts that the Seventh Amendment provides

a right to trial by jury where an issue exists as to the

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1 Title 13 D.C. Code § 13-423 (a) (1):

‘*A District of Columbia court may exercise personal jurisdic-

tion over a person * * * as to a claim for relief arising from

the person’s transacting any business in the District of Colum-

bia** °°

‘

et a ed oa GR SV Da ktind BM.

3

facts presented before the court (Pet. 13-15). How-

ever, as the court below correctly held, where there are

no material facts to dispute the claim of a party, entry

of summary judgment is justified and no violation of

the Seventh Amendment arises (Pet. App. A, pp. 2-3).

That situation is present here since petitioner refused

to submit the GHA contract under which, he claimed,

GHA had no right to recover (Jbid., p. 2).

In sum, then, both of the issues petitioner seeks to

present are entirely without substance, and involve

issues solely of District of Columbia law passed upon

by the appropriate local courts. No substantial

federal or constitutional question is raised, and no

decision of this Court conflicts with the holding below.

The petition for a writ of certiorari should therefore

be denied.

1. The present action centers on questions which

are completely settled in the District of Columbia, as

well as in other jurisdictions. In promulgating Title

13 D. C. Code § 423, the Senate Committee on the Dis-

trict of Columbia reported that the section

specifically grants expanded basis of jurisdiction

and modes of service identical to or reciprocal

with those provided under the laws of the nearby

State of Maryland for the courts of that State,

and substantially the same as those provided in

the adjacent State of Virginia and approximately

10 other States. ”

This section has been afforded an expansive inter-

pretation in both Maryland and Virginia. *

*§. Rep. 405, 91st Cong., Ist Sess. 35 (1969).

3 See Gilliam v. Moog Industries, Inc., 210 A. 2d 390, 392 (Md.,

1965) ; Groom v. Margulies, 265 A. 2d 249 (Md., 1970); John G.

Kolbe, Inc. v. Chromodern Chair Co., 180 S.E. 664 (Va., 1970).

Pau. ok wie

4

There can be no question that sufficient contacts

existed with the District of Columbia to exercise juris-

diction over the petitioner under the long-arm statute.

This litigation involves a contract between the parties

entered into in the District of Columbia. Petitioner

was a resident of the District of Columbia and em-

ployed there when he joined GHA. The hospitali-

zation for which GHA bore the expense, pursuant to

the bylaws of GHA, was at the Washington Hospital

Center in the District of Columbia. The contention

that GHA, a non-profit organization incorporated and

with offices in the District of Columbia, in rightfully

asserting its claim against petitioner could not bring

suit in the District of Columbia is completely without

merit.

Petitioner’s ‘‘due process” claim also borders on the

frivolous. Jurisdiction under similar long-arm sta-

tutes in other states has been consistently given broad

construction. See e.g., Parke-Benet Galleries, Inc. v.

Franklin, 26 N.Y. 2d 13, 256 N.E. 2d 506 (Ct. App.

N.Y. 1970) (long-arm jurisdiction over a California

defendant upheld on the basis of a telephone call

through which defendant participated in an auction) ;

State Ex Rel. White Lumber Sales, Inc. v. Sulmonetti,

448 P.2d 571 (Ore., 1968) (long-arm jurisdiction over

a Florida lumber wholesaler who made an order by

telephone from an Oregon wholesaler). Such con-

struction is authorized by Hanson v. Denckla, 357 U.S.

235 (1958), which held that jurisdiction under a long-

arm statute is valid when the defendant

purposely avails. [himself] of the privilege of

conducting activities within the forum State, thus

invoking the benefits and protections of its laws.

[357 U.S. at 253].

v

The contacts petitioner had with the District of

Columbia are certainly as substantial as those evidenced

in the above New York and Oregon cases.

In addition, the question does not encompass more

than the particular facts relevant to this action; the

petitioner fails to proffer any substantive constitu-

tional rebuttal of the lower courts’ jurisdiction (Pet.

7-12).

2. Petitioner’s other principal contention is that

the lower courts improperly granted and affirmed sum-

mary judgment for GHA. Petitioner somewhat sur-

prisingly argues that a prior District of Columbia

decision failed to uphold the validity of the relevant

GHA bylaw provisions. He argues that in White v.

Group Health Association, 294 A.2d 870 (D.C. App.,

1972), ‘“‘no question was raised as to the legality of the

so-called ‘double coverage’ bylaw’’ (Pet. 13). But the

court in White expressly stated:

It is evident that summary judgment was granted

on the merits and not by reason of appellant’s

failure to oppose it.

294 A.2d at 871.

Similarly, petitioner’s other points in opposition to

summary judgment rest upon factual issues relevant

only to the present case and resolved by the lower

courts in favor of GHA. There can be no question

that the issue of liability in this action properly re-

sulted in summary judgment for GHA, particularly

since petitioner, in opposing summary judgment,

failed to submit the contract which he claims supports

his position.

6

Although petitioner now claims that the absence of

discussion in regard to the many questionable ‘‘issues’’

he raised reveals ‘‘error’’ by the lower courts, the fact

is that the courts considered the issues so completely

devoid of merit that it was unnecessary to discuss them

in the opinion (Pet. App. A, p. 2). The findings of

the court below were correct and further review is not

warranted.

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted.

JoeL M. Savits,

Wiu1aM D. AppLer,

Counsel for Respondent

Carr, Bonner, O’CONNELL,

Kapitan & THOMPSON

900 Seventeenth Street, N.W.

Washington, D. C. 20006

August 1974

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