Amicus Curiae Brief — Republic Insurance Group v. Maleski

FI!tk&D

No. 92-868

Supreme Court, LS.

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JAN 5 1593

In The Jokbnnctaliboabencem

Supreme Court of the United States

October Term, 1992

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REPUBLIC INSURANCE GROUP, ET AL.,

Petitioners,

V.

CYNTHIA M. MALESKI, Acting Insurance

Commissioner of the Commonwealth of Pennsylvania,

as Rehabilitator of The Mutual Fire, Marine and

Inland Insurance Company,

Respondent.

*

Petition For Writ Of Certiorari

To The Supreme Court Of Pennsylvania

‘

RESPONSE TO MOTION OF REINSURANCE

ASSOCIATION OF AMERICA FOR LEAVE TO

FILE BRIEF AS AMICUS CURIAE IN SUPPORT

OF THE PETITION FOR WRIT OF CERTIORARI

+

RicHARD DiSALLe, EsQuiRE

Counsel of Record

ROGER CURRAN, ESQUIRE

Rose, SCHMIDT, HAsLEY &

DiSatte, P.C.

900 Oliver Building

Pittsburgh, PA 15222-5369

(412) 434-8600 -

Attorneys for Respondent,

Cynthia M. Maleski, Acting

Insurance Commissioner of the

Commonwealth of Pennsylvania, as

Rehabilitator of The Mutual Fire,

Marine and Inland Insurance

Company

COCKLE LAW BRIEF PRINTING CO., (800) 225.6964

OR CALL COLLECT (402) 342-2831

—

RESPONSE TO MOTION OF REINSURANCE

ASSOCIATION OF AMERICA FOR LEAVE TO

FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

To The Honorable Chief Justice and Associate Jus-

tices of the Supreme Court of the United States:

Respondent, Cynthia M. Maleski, Acting Insurance

Commissioner of the Commonwealth of Pennsy!vania, as

Rehabilitator (“Rehabilitator”) of The Mutual Fire,

Marine and Inland Insurance Company, objects to the

Motion of Reinsurance Association of America (“RAA”)

for Leave to File Brief as Amicus Curiae in Support of the

Petition for Writ of Certiorari of Republic Insurance

Group, et al. (“Republic”).

RAA does not identify, by name, its 26 member rein-

surance companies, but states that “a number of [its]

member companies are named parties” in the state court

proceedings. (RAA Amicus Brief, p. 3.) If true, this raises a

question as to the propriety of an amicus brief submitted

on behalf of parties who did not seek review in this Court.

In fact, it is unknown whether the RAA members who

were parties in the state court proceedings even filed

objections to the Plan.

Respondent withheld consent to the filing of RAA’s

amicus brief because, inter alia, the Petition for Writ of

Certiorari filed on behalf of Republic is procedurally

flawed and its defects cannot be cured or corrected by the

arguments of RAA. As stated in Respondent's Brief in

Opposition to the Republic Petition, although Republic is

asking this Court to find that the Mutual Fire Plan of

Rehabilitation impairs its “explicit contractual rights” in

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violation of Article I, Section 10 of the United States

Constitution, those specific contract provisions, which are

now at the heart of Republic’s claim, were not entered

into the record below. Respondent respectfully submits

that the arguments of RAA, as amicus, are no substitute

for a proper record.

Moreover, the Petition of Republic seeks to have this

Court review the Pennsylvania Supreme Court’s findings

and conclusions as to matters of substantive Pennsylva-

nia law, which this Court has consistently refused to do.

Ridgway v. Ridgway, 454 U.S. 46, 54 (1981); Hortonville

Dist. v. Hortonville Ed. Assoc., 426 U.S. 482, 488 (1976). In

particular, Republic’s disagreement lies with the Court’s

findings that case reserves and IBNR, which are unliqui-

dated and contingent as of the date of the filing of a

petition for rehabilitation, are not “mutual,” under Penn-

sylvania law, and hence, not subject to setoff, whether in

rehabilitation or in liquidation. (A-19.)! Likewise, the

Pennsylvania Supreme Court specifically found, relying

upon well-settled Pennsylvania law, that setoff is an equi-

table remedy and thus, is permissive, not mandatory.

(A-19.)

RAA’s request for leave to file a brief as amicus curiae

in support of the Republic Petition is misplaced and

clearly misapprehends the fundamental flaws in the

Republic Petition which militate so strongly against con-

sideration by this Court. While RAA may be interested in

the outcome of the Republic Petition, the existence of

a Appendix references are to the Appendix attached to the

Petition of Republic.

such an “interest” does not alter the serious inadequacies

of the Republic Petition. As stated in Respondent's Brief

in Opposition, the Petition of Republic completely fails to

present an issue involving an adjudication of federal

rights for review by this Court. The arguments of RAA,

as amicus curiae, serve no purpose.

Respondent respectfully requests that this Court

deny RAA’s Motion for Leave to File Brief as Amicus

Curiae in Support of the Petition of Republic.

Respectfully submitted,

RICHARD DISALLE, EsQuiRE

Counsel of Record

RoceER CURRAN, EsQuirRE

Rose, SCHMIDT, HasLey &

DiSA.te, P.C.

900 Oliver Building

Pittsburgh, PA 15222-5369

(412) 434-8600

Attorneys for Respondent,

Cynthia M. Maleski, Acting

Insurance Commissioner of the

Commonwealth of Pennsylvania, as

Rehabilitator of The Mutual Fire,

Marine and Inland Insurance

Company