Opposition Brief — Ford Life Insurance v. Miller

= Pit £ DD :

AUG 14 1995

No. 95-67 OFFICE OF THE CLckK

In The

Supreme Court of the United States

October Term, 1995

¢-:

FORD LIFE INSURANCE COMPANY,

Petitioner,

Vv.

JOYCE MILLER,

Administratrix for the Estate of Mearl M. Miller,

Respondent.

7

On Petition For Writ Of Certiorari

To The Supreme Court Of Alabama

S

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

S

JouN Patrick Courtney, III

Lyons, Pires & Coox, P.C.

2 North Royal Street

Post Office Box 2727

BEST AVAILABLE COPY Mette

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ao Pgs oe

QUESTION PRESENTED

Whether the Petitioner/credit life insurer can raise a

due process and/or an ex post facto challenge to a decision

of the Supreme Court of Alabama partially reversing

summary judgment which had been entered by the Cir-

cuit Court of Mobile County in favor of the Petitioner on

the Respondent/insured’s breach of contract and bad™

faith claims on the grounds that a trial on the merits

exposes the Petitioner to the possibility that punitive dam-

ages may be imposed against it?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. 0.6 5.0450 oc0s cde sd dnc vine ne. i

TABLE OF AUTHIORETINS o.0c oc ccccccccceccwsseness iii

STATEMENT OF THE CAGE. . 0.2 cccccsscccecsevan 1

SUMMARY OF ARGUMENT... «03.6220 cccccncccsccens 5

REASONS FOR DENYING THE WRIT............. 6

I. THE PETITIONER’S DUE PROCESS CHAL-

LENGE IS NOT RIPE SINCE NO PUNITIVE

DAMAGES HAVE BEEN IMPOSED AGAINST

THE PRIETO: io oc 000 utcn diese i sced ates 6

II. PRE-JUDGMENT REVIEW OF THE ISSUE

DECIDED BY THIS COURT IN PACIFIC

MUTUAL LIFE INSURANCE COMPANY V.

HASLIP, 499 U.S. 1 (1991), IS NOT WAR-

ADRES i500 ocanesccndinessseteverwadaniee 8

Ill. THE ALABAMA SUPREME COURT’S DECI-

SION REPRESENTS NOTHING MORE THAN

ADHERENCE TO THE PRINCIPLE THAT AN

INSURER CANNOT RELY UPON ALABAMA

CODE 1975, §27-14-7 AS A BASIS FOR REFUS-

ING TO PAY AN INSURANCE CLAIM IF THE

INSURER’S AGENT WAS RESPONSIBLE FOR

THE “MISREPRESENTATION” ON THE

APPLICATION FOR COVERAGE OR WAS

AWARE OF THE TRUE FACTS.............. 11

IV. THE EX POST FACTO CLAUSE OF THE

UNITED STATES CONSTITUTION DOES

NOT APPLY TO THE ALABAMA SUPREME

eg BO I ee ee 14

CONES 85-6 bob veiws scensssuhesedenueeieaaeee 15

iii

TABLE OF AUTHORITIES

Page

CAsEs:

Aetna Life Insurance Company v. Lavoie, 475 U.S.

ee a EER iras Kane evn sae awec penne ns 7

Banker’s Trust Company v. Blodgett, 260 U.S. 647

or taketh Ves ces ss spuds cenksasetans . - 14

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

ESC AerONie SO Ce eG a. oa eG.ca'es swe eo 4 cea ng 0% 7

Browning-Ferris Industries of Vt., Inc. v. Kelco

Lepoues, mc., 492 115. 257. CASGD) © ov. iv nn nveves. 6

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ........... 14

Day v. Woodworth, 54 U.S. (13 How.) 363 (1852) ..... 7

Duren v. Northwest National Life Insurance Com-

pany, Do. soem Cll (AIR. A908). «60 5 one cece eee 3, 11

Ford Life Insurance Co. v. Jones, 262 Ark. 881, 563

SE I CRON, oka wins crenccenneusiccces es 4, 12, 13

Frank v. Mangum, 237 U.S. 309 (1915) .............. 14

Galvin v. Press, S467 U.S. S22 C19GO) «noc cceccvccces 14

Green Oil Co. v. Hornsby, 539 So.2d 218 (1989) ..... 10

Hammond v. Gadsden, 493 So.2d 1374 (1986) ....... 10

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ...... 14

Hutto v. Bic Corporation, 800 F. Supp. 1367 (E.D.

aia nce gAeik es gic bui-g 9400 been 4 O80 190 6

Johannessen v. United States, 225 U.S. 227 (1912) .... 14

Louis Pizitz Dry Goods Company, Inc. v. Yeldell,

(oy th gD p Iie eter tere Dee 7

LEE

iv

TABLE OF AUTHORITIES — Continued

Page

Lyng v. Northwest Indian Cemetery Protective

Association, 465. US. 499 (iSGS). occ skies de deccexes 7

Marks v. United States, 430 U.S. 188 (1977) ......... 14

Miller v. Dobbs Mobile Bay, __ So.2d __, No.

1921552 (Ala. February 24, 1995).......... 4, 5, T1, 13

Minneapolis and St. Louis Railway Company. v.

Dee writs, Tae Lice Oe Cec bi exes sip ceae sens teas

National Life and Accident Insurance Company v.

Allen, 285 Ala. 551, 234 So.2d 567 (1970)........... 3

Pacific Mutual Life Insurance Company v. Haslip,

O99 US. Tt CRO ooh swiss eat 6, 8, 9, 10, 11

Rosenbloom v. Metromedia, Inc., 403 U.S. 29

2) ee Ore ie ear oper ue oie! Foes Sy re 7

Ross v. Oregosi, 227 U.S. 150. (0919) . .5:-:0.<0 ps cowenees 14

Southern United Life Insurance v. Caves, 481 So.

ee | Pr rer emery yee ee 13

Spector Motor Service v. McLaughlin, 323 U.S. 101

i PPE ee OE PET ee eT rk reer Tt peer eae 8

Standard Oil Company v. Missouri, 224 U.S. 270

Oo RE ree Coen er eS ET Ope her ne 7

Transflock, Inc. v. United States, 765 F.Supp. 750

Sie BONE 6 0 eb kinks ded Wena} akan cea cee es

TXO Production Corp. v. Alliance Resources

Cosp., 569 US..., 113 S.Ct. Z711 (1993) .......06. 6

Walker v. Whitehead, 83 U.S. (16 Wall.) 314 (1872) .... 14

Vv

TABLE OF AUTHORITIES - Continued

Watson v. Mercer, 33 U.S. (8 Pet.) 88 (1834)......... 14

Williamson Planning Commission v. Hamilton

Ban, S79: G, 375 (IPOD): vcs eins hens etide.. 7

STATUTES:

Alabama Code 1975, § 27-14-7....... pe. See. ie > a ieee

Alsbatia Code: 2975, 6 DA9-20 wisi ccccv evans dedeens 1

gis

meat

res

that

STATEMENT OF THE CASE

Petitioner’s Statement of the Facts is misleading in

it glosses over the following key facts which led to

the Alabama Supreme Court’s decision:

(1) Mearl Miller (the decedent) fully explained

his health condition (i.e., emphysema) to

Petitioner Ford Life Insurance Company’s

(hereinafter “Ford Life” or “Petitioner”)

sales agent before Ford Life issued the pol-

icy (C 162, 164, 563-65, 577, 579-80,

1109-10);

(2) The Ford Life agent repeatedly assured Mr.

Miller (and Howard and Paula Goss, his

son-in-law and daughter) that, despite Mr.

Miller’s emphysema, the Ford Life credit

life insurance policy would pay if Mr. Mil-

ler should die during the term of the loan

(C 490, 519-21, 1109-10);

(3) Mr. Miller told Ford Life’s agent that he did

not want to purchase credit life insurance

and, in response, Ford Life’s agent repeat-

edly told him that he had to purchase the

credit life insurance if he wanted ‘o pur-

chase the car! (C 162, 164, 563-65, 567, 577,

579-80);

1 Alabama Code §5-19-20(a) (1975) provides, in pertinent

part:

With respect to any credit transaction, the creditor shall

not require any insurance other than insurance against

loss of or damage to any property in which the creditor is

given a security interest and insurance insuring the lien of

the creditor on the property which is collateral for said

transaction. Credit life and disability and involuntary

unemployment compensation insurance and, if

(4)

(5)

(6)

(7)

Although technically correct, the Decision Below por-

tion of the Petition is misleading in that it overlooks the

emphasis the Alabama Supreme Court placed upon the

facts outlined above and how those facts place this case

within the well-settled exception to Alabama Code 1975,

§27-14-7. In discussing this, the court stated:

Immediately prior to signing the insurance

application form, Mr. Miller directly ques-

tioned whether he should sign this state-

ment in light of his emphysema and was

told by Ford Life’s agent - “we [won't]

worry about the fact that [you are] not

well” (C 567, 1109-10);

Ford Life never gave Mr. Miller any reason

to suspect that the policy would not pay

benefits as represented when Ford Life took

its exorbitant premium from him;

Ford Life did no underwriting until after

Mr. Miller’s death from lung cancer (not

emphysema) almost one year after he

bought the “coverage” and that post-death

or “reverse” underwriting did not reveal

any facts which were not revealed by Mr.

Miller prior to the issuance of the policy;

and

Ford Life’s agents were told not to relay

information they learned about an appli-

cant’s health to Ford Life so that Ford Life

could (theoretically) deny such claims with

impunity.

accepted, may be provided by the creditor. .. .

(emphasis added).

The trial court held that Mr. Miller had misrep-

resented his health condition to Ford Life and,

therefore, that his estate could not recover.

Although we are aware that Mr. Miller signed a

certificate stating that he was in good health,

even though he was not in good health, the facts

alleged in this case take it out of the ordinary

situation. Here, the evidence, viewed most

favorably to Mr. Miller, indicates that Mr. Miller

never contended that he was in good health. In fact,

he told the Treadwell salesman and the Ford Life

representative that he did not want the credit life

coverage, because he was sick. Mrs. Miller pre-

sented evidence that Mr. Miller purchased the

insurance only after the Ford Life representative had

insisted that his poor health would not be a problem.

It is well settled that an insurance company

cannot defend its refusal to pay benefits on the

grounds that the insured made a misrepresenta-

tion on the application if the misrepresentation

was the fault of the agent and that fault was

without participation by the insured. National

Life and Accident Insurance Company v. Allen, 285

Ala. 551, 234 So.2d 567 (1970). Moreover, Alabama

Code 1975, §27-14-7, does not apply where there has

been no concealment by the insured. Duren v. North-

west National Life Insurance Company, 581 So.2d

810 (Ala. 1991).

Viewing the record most favorably to Mrs. Mil-

ler, we find no misrepresentations or fraudulent

statements made by Mr. Miller to the Ford Life

representative. A jury could find that he told

everyone he was sick and that he did not want

the credit life insurance coverage and that he

did not conceal his poor health from anyone.

ee

The jury could find that the only misrepresenta-

tion made by Mr. Miller came when he signed a

good health certificate. However, the jury could

find that that misrepresentation was made at the

insistence of the Ford Life representative.

Miller v. Dobbs Mobile Bay, __ So.2d __, No. 1921552

(Ala. February 24, 1995) (Appendix A of Petitioner’s

Brief, pp. 6a-7a.) (emphasis added).

The Alabama Supreme Court went on to reject Ford

Life’s attempt to hide behind the assertion that the repre-

sentative who successfully duped Mr. Miller into buying

worthless “insurance” was merely a “soliciting agent” by

stating:

Under these specific facts, we hold that Ford

Life cannot defend its refusal to pay on the basis

that its agent did not have the authority to bind

it.

As stated by the Arkansas Supreme Court in a

case factually similar to this one:

Obviously the agent is encouraged to sell

insurance, which is Ford Life’s business,

and paid a handsome commission [approx-

imately 60% in the case at bar]. Everyone is

satisfied until the death of the insured when

it may be learned that he was not “in good

health.”

Such a situation puts an unrealistic burden

on an insured which can only result in a

decided advantage enuring to the benefit of

the company.

Ford Life Insurance Co. v. Jones, 262 Ark. 881, 886,

563 S.W.2d 399, 402 (1978).

Miller v. Dobbs Mobile Bay, __ So.2d __, No. 1921552

(Ala. February 24, 1995) (Appendix A of Petitioner’s

Brief, pp. 7a-8a.)

SUMMARY OF ARGUMENT

The Petition should be denied because:

(1) It attempts to raise constitutional issues

(2)

(3)

(4)

which are not ripe for this Court’s consid-

eration (i.e., punitive damages which have

not yet been entered against Petitioner);

It attempts to raise an issue (i.e., whether

Alabama’s system of awarding punitive

damages and reviewing punitive damage

awards violates the Fourteenth Amend-

ment’s Due Process Clause) which this

Court recently reviewed and declared con-

stitutionally sound;

No federal law issue is presented as the

Alabama Supreme Court decision merely

reaffirmed its continued adherence to the

well-settled and understandable state law

principle that an insurer cannot rely on Ala-

bama Code 1975, §27-14-7 as a basis for

denying coverage if the insurer’s agent is

responsible for the “misrepresentation” or

if the insurer is made fully aware of the

true facts alleged to have been “misrepre-

sented”; and

The ex post facto clause does not apply to

the Alabama Supreme Court's decision.

¢

REASONS FOR DENYING THE WRIT

I. THE PETITIONER’S DUE PROCESS CHALLENGE

IS NOT RIPE SINCE NO PUNITIVE DAMAGES

HAVE BEEN IMPOSED AGAINST THE PETI-

TIONER.

Simply stated, Ford Life is asking this Court to take

up the issue of whether a punitive damage award which

may be entered against it upon the trial of this case

violates the Fourteenth Amendment’s Due Process

Clause. That issue is not ripe for review.

The Respondent was unable to locate a single deci-

sion wherein this Court has held that a due process

challenge to a potential punitive damage award is ripe

prior to the imposition of such damages.” Every decision

by this Court addressing whether a particular state’s

punitive damages system was constitutional involved

punitive damages which had been assessed.° This is not

2 The Respondent was able to locate a district court deci-

sion and a decision of the United States Court of International

Trade explicitly recognizing that due process challenges to

punitive damage awards are premature prior to the actual

imposition of a punitive damage award against the complaining

party. Hutto v. Bic Corporation, 800 F. Supp. 1367 (E.D. Va. 1992);

Transflock, Inc. v. United States, 765 F. Supp. 750 (C.1.T. 1991).

3 For example: TXO Production Corp. v. Alliance Resources

Corp., 509 U.S. __, 113 S. Ct. 2711 (1993) (holding that punitive

damage award of $10,000,000 against oil and gas developer was

not “grossly excessive” as to violate due process, even though

actual damage award was only $19,000); Pacific Mutual Life

Insurance Company v. Haslip, 499 U.S. 1 (1991) (holding that a

punitive damages award of over $800,000 against an insurer

whose agent defrauded an insured was not excessive and did

not violate the insurer’s due process rights); Browning-Ferris

surprising given the fact that any such review undertaken

prior to the actual imposition of punitive damages would

violate the fundamental principle that constitutional

questions are not to be considered unless and until such

adjudication is unavoidable. Lyng v. Northwest Indian

Cemetery Protective Association, 485 U.S. 439, 445 (1988);

Williamson Planning Commission v. Hamilton Bank, 473 U.S.

172 (1985); Brockett v. Spokane Arcades, Inc., 472 U.S. 491,

Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989)

(rejecting a claim that punitive damages awarded in a civil case

could violate the Eighth Amendment and refusing to consider

the tardily raised due process argument); Aetna Life Insurance

Company v. Lavoie, 475 U.S. 813 (1986) (vacating the Alabama

Supreme Court’s decision affirming a $3.5 million jury award

for punitive damages in a bad faith case on the grounds that one

of the justices should have recused himself from the case -

although the court did not reach the Eighth Amendment and

due process clause of the Fourteenth Amendment issues, these

issues were raised on appeal); Rosenbloom v. Metromedia, Inc.,

403 U.S. 29 (1971) (reversing a punitive damage award in a

defamation case); Louis Pizitz Dry Goods Company, Inc. v. Yeldell,

274 U.S. 112 (1927) (affirming a punitive damages verdict

entered in a wrongful death action); Standard Oil Company v.

Missouri, 224 U.S. 270 (1912) (affirming a $50,000 fine levied

against a corporation which was found to have misused its

license to do business in the state); Minneapolis and St. Louis

Railway Company v. Beckwith, 129 U.S. 26 (1889) (affirming a

punitive damage award against a railway corporation which

neglected to pay for stock injured or killed for want of a fence on

the side of its railway and specifically holding that the

allowance of such punitive damages was not in conflict with the

Fourteenth Amendment - the Respondent found numerous

such cases affirming similar damage statutes but, for purposes

of brevity, these are not cited herein); Day v. Woodworth, 54 U.S.

(13 How.) 363 (1852) (approving the common-law method for

assessing punitive damages; albeit in a case decided before the

adoption of the Fourteenth Amendment).

501 (1985); Spector Motor Service v. McLaughlin, 323 U.S.

101, 105 (1944).

Based on the foregoing, the Plaintiffs’ due process

challenge is not ripe for decision.

II. PRE-JUDGEMENT REVIEW OF THE ISSUE

DECIDED BY THIS COURT IN PACIFIC MUTUAL

LIFE INSURANCE COMPANY V. HASLIP, 499 U.S. 1

(1991), IS NOT WARRANTED.

Ford Life contends that a trial would deprive it of its

right to due process since “it is a veritable certainty that

any claim requesting punitive damages against an out-of-

state insurer, if presented to an Alabama jury, will result

in an adverse verdict, irrespective of the validity of the

claim upon which the request for punitive damages is

premised.” The Petitioner offers no support for this

absurd statement.

In Pacific Mutual Life Insurance Company v. Haslip, 499

U.S. 1 (1991), this Court held that Alabama’s method for

instructing juries on punitive damages combined with

Alabama’s established post-trial procedures for scrutiniz-

ing punitive damage awards satisfy the requirements of

the Fourteenth Amendment’s Due Process Clause. In so

holding, this Court stated:

[The jury] instructions, we believe, reasonably

accommodated Pacific Mutual’s interest in ratio-

nal decision making and Alabama’s interest in

meaningful individualized assessment of appro-

priate deterrence and retribution. The discretion

allowed under Alabama law in determining

punitive damages is no greater than that pur-

sued in many familiar areas of the law. . . . As

long as the discretion is exercised within reason-

able constraints, due process is satisfied.

* * *

By its review of punitive awards, the Alabama

Supreme Court provides an additional check on

the jury’s or trial court’s discretion. It first

undertakes a comparative analysis. It then

applies the detailed substantive standards it has

developed for evaluating punitive awards.

+ * *

The application of these standards, we conclude,

imposes a sufficiently definite and meaningful

constraint on the discretion of Alabama fact

finders in awarding punitive damages. The Ala-

bama Supreme Court’s post-verdict review

insures that punitive damages awards are not

grossly out of proportion to the severity of the

offense and have some understandable relation-

ship to compensatory damages.

* * *

These standards have real effect when applied

by the Alabama Supreme Court to jury awards

. .. And post-verdict review by the Alabama

Supreme Court has resulted in reduction of

punitive damage awards. The standards provide

for a rational relationship in determining

whether a particular award is greater than rea-

sonably necessary to punish and deter.

Haslip, 499 U.S. 19-24 (emphasis added) (citations omit-

ted).

As this Court recognized in Haslip, the instructions

which will be given to the jury will not give the jury

10

unlimited discretion in awarding punitive damages. Fur-

thermore, as this Court also recognized in Haslip, even if

a jury were to award a large amount of punitive damages,

Alabama has in place constitutionally sound post-trial

and appellate procedures for scrutinizing and, if neces-

sary, reducing the size of punitive damage awards. Green

Oil Co. v. Hornsby, 539 So.2d 218 (1989); Hammond v.

Gadsden, 493 So.2d 1374 (1986).

The soundness of Alabama’s system is best demon-

strated by a review of the “exhaustive survey of punitive

damages in Alabama” submitted as Appendix E to the

Petition. The survey contains 131 cases in which a jury

has awarded punitive damages since 1991 (i.e. since this

Court’s decision in Haslip). Of these cases, 24 involved

punitive damage awards of over $5,000,000. In 13 of these

24 cases, the defendant(s) followed through with chal-

lenging the punitive damages awarded. Appeals and

post-trial motions remain pending in 5 of those 13 cases.

In all 8 cases in which the appeal and/or post-trial

motions have been decided, the punitive damage awards

were either remitted or a new trial was ordered. This

hardly paints a picture of a punitive damage system

which is out of control.

Based on the foregoing, there is absolutely no justi-

fication for this Court to revisit the issues decided in

Haslip at this juncture.

11

Ill. THE ALABAMA SUPREME COURT’S DECISION

REPRESENTS NOTHING MORE THAN ADHER-

ENCE TO THE PRINCIPLE THAT AN INSURER

CANNOT RELY UPON ALABAMA CODE 1975,

§27-14-7 AS A BASIS FOR REFUSING TO PAY AN

INSURANCE CLAIM IF THE INSURER’S AGENT

WAS RESPONSIBLE FOR THE “MISREPRESEN-

TATION” ON THE APPLICATION FOR COVER-

AGE OR WAS AWARE OF THE TRUE FACTS.

The Petitioner correctly notes that Alabama Code 1975,

§27-14-7 provides a basis for denial of recovery under an

insurance policy where the insured commits fraud in the

application for coverage. However, as pointed out by the

Alabama Supreme Court in their analysis of this case:

Alabama Code 1975, §27-14-7, does not apply

where there has been no concealment by the

insured. Duren v. Northwest National Life Insur-

ance Company, 581 So.2d 810 (Ala. 1991).

Miller v. Dobbs Mobile Bay, __ So.2d __, No. 1921552

(Ala. February 24, 1995) (Appendix A of Petition, p. 6a)

(emphasis added). Mr. Miller fully explained his medical

problem to Ford Life’s agent, identified his physician,

and, in response, was repeatedly assured that he would

be fully covered. In short, Mr. Miller did not conceal

anything. The only misrepresentations occurred when

Ford Life’s agent assured Mr. Miller that his health was

not a problem and that he had to purchase the credit life

insurance. Furthermore, the evidence in the case at bar

reveals that such actions are an established sales tech-

nique of Ford Life’s agents, who earn exorbitant commis-

sions (60%) for such “sales.”

12

Ford Life continues to argue that Mr. Miller’s candid

disclosure should count for nothing since the Ford Life

representative he was dealing with was purportedly

merely a “soliciting agent.” Ford’s Life “disclaimer” of its

agent’s actions and knowledge is not novel. Ford Life

attempted to use a similar tactic to deny coverage in Ford

Life Insurance Co. v. Jones, 262 Ark. 881, 563 S.W.2d 399

(Ark. 1978) and in at least six other fraud/bad faith cases

against Ford Life in Alabama, most of which have been

settled by Ford Life on a confidential basis with Ford Life

paying to obtain dismissal for its sales agent as well as

itself. In Ford Life Insurance Co. v. Jones, 262 Ark. 881, 563

S.W.2d 399 (Ark. 1978), as here, the undisputed evidence

revealed that the decedent candidly and in detail dis-

closed his health problems to Ford Life’s agent and, at the

insistence of the sales agent, signed the application which

contained a “good health” statement. Id. at 401. Ford Life

claimed that, under an Arkansas statute virtually identi-

cal to Alabama Code 1975, §27-14-7, the policy was void as

a result of this “incorrect statement.” Id. In rejecting this

contention, the Arkansas Supreme Court first stressed

that “Ford Life has a policy of not inquiring of an insured’s

health until a claim is made.” Id. at 402 (emphasis added).

As such, the court concluded that:

Such a statement on such a form should not be

used as a defense to liability when, in fact, it is

undisputed that there was no misrepresentation or

fraudulent statement.

Id. (emphasis added).

Ford Life chooses not to be advised of the health

information made available to it by its insured so that it

13

can claim ignorance of such information when it (predic-

tably) refuses to pay. The Alabama Supreme Court quoted

with approval the following language from the Arkansas

Supreme Court’s decision:

—

Obviously, the agent is encouraged to sell insur-

ance, which is Ford Life’s business, and paid a

handsome commission. Everyone is satisfied

until the death of the insured when it may be

learned that he was not “in good health.”

Such a situation puts an unrealistic burden on

an insured which can only result in a decided

advantage enuring to the benefit of the com-

pany.

Miller v. Dobbs Mobile Bay, __ So.2d __, No. 1921552

(Ala. February 24, 1995) (Appendix A of Petition, p. 8a;

quoting Ford Life Insurance Company v. Jones, 563 S.W.2d

399, 402 (1978)).

In further support of its holding, the Alabama

Supreme Court discussed the Mississippi’s Supreme

Court’s decision in Southern United Life Insurance v. Caves,

481 So.2d 764 (Miss. 1985). In Caves, supra, the Mississippi

Supreme Court held that the insurance agent’s knowl-

edge of the applicant’s heart condition, which he failed to

communicate to the insurer (because he was not required

to convey it), was nonetheless imputed to the insurer

who, it was determined, denied the claim in bad faith.

The Alabama Supreme Court correctly held that Ford

Life, and others who choose to market credit life insur-

ance in Alabama, cannot employ Alabama Code 1975,

§27-14-7 as a means of allowing their so-called “soliciting

agents” to defraud Alabama citizens into purchasing

14

worthless credit life insurance or as a basis of failing to

pay claims which are due to be paid as a matter of law.

IV. THE EX POST FACTO CLAUSE OF THE UNITED

STATES CONSTITUTION DOES NOT APPLY TO

THE ALABAMA SUPREME COURT'S DECISION.

It is well settled that the ex post facto clause of the

United States Constitution (Article I, §10) applies solely

to legislative acts; not to judicial decisions. Marks v.

United States, 430 U.S. 188 (1977); Frank v. Mangum, 237

U.S. 309 (1915); Ross v. Oregon, 227 U.S. 150 (1913); Calder

v. Bull, 3 U.S. (3 Dall.) 386 (1798). It is equally well settled

that only criminal laws are subject to the ex post facto

clause of the United States Constitution. Galvin v. Press,

347 U.S. 522 (1954); Harisiades v. Shaughnessy, 342 U.S. 580

(1952); Banker’s Trust Company v. Blodgett, 260 U.S. 647

(1923); Johannessen v. United States, 225 U.S. 227 (1912);

Walker v. Whitehead, 83 U.S. (16 Wall.) 314 (1872); Watson v.

Mercer, 33 U.S. (8 Pet.) 88 (1834); Calder v. Bull, 3 U.S. (3

Dall.) 386 (1798).

Since Petitioner is attacking a judicial decision in a

civil matter rather than a legislative act concerning a

criminal offense, the Petitioner’s assertion that the

Supreme Court of Alabama’s decision somehow violates

the ex post facto clause lacks merit.

+

15

CONCLUSION

The Petition for a Writ of Certiorari should be denied

and Respondent requests an award of attorney’s fees and

expenses caused her by the filing of the Petition.

Respectfully submitted,

JoHN Patrick Courtney, III

Lyons, Pires & Cook, P.C.

2 North Royal Street

Post Office Box 2727

Mobile, AL 36652

(334) 432-4481

Attorney for Respondent