Petition for Writ of Certiorari — Crump v. National Railroad Passenger

03 720 Nov 1352003

No.

IN THE

Supreme Court of the Anited States

RUSSELL E. CRUMP,

Petitioner,

V.

NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK),

and

MANULIFE, The Manufacturers Life Insurance Company,

Respondents,

On Petition for a Writ of Certiorari to the

United States Court Of Appeals

For the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

RUSSELL E. CRUMP

Petitioner Pro se

3338 Croffut Place, SE

Washington, DC 20019-2437

(202) 584-0286

ELE SOLARA LENE LEE IE LE ERE OLENA LED LL LODE! ICO] LE LOLS LIAL ICDL AGP AE EET ECL E REBEL LPN LEE LE LIBRE LSRE AS

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

What is the standard or scope of review of an order

granting a motion for summary judgment under rule 56 of the

Federal Rules of Civil Procedure?

OR

Whether or not the statutes of limitations (D.C. Code Ann.

Section 12-301(7)) are applicable to viable or subsisting

contracts (The Annuity Contract & Settlement Agreement)?

OR

Whether or not summary judgment is an appropriate

remedy for harmonizing separate, independent, inconsistent,

valid contracts consummated for the benefit of plaintiff-

petitioner?

OR

Whether or not trial by jury is an appropriate remedy for

harmonizing separate, independent, inconsistent valid con-

tracts consummated for the benefit of plaintiff-petitioner?

(1)

Stim

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ................

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STATEMENT OF JURISDICTION ................ccssssseseees 2

CONSTITUTIONAL AND STATUTORY

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APPENDICES

APPENDIX A

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District Court Memorandum Opinion—12 February

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APPENDIX B

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APPENDIX C

Plaintiff-petitioner Exhibits:

EX 1 Settlement Agreement and Release............. 22a

EX 2 Application for Annuity Contract—Policy

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(ili)

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TABLE OF CONTENTS—Continued

Page

EX 3 Letter—Manulife Financial, dated 01 Sep-

tember 1998, signed Peter Gopaul..................... 31a

EX 4 Letter—Amtrak, dated 02 June 1998,

signed Harold R. Henderson, Vice President-

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EX 5 Letter—Plaintiff-petitioner, dated 16 June

PARI, SIBOE LUSCH E.. CHD «....0sccverssvessccernes 34a

EX 6 Letter—Manulife Financial, dated 02 Apri!

2002, signed Paul L. Gallagher, AVP Senior

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Defendant-respondent Exhibit 2—Declaration of

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Vv

TABLE OF AUTHORITIES

CASES

Aetna Life Ins. Co. v. Maxwell, 89 F 2d 988, at

991-95, note 7 (4th Cir. 1937) ....cccrssssceccesessseeess

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)......

Hazel-Atlas Glass Co. v. Hartford Empire Co..,

322 US. 238 (1944) .......essccsreesssessressseessseeenees

Hemsley v. Eckhard, 461 U.S. 424 (1983) +

Riley v. Brown & Root, 896 F 2d 474, at 476

(10ths Cir. 1990) ..ccrrcscecessesererecosevesanposenevensesvesanee

United States v. American Railway Express, 265

U.S. 425, at 431, notes 3 & 4 (1924)... eeeees

STATUTES AND RULES

DC Code Ann. § 12-301 (7)....... PRO RON MEADE tN

Constitution of the United States, Amendment

VIE (1791 ) ncecccosscresssonisesossnsescesonenssesnovstnenneosonvent

TREATIES

Williston on Contracts, § 357 ......0ccccrcssersescesseees

Contracts, Sec. 277, 12 Am. Jur. at pages 825-

Failure to cross-appeal | L Ed 2d 1820............0

Authentification & Identification, FRE 901(b)

Page

IN THE

Supreme Court of the Anited States

No.

RUSSELL E. CRUMP,

Petitioner,

Vv.

NATIONAL RAILROAD PASSENGER CORPORATION

(AMTRAK),

and

MANULIFE, The Manufacturers Life Insurance Company,

Respondents,

On Petition for a Writ of Certiorari to the

United States Court Of Appeals

For the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Russell E. Crump, the petitioner, respectfully prays that a

writ of certiorari issue to review the judgment of the United

States Court of Appeals for the District of Columbia Circuit

entered 15 July 2003.

OPINIONS BELOW

The opinion of the United States Court of Appeals whose

judgment is here sought to be reviewed, is unpublished and is

printed in Appendix A, pages la and 2a.

The memorandum opinion of the trial court is printed in

Appendix A, page 3a.

2

JURISDICTION

The judgment of the Court of Appeals was entered 15 July

2003.

A timely petition for rehearing en banc was denied 03

October 2003, and a copy of the order denying rehearing en

banc appears at Appendix A, Page 2a.

The jurisdiction of the Court is invoked pursuant to 28

U.S.C. sec. 1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

* Amendment VII (1791) U.S.A. Constitution:

“In suits at common law, where the value in

controversy shall exceed twenty dollars, the right of trial

by jury shall be preserved, and no fact tried to jury, shall

be otherwise re-examined in any Court of the United

States, than according to the rules of the common law.”

e 28U.S.C.A. § 2201

e D.C. Code Annotated, § 12-301 (7) Limitation of time

for bringing actions.

“Except as otherwise specifically provided by law,

actions for the following purposes may not be brought

after the expiration of the period specified below from

the time the right to maintain the action accrues:

* * *

(7) on a simple contract, express or implied-3 years

e Rules 11, 38, 52 (a), 56 (g), 57, 60 (b) (6) Frep

e §«Rule 901 (b), (7—8) FRE

3

STATEMENT OF THE CASE

a. Background

This is a human story. Plaintiff-petitioner in 1979 filed a

lawsuit (class action)’ against National Railroad Passenger

Corporation (Amtrak) his then employer, alleging racial

discrimination in violation of 42 U. S.C. § 2000(e), et seq.;

and 42 U.S.C. § 1981. On 28 September 1981, the litigation

was settled pursuant to terms of the Settlement Agreement

and Release (Agreement), which released Amtrak from all

liability provided Amtrak paid Plaintiff-petitioner (Mr.

Crump) $400. Monthly for twenty (20) years or life,

whichever is longer. Paragraph 6 of the “Agreement.” (See

Appendix C).

The gravamen of this controversy: the failure of Amtrak

and Manulife’s exercise of due diligence in consummating

the annuity contract, which is not part of “Agreement.”

Plaintiff-petitioner’s exhibit 4, paragraph 2, lines 2 through

11, (see Appendix C) read in part:

6

_ in the event your application for disability

retirement was denied, Amtrak would cause to be paid to

you the amount of $600 a month for 20 years. Payment

of that amount was provided through the subject Annuity

Policy. However, there is nothing (emphasis added) in

the Settlement Agreement requiring such an annuity, and

nothing (emphasis added) regarding beneficiaries or

surviving family members. The annuity is simply the

vehicle through which Amtrak provides the required

monthly payments to you. You were not a party to the

annuity contract, and therefore did not sign it.”

' Russell Crump, et al, v. National Railroad Passenger Corporation

(AMTRAK) DC DC Civil Action 79-1506

4

The record shows defendant-respondents liability to be as

follows:

Amtrak $96,000

And, $600 Or $400 monthly for life. (See

Plit’s Ex. 1 Paragraph 6) (Appendix C)

Manulife $2,400 with interest. (Appendix C)

Costs and attorney’s fees apply equally to both

defendant-respondents, 42 U.S.C. § 1988.

b. The Facts

Circa 31 January 2002, Plaintiff-petitioner filed a verified

complaint (Jury Trial) for declaratory judgment pursuant to

28 U.S.C.A. § 2201, and Rule 57 Frep. Seeking a declaration

of rights, duties, status, and liabilities under separate, inde-

pendent, inconsistent, valid contracts, to name:

e Settlement Agreement and Release (“Agreement”) made

between Plaintiff-petitioner Crump and defendant-

respondent Amtrak, providing for benefit payment for

twenty years or life, whichever is longer;

e Annuity contract (not part of “Agreement”) made 14

April 82 between Manulife and Amtrak, providing

payment for the benefit of petitioner Crump for twenty

(20) years (donee beneficiary);

e The annuity provides $600 monthly payment for twenty

(20) years (a gift): whereas the Setthement Agreement

and Release (“Agreement”) provides for payment of

benefits of $400 monthly, for twenty (20) years or life,

whichever is longer.

c. Proceedings.

06/18/2002 16—MOTION for Summary Judgment (/nter-

locutory in Character Liability Only) by pro se Russell

FE. Crump.

5

07/02/2002 17—CROSS MOTION for Summary Judgment

and opposition to Plaintiff's Motion - for Partial

Summary Judgment by NATIONAL RAILROAD

PASSENGER CORPORATION.

07/15/2002 18—MOTION for Summary Judgment by

MANULIFE.

02/12/2003 30—MEMORANDUM OPINION _ granting

defendant’s motion for summary judgment and denying

plaintiff's cross-motion’ for partial summary judgment.

02/12/2003 3I1—JUDGMENT in favor of defendants,

National Railroad Passenger Corporation and Manulife

Financial.

02/21/2003 32—MOTION to Alter or Amend or Vacate

Judgment entered on 02/11/2003 by Russell E. Crump

Plaintiff-petitioner, appeals from the foregoing rulings,

which was denied by the U.S. Court of Appeals.

REASONS FOR GRANTING THE WRIT

The judgment (orders) of the United States Court of

Appeals for the District of Columbia Circuit should be

reviewed by this court, to name:

e Fraud: Defendant-respondent’s exhibit 2, paragraph 3

(declaration of Christine Turnblacer) made in bad faith.

Rules 11, 56 (g) & 60 (b)(6) Frep. Hazel-Atlas Glass

Co. v. Hartford Empire Co. 322 US. 238 (1944). See

also Rule 901 (b) (7 & 8) FRE.

© Conflicts between circuit courts: The United States

Court of Appeals for the District of Columbia did not

exercise de novo review of the order granting Summary

Judgment. See Riley v. Brown & Root, 896 F.2d 474, at

476 (10 Cir. 1990). (“[W]e do not examine the trial

9 ° an e.s ~ °

* Plaintiff-Petitioner never filed a cross-motion.

6

court’s rulings under the ‘clearly erroneous’ standard

despite the fact that the trial court conducted a rather

extensive evidentiary hearing . . . we review the entire

record de novo.’’)

e Denied Trial by Jury. Rule 38 Frep.

e Failure to consider and apply established guidelines:

(a) Summary Judgment—Adjective Law. Celotex

Corp. v. Catrett 477 U.S. 317, 106 S.Ct. 2548, 6911

L Ed 2d 265 (1986).

(b) Third party contract (donee beneficiary)—Aetna

Life Insurance Co. v. Maxwell, 89 F 2d 988, at

991-995, note 7, (1937);

(c) Statutory fee cases—Hemsley v. Eckhart 461 U.S.

424 (1983);

e Failure to Cross-Appeal:

United States v. American Railway Express 265 U.S.

425, at 431, notes 3 & 4 (1924). Annotation: | L Ed

2d, 1820.

CONCLUSION

Petitioner, as a donee beneficiary to a third party annuity

contract may sue respondents, jointly or severally. See

Contracts, Sec. 277, 12 Am. Jur. at pages 825-826.

American Majority Rule—lIt is stated in general

terms and leaving out of consideration the limitations

recognized in various jurisdictions, the rule in a great

majority of American jurisdictions is that a third person

(plaintiff-petitioner) may enforce a promise made for his

benefit even though he is a stranger both to the contract

and to the consideration. In other words, it is not

necessary that any consideration move from the third

party (plaintiff-petitioner); it is enough if there is a

sufficient consideration between the parties who make

ares

veer eee Ne ee ep

i

7

the agreement for the benefit of the third party (plaintiff-

petitioner).

The rule followed in most jurisdictions, is that the

parties (Amtrak and Manulife) to a contract, entered into

for the benefit of a third party (plaintiff- petitioner), may

rescind, vary, or abrogate the contract as they see fit,

without the assent of the third party (plaintiff-petitioner),

at any time before the contract is accepted, adopted, or

acted upon by the third party (plaintiff-petitioner), and

such rescission deprives the third party (plaintiff-

petitioner) of any rights, under or because of such

contract. This rule has been applied, for instance, in the

case of an agreement to pay another’s debts. Moreover,

the statutes of some jurisdictions provide in effect

that a contract may be revoked before the beneficiary

accepts it.

See Williston on Contracts, Section 357. See also

Aetna Life Ins. Co. v. Maxwell 89 F 2d 988 at 991-5,

note 7.

The statute of limitation is applicable only to Amtrak

and Manulife. See plaintiff-petitioner exhibits 3 & 4,

Appendix C.

Respectfully submitted,

RUSSELL E. CRUMP

Petitioner Pro se

3338 Croffut Place, SE

Washington, DC 20019-2437

(202) 584-0286

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NERS RIL OTE PTET) EPR AAP IT

APPENDICES

la ™

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

[Filed 15 July 2003]

No. 03-7028

r O02cv00175

RUSSELL E. CRUMP,

Appellant

Nis

NATIONAL RAILROAD PASSENGER CORPORATION,

(AMTRAK) AND MANULIFE, THE MANUFACTURES

LIFE INSURANCE COMPANY,

Appellees

BEFORE: Ginsburg, Chief Judge, and Tatel and Roberts,

Circuit Judges

ORDER

Upon consideration of the motion for summary reversal,

the opposition thereto, and the reply, it is

ORDERED that the motion for summary reversal be

denied and that the district court’s judgment entered February

12, 2003, be summarily affirmed. Appellant’s complaint was

filed beyond the applicable three-year statute of limitations.

See D.C. Code Ann. Sec. 12-301 (7). Appellant’s filing of a

motion for summary reversal placed the merits of this appeal

before the court. Because the appropriate disposition is so

clear, summary action is warranted.

Pursuant to D.C. Circuit Rule 36, this disposition will not

be published. The Clerk is directed to withhold issuance of

the mandate herein until seven days after resolution of any

timely petition for rehearing or petition for rehearing en banc.

See Fed. R. App. P.41 (b); D.C. Cir. Rule 41.

Per Curiam

2a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

[Filed 03 October 2003]

No. 03-7028

02cv00175

RUSSELL E. CRUMP,

Appellant

\

- NATIONAL RAILROAD PASSENGER CORPORATION,

(AMTRAK) AND MANULIFE, THE MANUFACTURES

LIFE INSURANCE COMPANY,

Appellees

BEFORE: Ginsburg, Chief Judge, and Edwards,’

Sentelle, Henderson, Randolph, Rogers, Tatel, Garland, and

Roberts, Circuit Judges

ORDER

Upon consideration of appellant’s petition for rehearing en

banc, and the absence of a request by any member of the

court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Michae! C. McGrail

Deputy Clerk

* Circuit Judge Edwards did not participate in this matter.

3a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. 02-00175 (HHK)

RUSSELL E. CRUMP,

Plaintiff

~

V.

NATIONAL RAILROAD PASSENGER CORPORATION, et al.,

Defendants

MEMORANDUM OPINION

Plaintiff Russell E. Crump, proceeding pro se’ brings this

breach of contract action against defendants, National

Railroad Passenger Corporation (Amtrak) and Manulife

Financial. Crump claims that he entered into a Settlement

Agreement with Amtrak and that, under the Agreement’s

terms: he is entitled to lifetime benefits of $600 per month.”

See Comp. Para. |.

Amtrak disagrees and claims that the Agreement only

entitled Crump to benefits for twenty years. Before this court

‘s defendant’s motion for summary judgment and crump’s

cross-motion for partial summary judgment. Upon

consideration of these motions, the oppositions thereto, and

the record of this case, the court concludes that Crump’s

' Crump was represented by counsel for a period of time during the

pendency of this litigation. Crump’s counsel filed an amended motion to

withdraw on July 17, 2002, and this motion was granted on July 23, 2002.

Since that time, Crump has proceeded pro Se.

2 This court has jurisdiction over this action pursuant to 28 U.S.C.

Sec. 1332.

4a

motion must be denied, and defendants’ motion must be

granted

1. FACTUAL BACKGROUND

In 1979, Russell E. Crump, filed a lawsuit against Amtrak,

his then employer, alleging racial discrimination, in violation

of 42 U.S.C. Sec, 2000e et seg and 42 U.S.C. Sec. 1981. On

September 28, 1981, the suit was settled. The suit was settled

pursuant to the terms of a Setthkement Agreement and Release

(“Agreement”), which released Amtrak from ail liability. At

the center of this controversy is the Agreement’s Paragraph 6.

This provision provides:

[Clause 1] [I]f Plaintiff applies for and is granted

disability retirement by the Railroad Retirement Board,

Amtrak shall cause to be paid to Plaintiff-. . . . the

Amount of $400 per month, for twenty (20) years or life,

whichever is longer, Commencing the month following

retirement in compensation for claims of pain, suffering

and emotional distress.

[Clause 2] In the event that Plaintiff's application for

disability retirement is is denied. Amtrak shall cause to

be paid to Plaintiff the amount of $600 a month for

twenty (20) years commencing seven (7) months® after

execution of this Agreement in compensation for claims

of suffering, and emotional distress.

Def.’s Ex.1 (Settlement Agreement and Release. Para. 6).

Problems arose because, after this Agreement was

executed, Crump was granted disability benefits from the

Railroad Retirement Board, but apparently did not apprise

Amtrak of that fact. Def.’s Ex. 2 Para. 3 (Decl. Of Christine

Turnblacer). Thus, Amtrak performed under Clause | ($400

This seven-month delay was designed so plaintiff could apply for

disability benefits and know the status of his application before

committing himself to a form of settlement.

a

Sa

for life). Crump thus received 240 monthly payments of

$600, for a grand total of $144,000.

In April 1988, after receiving payments of $600 per month

for approximately six years, Crump sent a letter to Amtrak,

asking whether Amtrak was entitled to any unpaid portion of

the annuity in the event that he died prior to Amtrak’s

fulfillment of the Agreement.” In June of 1988, Amtrak

responded in the affirmative. In this letter, moreover, Amtrak

described its annuity contract with Manulife, discussed

Paragraph 6 of the Settlement Agreement, and importantly,

provided: “Amtrak's obligation to make monthly payments

to you continues for 20 years.” Pl.s Ex. 1 (Letter to Crump

from Harold Henderson (June 2, 1988) (emphasis added).

It appears that Crump neither responded to this letter

nor indicated ant disagreement with Amtrak’s contractual

interpretation.

In June 2001, nearly thirteen years after Crump received

this letter, and nearly twenty years after he began receiving

payments of $600 per month, Crump challenged Amtrak's

interpretation of Paragraph 6. Crump provided that under the

Agreement, as properly construed, he should have been

receiving benefits of $400 per month all along and that, under

Paragraph 6, “Amtrak’s obligation ends upon Mr. Crump’s

death.” See Def.’s Ex.4 (Letter from Crump to Harold

Henderson (June 16, 2001)). Six months later, Crump filed

the instant action seeking declaratory judgment, as well as

appropriate: monetary relief.

* In May 1982, seven months after the Agreement was signed, Amtrak

purchased an annuity contract No. 3.331.299 from Manulife Financial,

which provided monthly payments of $600 per month beginning on May

1, 1982. The payments were for “20 years only, until 240 payments have

been paid.” Def.’s Ex. 3 (Policy No. 3.311.299-6).

5 The court notes that, in this inquiry, plaintiff appears to recognize that

payments going to be made for twenty years, rather than for life.

6a

I]. ANALYSIS

A. Summary Judgment Standard

Under Fed. R. Civ. P. 56, summary judgment shall be

granted if the pleadings, depositions, answers to interrogato-

ries, admissions on file and affidavits show that there is no

genuine issue of material fact in dispute and that the moving

party is entitled to judgment as a matter of law. Material

facts are those “that might affect the outcome of the suit

under the governing law.” Anderson v. Liberty Lobby, Inc.

477 U.S. 242.248 (1986). In considering a motion for

summary judgment, the “evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his

favor.” /d at 255. But the non-moving party’s opposition

must consist of more than mere unsupported allegations or

denials and must be supported by affidavits or other

competent evidence setting forth specific facts showing that

there is a genuine issue for trial. Fed. R. Civ. P. 56(e);

Celotex Corp. v. Catrett. 477 U.S. 317 (1986). The non-

moving party is “required to provide evidence that would

permit a reasonable jury to find” in its favor. Laningham vy.

United States Navy, 813 F, 2d 1236. 1242 (D.C. Cir. 1987). If

the evidence is “merely colorable” or “not significantly

probative” summary judgment may be granted. Anderson,

477 U.S. at 249-50.

B. Contractual Agreement

Crump seems to claim that, under the terms of the Agree-

ment, he is entitled to $600 a month for life. The court does

not agree. The Agreement between the parties provided for

alternative sources of performance depending upon whether

or not a condition occurred.- Specifically, the parties agreed

that, if Crump received disability benefits from the Railroad

Retirement Board, he would receive $400 per month for

twenty years or life, whichever was longer. If Crump did not

Ta

receive disability benefits, he would receive $600 per month

for twenty years.”

C. Plaintiffs Claim is Barred by the Statue of

Limitations

Defendants argue that, assuming arguendo that there was a

breach of contract, Crump’s claim is barred by the statue of

limitations. ’ The court agrees. Assuming Amtrak breached

the Agreement, any breach occurred in May 1982 when

Amtrak began performing under Clause 2, instead of Clause

1. Because Crump was aware of this breach no later than

June 1988 when Crump received Amtrak’s letter, stating

its understanding of the Agreement’s terms, and Crump did

not file the instant action until January 2002, the action is

time barred.

The limitation period for a breach of contract action is

three years.” D.C. Code Sec. 12-31(7). In most cases, the

statue of limitations begins to run at the time of the wrong,

and in the case of payments, the statue of limitations

generally begins to run “when the payment is made.”

Northwest Bank Minn. Nat'l Ass'n v. F ed. Deposit Ins. Corp..

312 F. 3d 447, 452 (D.C. Cir. 2002) (citing Wilcox v.

Plummer’s Ex’rs. 29 U.S. (4 Pet.) 172,182 (1830)). See id.

6The court notes that, because Amtrak mistakenly performed under

Clause 2 of the Agreement instead of Clause 1, as to the time of Amtrak's

last payment. Crump had received from Amtrak an additional $48,000.

This is the equivalent of Crump receiving $400 per month for thirty years.

7 ~ . *. ~

Crump does not respond to or otherwise address defendants’ statue of _

limitation affirmative defense.

* Although plaintitf nominally filed a suit for declaratory judgment,

the underlying claim rests in breach of contract and therefore is subject

to the District of Columbia's _ statue of limitations, under the

principles enunciated in Erie v. Tompkins, 304 U.S. 64 (1938), and its

progeny. See Air Transport Ass’n of America v. Lenkin, 71 F, Supp. 25.27

(D.D.C. 1989).

EE

8a

452.n. 4 (“if the injury is such that it should reasonably be

discovered at the time it occurs, then the plaintiff should be

charged with discovery of the injury, and the limitations

period should commence at that time”). Under this rule, then,

the statue of limitations began to run on May 1, 1982, at the

time of defendants’ first $600 payment.’

There is some question whether this rule applies in the

same way when a contract involves a series of payments over

time, as this one does. See Keefe Co. v. Americable Ir! Inc.,

169 F. 3d 34, 41 (D.C. Cir. 1999) (“Where an agreement

provides for the payment of installments of money . . . the

agreement is divisible in its terms, susceptible of successive

breaches on failure to pay installments when due, and that

each successive failure to pay . . . constitutes a fresh cause of

action’’); Keefe Co. Americable Int'l 4Inc., 755 A. 2d 469, 476

(D.C. 2000) (finding that the statue of limitations did not bar

an action to recover installment payments); Bay Area

Laundry & Dry Cleaning Pension Trust Fund v. Ferbar

Corp. of California, Inc., 522 U.S. 192,0195 (1997) (“each

missed payment creates a separate cause of action with its

own ... limitations period”).

While the Keefe rule governs many disputes involving

installment contracts, it does not govern the instant action.

There are three important distinctions. First, in this case,

unlike Keefe, Amtrak adopted a clear interpretation of the

contract that governed throughout the contractual term. See

Northwest Bank, 312 F. 3d at 454 (finding this factor

important). Second, Crump was put on notice of Amtrak’s

” At that time Crump had obviously not suffered any financial

injury, he had been overpaid, not underpaid. This fact is of no

consequence, however. “|I|t has long been settled that statutes of

limitations begin running when the wrong has been committed, even if at

the time no more than nominal damages may be proved, and no more

recovered,” Northwest Bank, 312 F. 3d at 452 (internal citations and

quotations omitted).

9a

contractual interpretation and even spent years, after

receiving notice, in a “no lose situation,” receiving an extra

$200 per month, able to wait-out Amtrak to find whether the

$60C per month payments would continue beyond the twenty-

year period. /d (same). Third, and most importantly, this

case involves a question of contract interpretation-not mere

nonperformance. See In re Mortgage Escrow Deposit Litig,

1994 WL 496707. * 1 (N.D. Ill. Sept. 9 1994) (citation

omitted). These factors make this case more akin to Air

Transp. Ass'n v. Lenkin, 711 F. Supp. 25 (D.D.C. 1989) aff'd

on other grounds, 899 F. 2d 1265, 1266 (D.C. Cir. 1990).

In Lenkin, the plaintiff signed an agreement to lease office

space from the defendants. Seventeen years later, the

plaintiff filed suit, alleging that the defendants had been

incorrectly interpreting one of the lease provisions, causing

plaintiff to overpay rent for almost twenty years. Lenkin, 711

F. Supp. at 25. The plaintiff sought a declaratory judgment as

to the provision’s meaning and judgment in the amount of

overpaid rent attributable to the allegedly improper

interpretation. The district court, interpreting District of

Columbia law, held that the plaintiff first received notice of

the defendant’s different interpretation of the contract. /d at

27. The court specifically stated: “Causes of action based on

contract interpretation, as opposed to situations devoid of

any interpretive questions such as nonpayment of

installments, should be deemed to accrue on the date on

which plaintiff becomes aware or should become aware of the

parties differing interpretations.” Id at 28. Recently in

Northwest Bank, the D.C. Circuit cited to Lenkin extensively

and approvingly, manifesting this Circuit’s agreement with

the decision.

The court thus finds that the limitations period commenced

when Crump first received notice of Amtrak’s interpretation

of the Agreement. The monetary difference in payment

between $400 and $600 should have been discovered at the

10a

time of the first payment in 1982. However, at the very least,

Crump received notice of Amtrak’s interpretation in 1988

when Amtrak sent Crump a letter stating “Amtrak’s

obligation to make monthly payments to you continues for 20

years.” Pl’s Ex. 1. Because Crump received notice of

Amtrak’s contractual interpretation no later than June 1988

and Crump did not file the instant action until January 2002.

Crump’s action is barred by the statue of limitations.

Defendants are therefore entitled to summary judgment.

D. Manulife Financial's Independent Basis for Summary

Judgment

Manulife Financial further argues that, even if plaintiff's

complaint had been timely filed, it would still be entitled to

summary judgment. Again, the court agrees.

On July 1, 1982, Amtrak purchased an annuity contract

from Manulife Financial. Under the terms of this annuity

contract, Manulife Financial was to provide to Russell Crump

monthly payments of $600 per month for twenty years.

Crump, then, was the third party beneficiary of this annuity

contract. Manulife performed under the terms of this

contract. There is no allegation or suggestion to the contrary.

Moreover, this was Manulife’s only involvement in the

controversy. Given these facts, the court is unable to

conceive of a legal theory under which Manulife would be

liable to Crump, and Crump has not been able to articulate

one. The court therefore concludes that, even if plaintiff's

complaint had been filed within the applicable hmitations

period, Manulife Financial would still be entitled to summary

judgment.

III. CONCLUSION

This suit was filed afier the expiration of the applicable

limitations period. Thus, the action is time barred. In

addition, plaintiff has failed to state any cognizable claim

against Manulife Financial, and so, even if plaintiff's com-

TT

lla

plaint had been timely filed, defendant Manulife Financial

would still be entitled to judgment as a matter of law.

Accordingly, defendants motion for summary judgment

must be granted and plaintiff's cross-motion for partial

summary judgment must be denied. An appropriate order

accompanies this memorandum opinion.

Henry H. Kennedy, Jr.

United States District Judge

Dated:

12a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA CIRCUIT

[Filed Jan. 31, 2002]

Case No. 1:02CV00175

RUSSELL E. CRUMP

3338 Croffut Place, SE

Washington, DC 20019-2437

Plaintiff,

VS.

NATIONAL RAILROAD PASSENGER CORPORATION

(Amtrak)

60 Massachusetts Avenue, NE

Washington, DC 20002

and

MANULIFE

The Manufactures Life Insurance Company

Head Office

200 Bloor Street East

Toronto, Canada M4W IE5

Defendants,

COMPLAINT FOR

DECLARATORY JUDGMENT

1. This is an action for a Declaratory Judgment pursuant to

28 USCA Sections 2201, for anticipatory breach of an

annuity contract consummated between defendants for

the benefit of plaintiff.

13a

(a) Defendant’s notice of breach dated 1 September 1998

reads. “$600.00 payable on from May 1, 1982

payable . . . [For twenty years or life, whichever is

longer] . . . final guaranteed payment will be paid on

March 1, 2002...”

(b) Plaintiff contends that the payment should continue

for $600.00.

_ Plaintiff, a former employee of Amtrak, is citizen of the

United States, and resides at 3338 Croffut Place,

Southeast Washington, District of Columbia, 20019-

1437. An “interested party” and beneficiary of a third

party annuity contract # 33 11 299, made for plaintiff's

benefit by defendants.

- Defendant, National Railroad Passenger Corporation

(Amtrak) is a Corporation created by the Rail Passenger

service Act of 1970, as amended (49 U.S.C. 241), and

was incorporated under the Laws of the District of

Columbia, and headquartered at 60 Massachusetts

Avenue Northwest, Washington, District of Columbia,

20002.

- Defendant Manulife Financial is a foreign corporation

headquartered at 200 Bloor Street East, Toronto, Canada

M4W 1IE5 and is authorized to do business as Insurance

Company.

_ The court has jurisdiction under the following provisions

of law:

A. Declaratory Judgment Act: June 14, 1934, CH. 512,

48 STAT. 955 (see 28 U.S. Code Sections

2201,02202), and Section 1332 (a).

B. DC Code Sections 13-422 and 13-423 (6).

_ This is an action for a Declaratory J udgment pursuant to

98 USCA Section 2201, for the purpose of determining a

question of actual controversy between the parties as

more fully appears below.

14a

7. An actual controversy has arisen and now exist between

the plaintiff and defendants regarding their respective

rights and duties under a third party annuity contract # 33

11 299, purchased with proceeds awarded from a court

settlement, which policy is in sole possession and custody

of defendants Amtrak and Manulife.

8. On or about 28th day of September 1981, plaintiff Crump

and defendant Amtrak entered into a “Settlement

Agreement and Release” as the result of litigation filed in

the United States District Court, District of Columbia.

Civil Action # 79-1506, alleging violations of title VII of

the Civil Rights Act: 42 U.S.C. Section 2000(e), et seq;

and the Civil Rights Act of 1866, 42 U.S.C. 1981.

9. Plaintiff contends that the balance of the proceeds of the

third party annuity contract should be paid to plaintiff as

punitive damages required by the Civil Rights Act of

1866.

10. Plaintiff desires a judicial determination of the language

set forth in paragraph 6 of the settlement which reads in

part “. . . for twenty (20) years or life, whichever is longer

99

Wherefore, plaintiff requests:

1. A judgment declaring the rights, duties, and legal relation

of plaintiff and defendants with regard to the annuity

contract # 33 11 299;

2. Award attorney fees and costs; and

3. Such other and further relief as the court deems proper.

eee

15a

JURY TRIAL DEMANDED

Name: Russell E. Crump, Pro se

Signature: Russell E. Crump

I, Russell E. Crump, the plaintiff, above named, being duly

sworn, say as follows:

I have read the above complaint and know its contents, and

the contents are true of my knowledge.

/s/ Russell E. Crump

RUSSELL E. CRUMP

SUBSCRIBED AND SWORN TO BEFORE ME THIS

DAY:

DATE: 1-31-2002

SIGNATURE:

MY COMMISSION EXPIRES: 3-1-2004

l6a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Case No. 1:02CV00175 (HHK)

RUSSELL E. CRUMP,

Plaintiff,

V.

NATIONAL RAILROAD PASSENGER CORPORATION

(Amtrak), ef. al.,

Defendants.

ANSWERS AND AFFIRMATIVE DEFENSES

Defendant, National Railroad Passenger Corporation (“Am-

trak’”’), by and through undersigned counsel, hereby answers

and responds to the allegations contained in Plaintiff’s

Complaint for Declaratory Relief:

1. The allegations contained in the first sentence Para-

graph | are legal conclusions to which no response is

required. Amtrak is without knowledge or information

sufficient to form a belief as to the truth of the

allegations contained in the second sentence of

Paragraph | and, accordingly. they are denied. Amtrak

denies the allegations contained in the third sentence of

Paragraph |.

2. Amtrak admits that Plaintiff is a former emloyee.

Amtrak admits that Plaintiff is the third party

beneficiary of an annuity policy number 3,31,299-6.

Amtrak is without knowledge or information sufficient

to form a belief as to the truth of the remaining

allegations contained in Paragraph 2 and accordingly,

they are denied.

17a

3. Amtrak admits that it is a federally chartered

corporation headquartered in Washington D.C.

4. Amtrak is without knowledge or information to form a

belief as to the truth of the allegations contained in

Paragraph 4 of the Complaint and, accordingly, they

are denied.

5. The allegations contained in Paragraph 5 are legal

conclusions to which no response is required. To the

extent a response is required, the allegations are

denied. Amtrak avers that the Declaratory Judgment

Act, 26 U.S.C. Sections 2201, 2202 does not vest

federal courts with jurisdiction. Amtrak avers that D.C

Code Sections 13-422 and 13-423 relate to the

jurisdiction of the courts of the District of Columbia,

not to the federal district courts.

6. The allegations contained in Paragraph 6 are legal

conclusions to which no response is required. To the

extent a response is required, the allegations are

denied.

7. Amtrak denies the allegations contained in Paragraph 7.

8. Amtrak admits the allegations contained in ~Para-

graph 8.

9. Amtrak denies the allegations contained in Paragraph 9.

10. The allegations contained in Paragraph 10 are a plea for

declaratory relief. To the extent a response is required,

the allegations are denied.

Except as specifically admitted above, Amtrak denies all

other allegations contained in Plaintiff's Complaint.

Amtrak denies that Plaintiff is entitled to any relief.

18a

AFFIRMATIVE DEFENSES

By pleading the separate and additional defenses stated

below, Amtrak does not admit that it has the burden of

production of proof with respect to any such defense.

FIRST AFFIRMATIVE DEFENSE

1. The Amended complaint and each purported cause of

action set for the therein fails to state facts sufficient to

constitute a cause of action against Amtrak upon which

relief can be granted.

SECOND AFFIRMATIVE DEFENSE

2. Amtrak alleges that any duty or obligation, contractual or

otherwise, which Plaintiff claims is owed by Amtrak, has

been fully performed, satisfied or discharged.

THIRD AFFIRMATIVE DEFENSE

3. Plaintiff's claim is barred by the applicable statue of

limitations.

FOURTH AFFIRMATIVE DEFENSE

4. Plaintiff’s claim is barred by laches.

FIFTH AFFIRMATIVE DEFENSE

5. Amtrak alleges that any contractual obligation was satisfied

pursuant to accord and satisfaction.

SIXTH AFFIRMATIVE DEFENSE

6. No statutory or contractual provision entitles Plaintiff to the

recovery of attorneys’ fees.

19a

WHEREFORE, Defendant National Railroad Passenger

Corporation (Amtrak) prays that:

|. Plaintiff's Complaint be dismissed in its entirety and with

prejudice;

Plaintiff take nothing by this action against Amtrak;

Judgment be entered in favor of Amtrak.

Defendant be awarded its costs of suit incurred herein; and

Yr

Defendant be awarded such other and further relief as the

Court deems just and appropriate.

Respectfully submitted,

Melissa B. Rodgers (D.C. Bar No. 436189)

National Railroad Passenger Corporation

60 Massachusetts Ave., N.E.

Washington, D.C. 20002

20a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 1-02-00175 (HHK)

RUSSELL E. CRUMP,

Plaintiff,

Vv.

NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK)

and

MANULIFE FINANCIAL

73 Tremont St., Suite 1300

Boston, MA 02108-3915,

Defendant.

ANSWER OF DEFENDANT MANULIFE FINANCIAL

Comes now the defendant Manulife Financial, and in

answering, the Complaint for Declaratory Judgment hereby

admits, denies and alleges as follows:

1. Defendant Manulife denies there has been any breach of

the annuity contract between defendants. Moreover,

plaintiff's allegations in paragraph | contain a misquote

from the letter from Manulife Financial to Mr. Crump

dated September 1, 1998. A copy of that letter is

attached hereto as Exhibit A. Except as expressly

admitted, defendant Manulife Financial denies generally

and specifically the allegations of paragraph one.

2. Defendant Manulife Financial admits the allegations of

paragraph 2 of the Complaint.

2la

3. Defendant Manulife Financial admits the allegation of

paragraph 3 of the Complaint.

WHEREFORE, having fully answered plaintiff's Complaint

and having set forth its affirmative defenses, defendant prays

that: (a) judgment be entered in favor of Manulife Financial

and to dismiss plaintiff's claims with prejudice; (b) that the

Court award Manulife Financial its costs and attorneys’ fees,

in part because plaintiff’s claims are made in bad faith; and (c)

such other and further relie® as the Court deems proper.

Dated: March 29, 2002

Respectfully Submitted,

Wayne A. Schrader, Bar No. 361111

GIBSON, DUNN 7 CRUTCHER LLP

1050 Connecticut Avenue NW

Washington, D.C. 20036

(202) 955-8500

Facsimile: (202) 467-0539

Attorneys for defendant Manulife F inancia!

22a

APPENDIX C

EXHIBIT |

SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement and Release is executed on this

28th day of September 1981, by Russell E. Crump, herein-

after called “Plaintiff”, and the National Railroad Passenger

Corporation, hereinafter “Amtrak” or “Defendant”, in full

settlement of a dispute over whether plaintiff has been

discriminated against because of his race as alleged in a

complaint filed with the United States District Court for the

District of Columbia, Civil Action No. 79-1506, and in

charges filed with the District of Columbia Commission on

Human Rights; and

WHEREAS, Plaintiff and his authorized representatives

and the representatives of Amtrak have discussed the

possibility of settlement of said dispute; and

WHEREAS, all parties desire to settle this dispute in strict

conformance with Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000(e), et seq.; and the Civil Rights

Act of 1866, 42 U.S.C. § 1981; and

WHEREAS, Plaintiff and Amtrak desire to settle all

disputes and differences between them with respect to the

aforementioned dispute arising out of Plaintiff's employment

with Amtrak, and any and all sections and elements of said

dispute;

NOW, THEREFORE, in consideration of the premises and

covenants contained herein, the parties agree as follows

1. Plaintiff, his successors and assigns, hereby releases and

discharges Amtrak from any and all liabilities and claims of

any kind or nature that Plaintiff may have had or may now

have arising out of his employment with Amtrak by virtue of

any federal, state or District of Columbia statute or regulation

and from all debts, demands, actions, suits, agreements,

damages, and any and all claims, demands, and liabilities of

23a

whatsoever name and nature, both in law and equity, against

Amtrak, and hereby agrees to withdraw the now pending

lawsuit in the United States District Court for the District of

Columbia, Civil Action No. 79-1506, and the proceeding

before the District of Columbia Commission on Human

Rights Docket No. 1910-PE by. executing stipulations that

said lawsuit and proceeding shall be dismissed as to all

parties, with prejudice. Plaintiff further agrees not to file any

other claim or join in any claims as an individual or as a

member of a class in any other state or federal court or

agency relating to his employment with Amtrak or the

employment of any other individual with the Corporation.

2. Within five (5) days after the execution of this Agree-

ment and the aforementioned Stipulation of Dismissal,

Plaintiff will be provided with a check in the amount of

$60,000.00 for compensatory damages and attorney’s fees

after March 30, 1981.

3. Plaintiff agrees to resign from his employment with

Amtrak within twenty-four (24) hours after this Agreement is

executed. Following his last working day with Amtrak,

Plaintiff agrees not to seek reemployment with Amtrak.

4. Amtrak agrees to continue Plaintiff's current salary,

computed at the regular straight time rate, health insurance,

and rail pass privileges for six (6) months after his resigna-

tion, or until he retires or obtains other employment, which-

ever occurs first. However, Plaintiff shall receive rail pass

privileges for any longer period which a disability retiree of

comparible railroad and Amtrak service would be entitled to.

5. Amtrak also will spire available for Plaintiff all

outplacement services which are available to non-Agreement

employees terminated from employment with Amtrak

because of reductions in force, including resume preparation,

job search, interview training, telephone and message service,

and any other placement services or privileges afforded such

24a

displaced employees. Further, Amtrak will not obstruct

Plaintiff's efforts to seek other employment.

6. The parties understand and agree that because of present

employment. If Plaintiff applies for and is granted a disability

retirement by the Railroad Retirement Board, Amtrak shall

cause to be paid to Plaintiff, in addition to the amount

provided in Paragraph 2, the amount of $400 per month, for

twenty (20) years or life, whichever is longer, commencing

the month following retirement in compensation for claims of

pain, suffering and emotional distress.

In the event that Plaintiff's application for disability

retirement is denied, Amtrak shall cause to be paid to Plaintiff

the amount of $600 a month for twenty (20) years

commencing seven (7) months after execution of this

Agreement in compensation for claims of pain, suffering and

emotional distress.

7. Amtrak agrees to pay and Plaintiff agrees to accept the

sums referenced above in full accord and satisfaction of all.

disputes and differences between the parties. The monetary

sums specified in Paragraphs 2 through 5 of this Agreement

are provided as consideration for Plaintiff's general release of

any and all claims he may have had or may now have against

Amtrak arising out of Plaintiff's employment with Amtrak.

8. Amtrak and Plaintiff mutually agree thats except to the

extent required to effect the provisions of this Agreement, the

parties shall have no contact with each other, nor will they in

any manner interfere with the business of the other.

9. Amtrak and Plaintiff mutually agree not to disclose the

terms of this Agreement, including its monetary terms, to

anyone, except as required by law.

10. This Agreement does not constitute an admission by

Amtrak of any violation of Title VII of the Civil Rights Act

25a

of 1964, as amended, the Civil Rights Act of 1866, 42 U.S.C.

§ 1961, or the District of Columbia Human Rights Act.

/s/ Russell E. Crump September 28, 1981

Russell E. Crump

Plaintiff

/s/ Christopher Lutz September 28, 1981

For Defendant National Railroad

Passenger Corporation

/s/ Harvey L. Taylor September 28, 1981

26a

EXHIBIT 2

APPLICATION FOR IMMEDIATE ANNUITY TO

THE MANUFACTURERS LIFE INSURANCE COMPANY

Head Office: Toronto, Ontario, Canada

PRINT & USE BLACK INK, ANY CHANGES SHOULD

BE INITIALLED BY THE PERSON ANSWERING THE

QUESTIONS.

If applying for an ANNUITY CERTAIN, do not answer

questions 2, 3, 7 and 8.

ANNUITANT

l. First Name, Initial, Last Name: Russell E. Crump

y a w Male

O Female

3. Date of Birth: 9-19-44

4. Social Security Number:

5. Address. Include zip code:Rt #1, Box 246,

Maringouin, Louisiana 70757

JOINT ANNUITANT, if any

6. First Name, Initial, Last Name:

7. oO Male

O Female

8. Date of Birth:

%. Social Security Number:

10. Address. Same as in 5 0 or:

11. Owner If Other Than Annuitant: National Railroad

Passenger Corp.

12. Address. Include zip code: 400 N. Capitol,

Washington, DC 20001

13. Social Security or Taxpayer Identification Number:

14. — Relationship to Annuitant: None

iD.

16.

27a

Succcessor Owner. Answer only if (a) One person is

owner in question 11; or (b) in a joint and survivor

plan, one of the annuitants is sole owner.

Relationship to Owner:

PERSON(S) TO RECEIVE ANNUITY PAYMENTS

17.

18.

19.

20.

21.

22.

Payee (subject to change) for annuity payments before

death of annuitant (and surviving annuitant if any)—

or, if plan is annuity certain, for annuity payments

during term of annuity.

ws Annuitant, then surviving annuitant if any

o Both annuitants jointly O Owner

oO Other

Beneficiary (subject to change) for any payments

payable after death of annuitant (and surviving

annuitant if any). Does not apply if plan is for annuity

with no refund on death. First name, initial, last name.

Primary: Owner

Secondary: None

Relationship to annuitant: None

Is the beneficiary in Question 18 to have the right to

commute the annuity payments? m Yes O No

Is this policy to replace or will it cause a change in

any insurance or annuity policy on the annuitant’s life

or owned by the owner?

If yes state company and plan 0 Yes m No

(a) Oo Life Annuity (one life)

o Joint And Survivor Annuity

(b) m Certain period 20 years

oO Installment refund

pe R

24.

a.

26.

ef.

28a

O No refund. Complete form 72 if annuitant is

owner and annuity is oin only one life.

o Cash refund. Available oni, if annuity is on one

life.

(c) 0 Anuity Certain payable for only

20 years 0 months

(d) If death occurs before payments begin, the

premium will be refunded without interest. If a joint

and survivor annuity, the refund is to be paid on the

first death; on the second death.

(e) m Other. Describe fully. Owner

Single Premium, $53,350

m Paid: 4-14-82 0 Not paid oC.O.D.

Amount Of Each Annuity Payment: $600

Payable every: m month Oo 3 months

0 6 months O year

Starting: month: May day: 1 year: 1982

(At least a month after premium payment. Do not

choose the 29th, 30th or 31st of a month.)

Annuity Checks to be payable to annuitant

O owner; and sent to his/her 0 address 0 bank account.

If to bank account, complete Form 923 (5) giving

account details.

If the annuity is to be an I.R.A.; or a 403(b) tax-

deferred annuity; or a Keogh Master Plan; or a single

premium purchase under a qualified pension, or profit

sharing, or Keogh plan; indicate whether the

application supplement has been complete.

oO Yes @ No (Explain)

Special Requests:

28.

a.

30.

at.

29a

THE ANNUITANT(S) AND THE OWNER

DECLARE that the answers and statements in this

application are complete and true to the best of their

knowledge and belief. IT IS AGREED that: (1) The

policy will take effect on the date when the single

premium is paid, even if the annuitant or the joint

annuitant dies after that but before the policy is issued.

(2) Acceptance of the policy will constitute

agreement to its terms and to any changes specified by

the Company in the policy, except that any change of

amount, classification, plan or benefits will be made

only with the owner’s written consent.

Signed (in the manner in which checks are to be

drawn at: Washington DC this 14th day of April 1982

/s/ [Ineligible]

Witness (soliciting agent)

Owner, if other than annuitant, is to sign also. See

instructions in manual.

/s/ National Railroad Passenger Corporation,

By: Harold R. Henderson, Deputy General Counsel

Ages foe which premium of $ was quoted, as of

the date of payment.

Annuitant:

Joint annuitant:

To the best of your knowledge, is this policy to

replace or will it cause a change in any insurance or

annuity policy on the annuitant’s life or owned by the

owner? If yes, explain and complete any required

comparison papers.

mw No o Yes

Have you issued a receipt O Yes, $ Oo No

30a

Policy Number: 3,311,299-6

Policy Date 15 Apr 1982

Issue Date 1 Jul 1982

Owner National Railroad Passenger Corporation

Payee For Primary—Russell E. Crump

Annuity Secondary—National Railroad Passenger Corp

Payments

Plan "Immediate Annuity Certain, Non-Participating

Annuity Monthly Payments—$600.00

Payments Beginning On—1 May 1982

Payable—For 20 Years Only, Until 240

Payments have been paid

Single $53,350.00 Payable On Policy Date

Premium

Interest Rate 15.00% Per Year Compounded Annually

For Commuting

Annuity Payments

After Death Of

Primary Payee

3la

EXHIBIT 3

[LOGO] June 2, 1988

Mr. Russell Crump

15031 Seven Pines

Baton Rouge, LA 70817

Dear Mr. Crump:

This is in response to your letter dated April 25, 1988,

regarding the annuity policy of the Manufacturers Life

4nsurance Company which provides monthly payments to

you. Specifically, you ask whether the designation on line 18

of the Annuity Application Form means that Amtrak is

entitled to any unpaid portion of the annuity. In short, the

answer IS yes.

The Settlement Agreement executed on September 28,

1981, between you and Amtrak provided in paragraph 6, that

in the event your application for disability retirement was

denied, Amtrak would cause to be paid to you the amount of

$600 a month for 20 years. Payment of that amount was

provided through the subject annuity policy. However, there

is nothing in the Settlement Agreement requiring such an

annuity, and nothing regarding beneficiaries or surviving

family members. The annuity is simply the vehicle through

which Amtrak provides the required monthly payments to

you. You were not a party to the annuity contract, and

therefore did not sign it. In fact, I am at a loss to understand

why you happen to be in possession of the Annuity

Application Form.

Amtrak’s obligation to make monthly payments to you

continues for 20 years. In the absence of any contrary

direction in the Settlement Agreement, the disposition of that

asset upon your death within the 20-year period will be

controlled by applicable law. You may be assured that

Amtrak will comply with its contractual and legal obligations.

32a

I trust that this adequately responds to the concerns you

raised in your letter.

Sincerely,

/s/ Harold R. Henderson

Harold R. Henderson

Vice President-Law

HRH:fdt

33a

EXHIBIT 4

[LOGO]

Manulife Financial

Annuity Service Center

P.O. Box 600

Buffalo, NY 14201-0606

September |, 1998

Mr. Russell Crump

100 Leeds Place

Hattiesburg

MS 39402

Dear Mr. Crump:

Re: Annuity 3 311 299. Russell E Crump.

In response inquires made by you earlier today. This letter

will serve as verification that you are the designated primary

payee for the following annuity payments issued by the

Manufacturers Financial Company:

e $600.00 payable on from May |, 1982 payable for

nineteen years and eleven months, the final

guaranteed payment will be paid on March 1, 2002.

The annuity contract is owned by the _National RR

Passenger Co who has all rights of ownership in the contract.

This annuity was purchased with proceeds awarded from a

court settlement. The installments are paid as they fall due

and the payment schedule cannot be altered in any way.

In the event of your death, any remaining guaranteed

payments will be paid to the designated beneficiary.

Sincerely,

Peter Gopaul

Customer Service Specialist

34a

EXHIBIT 5

1 800 333 2526

June 16, 2001

Mr. Harold Henderson

National Railroad Passenger Corporation

Amtrak law department

Dear Mr. Henderson

The settlement agreement executed on September 28,

between Russell Crump and Amtrak provided in paragraph

six (6) that the parties understand and agree that because o f

serious illness the plaintiff is disabled from continuing his

present employment. If plaintiff applies for and is granted a

disability retirement by the Railroad Retirement Board,

Amtrak shall cause to be paid to plaintiff, in addition to the

amount paid in paragraph two (2), the amount of $400 per

month, for twenty years (20) or life whichever is longer,

commencing the month following retirement in compensation

for claims of pain, suffering and emotional distress.

According to an attorney the settlhement agreement and

release had been breached because Russell Crump has been

receiving disability retirement from the Railroad Retirement

System since 1982.This you should have known since you

(Amtrak) are the executor of the settlement.

The settlement agreement and release were signed by Mr.

Crump on September 28, 1981, however, due to serious

illness, Mr. Crump was not a party to the annuity that was

purchased with proceeds awarded from the court settlement.

Since Mr. Crump had no control over the application, or

the execution of the settlement agreement, we expect Amtrak

to honor the agreement and continue to pay Mr. Crump

according to the contract and legal obligation. Amtrak’s

obligation ends upon Mr. Crump’s death.

Sincerely,

/s/ Russell Crump

35a

EXHIBIT 6

Manulife Financial

Paul L. Gallagher

Assistant Vice President

& Senior Counsel

April 2, 2002

Russell E. Crump

c/o Iris M. Green, Esq.

Green and Foushee

1130 Seventeenth Street, NW.

Washington, D.C. 200364

Dear Mr. Crump, Ms. Green:

This letter serves to confirm that National Railroad Passenger

Corp. purchased from Manulife an immediate annuity certain

providing for 240 payments (20 years) at $600 per month.

The annuity [Policy Number 3,31 1,299-6] was issued on July

1, 1982 and the primary payee for the monthly payments was

Russell Crump who was and will received each and all of the

monthly payment. As of July 1, 2002, the last payment will

have been made and the annuity contract fulfilled.

The National Railroad Passenger Corp. will not and has not

received any money or payments from Manulife in

connection with the annuity. The annuity does not provide for

any principal or any other accumulation that might be paid

over to the owner. In simple terms, the National Railroad

Passenger Corp. purchased a stream of 240 payments at $600

per month and all of those payments went to Russell Crump.

The annuity does not provide for or obligate Manulife to

make any other payments to any other entity or person.

Accordingly, there is no surplus or capital accrual or anything -

36a

of that type to be paid to the National Railroad Passenger

Corp. If you have any questions, please feel free to call.

Yours truly,

/s/ Paul L. Gallagher

Paul L. Gallagher

AVP, Senior Counsel

37a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. 1:02CV00175(HHK)

RUSSELL E. CRUMP,

Plaintiff,

iP

NATIONAL RAILROAD PASSENGER CORPORATION

(AMTRAK), et. al.,

Defendants.

DECLARATION OF CHRISTINE TURNBLACER IN

SUPPORT OF DEFENDANT NATIONAL RAILROAD

PASSENGER CORPORATION’S CROSS-MOTION FOR

SUMMARY JUDGMENT AND OPPOSITION TO

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT—

INTERLOCUTORY IN CHARACTER (LIABILITY ONLY)

I. Christine Turnblacer, declare under penalty of perjure

that the following is true and correct based on my knowledge

and belief

1. I am over eighteen years of age. I am employed

as a Senior Legal Assistant in the Law Department

at the National Railroad Passenger Corporation. I make

this declaration in support of Defendant National

Railroad Passenger Corporation’s Cross-Motion for

Summary Judgment and Opposition to Plaintiffs Motion

for Summary Judgment—Interlocutory In Character

(Liability Only).

38a

2. I have reviewed Plaintiff Russell Crump’s personnel

file and all law department files relevant to this case

including any files maintained by then-V ice President of

Law, Harold Henderson. The following facts are based

on my review of those files.

3. I have found no records prior to 1984 indicating that

Mr. Crump, his counsel or the Railroad Retirement

Board notified Amtrak that Mr. Crump has been granted

disability retirement benefits. Had Mr. Crump or his

attorney notified Amtrak that he was receiving disability

retirement benefits, such notification would have been

found in Mr. Henderson’s files. Likewise, Mr. Crump’s

personne! file does not contain any such notification nor

does it contain any notification from the RRB in 1982

indicating that he had been granted disability benefits.

Executed on: July 1, 2002 /s/ Christine Turnblacer

Christine Turnblacer