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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1110

## Text

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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REASONS FOR GRANTING WRIT 1... ee eeeeeeeeeeees 5
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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
NE Te 6 cnvnsinsnvnesivintonnesnasosnvereesnvesins 26a

(ili)

iV
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

SMI asicsiisviesivnaicnsiciinnnseeasicaeasipaemnseniainbiiaeiancaiae 35a
Defendant-respondent Exhibit 2—Declaration of
EIN TICE acesencsccstonscnivesaeunceteneuneramieneers 36a

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

Te ae en RACT CaN ote BEE BS PSNI SAS HMO eh OE < 2 PNT GTP ONT a ‘) ' oC : oy . 2 7
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 -

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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).

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2420%3A1. Public record. Not legal advice.