Opposition Brief — Deramus v. Jackson National Life Insurance

Supreme Court, U.S.

2. 2

JAN 13 1997

J /

No. 96-947

ULLERA

In The

Suprene Court of the United States

~

October Term, 1996

JODY H. DERAMUS,

Petitioner,

VS.

JACKSON NATIONAL LIFE INSURANCE COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

D. COLLIER GRAHAM, JR.

Counsel of Record

EUGENE NAYLOR

DEBBIE GOSWAMI

SHELL, BUFORD, BUFKIN,

CALLICUTT & PERRY

Attorneys for Respondent

920 Trustmark Building

P.O. Box 157

Jackson, Mississippi 39205

(601) 948-2291

70333 jutz

(800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21 liate ?

ervices, inc.

i

QUESTIONS PRESENTED

WHETHER THE ISSUE OF CERTIFICATION

WHICH WAS NOT RAISED IN THE LOWER

COURT CAN BE BROUGHT FOR REVIEW

BEFORE THE UNITED STATES SUPREME

COURT, AS THE MATTER HAS NOT BEEN

PRESERVED FOR APPEAL.

WHETHER THE FIFTH CIRCUIT ERRED BY

ADOPTING THE DISTRICT COURT’S OPINION,

AND NOT EXPRESSLY VERBALIZING ITS

STANDARD OF REVIEW AS DE NOVO.

WHETHER THERE IS ANY SPLIT IN THE

CIRCUITS SINCE ALL CIRCUITS UNDERSTAND

THAT THE USAGE OF CERTIFICATION IS

DISCRETIONARY AND ALL’ CIRCUITS

APPRECIATE THEIR DUTIES TO MAKE

PREDICTIONS OR’ ERIE-GUESSES ON

MATTERS OF STATE LAW.

WHETHER RESORT TO CERTIFICATION BY

THE FIFTH CIRCUIT IS NECESSARY WHEN

THERE EXISTS AMPLE AUTHORITY IN

MISSISSIPPI CASE LAW UPON WHICH TO BASE

ITS DECISION.

‘3

WHETHER THE PETITIONER SHOULD BE

ALLOWED TO ARGUE TO THIS COURT THAT

THE LAW WAS UNSETTLED AND AMBIGUOUS,

WHEN IN THE LOWER COURTS, SHE

ADVANCED THE OPPOSITE THEORY THAT

THE LAW WAS SUFFICIENTLY CLEAR AND IN

HER FAVOR SO AS TO AWARD HER SUMMARY

JUDGMENT AS A MATTER OF LAW.

WHETHER CERTIFICATION SHOULD BE

PURSUED AS IT IS NOT EXPEDIENT, AND

THERE IS NO GUARANTEE THAT THE

MISSISSIPPI SUPREME COURT WILL ANSWER

THE CERTIFIED QUESTION.

LIST OF INTERESTED PARTIES

The Petitioner is Jody Deramus, individually, and as

administratrix of the Estate of Frank Deramus.

The Respondent is Jackson National Life Insurance

Company, a wholly owned subsidiary of Prudential Corporation,

p.l.c. London, England.

iv

TABLE OF CONTENTS

CORTON 5 ais Sev sks aes e aoe i

Salk GE EEO 6 oni cne ca Ken ed eanysheebeae iil

en a ey iv

We NE u's bau cose eek awhsee eee vi

Respondent’s Brief in Opposition .................... ]

| BE ee ee Oe ee ere ]

URURDUE GE FTIR in vn cinch akecetaseneseuen zZ

Gg rr rye err ea mn 3

Reasons for Denying the Writ ....................... 8

I. The record is devoid of any indication that the

Fifth Circuit employed any other standard than de

WEIS - She Sas ese e ee ek kh bees 8

Il. The certification issue was not raised in the lower

court, and is therefore procedurally barred from

review by the United States Supreme Court. ..... 11

Tl. All circuits understand that certification is

discretionary, and there is no confusion or conflict

among the circuits on the use of certification. ... . . 13

Conclusion

v

There is no confusion among the circuits

as to certification....................

Having certified in the recent past a

similar question to the Mississippi

Supreme Court, and having the benefit of

other existing Mississippi case authority,

the Fifth Circuit had a more than ample

basis to decide the issue of law without

resorting to certification...............

1. Certification in the recent past on

question of duty was applicable

atnaeccc: MEET eo Te

2 Clear and controlling precedent

existing in Mississippi case law on

the duty to disclose. ...........

The Petitioner contradicts herself and

advances a theory on appeal which is

inconsistent with that argued in the lower

courts, and is therefore, procedurally

cic a EOS yh, es Ren ee

Oe OR SS RE Oh Re St ae Oe ae nko a oe ae

: ae

. 24

. 20

vi

TABLE OF AUTHORITIES

CASES

S35F. 24 1081 (th Gk. 1970) one cece ce. 28

' statin & Pacifi

Sue me midace am bts) Sabaesieea ches 14

66F 30 743 (Sth CH. 1989) nese eeeseseveee r

668 F.2d 1382 (th Cr, 1981)... -seccccececeeese. i

527 F 24843 DCH. ISIS) neces ecsese 28

«lll hahha a ER r

O96 F. 24 1164 (Ilth Cit. 1993)... ess seececesesee 20

Canton v. Harris, 489 U.S. 378 (1989) ............... 11

S36F. 24 80 (Sth Ci 1976) neces ecceseesee 28

Colonial Properties, Inc. v. Vogue Cleaners,

Migs wee Tit Ae 15,19

437 So.2d 46

Se PU a ey F 15

oe eer 17

vie |! RS ee 11, 12

Elkins v. Moreno, 435 U.S. 647, 662 n.16 to : ee 14,16

Farsian v. Pfizer, 52 F. 3d 932 (11th Cir. | ee: 20

Foster v. Bass, 575 So. 2d 967 (Miss. ong ES oka 25

ELC. v. Grolier, 462 U.S. 19, 23 n.6 SEWE dvcceueus 9,11

Giffin v. Summerlin, 78 F. 3d 1227

WOON he Se Fok el ie 17

921 F. 2d 864

EERE epee a he nee ee ee 17

Hines v. Joy Mfg. Co, 850 F. 2d 1146

on BREE II tea ieee ee 17

Howell v. Celotex Corp,, 904 F. 2d 3

INU aah ah De 2) FT a enka ae 16

Houston v. Hill, 482 U.S. 451 j. >, Jiro 13,14,18,21

In re Fingado, 955 F. 2d 31 (10th Cir. 1992) ........... 19

Jackson v, Johns-Mansville Sales Corp., 781 F. 2d 394,

cert. denied, 478 U.S. 1022 (Sth Cir. 1986) ............ 16

Jones v. Harris, 460 So.2d 120 (Miss. 1984) ........... 15

Kassman v. America University, 546 F. 2d 1029

SG LMNs bx ya oe oe os Wik baa ard Sia ne 28

Lehman Brothers y. Schein,

Ar I io ohare ik n's wean 12, 13,14,17,18,20

Long vy. Patterson, 22 So. 2d 490

SR I rs ote 2 ar eee ae Se 24,25

Magnum Import Co. v. Coty, 262 U.S. 159 (1923) ....... 2

Dist.,632 F. 2d 466 (Sth Cir. 1980) .................. 20

Meredith v. City of Winter H

SBE a eee 14,17

McGuire Oil Co, v. Mapco, Inc.,

958 F. 2d 1552 (11th Cir. 1992) ..................5. 20

Micomonaco y. State of Washington,

eS ae rraer 19

Mor Williams M & Co. I

oe eS Se eer ereree 16

Noble v. U.S, Parole Comm'n,

Se. Oe Se es Ss BE ho donc va Wicsaneasys 19

515 U.S.__, 132 L_Ed.2d 400(1995) ............. 12

Se A” 19

819 F. 2d 349

cn oc hae BPE 16

587 So. 2d 273 (Miss. 1991)................ 21,22,23,25

Roe v. Doe, 28 F. 3d 404 (4th Cir. 1994) ......... 19

68 F. 3d 404

oe 2, Sea eee 20

ie et) er rr 16

os ib ches 9,10,14,18

yer. sagenemGer. 105) ....................... 19

titi co, Neen 28

x

Transamerica Ins, Co. v. Duro Bag Mfg. Co.,

SOF. 36 370 Gath Cir, W99S) nw. ccc eden

1 snental Gas Pipeline C I

Ins. Co., 958 F. 2d 622 (Sth Cir. 1992) ............

Universe Tankships, Inc. v. United States,

| Ee | rr

United States v. Williams, 504 U.S. 36 (1992) .......

VanHaaren v. State Farm Mut. Auto.

Ins. Co., 989 F. 2d 1 (Ist Cir. 1993) ..............

Wassall v. DeCaro, 91 F. 3d 443

MO co ete dt 3 oo ach ads

Watson v, City of New York, 92 F. 3d 31

eM PONE 5555s Pacer das accdadewderens

Weiss v, United States, 787 F. 2d 518

Pr er ery ree ee are

Youakim v. Miller, 425 U.S. 231 (1976) ...........

RULES AND STATUTES

Mississippi Rules of Appellate Procedure, Rule 20 ....

Mississippi State Department of Health, Rules and

Regulations Governing Reportable Diseases (1985) ..

OTHER SOURCES

17A Wright, Miller & Cooper, Federal Practice and

Procedure: Jurisdiction 2d § 4248 (2d ed. 1988) ...... 20,21

Steve Kirchmayr, Reducing the Appellate Docket,

ississippi Judici RR ae tees 15

APPENDIX

Steve Kirchmayr, Reducing the Appellate Docket,

issippi Judici SS fe rs Al

Posen ere

ee Ol ae > aT eee

ee ae ih Dee

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RESPONDENT’S BRIEF IN OPPOSITION

In this case, the Petitioner asserts that review by the

Supreme Court is warranted in order to bring into equilibrium

the rate at which the various circuits certify state law questions.

This quest for certification parity is a smokescreen not

deserving of treatment on either substantive or procedural

grounds, as the issue was never put before the lower court. It is

disingenuous in the extreme for Mrs. Deramus to have argued

in both the district court and the Court of Appeals that existing

Mississippi law was sufficiently clear and in her favor for her to

prevail on the issues, and now that the merits have been decided

adversely to her, to argue that state law on the subject was so

unclear that certification to the Mississippi Supreme Court was

mandated, even in the absence of a request on her part for

Certification. She wants nothing less than the proverbial second

bite at the apple. Moreover, the Petitioner never once argues in

her certiorari petition that the district court or the Court of

Appeals wrongly decided the merits of her case, or that the

Mississippi Supreme Court would have decided any differently.

Accordingly, Respondent Jackson National Life Insurance

Company respectfillly requests this Court deny writ of certiorari

to review the judgment of the United States Court of Appeals

for the Fifth Circuit.

OPINIONS BELOW

All lower court opinions in this matter are set forth in

the Appendix attached to the Petition for Writ of Certiorari.

2

STATEMENT OF JURISDICTION

A writ of certiorari is not a matter of right, but of

judicial discretion. The discretionary grant of a writ is reserved

for exceptional cases: first, where review is necessary to secure

uniformity of decision between and among the Courts of

Appeals, and second, where the case involves questions of

importance which it is in the public interest to have decided by

this Court of last resort. Magnum Import Co. v. Coty, 262 U.S.

159 (1923). Jurisdiction in the Supreme Court is not exercised

merely to give the defeated party in the Court of Appeals

another hearing. Id.

The decision of the United States Court of Appeals for

the Fifth Circuit in the Case of Jody Deramus v. Jackson

National Life Insurance Company, No. 95-60675, which

Petitioner seeks to review herein by certiorari, rests on no

proposition which creates an actual conflict between the United

States Courts of Appeals. While the writ petition is laced with

the appropriate “conflict among circuits” trimmings, the alleged

“conflicting” issue of certification was never put before the

lower court for its review, and as such, this newly presented

argument may not be properly considered by this Court. By

belatedly raising the certification issue, Petitioner is merely

seeking another hearing in another forum. This tactic cannot

supply a basis for jurisdiction in this Court which is otherwise

clearly lacking. Furthermore, this case does not involve any

issues the settlement of which is of national importance, as the

underlying dispute is a private tort claim for monetary damages,

and the Fifth Circuit’s per curiam affirmance of the trial court’s

interpretation of Mississippi precedent did not, as Petitioner

contends, suddenly create a public policy question.

3

STATEMENT OF THE CASE

The Petitioner’s statement of the facts makes several

bold assertions which are nowhere contained in the record, and

more seriously, many misrepresentations of which Respondent

is compelled to make this Court aware.

In January 1988, Frank Deramus had a life insurance

policy with Jackson National Life Insurance (hereinafter

“JNL”), which provided coverage of $500,000. Mr. Deramus,

in an effort to increase his coverage, applied for additional life

insurance in the amount of $300,000. Mrs. Deramus also

submitted an application for a $250,000 life insurance policy

with JNL.

As part of the application process, JNL required its

applicants to submit to certain blood tests through local

paramedical facilities used by JNL. The results of these tests

were used by JNL to assess its underwriting risk in extending

insurance coverage to its applicants. JNL reserved the right to

refuse coverage if an applicant failed the blood tests.

Before Mr. Deramus submitted a blood sample, he

signed a consent form wherein he acknowledged what tests his

blood might be subjected to, including HIV, that JNL was

performing these lab tests exclusively for its own purposes of

evaluating an underwriting risk, and that as member of the

Medical Information Bureau (hereinafter “MIB” which is an

insurance industry databank organized for the prevention of

fraud among insurance applicants), JNL had the right to submit

4

those test results to MIB.' Unfortunately, when JNL received

the results, they indicated that Mr. Deramus was HIV positive.

Consistent with its underwriting standards, JNL rejected Mr.

Deramus’ application for additional life insurance; however,

Mrs. Deramus was issued a policy.

The notice of rejection mailed to Mr. Deramus on April

26, 1988, did not tell him that he had been rejected because of

the blood test results. Instead, through clerical error, the form

letter indicated that his application had been rejected “because

delivery of the policy was not accepted.” However, the

oversight was corrected two days later when the Deramuses’

agent was advised that Mr. Deramus’ application was rejected

for medical reasons, and he in turn notified and communicated

to Mr. Deramus that his application was declined for

undisclosed and nonspecific confidential medical reasons.

Petitioner’s assertion that Mr. Deramus asked repeatedly

for his medical information is simply not true.” Moreover, Mr.

1. In the event of an HIV-positive test result, the report would merely

indicate that the applicant had a nonspecific abnormal blood test result.

Petitioner asserts that the test results were received by a Dr. Lewis Stewart.

This is not truce. The record is undisputed in reflecting that the testing

laboratory put the name of JNL’s medical director, Dr. Stewart, on the test

results as a matter of protocol indicating that he was the medical director for

INL, but the test results were sent straight to the underwriting department.

2. JNL has no record of any request from Mr. Deramus prior to April

1991, and upon receipt of that request, JNL promptly provided the test results

to his designated physician. Furthermore, the record simply does not support

the claim that anyone made a promise to disclose the medical information to

Mr. Deramus. The Deramuses’ agent merely suggested to Mr. Deramus that

he could attempt to write JNL requesting information regarding the medical

5

Deramus did not rely on JNL to supply him with a diagnosis of

his condition since the record is exceedingly clear that during

the eighteen months following the denial of the additional life

insurance by JNL, Mr. Deramus was under the active care and

treatment of over twenty physicians, several of whom

specialized in the diagnosis of infections, such as HIV. Thus, a

blood test could have been run by any of Mr. Deramus’

physicians at any time.’

In October 1989, Mr. Deramus was hospitalized at

Johns-Hopkins Medical Center, where he was diagnosed as

HIV infected. Mrs. Deramus was also tested shortly thereafter,

and was found to be uninfected. Subsequent testing of Mrs.

Deramus shows that she remains uninfected‘ and that there is no

reasons for rejecting his application; however, he did not guarantee that any

information would be forthcoming.

the condition of his health, and Mr. Deramus never acted with justifiable

reliance on JNL to function in the role of a physician.

3. Petitioner asserts that Mississippi has a public policy that encourages

reporting of sexually transmitted diseases to the appropriate state authorities.

Mississippi State D of Health, Rules and Regulations G :

Reportable Diseases (1985). However, the Petitioner fails to note that these

Rules and Regulations only apply to physicians within the State of Mississippi.

4. Petitioner asserts that she and her husband had been trying to

conceive a child during this period. The record is completely bereft of this

information, (and Respondent denies same). The Petitioner further asserts that

Mr. Deramus did not engage in homosexual or other high risk activity to

expose him to the HIV virus. Again, the record does not support this

6

realistic chance that she will ever be HIV infected due to any

possible exposure from Mr. Deramus. On June 28, 1991, Mr.

Deramus died from AIDS related complications.

On March 19, 1992, Mrs. Deramus, individually and as

the administratrix of the estate of her deceased husband, Mr.

Deramus, filed a Complaint against JNL in the Circuit Court of

the First Judicial District of Hinds County, Mississippi, seeking

individual tort damages in the amount of $5,000,000 for actual

damages, and $10,000,000 in punitive damages; the Complaint

did not seek injunctive or declaratory relief. JNL removed the

action to the United States District Court for the Southern

District of Mississippi on the basis of diversity jurisdiction.

On April 18, 1994, the Plaintiff-Petitioner moved for a

partial summary judgment on the issue of liability taking the

position that there was “no genuine issue of material fact” and

that she was entitled to a ruling “as a matter of law” on the

claim that JNL owed and breached a duty to disclose to her and

her husband the results of the blood test run in conjunction with

their applications for insurance to JNL. In response, JNL filed

its Own cross-motion to dismiss or for summary judgment,

arguing that as a matter of law it had no duty to disclose to the

Deramuses the results of its risk evaluation, including blood

tests, and that regardless of the existence vel non of any duty to

disclose medical information, JNL was still entitled to a

summary judgment because the record revealed that no injury

or damage was proximately caused or contributed to by the

alleged negligence of JNL. The Petitioner at no time during

assertion. Petitioner also claims that she faced exposure to HIV through her

husband; again, all subsequent tests on Mrs. Deramus show that she is HIV

negative.

7

the district court litigation suggested that Mississippi law

on the issues presented was unclear; to the contrary,

Piaintiff-Petitioner argued that there was no genuine issue

of material fact and that the law was sufficiently clear to

enable her to prevail as a matter of law.

Upon reviewing the respective cross-motions, the

district court, in a rather lengthy and exhaustive opinion,

rejected each of the Plaintiffs various theories for the

recognition of a duty. The district court made an Erie-guess, as

this exact fact pattern had never been presented to the

Mississippi Supreme Court, and interpreted existing Mississippi

case law to determine the course the Mississippi Supreme Court

would follow. The district court responded to each issue raised.

The case was appealed to the Fifth Circuit. In addition

to receiving the respective briefs of the parties, the Fifth Circuit

granted Mrs. Deramus’ request to present oral argument. In

neither oral argument nor in her brief and reply brief

submitted to the Fifth Circuit, did the Plaintiff-Petitioner

ask for certification of the primary question. As Petitioner

again argued that the law was sufficiently clear and in her

favor, she in effect assured the Fifth Circuit that it was

capable of deciding the duty question without the assistance

of the Mississippi Supreme Court. Moreover, both the

Plaintiff-Petitioner and the Defendant-Respondent, as is written

in their respective briefs, agreed that the standard of review was

de novo. After considering the arguments raised in the briefs

and at oral arguments, the Fifth Circuit affirmed the ruling of

the district court in an unanimous per curiam opinion.

The Plaintiff-Petitioner then filed a petition for rehearing

en banc. In that brief, Mrs. Deramus again chose not to

request certification of a question to the Mississippi

Supreme Court, and did not press her recently-formulated

argument that the Court of Appeals allegedly failed to

employ a de novo standard of review. In a rather emotional

plea, Plaintiff again relied on Mississippi jurisprudence, which

she claimed “contain[ed] numerous examples” of a statutory or

common law obligation to compel disclosure, thereby arguing

that Mississippi law was clear and in her favor. (Appellant’s

Rehearing Brief at 12). The Fifth Circuit denied rehearing.

Hence, this Petition for Writ of Certiorari followed.

However, instead of pursuing the legal theories asserted in the

lower courts, the Petitioner has decided to put before this Court

issues never seen or heard of in this case until now. Moreover,

the Petitioner is attempting to invoke this Court’s discretionary

certiorari power by creating from whole cloth a “conflict among

circuits” argument to gain entrance to this Court.

REASONS FOR DENYING THE WRIT

L

THE RECORD IS DEVOID OF ANY INDICATION

THAT THE FIFTH CIRCUIT EMPLOYED ANY OTHER

STANDARD THAN DE NOVO REVIEW.

The Petitioner contends that Salve Regina College v.

Russell, 499 U.S. 225 (1991) mandates that de novo review be

conducted for all district court judgments in which an Erie-

guess was made on a question of state law in the disposition of

the case. It is further asserted that the Fifth Circuit did not

review the decision of the district court de novo, and that

9

consequently, certiorari should be granted to correct this alleged

error. This argument is simply without merit and provides no

basis for the Court to undertake review.

First, there is absolutely no indication whatsoever that

the Court of Appeals did not employ a de novo standard in the

instant case. As stated earlier, both Mrs. Deramus and JNL in

their respective briefs to the Fifth Circuit indicated that the

standard of review was de novo. Merely because the Fifth

Circuit panel issued an unanimous per curiam affirmance

adopting the reasoning of the district court does not support any

inference that the Court of Appeals failed to conduct a de novo

review.

Second, in her suggestion for rehearing before the Fifth

Circuit, Petitioner did not raise this alleged failure to follow the

proper standard of review as a ground for i ion, and

thus, it is waived or procedurally barred. Youakim vy. Miller,

425 U.S. 231 (1976); ETC. v. Grolier, 462 U.S. 19, 23 n.6

(1983).

Fourth, the facts of Salve Regina involved a full blown

trial conducted at the district court level. Because trials are so

cumbersome and exhausting on trial judges who have to

Continuously make evidentiary rulings in their role as fact-finder,

the Supreme Court insisted that, on appeal, a de novo standard

10

was more favored as it would let a panel of appellate judges

pause for an “extended reflection” and engage in “reflective

dialogue and collective judgment.” 499 U.S. at 232. In the case

at bar, the lower court did not have to confront the pressures of

a trial and was faced only with answering a question as a matter

of law on cross-motions for summary judgment; thus, the

concerns of Salve Regina are not at play here.

Fifth and most important, is that the Salve Regina Court

recognized that “[i]f the [C]ourt of [A]ppeals finds that the

district court’s analytical sophistication and research have

exhausted the state-law inquiry, little more need be said in an

appellate opinion.” 499 U.S. at 232-33. Thus, there is no need

for the written expression of yet more “reflective judgment” by

the Court of Appeals when the district court, as was the case

here, was faced with a pure question of law, and in its resolution

of the issues, rendered a lengthy and exhaustive opinion on the

subject at bar. In fact, even “[i}]n a case where the controlling

question of state law remains unsettled, it is not unreasonable to

assume that the considered judgment of the [C]ourt of

[A]ppeals frequently will coincide with the reasoned judgment

of the district court.” 499 U.S. at 237. Thus, the fact that the

Fifth Circuit adopted the lower court’s opinion in foto is not

unreasonable under the circumstances presented here, where the

lower court issued such a lengthy opinion thoroughly addressing

each and every claim made by Petitioner.

Again, the record does not indicate that the Fifth Circuit

failed to make a de novo inquiry; the record indicates that the

Fifth Circuit’s opinion on the matter coincided with that of the

district court, and the per curiam panel also found that

Petitioner’s claims were meritless.

1]

IL

THE CERTIFICATION ISSUE WAS NOT RAISED IN

THE LOWER COURT, AND IS THEREFORE

PROCEDURALLY BARRED FROM REVIEW BY THE

UNITED STATES SUPREME COURT.

It is a time honored principle that the “Supreme Court

will not address issues not raised in the Court of Appeals.”

i i ity, 476 U.S. 19, 24

(1986); F.C. v. Grolier, 462 U.S. 19, 23 n.6 (1983); Canton

y..Harmis, 489 U.S. 378 (1989) (where a claim was not passed

on by Court of Appeals and was not presented to the district

court for decision, it would not be considered by the Supreme

Court on a writ of certiorari); California v. Taylor, 353 U.S.

553 (1957) (where argument was not briefed nor mentioned in

oral argument, it would be considered waived and Supreme

Court would not-récognize such contention on certiorari).

Traditional Supreme Court practices preclude grant of certiorari

when the question presented was not pressed or passed on

below. United States v. Williams, 504 U.S. 36 (1992).

Thus, the Supreme Court is precluded from granting

certiorari on the certification question presented by Petitioner

in its Petition for Writ of Certiorari. The Petitioner had at least

two opportunities to request certification of a question of law

to the Mississippi Supreme Court, and failed on each occasion.

Now, out of left field, Petitioner seeks to lodge this colorable

claim before the highest Court in the land, without allowing the

court below to pass judgment.

Petitioner does not present any reasons justifying the

Supreme Court departing from its traditional practice and to

12

grant the writ, especially when the Petitioner is now seeking, for

the first time, certification to the state Supreme Court at such

a late stage in the game. See Lehman Brothers v. Schein, 416

U.S. 386, 392 (1974) (concurring, Rehnquist, C.J.) (disapproval

noted of petitioner who sought certification for the first time at

the petition for rehearing in the Court of Appeals because

“petitioners s[ought] to upset the result of more than two years

of trial and appellate litigation on [the] basis of [that] point”).

As a court of review, not one of first view, the Supreme Court

will entertain issues withheld until merits briefing “only in the

most exceptional cases.” Oklahoma Tax Commission v.

Chickasaw Nation, 515U.S.___,_, 132 L_Ed.2d 400, 408

(1995). The Petitioner cites no exceptional circumstances in this

case to justify the Court relaxing the procedural bar here.

In any event, where the failure of the Petitioner to

present an issue to the lower court on which she seeks the

Supreme Court to grant certiorari, is “brought to [the Court’s]

attention . . . in respondent’s brief in opposition to the petition

for certiorari,” the Court’s “normal practice . . . is to refrain

from addressing issues not raised in the Court of Appeals.”

E.E.0.C_ v, Fair Labor Relations Authority, 476 U.S. 19, 24

(1986). Since JNL has brought to the Court’s attention the fact

that Mrs. Deramus did not raise in the lower courts the issue of

certifying any question to the Mississippi Supreme Court, the

United States Supreme Court must find this issue is

procedurally barred, and alternatively, not worthy of review.

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Il.

ALL CIRCUITS UNDERSTAND THAT

CERTIFICATION IS DISCRETIONARY, AND THERE

IS NO CONFUSION OR CONFLICT AMONG THE

CIRCUITS ON THE USE OF CERTIFICATION.

Certification is not obligatory, but is clearly

discretionary. Lehman Brothers v. Schein, 416 U.S. 386, 390-

91 (1974) (the Court held that “[w]e do not suggest that where

there is doubt as to local law and where certification procedure

is available, resort to it is obligatory”); Elkins v. Moreno, 435

U.S. 647, 662 n.16 (1978) (certification is “not always possible

nor . . required”). In the spirit of “cooperative judicial

federalism . . . [i]ts use in a given case rests in the sound

discretion of the federal court.” Lehman Brothers, 416 U.S. at

391. It certainly would not be “cooperative,” to require Courts

of Appeals to submit virtually all state law questions to the

highest state court for resolve. For that reason, certification

remains discretionary. In this case, that discretion was not

abused, particularly when certification was neither requested by

Mrs. Deramus nor suggested by her to the Fifth Circuit that

state law was so unsettled as to warrant certification.

Moreover, if the rule were anything but discretionary,

federal courts would be encouraged to abdicate their Article II

function to be a court of competent jurisdiction, where the

federal court’s very task is to predict/ interpret how the highest

court of that State would decide the question. Houston v. Hill,

482 U.S. 451, 468 (1987) (even if the statute has never been

interpreted by a state tribunal, it is the duty of the federal court

to exercise its properly invoked jurisdiction). State supreme

courts would become dumping grounds for every federal case

14

in which there was no exact replica in state case law. Bares v.

Atlantic & Pacific Life Ins. Co, of America, 514 F. 2d 704, 705

n.4 (Sth Cir. 1975) (we use much judgment, restraint and

discretion in certifying; we do not abdicate); Boyter v. C.LR.

Services, 668 F. 2d 1382 (4th Cir. 1981) (we do not care to

burden our state counterparts with unnecessary certification

requests). Virtually all Erie-guesses would become candidates

for certification. The “mere difficulty in ascertaining local law

is no excuse for remitting the parties to a state tribunal for the

start of another lawsuit.” Lehman Brothers, 416 U.S. at 390-91.

Another factor for consideration in the certification

equation is that the procedure should not be pursued where it

is not expedient. In certain instances, certification “saves time,

energy, and resources,” Lehman Brothers, 416 U.S. at 391, but

in others “it entails more delay and expense than would an

ordinary decision of the state question on the merits by the

federal court.” 416 U.S. at 394.° In this case, substantial delay

5. See also Salve Regina, 499 U.S. at 237 n.4 (certification should be

pursued where it can be “successfully utilized”); Elkins v, Moreno, 435 U.S.

647, 662 n.16 (1978) (certification desirable where it is an “efficient method

for obtaining a ruling from the highest court of the State”); Houston v. Hill,

482 U.S. 451, 471 (1987) (where delay and expense are chief drawbacks in

abstention, then only does availability of certification become an important

factor); Meredith v, City of Winter Haven, 320 U.S. 228, 237 (1943) (to remit

the parties to the state courts is to delay further the disposition of the litigation

which has been pending for more than two years and which is now ready for

decision. It is to penalize petitiuners for resorting to a jurisdiction which they

were entitled to invoke, in the absence of any special circumstances which

would warrant a refusal to exercise it).

15

would certainly occur.®

Moreover, even upon application for certification by a

federal court, the Mississippi “Supreme Court may, in its

discretion, decline to answer the questions certified to it.”

Mississippi Rules of Appellate Procedure, Rule 20.’ There is no

guarantee that the Mississippi Supreme Court would answer a

question certified from this case, especially in light of the fact

that there was substantial case law which had been previously

decided on the duties owed.

a hel fusi 4

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6. Until 1994, the State of Mississippi did not have an intermediary

state court of appeals. Thus, the Mississippi Supreme Court suffered a

backlog of more than three years, and still continues to have a backlog in

spite of some of the pressures which the intermediate Court of Appeals has

taken off of its shoulders. Under those circumstances, certification of a

question would have served only to create additional expenses and delay for

the litigants. It would not have saved the time and energy and resources.

Moreover, putting needless certified questions only results in pushing back

an already crowded appellate docket. Kirchmayr, Reducing the Appellate

Docket, Mississippi Judicial College News (1996). (Appendix at A1).

7. In its discretion, the Mississippi Supreme Court has declined to

answer certified questions before. See Jones vy, Harris, 460 So. 2d 120 (Miss.

1984) (declining to answer the question presented), Cowan v. Ford Motor

Company, 437 So. 2d 46 (Miss. 1983) (declined to answer because matter was

previously decided and was not a matter of great public interest presenting any

unique or unusual legal problem not already decided). Even in the case which

Petitioner trumps as being demonstrative of this alleged “circuit-split” on

certification, Colonial Properties, Inc, v. Vogue Cleaners, Inc,, 77 F. 3d 384,

opinion after denial of certified question, 86 F.3d 210 (11th Cir. 1996), the

state court there declined to answer the certified question posed by the

Eleventh Circuit.

16 .

The Petitioner does a song and dance about how certain

circuits may be certifying more questions than other circuits,

and on that basis, the Supreme Court needs to clarify when

federal courts should certify issues of state law. This is nothing

more than a rouse to create the illusion that there is some

tension among the circuits and that an issue has percolated to

the point where the United States Supreme Court must address

it. No such tension exists.

As a general proposition, a federal court is bound to

answer a state law question the way a state court would, and

has a duty to predict what that may be. Moreover, where a

decision turns upon applicable state law, and the state’s highest

court has not adjudicated the issue, a federal court must

determine what decision the highest state court would reach if

faced with the issue.Jackson v. Johns-Mansville Sales Corp.,

781 F. 2d 394, cert. denied, 478 U.S. 1022 (Sth Cir. 1986). See

also Ryans v. Royal Ins. Co. of America, 916 F. 2d 731 (ist

Cir. 1986) (federal court can assume that state’s highest court

would adopt view which, consistent with its precedent, seems

best supported by force of logic and better-reasoned

authorities); Plummer v. Lederle Laboratories, Div, Of

American Cyanamid Co,, 819 F. 2d 349 (2nd Cir. 1987)

(federal court sitting in diversity must follow law directed by the

Supreme Court of the state whose law is found to be applicable,

and if there is no direct decision by the highest court of that

state, the federal court should determine what it believes that

state’s highest court would find if the issue were before it);

Howell vy. Celotex Corp., 904 F. 2d 3 (3rd Cir. 1990) (in

diversity cases, federal courts apply substantive law of state in

which district court sat; where that law has not been settled by

highest court of state, Court of Appeals must predict possible

outcome of that court); Morrissey v. Williams Morrow & Co.,

17

Inc., 739 F. 2d 962 (4th Cir. 1984) (federal court is justified in

adopting single-publication rule in diversity defamation action,

even though state Supreme Court had not yet faced such issue);

Batts vy. Tow-Motor Forklift Co,, 66 F. 3d 743 (Sth Cir. 1989)

(diversity courts follow state law on substantive matters not

governed by constitution or by federal law; however, court is

not required to be prescient, and Evie and its progeny require no

more of federal court than conscientiously to satisfy its duty to

predict how state court will decide question); Hines v. Joy Mfg.

Co., 850 F. 2d 1146 (6th Cir. 1988) (same); Giffin v.

Summerlin, 78 F. 3d 1227 (7th Cir. 1978) (same); Dabney v.

Montgomery Ward & Co. Inc., 761 F. 2d 494 (8th Cir. 1985)

(same); Henkin v. Northrop Corp, 921 F. 2d 864 (9th Cir.

1990) (same); Weiss v. United States, 787 F. 2d 518 (10th Cir.

1986) (same); Towne Realty, Inc. v. Safeco Ins. Co. of

America, 854 F. 2d 1264 (11th Cir. 1988) (same).

There are no ambiguities, tensions or glaring

contradictions among the circuit courts of appeals on this point.

Every circuit accepts the general rule of Lehman Brothers that

it is within its discretion to decide whether to have a question

certified. However, every circuit also understands that it has a

duty to follow that state’s law where settled or discernible, and

it cannot shirk its responsibility where it may have to predict the

outcome on any unsettled or partially settled questions of state

law. Since “Congress . . . adopted the policy of opening the

federal courts to suitors in all diversity cases involving the

jurisdictional amount,” it would be intolerable to allow a policy

which would strip federal courts of “jurisdiction merely because

they involve state law or because the law is uncertain or difficult

to determine.” Meredith v. City of Winter Haven, 320 U.S. 228,

236-37 (1943).

18

In her certiorari petition, Mrs. Deramus demands that

this Court issue a rule essentially requiring certification in all

“Erie-guess” cases. Any other rule besides Lehman Brothers

discretionary standard would be tantamount to forcing the

courts to automatically submit virtually every question of state

law to that state’s highest court because rarely would two

factual situations be mirror images. Salve Regina College v.

Russell, 938 F. 2d 315, 318 (ist Cir. 1991) (after remand from

the Supreme Court, the First Circuit refused to certify questions

to Rhode Island Supreme Court as they were “neither necessary

nor appropriate” even though the state court had not yet been

“faced squarely” with these “unique facts” or a “fact pattern like

this one”).

It is clear to all circuits that they can certify questions

should they so choose, and that certification in some instances

can prove helpful, but that there is absolutely no reason to

certify where it is reasonably clear what a state court would do

in that circumstance. “It would be manifestly inappropriate to

certify a question in a case where . . . there is no uncertain

question of state law.” Houston v. Hill, 482 U.S. at 471. See

also VanHaaren v. State Farm Mut. Auto. Ins. Co,, 989 F. 2d

1 (ist Cir. 1993) (absent controlling state court precedent,

federal court sitting in diversity may certify state law issue to

state’s highest court or undertake its prediction when course

state courts would take is reasonably clear); Watson vy. City of

New York, 92 F. 3d 31 (2nd Cir. 1996) (certification should be

used only when there is a split of authority on issue or when

case presents a complex question of state law for which no state

authority can be found); Wassall vy. DeCaro, 91 F. 3d 443 (3rd

Cir. 1996) (federal court was required to do what it predicted

Pennsylvania Supreme Court would do, and in making its

determination give proper regard to opinions of Pennsylvania’s

19

intermediate courts, policies underlying applicable legal

doctrine, current trends in the law, and the decisions of other

courts); Roe vy, Doe, 28 F. 3d 404 (4th Cir. 1994) (only if

available state law is clearly insufficient should federal court in

diversity case certify issue to state court); Transcontinental Gas

Pipeline Corp. v. Transportation Ins. Co., 958 F. 2d 622 (Sth

Cir. 1992) (certification to state supreme court is not a panacea

for resolution of those complex or difficult state law questions

which have not been answered by the highest court of the state);

Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F. 3d 370 (6th

Cir. 1995) (utilization of certification lies within the sound

discretion of the judge, and where Kentucky law was relatively

settled, it was unnecessary); Patz v. St. Paul Fire & Marine Ins.

Co,, 15 F. 3d 699 (7th Cir. 1994) (certification unnecessary

where there is no room for serious doubt about how state court

would answer question); Starks v. Rent-A-Center, 58 F. 3d 358

(8th Cir. 1995) (certification unnecessary where consumer failed

to demonstrate that prior decision by district court was clearly

erroneous); Micomonaco v. State of Washington, 45 F. 3d 316

(9th Cir. 1995) (certification useless and inappropriate where

state court is no better position than federal court to answer

unclear question of state law, and use of certification rests

within sound discretion of federal court); In re Fingado, 955 F.

2d 31 (10th Cir. 1992) (certification appropriate where no

controlling precedent existed in either New Mexico Supreme

Court of New Mexico Court of Appeals); Colonial Properties,

Inc. v. Vogue Cleaners, Inc,, 77 F. 3d 384, opinion after denial

of certified question, 86 F. 3d 210 (11th Cir. 1996) (first

impression question on Alabama state law can be certified, but

there is no guarantee that state supreme court will answer

question); Noble v. U.S. Parole Comm'n, 82 F. 3d 1108 (D.C.

Cir. 1996) (certification proper where relevant dicta sent mixed

20

signals).*

In addition, the Fifth Circuit is the recognized leader in

having engineered the certification procedure, and having had

the “greatest experience” with it. 17A Wright, Miller & Cooper,

Federal Practice and Procedure: Jurisdiction 2d § 4248, 176 (2d

ed. 1988) (general practice is to allow parties to request and

form question; upon disagreement, the court presents question

on its own). In its certification jurisprudence, the Fifth Circuit

endorses the view that certification is properly denied when the

case is “long in tooth,” when it can be disposed of “with

confidence,” where the “law involved seems clear on its face,”

and the federal court is “relatively certain of its meaning,” even

if it is one of first impression, or where certification entails the

delay of months.

Dist., 632 F. 2d 466, 468 n.3 (Sth Cir. 1980).

The above cases clearly demonstrate that all circuits

understand that certification is the better alternative to

abstention; however, should a circuit feel that there is sufficient

case law to predict how a state court would answer the

question, certification is unnecessary. 17A Wright, Miller &

8. There is one circuit which seems to have the lion’s share of having

certified questions, that being the Eleventh Circuit. See

Alabama, 68 F. 3d 404 (1 1th Cir. 1995); Farsian y. Pfizer, 52 F. 3d 932 (11th

Cir. 1995); Campbell vy, Cutler Hammer, Inc,, 996 F. 2d 1164 (i tth Cir.

1993), McGuire Oil Co, vy. Mapsco, Inc., 958 F. 2d 1552 (11th Cir. 1992).

However, just because one circuit disproportionately uses the certification

procedure, is no justification to change the Lehman Brothers discretionary

standard correctly adhered to by all the other circuits. It is equally important

to note that no other circuit has states as volatile as Alabama and Florida in its

contingency. Thus, one cannot blame the Eleventh Circuit for certifying a few

21

Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4248,

158 (2d ed. 1988); Houston v. Hill, 482 U.S. 451, 468 (1987).

While the Supreme Court has encouraged the use of

certification as an alternative to abstention, the Petitioner

mistakenly believes that this prudent use of certification should

be universally extended to apply to all cases involving the

divination of state law.

When “there are no clear controlling precedents in the

decisions of the Mississippi Supreme Court, the federal court

may certify such questions or propositions of law of this state

to the Mississippi Supreme Court for rendition of a written

opinion . . . [on] Mississippi law.” Rule 20, Mississippi Rules of

Appellate Procedure. Thus, where there is controlling

precedent, the federal courts have no reason to burden the

Mississippi Supreme Court with repetitive questions.

1. Certification in the Recent Past on Question

of Duty was Applicable Authority.

This case involves the issue of whether JNL owed a

legal duty to warn the Deramuses of a risk JNL neither created

nor controlled. The Fifth Circuit had already certified a similar

question to the Mississippi Supreme Court in Puckett v.

Rufenacht, Bromagen & Hertz, 587 So. 2d 273 (Miss. 1991),

and knew from that experience and the guidance provided

22

therein, how the Mississippi Supreme Court would resolve

Deramus’ claims. In Puckett, the Fifth Circuit had certified to

the Mississippi Supreme Court the questions regarding the

existence and/or scope of duties which were allegedly owed by

a commodities broker to warn of or protect a customer from

risks known to the broker. The Mississippi Supreme Court held

that a commodities broker in a nondiscretionary account only

owed his customer a duty to properly execute trades as directed

by him and did not owe any fiduciary or general negligence duty

to intervene and protect or warn against risk within the special

knowledge of the broker. Most telling of the duty issue in the

instant case is the Mississippi Supreme Court’s response to the

Plaintiff Puckett’s theory that his commodities broker should

have gone out of his way to protect him from a peril not created

by the Defendant broker:

If a society is to be free, it must demand of

every person who, completely on his own,

makes a mistake that he has no legal right to

shift from his shoulders onto another’s the

suffering it causes. In our modern society, en

masse we are our brothers’ keepers, we pay

taxes for schools, highways, public health and

hundreds of other public programs. On an

individual bases, however, no man shouid be

required by law to pay for what was soleiy and

purely another man’s mistake.

It may be morally reprehensible for one man to

watch another open a window on the twentieth

floor of a skyscraper, climb though it and

jumped out, when he could easily have reached

out and stopped him. To impose a legal

23

responsibility upon the bystander to stop him,

however, is an entirely different matter.

Puckett, 578 So. 2d at 278. “The only sin the defendants

[commodities brokers] can be accused of committing is standing

by while Dr. Puckett committed fiscal hara-kiri.” Id. Likewise,

while the facts in the case sub judice involve an insurance

company and a prospective applicant for additional coverage,

the reasoning of Puckett is applicable to the question of whether

the insurance company has a duty to disclose the results of its

underwriting lab tests to the applicant, when the insurance

company did nothing to create the HIV virus in Mr. Deramus

and where there was no detrimental reliance on the part of Mr.

Deramus on an expectation that a life insurance company would

safeguard his health.

There was no reason to certify another question on this

matter, as clear precedent existed as to how the Mississippi

Supreme Court would answer. Judge Wingate, considering Mrs.

Deramus’ plea in the district court, adopted the above quoted

language from Puckett in his opinion, and properly applied it to

mean that “where a party does not create or cause the peril, said

party is under no obligation to prevent the consequences of the

peril.” (Petitioner’s Appendix at A17). There was no reason for

either the district court or the Court of Appeals to certify a

question on this point of undertaking duties, as it had been

certified before in a similar context, and the answer of the

Mississippi Supreme Court left little room for doubt.

2. Clear and controlling precedent existed in

Mississippi case law on the duty to disclose.

Tn addition to Puckett, the Mississippi Supreme Court

24

had already made several pronouncements on each of the

Plaintiff-Petitioner’s iegal theories for liability, as relied upon

and closely followed in the district court’s opinion and the

Court of Appeals affirmance of the district court’s opinion. In

addition to the Mississippi authorities cited in the district court’s

opinion, the Fifth Circuit had before it the reasoning of the

Mississippi Supreme Court in Long vy. Patterson, 22 So. 2d 490

(Miss. 1945), wherein the court faced a similar duty question,

and flatly refused to recognize such a duty:

Is there a duty imposed by law upon any person

to warn another of an approaching or impending

danger to the latter, when the person sought to

be charged had or has nothing to do with

putting into operation, or with the continuance

in operation of, the dangerous agency which

approaches? Whatever we might think of this as

a moral proposition, it is a question to which the

settled law gives a negative answer. As stated in

the Restatement, Vol. 2 Torts, sec. 314, “the

actor’s realization that action on his part is

necessary for another’s aid or protection does

not of itself impose upon him a duty to take

such action”. And an illustration is given as

follows: ‘A sees B, a blind man, about to step

into the street in front of an approaching

automobile. A could prevent B from doing so by

word or touch without delaying his own

progress. A does not do so and B is run over

and hurt. A is under no duty to prevent B from

stepping into the street and is not liable to B’.

But the rule is otherwise where the actor

undertakes to render such service, although

25

gratuitously, and the other person relies on the

performance of the undertaking.

Long, 22 So. 2d at 492. This has long been the law, and there

has been no intervening case law propounded by the Mississippi

Supreme Court to say any differently. Indeed, the Mississippi

Supreme Court has underscored that nonphysicians are not held

to the duty otherwise expected of physicians to warn or protect

others from adverse health conditions. Foster v. Bass, 575 So.

2d 967 (Miss. 1990) (refusing to impose a duty on Catholic

Charities for failing to ensure that a child placed through its

adoption agency had been tested for Phenylketonuria and

refusing to hold it liable for failing to warn that the child was at

risk, as Catholic Charities was not a physician, and could not

have the duties and standard of care regarding physicians

imputed to it). Of course, this was the very duty the instant

Plaintiff-Petitioner sought to have imposed by the courts below.

There was more than ample authority under Mississippi

law for the Fifth Circuit to rely upon in affirming the holding of

the district court without certifying a question sua sponte to the

Mississippi Supreme Court. In light of the particular authority

of Long, Puckett, and Foster, JNL did not have a duty under

Mississippi law to tell Mr. Deramus, and most certainly not

others, such as his wife, about the results of his blood tests. Had

JNL undertaken to tell him, then JNL would have exposed itself

to liability should the results have been a false positive. The test

results run by JNL were for its own underwriting purposes; the

- record is crystal clear that Mr. Deramus in no way relied upon

JNL to safeguard the condition of his health. The fact that Mr.

Deramus’ HIV infection was not otherwise medically diagnosed

for another eighteen months is hardly JNL’s fault. During this

period, Mr. Deramus attended to his own health by seeking the

26

care of numerous physicians of his own choosing.

The duty question is the central issue in this case, not

the rate of certification among the various circuits. Petitioner

never argued that the ultimate holding of either the Fifth Circuit

or that the district court was clearly erroneous, wrong, or

unjust, or that the outcome would have been different had the

issue been decided by the state court. As Petitioner has failed to

even address a contention that certification would have

produced a different result, the argument that a question should

have been certified is nothing more than an academic exercise.

Petitioner is the one who first filed a motion for

summary judgment in district court. There, she advanced four

theories of liability on which JNL had a duty to disclose the

results of the HIV test. On each one of these grounds, Plaintiff-

Petitioner argued that the law in Mississippi was clear and that

it was unequivocally in her favor. Upon losing her summary

judgment motion in district court, she appealed to the Fifth

Circuit Court of Appeals.

In her brief to the Fifth Circuit, Petitioner claimed that

“{ujnder longstanding and well-developed case law in

Mississippi and elsewhere, the existing commercial relationship

between [the parties] . . . constituted a special or confidential

relationship that imposed a higher standard duty of disclosure,”

(Appellant’s Brief at 10), and that “[s]ound public policy and

established precedent [warranted] the duty of disclosure,”

27

(Appellant’s Brief at 11), and that “there [wa]s a substantial

basis to reverse the Erie-guess of the District Court as to the

extent of the duty imposed upon [JNL] under Mississippi law,

so as [to create a jury] question.” (Appellant’s Brief at 13-14)

(emphasis added). The appellant even conceded that “the

precise fact situation raised here has not been the subject of

prior reported decisions in Mississippi, but there is a

substantial body of case law that reflects ‘the more cogent

reasoning of the best and most wide-spread authority’ from

around the country as to the imposition of a duty in similar

circumstances. Both in Mississippi and elsewhere, duties have

been found to exist and to provide the bases for jury

consideration.” (Appellant’s Brief at 14) (emphasis added).

Appellant again stated that the “Mississippi Supreme Court

- ++ ha[s] had numerous opportunities to develop the law

for the imposition of duties in [this] state.” (Appellant’s Brief at

14) (emphasis added). In summation, appellant stated that “(i]t

is entirely consistent with the extensive jurisprudence in

Mississippi to impose liability on [JNL] for its failure to

speak.” (Appellant’s Brief at 23) (emphasis added). In the

suggestion for rehearing, Appellant-Petitioner again did not

change her posture, and stated that “Mississippi jurisprudence

contains numerous examples in which . . . to compel

disclosure [between two parties].” (Appellant’s Rehearing Brief

at 12) (emphasis added). This list of quotes is not exhaustive by

any means. At each and every turn, she argued that the law was

clear to the district court, and to the Court of Appeals, that the

law was clear and that the district court had just made an

incorrect Erie-guess. Not only did Appellant-Petitioner never

suggest certification to either the district court or the Court of

Appeals, due to her insistence about her position being clearly

defined in Mississippi law, the Fifth Circuit had no reason to sua

sponte certify any questions.

28

However, at this juncture, Petitioner, dissatisfied with

the results in each of the lower courts, comes before this Court

and argues the complete opposite of what she has been saying

all along. Now she states that the law was unclear, ambiguous,

and unsettled, and therefore, the issues or questions should have

been certified to the Mississippi Supreme Court, as the Fifth

Circuit “charg[ed] ahead with speculative answers on broadly

important and unsettled issues of state law and public policy.”

(Petitioner’s Petition for Writ of Certiorari at 18). “The purpose

of certification is to ascertain what the state law is, not. . . to

afford a party an opportunity to persuade the court to say

something else.” Tarr y. Manchester Ins, Corp., 544 F. 2d 14,

15 (1st Cir. 1976). Mrs. Deramus’ changing of the masks is

highly disingenuous. This maneuver is nothing more than a

desperate ploy for another opportunity to persuade a different

court to say something else.

It is a well settled principle that where an appellant

pursues conflicting and alternating legal theories on appeal as

opposed to in the lower courts, such is procedurally barred.

Capps v. Humble Oil & Refining Co., 536 F. 2d 80 (Sth Cir.

1976) (a party cannot raise a new theory on appeal that was not

presented to the court below); Alexander v. Town & Country

Estates, Inc,, 535 F. 2d 1081 (8th Cir. 1976) (appellate court

will not decide case on legal theory directly contrary to that

advanced by appellants at trial); Kassman vy. America

University, 546 F. 2d 1029 (D.C.Cir. 1976) (litigative theories

not pursued in the trial court ordinarily will not be entertained

in an appellate tribunal, and questions not properly raised and

preserved will normally be spurned on appeal); Universe

Tankships, Inc. vy. United States, 528 F. 2d 73 (3rd Cir. 1975)

(different theory of recovery may not be urged on appeal where

prejudice would result to other party); Browzin v. Catholic

29

University of America, 527 F. 2d 843 (D.C.Cir. 1975) (where

plaintiff tries his case on one theory in the district court, without

any indication of other theories, he will not ordinarily be heard

to press those other theories on appeal). In that vein, Petitioner

should be barred from doing an about-face and initiating an

argument that Mississippi law on the subject is so unclear as to

mandate certification.

CONCLUSION

Despite the unfortunate circumstances surrounding the

AIDS-caused death of Frank Deramus, JNL bears no liability

in this instance as a matter of Mississippi law. The district court

found this to be the case, as well as the United States Court of

Appeals for the Fifth Circuit in a de novo review of the district

court’s reasoning. Displeased with these results, Petitioner now

seeks to upset over four years of litigation by asking this

Honorable Court to review an issue never addressed by the

lower court. Moreover, the certification jargon exposes the

inherent contradictions in her request for certiorari, as her

current basis for review is in direct conflict with that which she

argued to the lower courts. Therefore, the issue of whether a

question should have been certified to the Mississippi Supreme

Court is barred. While Petitioner has parroted the circuit split

criteria for certiorari review by this Court, the alleged inequality

among the circuits on rate of certification is not only unfounded,

but is hardly of consequence. It is clear that certification is a

discretionary matter, has always been a discretionary matter,

and in all wisdom and prudence, should always be discretionary,

world without end. Furthermore, considering the backlog in the

docket of the Mississippi Supreme Court, certification is neither

expedient, nor does it guarantee an answer from the state court.

30

Lastly, the established state law in Mississippi simply will not

recognize the claim that the Petitioner has asserted on the

merits; accordingly, Petitioner never argues that certification

would produce a different result. There is no issue which the

Petitioner presents that warrants review by this Court.

FOR THE FOREGOING REASONS, the Respondent

respectfully requests that United States Supreme Court deny

writ of certiorari in the present case.

Respectfully Submitted,

D. COLLIER GRAHAM, Esq.

Counsel of Record

EUGENE NAYLOR

DEBBIE GOSWAMI

Shell, Buford, Bufkin, Callicutt & Perry

920 Trustmark Building

P.O. Box 157

Jackson, MS. 39205

Dated: January 13, 1997.

Al

MISSISSIPPI JUDICIAL COLLEGE NEWS

Vol. VII, Number 3

Winter 1996

REDUCING THE APPELLATE BACKLOG

By: Steven Kirchmayr,

Court Administrator

Mississippi Supreme Court

For at least fifteen (15) years, appeals to the Supreme

Court have steadily increased causing a backlog of cases as

well as unacceptable delays in the disposition of cases. The

Justices of the Supreme Court, with the support of the bar,

brought the appeal backlog/delay problems to the attention

of the legislature. In response to the concerns presented, the

Mississippi Legislature created the Court of Appeals as well

as a new appellate structure. The Judges of the Court of

Appeals took office in January, 1995 and immediately

began considering cases. The question now is: "What

progress has been made in reducing the backlog of appellate

cases?"

Prior to 1995, there were more new appeals being

filed than dispositions reached in cases. However, during

the calendar year 1995, the combined efforts of the

Supreme Court and the Court of Appeals resulted in more

cases being disposed of than new appeals filed. In 1995, one

thousand, three hundred and eighty (1,380) cases were

disposed of while one thousand, one hundred and thirty-

eight (1,138) new appeals were filed.

A2

Statistics gathered so far in 1996, from January

through October, show that nine hundred and sixty-seven

(967) new appeals have been filed this year, and that the

combined efforts of the Supreme Court and the Court of

Appeals have disposed of one thousand, one hundred and

eighty-one (1,181) cases, an average of one hundred and

eighteen (118) cases per month.

While maintaining its caseload, the Supreme Court

has acquired additional duties relating to the new appellate

structure. The Court now screens all appeals filed in the

Supreme Court to determine which are appropriate for

assignment to the Court of Appeals and which should be

retained by the Supreme Court. The Supreme Court must

also decide whether to review a decision of the Court of

Appeals when a party seeks review in the Supreme Court by

filing a petition for writ of certiorari.

Of the one hundred and seventeen (117) petitions for |

certiorari which have been filed in the Supreme Court this _

year, the Court has disposed of one hundred (100), granting

fifteen (15) and denying eighty-five (85). Only seventeen

(17) petitions for certiorari were pending before the Court

at the end of October.

So far this year, the number of motions filed in the

Supreme Court, excluding motions for time, was two

thousand, five hundred and fourteen (2,514), and the

Supreme Court had disposed of two thousand, six hundred

and sixty-eight (2,668) motions.

A3

In the years preceding 1995, the number of cases

pending at the end of each year in the Supreme Court

steadily increased. Since 1995, however, the number of

pending cases had decreased by two hundred and thirty-

three (233) cases. By October of this year, the number of

pending cases had further decreased by two hundred and

fourteen (214) cases.

Hard work by the justices of the Supreme Court and

the judges of the Court of Appeals has made the significant

reduction in the backlog of cases in the past twenty-two

(22) months possible. All of the justices, judges, lawyers,

and legislators who participated in planning and creating the

new appellate structure have every right to be extremely

pleased, because the backlog of appellate cases should be

nonexistent at the end of the next twenty-two (22) months.