# Opposition Brief — Deramus v. Jackson National Life Insurance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1115

## Text

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

7

> 7 ne .
aed i rae : a
: Rs toate AS ;
oe sols ee : as al

ee ay

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.

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1955%3A2. Public record. Not legal advice.