Dairyland Insurance Company v. Ann R. Makover, and Bernard Makover v. Robert Lawrence Knauer

However, we process. equivalent some statutory language and found that Food, Act Drug and Cosmetic history of the judi- approval. require such

does not per- fill legislate to may not

cial branch Constitu- public policy. Our voids in

ceived Congress. Wil- job See leaves that Corp., 566 Investment v. First Houston son J., 1978) (Hill, (5th Cir. F.2d

dissenting) light of Transamerica vacated Advisors, Lewis, 444 Inc. v. U.S. Mortgage (1979). L.Ed.2d 146 100 S.Ct. example, studies since 1962 scientific

For argument that ex- provide strong

might in the definition

cipients be included should necessarily drug.” Such a decision

of “new pharmaco- complex

implicates chemical judicial branch

logical considerations. such equipped properly to assess con-

is not

siderations. sum, Congress legislated we hold that drug” as used in “new term ingredi- 321(p) only the active applies Accordingly, drug product. we

ent of a injunction issued preliminary

vacate

the district court. in-

VACATED REMANDED

structions to DISMISS. COMPANY,

DAIRYLAND INSURANCE

Plaintiff-Appellee, MAKOVER, and Bernard

Ann R.

Makover, Defendants-Appellants, KNAUER, al., et

Robert Lawrence

Defendants-Appellees.

No. 80-7232. Appeals,

United States

Fifth Circuit.

BUnit

Sept. Hamilton,

Neely, Eichelberger, Player, Welch, Eichelberger, James A. At- Hines & lanta, Ga., defendants-appellants. for Hurt, Richardson, Garner, Todd & Caden- head, Persons, Atlanta, Ga., Robert J. Dairyland Ins. Co. Mabry,

Henning, & W. C. Chambers Jr., Brooks, Atlanta, Ga., Myers, Arthur L. Co. MILLER,* Judge, FRANK M. Before * Judge the United States Court of Customs designation. sitting by Appeals, and Patent wife, Charlene, CLARK, A. Mr. Knauer’s worked for

JOHNSON, Jr. and THOMAS Farms, Judges. Arden Circuit co-owned Lundeen and a Ms. Suttka. Arden Jr., JOHNSON, M. FRANK purchased truck for Ms. Farms Judge: transportation to and use for from Knauer’s Makover, appel- Bernard Ann and to employment her at Arden Farms. Title case, an adverse appeal from lants in this originally in Ms. pickup truck by jury, in a declara- judgment, after trial subsequently name but was trans- Knauer’s Dairyland brought by tory judgment action Hartford In- ferred to Arden Farms. The concerning the cover- Company Insurance Company, which was named as a surance policy. age an insurance by Dairyland and which is an defendant 1977, a accident in Ford policy In an automobile cov- appellee appeal, in this issued by Robert Knauer wagon driven station ering pickup truck and listed Ms. by driven Ann Makover collided with car Farms Suttka and Arden insureds. Mak- by her husband Bernard and owned seeking a declarato- Hartford cross-claimed by wagon Mr. driven over. The station covering ry judgment policy its Lundeen, by a Ms. who Knauer was owned coverage pickup truck not afford to Mr. did policy by insurance issued was covered an The issue before the district court Knauer. by Dairyland. Dairyland sought a declara- policy was respect with to the Hartford tory Mr. was not judgment Knauer wagon by driven Mr. whether by its issued to Ms. Lundeen. covered involved in the accident Knauer that was precise issue before the district court (/. e., a was a vehicle temporary substitute Dairyland policy respect to the issued truck) subject pickup to substitute Mr. Knauer to Ms. Lundeen was whether coverage policy. Ms. under the permission to use Ms. Lun- implied had had Ms. Knauer to use her Lundeen allowed wagon at time of the deen’s station truck, wagon only pickup after the station accident.1 Hartford, was insured had broken Dairyland as defendants its de- named down. Makovers, judgment action the claratory four The district court submitted inter- (two Mr. and Ms. McDowell Mr. rogatories jury, to which found that Mr. accident), injured in parties other implied permission Knauer did have Company. An the Hartford Insurance Lundeen, of Ms. Ms. von Suttka or complaint couple named another amended that his use of the station and also accident, Mr. and Ms. Calla- wagon scope within of use Dairyland’s way, as additional defendants. for Ms. Knauer.2 authorized judgment filed declaratory action was after appeal The Makovers from personal seeking recovery for civil actions post-trial motion for court’s denial of their injuries resulting from the accident were judgment n.o.v. or in the alternative for Knauer and filed state court appeal Makovers, They also from the trial new trial. the McDo- Ms. Lundeen post-trial to their motion Callaways. court’s denial of wells and the lawsuit?; 21, 1977, (2) provision relating permissive pertinent On November did Rob- to 1. The implied permission Dairyland policy to Ms. use in the issued Lun- ert Knauer have to use the Ford station deen stated: Edith Landrum Lundeen lawsuit?; (3) wagon On in issue in this Novem- (2) any using person other such automobile 21, 1977, im- insured, Robert Knauer ber did permission of named with the plied permission Sutka (if of Patience von provided operation [sic] his he is not actual wagon in issue in this the Ford station operating) use lawsuit?; use is within the actual thereof (4) Was the use Robert scope permission of such .... wagon on of the Ford station Novem- (1) interrogatories were as follows: On scope use within the authorized ber 21, 1977, did Knauer have November Robert Ford Knauer as the 1963 for Charlene permission implied Charlene Knauer truck? use in issue in this the Ford station

H23 diversity jurisdiction declaratory judgment for lack of un- action. dismiss a de- 1332(c). der 28 U.S.C.A. claratory judgment brought by action insurer to determine under a lia- Initially, appellee Dairyland contends bility policy issued to the third appellants standing Makovers lack parties claiming liability in state tort suits merely they because were nomi- against the insured have declaratory judgment been held be nal defendants in this emphasizes proper suit, Dairyland declaratory action. that its ac- to the only tion concerned the issue of the cover- though their claims the insurer were age policies, of two insurance issued contingent upon recovery judgment of a Hartford, Dairyland and to which the Mak- against Maryland the insured. Cas. Co. v. parties. Although Dairy- overs were not Pacific Coal & Oil U.S. S.Ct. land claims on the Makovers’ 510, (1941); 85 L.Ed. 826 Standard Accident interest in the Meadows, 422, (5th Ins. Co. v. 125 F.2d grant standing is not sufficient to them to 1942); Cir. Corp. Automobile Underwriters thought appeal, apparently it that the Mak- Graves, (8th Cir. sufficiently affected overs’ interest was to 1973); Hawkeye-Security Ins. Co. v. Dairyland them as name defendants.3 con- Schulte, (7th 302 F.2d 174 merely poten- that the are tends Makovers Hawkeye-Security supra, the court contingent judgment creditors of Mr. tial or injured third-party, held that an who had Knauer and that their interest is insuffi- against filed a state court tort action the upon standing ap- cient to confer them to insured, improperly was dismissed from a peal. argues availability of in- It that the judgment declaratory brought by action the proceeds satisfy potential judg- to a surance policy insurer to determine whether its cov- only secondary ment is a remote and conse- injured party ered the insured. The litigation. quence Dairyland cites of party named the insurer as a defendant McNeill, Libby, Libby City & National declaratory Significantly, in the action. Bank, 1978), injured only party appealed the from the party may appeal only which held that a declaratory judgment; the insured default- protect its own interests and not those of a Rejecting ed. the insurer’s contention that co-party appellant’s and that the interest injured dismissed, party properly the pecuniary must be immediate and and not a defaulted, after the insured because he was consequence judgment. remote It merely party, the court reasoned a nominal upon ordinarily only also relies the rule that that “it would be anomalous to hold here litigant party a who was a below and who is controversy that an actual exists between aggrieved by judgment may or order appeal. appellant injured party] appellee See Goldstein v. Andresen & [the 973 n.l yet deny appellant the [the insurer] right participate controversy.” in the appellants, po We hold that the as emphasized 177. F.2d at The court judgment claiming liability creditors tential voluntarily brought appel- the insurer puta against in a state court tort suit lant into the action as standing tive party a defendant. Id. judicial that the declaration insur by Dairyland ance issued does not cover the Appellants Makovers’ first contention is putative insured. that this action should be dismissed for lack diversity jurisdiction under 28 holding It is U.S.C.A. Dairy- decisive to our 1332(c), appellants provides: land named the as defendants in which Dairyland joined protect Dairyland subsequent from asserts that the Makovers and gation liti- as defendants for two reasons: to restrain the with the Makovers in the event that Mr. state civil the Makovers Knauer was liable to the Makovers in found brought against pending Dairyland, a their state however, him. resolu- court suit stay dispute tion of the Dairyland between Mr. Knauer and did not seek to the state Dairyland’s policy, over actions. surer’s contention that the case was not a of this section and (c) purposes For title, meaning of corporation direct action within the Section 1441 of this section 1332(c) and stated that directness any State a citizen of shall be deemed injured case was as immediate between the incorporated and of has been which it in Hernandez. claimant and the insurer as place of principal where it has its State However, Campbell emphasized further, any That in Provided business: actual nature of the overall work- poli- of a against the insurer direct action compensation proceeding claim men’s insurance, liability cy contract of —the Board, initially presented the state unincorporated, incorporated or whether de with an novo to joined the insured is to which action process of a initiated court —was that shall such insurer party-defendant, as insurer, workman of which citizen of State be deemed a proof remaining the burden citizen, any as well as of insured ap- plaintiff-workman de novo has in- the insurer been State Campbell peal. in fact The district court has corporated of the State where it realigned formally to reflect principal place of business. that fact. Makovers, Callaways, The defendants McDowells, as well and Mr. Aetna Cas. & Sur. Sixth Suttka, Greene, supra, and Ms. von held insureds Lundeen F.2d Georgia. Dairyland apply is a citi- did not to a are citizens Section direct by, is declaratory judgment brought of Wisconsin while Hartford a Con- zen action argue compen- that against, citizen. The Makovers rather than a workmen’s necticut Dairyland are to be deemed sation insurer. court stated: “Neither history statutory the of which their insureds the nor legislative citizens of state the lan- citizens, e., Georgia, guage 1332(c)] supports are i. and therefore the con- [Section jurisdiction lacking. provisions diversity Appellants is that were intended to clusion rely upon Campbell apply liability v. Insurance Co. an action in which a insur- 1977) America, moving party.” 604 at North er is the Id. 127. The curiam); distinguish (per appellees emphasized language court that Sec- Campbell rely upon 1332(c) specifically “any Aetna Cas. & Sur. refers to direct ” Greene, . against action the insurer . . . Id. The court also held that a at Campbell In considered an Court action is a direct action within the not tempted appeal via de novo from an trial Id; 1332(c). meaning of see also Section compensation by the award of workmen’s Fidelity White v. United States & Guar. dis Texas Industrial Accident Board. The (1st trict court dismissed the insurer’s suit jurisdiction diversity lack on the authori agree with that We the district ty of Hernandez v. Travelers distinguishable Campbell is from this case. denied, (5th Cir.), 419 U.S. F.2d 721 cert. brought Campbell by in suit (1974), which 95 S.Ct. L.Ed.2d pro- pursuant to the unusual insurer employee held in a action an direct provided cedure Texas workmen’s com- compen- against employer’s workmen’s statute, pensation Under statute. insurer, shall be deemed sation that insurer though to the district court insured, i. insurer, a citizen of the state of which brought by the action re- e., in employer, is a citizen. The Court in quired a de novo district court in trial Campbell the sole distinction proof stated that the burden of remained holding Campbell it and the situation between case before in that the claimant. The e., Campbell was in Hernandez —i. insurer was to be deemed a citizen appealing, was a citizen the insurer that was whereas state of which insured ap- peculiar injured within con- Hernandez the workman must be understood appeal procedure under without a differ- text of the novo pealing a distinction de —was rejected compensation in- law. Campbell Texas workmen’s ence. The plaintiff] In this case the She áction seeks to invoke Section [the 1332(c) destroy diversity jurisdiction authority provided by brought under state ground that this is an action instituted the insurer law but rather was e., the insurer where the insured Declaratory Judg the Federal pursuant [/. plaintiff joined is not as a party Act, herself] 2201. The suit was ment 28 U.S.C.A. § defendant. But the whole substantive brought by injured party against an not petition issue raised her for declarato- insurer, de nor does it involve trial novo in ry judgment is whether at the date which the workman retains the bur she accident was an insured and de- [the proof. We conclude that den Section short, was her insurer. In reso- fendant] applicable declaratory to this is lution of the ultimate substantive issue is judgment liability in which a insurer a prerequisite to the resolution of the plaintiff. Aetna Cas. & Co. See Sur. preliminary jurisdiction issue. Greene, supra, 606 F.2d at 127. Id. at 748. Appellants argue juris- also that diversity Appellants also contend that lacking Dairyland’s diction is because de- denying erred their motion in the claratory judgment action is a direct action judgment notwithstanding alternative for a Hartford, which was named as a the verdict determining or a new trial. defendant, and thus this is a direct action judgment whether a motion for n.o.v. or for against an insurer to which action the in- granted, a directed verdict should be “[t]he joined party-de- sured has not been as a originally, trial court and this Court on fendant. This contention is without merit. appeal, must examine the evidence in the Although Hartford’s Ms. von Sutt- light and with all reasonable inferences ka, party-defendant, was not named as a party opposing most favorable to the Hartford, putative insured of motion. there is substantial evidence ‘[I]f party-defendant. was named as a motions, is, opposed to the evidence of quality weight such reasonable The term “insured” as used in Sec and fair-minded men in the exercise of im- person includes a insured partial judgment might reach different con- reason of an omnibus clause as well as the clusions, denied, the motions should be and Liberty named insured. Williams v. Mut. ” jury.’ the case submitted to the Williams Co., 1207, (5th 1972). Ins. 468 F.2d 1209 Cir. America, 813, of United Co. 634 F.2d Thus, purpose 1332(c), of for the Section (5th 1981), quoting Boeing 815 Cir. putative Mr. as the is con 365, Shipman, (5th 1969) 374 Cir. being within the sidered as of the (en banc). may, A trial court in the exer- urge The Makovers omnibus clause. that discretion, cise of set its sound aside a ver- Dairyland may not assert on the one hand if, grant a new opinion, dict and trial in its that Mr. Knauer is not an insured under the “ weight ‘the verdict is the clear of policy, on the other as and hand * * * result in the evidence or will a mis- purposes sert that he is an insured for the carriage justice, though may of there 1332(c). of A similar contention Section pre- be substantial evidence which would rejected in White v. United Fi was States ” vent the direction of a verdict.’ United (1st delity & Guar. 356 F.2d 746 States v. Bucon Constr. plaintiff, The who asserted that she 1970), quoting Aetna Cas. & defendant, brought was an insured of the Yeatts, Sur. Co. v. in state court seeking a determination that an insurance Farms, Ms. issued her the defendant insur Arden co-owned Suttka, purchased Ms. er was still in effect. The defendant re Lundeen and plaintiff and the truck for the use of Ms. moved to federal court employee. truck was from the district court’s denial of Arden Title to the appealed initially her for remand. The court stated: in Ms. Knauer’s name but was later motion knowledged ordinarily that he drove his for tax and insurance to Arden transferred told she accident, was that purposes. day Ms. Knauer personal truck. On transportation to the truck could use Ms. Mr. Knauer drove Knauer to Arden apparently no was work but there and from wagon; he Farms in the station left that told that she she was ever testimony that departed with a vehicle at Arden and then personal reasons. not use the truck could Mr. friend in another vehicle. Knauer re- Indeed, the truck Knauer used Ms. p. Farms 4:00 m. and turned to Arden about Ms. personal vehicle. though it were her wagon permis- took the station without the she told Ms. Knaüer testified that Lundeen knowledge of Knauer or Ms. sion or Ms. purchased no the time the truck at Lundeen, present both of whom were then truck; she allowed to drive one else was He he had at Arden Farms. testified that probably the that was testified that also he not use no reason to believe that could she instructed Ms. Knauer only time that wagon and that he as- the station further However, Ms. both Mr. and effect. was there for sumed that neither of them testified that Knauer wag- his use. Mr. Knauer drove station any prohibition of from Ms. Lundeen aware was re- a restaurant and bar and any at Mr. one else Arden Farms turning purpose to Arden Farms for the Ms. Knauer use of the truck. Knauer’s taking up home picking his wife her that she allowed her husband testified in the accident. truck, when he involved freely although she also testi- use the any specific that she could not recall fied question permission truck without when he used the occasion implied Mr. case is whether Knauer had permission. Mr. Knauer testified her personal purposes Georgia truck for his test law permission he used the and the under He testified on several occasions. further jury, considering all the is whether his him the use wife never denied including facts and circumstances the rela Ms. the truck. Neither Lundeen nor tionships parties concerning use directly ever told Mr. Knauer von Suttka vehicle, could have found that a truck, he that he could not use the person reasonable would have inferred from he he had use testified that understood permission was the circumstances that im permitted her Knauer truck. Ms. Employers plied. American Ins. Co. v. personal husband to use the truck for Johns, Ga.App. S.E.2d purposes on several occasions. (1970). Georgia law is that rule under undertook the maintenance of truck party permittee’s allowance of a third repair work on it. Prior did some extensive use named insured’s vehicle does not inoperable to the accident the truck became preclude recovery under an omnibus clause gave permis- Knauer and Ms. Lundeen Ms. using permittee in where the second wagon place in of the her station sion use origi purpose serving vehicle is some of the spe- that she truck. Ms. Lundeen testified permittee. Georgia v. Cas. & nal Strickland was cifically Ms. Knauer that she instructed 487, Co., (1968). 224 Ga. 162 S.E.2d 421 Sur. wagon personal for not use station Moreover, “slight inconsequential” de however, Knauer, Ms. testified reasons. will not annul the of the viations wagon in she the same that used station purpose where the for omnibus clause she way she used the truck and that had which vehicle is used at the time of the time she that the first that further testified purpose scope within the of the supposed accident is heard that her husband was wagon after the acci- original permission. use the station was Ins. Co. v. Phoenix testi- dent. Both Mr. Knauer and wife 857, Ga.App. 191 Bentley, 126 S.E.2d 887 used the sta- that he had on occasion fied (1972); Hodges Accident & Guar. v. Ocean wagon. tion 431, 28, Corp., 18 32 Ga.App. 66 S.E.2d denied, 693, (1941), 316 62 S.Ct. cert. U.S. inoper- personal Mr. Knauer’s vehicle 1299, (1942). day He ac- 86 L.Ed. 1763 on of the accident. able

1127 .,” give charge containing . . reviewing use or to carefully the rec After ord, Georgia court did in v. Cas. & conclude that the district rule stated Strickland we appellants’ 487, motion in the denying supra, in 224 162 421 not err Ga. S.E.2d Sur. new judgment n.o.v. or a specifically charged (1968). alternative The trial court properly denied trial. The district concerning jury that there was no issue for a new trial because appellants’ motion express permission reject- case. In in this weight against the clear the verdict ing appellants’ challenge to the court’s re- ample evidence in evidence. There is charge jury implied permis- on fusal to findings in the support the record sion, implied permis- that the court stated not have that Mr. Knauer did jury’s verdict “general terminology” and is a term of sion Lundeen, Ms. permission of Ms. implied significance.” legal particular “has no further, Suttka, it or Ms. support Appellees several cases as cite not, occasion of appears that he was “implied permission” position that their accident, operating the station jury in instruc be further defined need not that was scope permission within the Williams, g., Maryland E. Cas. Co. v. tions. given Ms. Knauer.4 originally 1950); 983, (5th Hodges 986 v. establish, as a mat- The evidence does not Corp., Ga.App. Accident & Guar. 66 Ocean implied law, had the that Mr. Knauer ter of 28, denied, 431, 18 (1941), cert. S.E.2d to use the station permission of his wife 1299, (1942); 86 L.Ed. 1763 U.S. 62 S.Ct. question on the occasion of the wagon in Moines, Hawkeye Cas. Co. of Des Stoll demand a Nor does the evidence accident. Iowa, using the sta- finding that Mr. in Williams, However, Maryland in Cas. bar, wagon to visit a restaurant and Court, holding supra, F.2d at doing purpose some so for implied that the trial court’s instructions permission scope within the of the initial Georgia law were not in permission under e., permission to use given to his wife —i. error, the trial court instructed noted transportation to wagon for the station determining whether a jury implied respect to the from work. With implied permission, vehicle had driver of a Suttka, mere permission of Ms. von as to former might consider all evidence testimony trial does not absence of her at and their rela- dealings between had her finding that Mr. demand a previous use of tionship reference to with wag- implied permission to use Hawkeye Cas. the vehicle. Stoll implied Finally, respect to the on. 260, the court stated that supra, 193 F.2d at Lundeen, testimony permission permis- simply “actual implied permission is of Ms. Lundeen demonstrates .Ms. Employ- circumstantially proved.” sion See permission to use the Knauer did not have Mosque- Moines v. ers Mut. Cas. Co. of Des personal and fur- wagon for reasons station da, 1963), n.3 ther, specifically told Ms. Knauer was jury instructed which the trial was to drive the station that no one else implied from the “permission can be wagon.5 parties].” conduct between course of [the Appellants contend that also reviewing challenged jury in In by failing reversible error court committed structions, considers “whether or this Court charge jury according appellants’ to to the charge a whole and view taking the as not “permission to requested instructions allegations of the light the ing all the it in may vehicle be inferred from use a evidence, eommu- Judge the prior complaint and attending its facts and circumstances only specific credibility that on the 5. Ms. Knauer testified of Mr. Knauer 4. We note that the jurors her husband us- challenged that she could recall that the were occasion ing at trial and permis- express testimony disregard had he the of course entitled to Farms. they run an errand for Arden credible. sion to Mr. if believed it was not testimony upon Mak- relied the Much of the given Knauer. overs was correctly Company plaintiff. was the The ma- the ance law nicated the substance jority puts emphasis on the word excessive jury misled in its under- so the the “against” in the statute. If Makovers issues.” Kramer standing the law or plaintiffs declaratory judg- been in this had 1981). 382, 384 Keys, 643 F.2d majority proceeding, I assume the ment district Although the we conclude diversity jurisdic- hold we lack would in error reversible court did not commit tion. jury phrase failing to the define for “implied practice agree majority not with that this permission,” the better I do Campbell, distinguishable from su- to case is court would have been for the district pra.. might all charge jury that it consider as to The distinction between Hernandez and evidence sole

facts and circumstances ] [1 this case is that here is the and dealings among parties and former appeal wishes to and has insurer which relationship previous reference their to sought jurisdiction to federal to do invoke question. use of vehicles in so. We hold it is without a difference. Appellants’ district contention that policy arguing theAll considerations for failing erred on court also in instruct application 1332(c) made Her- § “scope essentially is assertion of use” an nandez, there, argue so well set out and jury instruct on that the court failed to Appellant be applied that it here. asserts presented by a issue relevant material this is not such a “direct action However, appellants did not evidence. 1332(c) against the insurer” as concerns. § object request charge, they nor did such “directness,” As for the case is as immedi- of such an instruc- court’s omission injured claimant and the ate between party tion. “No Under Fed.R.Civ.P. opinion insurer as was Hernandez. That may assign giving the fail- as error the disposes of all but the circumstance that objects give ure to unless he instruction foot, here the shoe is on the other jury retires thereto before to consider bringing appeal against insurer is suit to verdict, stating distinctly the matter urged is the claimant. distinction objects grounds of his which he valid, [Emphasis but too thin. added.] See, objection.” g., Ply-Gem Bissett v. e. noted, As all the same considera- Indus., Inc., (5th Cir. holding apply tions for earlier here. our addition, the actual nature of the claim the board and to the Finally, appellants contend that the dis- court, proceeding the overall seen admitting trict erred evi- certain whole, process initiated that of a they dence which claim was irrelevant. insurer; workman assuming Even that the trial court erred appeal, the de novo the bür- evidence, admitting the which related to plaintiff. proof remains with the den repairs payments certain to Mr. Knauer for Indeed, formally rea- the district court truck, error harm- such ligned below to reflect less. Fed.R.Civ.P. 61. accept appellant’s con- Finally, fact. AFFIRMED. construe the statute tention would be [to] jurisdiction in provide as to federal so CLARK, Judge, dis- A. THOMAS insurer —since the a dissatisfied senting: against [emphasis in is not unhappy original] it —but none for the respectfully I because we do dissent argues eloquent- claimant. result Such jurisdiction under U.S.C. ly against appellant’s contention. pursuant In- holding Campbell to our at 605. Id. America, F.2d 604 surance Co. North majority’s disagree majority reason with the Additionally, I opinion uncertainty that finding jurisdiction Dairyland Insur- this adds is that because 1. Hernandez v. The Travelers Insurance F.2d Uncertainty in the law is

we do not need. Especially deplored. is this

always to be jurisdiction is involved. Parties

true when certainty possible with all the

should know bring their lawsuit in a they

whether can Here our court finds for

particular court. company because filed

the insurance have more suit. The state courts

initial coverage matters

expertise in insurance policy judgments in we and set the

than litigation. The case should be type by Congress court as intended

in the state 1332(e).

when it amended Section reasons, foregoing I dissent.

For the JONES, Plaintiff-Appellant,

Wayne E. M.D., WIKE, C.

Charles

Defendant-Appellee.

No. 81-7243

Summary Calendar. Appeals, States

United Circuit.

Fifth

BUnit

Sept. 5, 1981. Nov. Rehearing Denied Ga., Kent-Plaginos, Cumming, Jane

plaintiff-appellant.

Whelchel, Dunlap Gignillist, & James A. Brim, III, Gainesville, Dunlap, James E. Ga., defendant-appellee. RONEY, JOHNSON,

Before FRANK M. HENDERSON, Judges. Jr. and PER CURIAM: diversity Wayne Jones filed this alleging Wike medical Dr. Charles op- with a hernia malpractice in connection initially denied eration. The district summary judgment motion for defendant’s

Case Details

Case Name: Dairyland Insurance Company v. Ann R. Makover, and Bernard Makover v. Robert Lawrence Knauer

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 4, 1981

Citation: 654 F.2d 1120

Docket Number: 80-7232

Court Abbreviation: 5th Cir.