Letson v. Liberty Mut. Ins. Co.

• Decision Date: 06 October 1981
• Docket Number: Civ. A. No. C79-113A.
• Citation: 523 F. Supp. 1221
• Parties: Austin K. LETSON, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

523 F. Supp. 1221

Austin K. LETSON, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant.

Civ. A. No. C79-113A.

United States District Court, N. D. Georgia, Atlanta Division.

October 6, 1981.

COPYRIGHT MATERIAL OMITTED

William Berger, Labor Dept., Atlanta, Ga., for plaintiff.

Paul Talmadge, Atlanta, Ga., Kalvin M. Grove, William G. Schur, Chicago, Ill., Robert A. Penney, Boston, Mass., for defendant.

ORDER OF COURT

HORACE T. WARD, District Judge.

This action was brought by plaintiff pursuant to the Veterans' Reemployment Rights Act, 38 U.S.C. §§ 2021-2026, in order to have his period of military service included in his credited service for pension benefits which began upon retirement on February 1, 1979. The case is presently before the court on defendant's cross-motion for summary judgment, defendant's motion to strike the affidavit of Austin K. Letson, and plaintiff's superseding motion for summary judgment.

The plaintiff was employed by defendant from February 18, 1942 until shortly before April 2, 1943, on which date he entered active duty with the U.S. Army. Plaintiff was placed on terminal leave on April 20, 1946, and was honorably discharged effective May 7, 1946. Plaintiff returned to defendant's employ on May 1, 1946, and remained until November 7, 1978. His retirement was officially effective on February 1, 1979.

Between August 1, 1934 and May 31, 1973, defendant's pension plan required eligible employees to authorize deductions from salary checks. On February 18, 1943, prior to his leaving to enter military service, plaintiff became eligible to join the plan. He had completed one year of employment, he was making over $1,400.00 per year. Formal join-up dates were February 1 or August 1 after reaching eligibility. Plaintiff entered the service shortly before April 2, 1943, and as of that date he had not elected to become a member of the plan. Plaintiff elected to join the plan on August 1, 1946, the first available date upon his return from service. Plaintiff's accredited time for pension benefit purposes now dates from August 1, 1946, and he seeks to have his credited service date from his first available sign-up date on August 1, 1943.

I. Defendant's Motion for Summary Judgment on the Issue of Statute of Limitations

Defendant's motion first relies upon the application of the Georgia statute of limitations to bar plaintiff's claim. At the time that plaintiff was reemployed on May 1, 1946, the VRRA contained no federal statute of limitations and some courts applied the most analogous limitation period prescribed by the state where the controversy originated. See generally cases cited note 3 infra. At the time that plaintiff retired on February 1, 1979, Section 2022 of the VRRA had been amended to provide that "no state statute of limitations shall apply to any proceedings under this chapter." If this 1974 amendment applies retroactively, then the defense of the statute of limitations would be abolished regardless of whether it had already run. Since the court finds that the amendment does apply retroactively, it is not at this point necessary to discuss when the cause of action arose.¹

Thirteen courts have been faced with the issue, and nine courts have entered written decisions ruling that the 1974 amendment applies retroactively to a cause of action which arose prior to December 3, 1974.²Banks v. U.S. Steel Corp., 89 CCH Labor Cases ¶ 12,268 (N.D.Ind.1980); Congrove v. St. Louis-San Francisco Ry. Co., 87 CCH Labor Cases ¶ 11,815 (W.D.Mo.1979); Scott v. Atchison, Topeka & Santa Fe Ry., 78 CCH Labor Cases ¶ 11,291 (C.D.Calif.1976); Watkins v. Consumers Power Co., 78 CCH Labor Cases ¶ 11,449 (E.D.Mich.1976); Coles v. Sunshine Biscuits, Inc., 80 CCH Labor Cases ¶ 11,860 (E.D.N.Y.1976); Bunner v. Eaton Corp., 81 CCH Labor Cases ¶ 13,050 (N.D.Ohio 1976); Hirschberg v. Braniff Airways, Inc., 404 F.Supp. 869 (E.D.N.Y.1975); Farrell v. Chesapeake & Ohio Ry. Co., 77 CCH Labor Cases ¶ 11,157 (W.D.Pa.1975); Armstrong v. Baker, 394 F.Supp. 1380, 1385 (N.D.W.Va.1975). The case of Hirschberg v. Braniff Airways, supra, represents this line of authority. The court concluded from the legislative history of the amendments to the Act that they constituted a clarification of the law rather than a change.³ The Report of the Senate Committee on Veterans' Affairs notes that a purpose of the amendment was to have a policy of uniform availability of enforcement rights for returned veterans throughout the country. S.Rep.No. 93-907, 93rd Cong., 2d Sess., at 111. The statute applies by its terms to "any proceedings" under the Act, and thus there is no language to impede retroactive application. Such an application clearly advances Congress' expressed purpose. Accordingly, defendant's motion for summary judgment on the issue of Statute of Limitations is denied.

II. Defendant's Motion for Summary Judgment on the Issue of Laches

Defendant's motion also relies upon laches as an affirmative defense to bar plaintiff's claim. Two criteria must be satisfied before the defense will be upheld: a showing of inexcusable delay in asserting a claim, and a showing that such delay caused undue prejudice to the party against whom the claim is asserted. Law v. Royal Palm Beach Colony, Inc., 578 F.2d 98, 101 (5th Cir. 1978). Defendant supports the argument that there was an inexcusable delay by maintaining that Mr. Letson's cause of action arose at the date of Liberty's decision in 1946 not to credit the pension calculation with years of military service, or, at the latest, in 1947 when Mr. Letson became aware of that decision. However, this court concludes that the case of Davis v. Alabama Power Co., 383 F.Supp. 880, 893 (N.D.Ala.1974), aff'd., 542 F.2d 650 (5th Cir. 1976), cert. den. on particular point, 429 U.S. 1037, 97 S.Ct. 731, 50 L.Ed.2d 748 (1977), decides this issue. Davis holds that the claim for pension benefits accrues upon "the veteran's retirement date" when he seeks to require that time spent in the military be credited by an employer to compute those pension benefits.⁴ Since Mr. Letson's retirement was effective on February 1, 1977, and he filed suit on January 19, 1979, there has been no inexcusable delay.⁵

The defendant argued that Davis was wrongly decided in light of the subsequent opinions of Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) and United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). These employment discrimination cases held that a "continuing violation," for purposes of determining the accrual date for applying a limitations period, cannot be established by merely showing that there are present effects of past illegal discriminatory acts. However, Evans does recognize that even when there are present effects of a past illegal action, a present violation can exist. In Evans, a onetime illegal action had continuing effects only because of the workings of a neutral seniority system. The action in the instant case, if found to be illegal, does represent a present violation because it is an ongoing practice that denies pension benefit credit to some employees for time spent in the military. Thus, the holdings in Evans and Ricks do not change the Davis decision or this court's conclusion on the accrual of the cause of action. Accordingly, defendant's motion for summary judgment on the issue of laches is denied.

III. Defendant's Motion to Strike the Affidavit of Plaintiff

The defendant has moved to strike paragraph 3 of the affidavit of Austin K. Letson on the grounds that it does not comply with Fed.R.Civ.P. 56(e), which requires that "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."⁶ Defendant characterizes the statement as hypothetical, speculative, and conclusory. However, a statement by a person about his state of mind or intent is admissible as evidence of such intent. See Weinstein's Evidence, ¶ 803(3)02, pp. 803-94. This is true even where a statement is deemed to be an opinion on an ultimate issue in the case. See Fed.R.Evid. 704. Therefore, defendant's motion to strike is denied.

IV. Plaintiff's Motion for Summary Judgment and the Situations Covered by the Act

In order to rule on plaintiff's motion for summary judgment, the court must make several determinations on the applicable legal standards and the relevancy of proffered evidence. The rule of law governing this action is set forth by the Supreme Court in Alabama Power Co. v. Davis, 431 U.S. 581, 589, 97 S.Ct. 2002, 2007, 52 L.Ed.2d 595 (1977):

If the benefit would have accrued, with reasonable certainty, had the veteran been continuously employed by the private employer, and if it is in the nature of a reward for length of service, it is a "perquisite of seniority." If, on the other hand, the veteran's right to the benefit at the time he entered the military was subject to a significant contingency, or if the benefit is in the nature of short-term compensation for services rendered, it is not an aspect of seniority within the coverage of Section 9 of the Military Selective Service Act of 1967, now codified as 38 U.S.C. § 2021(b)(2), part of the Veterans' Reemployment Rights Act.⁷

The defendant has conceded that the pension benefit is a reward for length of service. See Defendant's Memorandum in Opposition, p. 6, n.18. Accordingly, there is no claim that the pension benefit is in the nature of short-term compensation. The court rules that the pension plan membership was not subject to a "significant contingency," and the plan is thus an aspect of seniority within coverage of the Act. The defendant argues that the fact that employees were required to sign up for the plan, and that some did not, constitutes the significant contingency that takes the benefit out of the Act. However, the term has...