United Services Life Insurance Company v. Delaney

Citation328 F.2d 483
Decision Date18 May 1964
Docket NumberNo. 19531,19604.,19531
PartiesUNITED SERVICES LIFE INSURANCE COMPANY, Appellant, v. Joan Flores DELANEY, Appellee. PAUL REVERE LIFE INSURANCE COMPANY, Appellant, v. FIRST NATIONAL BANK IN DALLAS, Administrator of the Estate of Loy Thomas Brown, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

No. 19531:

Bond Davis, San Antonio, Tex., for appellant.

Horace P. Shelton, Jr., San Antonio, Tex., for appellee.

No. 19604:

Pinkney, Grissom, Jerry L. Buchmeyer, Dallas, Tex., Thompson, Knight, Wright & Simmons, Dallas, Tex., of counsel for appellant.

Earl Luna, John W. Collins, Jr., Dallas, Tex., for appellee.


Certiorari Denied May 18, 1964. See 84 S.Ct. 1335.


In the appeal of United Services Life Insurance Company v. Delaney, a panel of this Court, with one judge dissenting, rendered an opinion for the affirmance of a judgment of the district court holding the appellant liable on a policy of insurance on the life of Robert H. Delaney payable to the appellee, Joan Flores Delaney. Delaney v. United Services Life Insurance Co., D.C.W.D.Tex.1961, 201 F.Supp. 25; United Services Life Insurance Co. v. Delaney, 5th Cir. 1962, 308 F.2d 484. The insured was a lieutenant in the United States Army and met his death when an Army plane, of which he was the pilot and sole occupant, crashed. The insurer asserted a freedom from liability by reason of a policy provision1 which limited its liability to premiums paid or the policy reserve if death resulted from aircraft travel except as a passenger on an aircraft owned and operated by the United States Government or as a passenger on a scheduled passenger air service. This Court, construing the insurance contract, held that under the governing law of Texas, the word "passenger" in the limiting clause of the policy had the same meaning as "occupant," and did not exclude the pilot. In reaching its decision, the Court felt it was impelled to the construction which it adopted by the pronouncements of the Texas Courts in Warren v. Continental Casualty Co., Tex.Civ.App.1952, 248 S.W.2d 315, and Continental Casualty Co. v. Warren, 1953, 152 Tex. 164, 254 S.W.2d 762.

The appeal of Paul Revere Life Insurance Company v. First National Bank is from a judgment against the insurer on policies of accident insurance issued to the appellee's decedent, Loy Thomas Brown. The language of the policy pertinent here excludes coverage for "death or disability resulting from flight in aircraft except as a passenger on a civilian plane." The insured was killed while piloting, operating and in control of a private plane which crashed. The insurer asserted the exclusion clauses as a defense to an action on the policies. The district court, applying what it believed to be the law of Texas, and relying upon the Warren case, supra, as the source of the applicable law, rendered a summary judgment against the insurer, and in so doing held that the insured, at the time of his death, was a passenger on a civilian plane. A reconsideration by this Court of the meaning, effect and applicability of the Warren cases resulted in a grave doubt as to whether its rationale had been correctly determined in the United Services case. The Paul Revere case was submitted to the Court en banc. To avoid a conflict in our decisions the United Services case, then pending upon a motion for rehearing, was also referred to the Court en banc.

The two appeals are to be decided by the law of Texas, by which the insurance contracts are to be construed and from which the meaning of the contracts is to be determined. The guidance of the dim light of the Texas decisions leaves the meaning of the questioned clauses obscure. Without further enlightenment any judgment we might pronounce would be "a forecast rather than a determination." Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 499, 61 S.Ct. 643, 644, 645, 85 L.Ed. 971. The Supreme Court has "increasingly recognized the wisdom of staying actions in the federal courts pending determination by a state court of decisive issues of state law." Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058, reh. den. 360 U.S. 940, 79 S.Ct. 1442, 3 L.Ed.2d 1552. It is appropriate that this Court stay its hand until the courts of the State of Texas shall have declared the law of the State of Texas which is applicable to and controlling in the disposition of these appeals. Each of the appellants can, and should, promptly initiate a proceeding in a Texas court seeking a declaratory judgment for the determining of the meaning of the pertinent clauses of the respective insurance contracts, with a review of such judgment by a court of last resort of the State of Texas.

An order will be entered in each of the appeals staying further proceedings in this Court until the courts of Texas shall have been afforded an opportunity to determine the issues to be submitted. This Court will retain jurisdiction for the purpose of taking such further action as may be required.

TUTTLE, Chief Judge, and HUTCHESON, WISDOM and BELL, Circuit Judges (dissenting).

We respectfully dissent. The mandate from Congress that we decide diversity cases, Title 28 U S.C.A. § 1332; Meredith v. City of Winter Haven, 1943, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9, makes plain our duty to decide these matters.

They are not the exceptional cases referred to in Meredith v. City of Winter Haven, supra, where a federal court may decline to act, nor do they fall in one of the classes of cases where the doctrine of abstention has been given application. Thompson v. Magnolia Petroleum Co., 1940, 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876; Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; Burford v. Sun Oil Co., 1943, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; and Louisiana Power & Light Co. v. City of Thibodaux, 1959, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058. And Texas, unlike Florida, has made no provision for the certification by federal courts of doubtful questions to its Supreme Court for resolution. Clay v. Sun Insurance Office, Ltd., 1960, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170, on certification, 133 So.2d 735; Aldrich v. Aldrich, 375 U.S. 75, 84 S.Ct. 184, 11 L.Ed. 2d 141, and Green v. American Tobacco Company, 5 Cir., 1962, 304 F.2d 70, on certification, Fla., 154 So.2d 169. See generally 1 Barron & Holtzoff (Wright Ed.), § 64; Wright, Federal Courts (1963 Ed.), § 52; and 1 A Moore's Federal Practice, pp. 2101-2124 and 3331-3332.

Being of this view, we would proceed to disposition on the merits; hence, this dissent.

JOHN R. BROWN, Circuit Judge (concurring):

I join in the Court's decision to abstain pending determination of the controlling question of state law by the Courts of Texas. Prompted in part by matters briefly stated but strongly stressed in the dissenting opinion, but also by the nature of our action in postponing decision of what appears on the surface to be a simple case of contract construction, I think it appropriate to make these additional comments.

Abstention in a diversity case is no more an abdication1 of the constitutional-statutory duty to decide2 than is abstention in the field of determination of federal questions3 in which the Federal Courts have a "primacy." England v. Louisiana State Board of Medical Examiners, 1964, 84 S.Ct. 461.

Abstention is neither abandonment of duty, on the one hand, nor a problem of raw power, on the other. It is judge-fashioned and being such, the cloth should be cut to the pattern.

The doctrine is, of course, a means devised to ameliorate some of the problems inevitably growing out of our unique federalism. For federal question cases, unseemly or unnecessary collision with a state is to be avoided, or at least postponed until such time as it is inescapable. Although the adjustment between the National Courts and a State takes a different turn in diversity cases, the underlying problem is essentially the same. And the impact — on local litigants and jurisprudence — is equally, if not more, awesome. This concern is, for example, reflected by the "outcome determinative" test4 likewise judge-fashioned to meet the needs of Erie, only few of which had emerged when Meredith (note 1, supra) was announced in 1943. This approach recognizes that it is basically unfair for decision to turn on irrelevant accidents such as state citizenship, residence, geography, or the case being filed in one courthouse, rather than in the one a block down the street.

If in like cases diverse results are unfair when precipitated by quasi procedural rules, such as service of process, statute of limitations, etc., how much more unfair is it when the diverse result flows from diverse holdings on substantive law. This is a factor of growing importance as our own recent experience graphically demonstrates. Though our decisions survive the discretionary review of certiorari, most of the time because they are really not "certworthy," Harlan, J. in Tipton v. Socony Mobil Oil Co., 1963, 375 U.S. 34, 84 S.Ct. 1, 11 L. Ed.2d 4 (dissenting opinion), many of them do not fare so well when they are tested in the place that really counts — the highest, or first-writing court, of the State concerned. See Ford Motor Co. v. Mathis, 5 Cir., 1963, 322 F.2d 267. Within the very recent past, both Texas5 and Alabama6 have overruled decisions of this Court, and the score in Florida cases is little short of staggering. In similar, but subsequent, cases, the Florida Courts have expressly repudiated our holdings in a number of cases.7 And now that we have this remarkable facility of certification, we have not yet "guessed right" on a single case.8 And within the month we have had to reach...

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