Transamerica Insurance v. Keown

85 F.R.D. 120, 1980 U.S. Dist. LEXIS 9790
CourtDistrict Court, D. New Jersey
DecidedJanuary 4, 1980
DocketCiv. A. No. 75-0851
StatusPublished
Cited by4 cases

This text of 85 F.R.D. 120 (Transamerica Insurance v. Keown) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Transamerica Insurance v. Keown, 85 F.R.D. 120, 1980 U.S. Dist. LEXIS 9790 (D.N.J. 1980).

Opinion

OPINION

BROTMAN, District Judge.

This is a declaratory judgment action brought by Transameriea Insurance Company (“Transameriea”) pursuant to 28 U.S.C. § 2201, concerning the rights and liabilities of the parties under the terms of an attorney’s malpractice insurance policy issued to defendant William S. Keown, Esquire. Jurisdiction is asserted to arise by diversity of citizenship of the parties. 28 U.S.C. § 1332.

This case has a long and complicated history, involving both state court and federal court litigation, which is discussed in the court’s prior opinions, reported at 451 F.Supp. 397 (D.N.J.1978), and 472 F.Supp. 306 (D.N.J.1979), and which this court adopts and incorporates herein. However, the court feels compelled to summarize the relevant procedural history of this litigation to the extent that it concerns the motions now pending before this court.

This dispute arose from the conduct of Mr. Keown as the succeeding executor of the will of Clarence A. Munger and the succeeding trustee of a trust created by that will. Exceptions were filed to the accounts filed by Mr. Keown by the beneficiaries of the trust and the will, who are the intervening defendants in this action. The Camden County Court, Probate Division,1 held that Keown’s investment in real estate was not authorized by the pertinent part of the will authorizing the investment of trust corpus “in such securities as may, in the judgment and discretion of my Trustee, seem proper, whether or not such securities shall be of the type prescribed by law for the investment of trust funds.” This decision was affirmed, by the New Jersey Superior Court, Appellate Division, in an unreported opinion, and also subsequently affirmed by the New Jersey Supreme Court. In re Munger, 63 N.J. 514, 309 A.2d 205 (1973). Trial was then held before the Probate Division to determine the amount of the surcharge to be imposed upon Keown for his investment of trust funds in real estate in violation of the will’s provision and to dispose of the remaining exceptions to Keown’s accounts. The Probate Division [123]*123upheld certain exceptions made by the beneficiaries, surcharging Keown a total of $199,142.26 for unauthorized investments in real estate and other charges. After the Probate Division issued that decision, Transamerica initiated the present declaratory judgment action. Transamerica sought, inter alia, a declaration of “the rights, liabilities and legal relationships of the parties in accordance with the facts in this matter and the terms and provisions of the policy or policies of insurance.” Plaintiff’s Complaint, at 7. The majority of the issues involved in the declaratory judgment action were decided by this court upon summary judgment motion of the defendant and the intervening defendants, as reported in the court’s opinion at 451 F.Supp. 397 (1978). Trial was then held on the remaining issues in the federal litigation, and this court issued its opinion on these matters on May 8, 1979. 472 F.Supp. 306 (D.N.J.1979).

After this court issued these opinions, the Probate Division’s surcharges were reviewed by the Appellate Division, which in an unreported opinion on July 16, 1979 upheld some but not all of the exceptions approved by the Probate Division. It remanded the case to the Probate Division to make certain changes in its determination in accordance with the order of the Appellate Division. In response to the Appellate Division’s opinion, Transamerica filed a motion on August 29, 1979

for an Order to vacate or, in the alternative, to modify prior Orders of the Court of March 27,1978, June 16, 1978 reported at 451 F.Supp. 397 (D.N.J.1978) and May 8,1979 [reported at 472 F.Supp. 306 (D.N. J.1979)] and all further Orders of the Court entered in the above captioned matter.

Plaintiff’s Notice of Motion, at 2. On August 31, 1979, intervening defendants George A. Munger and Carol L. Ober also filed a motion to modify the court’s opinion and order of May 8, 1979, and submitted a brief in support of their motion and in opposition to Transamerica’s motion. While these motions were pending before this court, the New Jersey Supreme Court denied a petition for certification of the Appellate Division’s judgment on November 20, 1979, thereby terminating the state court review of the Appellate Division opinion. Thus, the Appellate Division’s decision remanding the case to the Probate Division went into effect and the state action is now pending before the Probate Division.

The federal action is presently before the court upon two classes of motions. The first class consist of the motions of Trans-america and George Munger and Carol Ober to vacate or modify prior opinions and orders of this court in this case. The second class of motions, which were made by the attorneys for the defendant and the intervening defendants, concern requests for counsel fees and costs involved in the litigation of this federal action. The court will address these motions seriatim.

I. The motions to vacate or modify prior decisions of this court.

The court shall now consider motions of Transamerica and George Munger and Carol Ober to vacate or modify the prior orders of this court in this matter. Although both motions are premised upon the impact of the appeals of the Probate Division’s decision in. the state court litigation upon the federal declaratory judgment action, the two motions place vastly different characterizations upon the effect of the state court appeals.

The plaintiff argues that “the prior decisions Of the United States District Court were based largely on the now reversed or remanded Judgment of the Probate Court of July, 1974,” Plaintiff’s Brief, at 3, and “since the underlying litigation in the State Court may continue for an additional period of time, any judgment entered in the United States District Court which is founded on anything other than a final State Court Judgment would leave open the possibility of future modifications or reversals.” Id. The plaintiff proceeds to reason that “the prior Orders of this Court should be vacated or modified to the extent that the underlying issues have been reversed, remanded, or remain at issue in the State Court.” Id., at 3-4.

[124]*124Intervening defendants George Munger and Carol Ober have made a radically different characterization of the effect of the Appellate Division ruling. They incorporated by reference a letter dated August 3, 1979 and written by Peter E. Driscoll, Esquire, counsel for the guardian ad litem, which declares, “It is our position that the decision of the New Jersey Superior Court, Appellate Division, in this matter has a relatively small effect on your previous determinations.” The letter lists four effects of the Appellate Division decision, and the movants ask this court to modify its opinion and order of May 8, 1979, in accordance with paragraphs C and D of that letter. They provide:

C. To the extent your previous decision found liability under the insurance coverage with regard to a portion of the fees paid to A. J. Rosenfeld, the Superior Court, Appellate Division, decision would remove that possible liability against the insurance carrier since that surcharge has been reversed by the Appellate Division.

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Cite This Page — Counsel Stack

Bluebook (online)
85 F.R.D. 120, 1980 U.S. Dist. LEXIS 9790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/transamerica-insurance-v-keown-njd-1980.