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June 27, 1968


The opinion of the court was delivered by: Marovitz, District Judge.


Plaintiffs' Motion for Preliminary Injunction and for Convention of a Three-Judge Court

Defendant's Motion for Judgment on the Pleadings

This is a purported class action, brought by a group of policyholders of the Multi-State Inter-Insurance Exchange (Multi-State), a reciprocal automobile insurance company, against John F. Bolton, Director of the Department of Insurance of the State of Illinois. Defendant is a state officer charged under Illinois law with the regulation and supervision of insurance companies organized and/or doing business in the State. Ch. 73, § 204.1 et seq., Ill.Rev.Stat.

On September 11, 1964, pursuant to Ch. 73, § 800, Ill.Rev.Stat. defendant was appointed Liquidator of Multi-State in a Cook County Circuit Court proceeding (hereinafter known as the Liquidation Proceeding).*fn1 Thereupon, he immediately became vested with the title to all property, contracts and rights of action of the company. Ch. 73, § 803, Ill.Rev.Stat.

Under their policies, plaintiffs were subject to an assessable contingent several liability equivalent to their annual premiums. Pursuant to Ch. 73, § 819, Ill.Rev.Stat., defendant sought and won an order from the court in the Liquidation Proceeding, dated August 31, 1966, authorizing and directing him to levy an assessment against all persons who had been policyholders of Multi-State during the 12 month period ending November 30, 1963. Section 819 provides: (in pertinent part)

  (1) In the event of the entry of an order directing the
  Director to rehabilitate or liquidate any company which has
  issued assessable policies or contracts of insurance, the
  Director may, with leave of court, at any time during the
  pendency of the proceeding, levy such assessment or assessments
  against the members or subscribers of the company, as may be
  necessary to pay all allowed claims in full, to the same extent
  * * * that such assessment or assessments might have been
  levied by the board of directors, attorney-infact, or other
  governing body of the company.

Pursuant to the above order, defendant drew up a list of assessable policyholders containing names, last known addresses, and the amount of assessment due from each listed person. The levy of assessments was approved, ratified and spread of record by the Court by order of September 13, 1966.

Plaintiffs assert that they were given no notice of the Petition for leave to levy an assessment, that none is required by Section 819; and, consequently, since they had no notice of the Liquidation Proceeding or of the request for authority to assess they were deprived of their rights without due process of law, in violation of the 14th Amendment. They seek injunctive relief declaring Section 819 to be unconstitutional, and voiding the Circuit Court orders of August 31 and September 13, 1966, and request a preliminary injunction to restrain defendant from seeking to enforce the pending assessment order pending the completion of this suit. Also, under Title 28 U.S.C. § 2281 et seq., they request the convention of a three-judge court to hear their complaint. Jurisdiction is posited upon the Civil Right Statutes, 28 U.S.C. § 1343, and 42 U.S.C. § 1983, and upon the general federal question jurisdictional grant, 28 U.S.C. § 1331.

The plaintiffs purport to represent a class of 34,816 policyholders subject to assessment, and claim that the action is proper under recently amended Rule 23(a) and 23(b)(1)(B) of the Federal Rules of Civil Procedure.

Defendant moves for judgment on the pleadings. He alleges that none of the cited statutes support jurisdiction, and that the Court lacks jurisdiction of the subject matter. In this opinion we will consider both defendant's motion and plaintiffs' application for a three-judge court.

Initially, we believe the motion for judgment on the pleadings, pursuant to Rule 12(c), must be treated as a motion to dismiss for lack of subject matter jurisdiction. It raises only jurisdictional issues. A district judge to whom an application for a three-judge court is presented, of course, has authority to determine only jurisdictional questions, and may examine the merits solely to determine whether a substantial federal question is presented. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Keyishian v. Board of Regents etc., 345 F.2d 236, 238 (2d Cir. 1965); Robinette v. Chicago Land Clearance Commission, 115 F. Supp. 669, 671 (N.D.Ill. 1951).

It is settled that a motion for a judgment on the pleadings is a motion for a judgment on the merits. 2A Moore, Federal Practice, ¶ 12.15; Roemhild v. Jones, 239 F.2d 492 (8th Cir. 1957). Since defendant alleges only jurisdictional grounds for dismissal, the proper course is to consider the motion as one to dismiss for lack of subject matter jurisdiction.

Amount in Controversy

Plaintiffs assert that jurisdiction is proper under § 1331 which provides: (in pertinent part)

  "(a) The district courts shall have original jurisdiction of
  all civil actions wherein the matter in controversy exceeds the
  sum or value of $10,000, exclusive of interest and costs, and
  arises under the Constitution, laws or treaties of the United

On its face, the complaint undoubtedly alleges a claim based upon the Constitution of the United States. In passing upon the propriety of § 1331 as a basis for jurisdiction the issues to consider are whether the matter in controversy exceeds $10,000, and whether it arises under the Constitution or some federal law. If the complaint does not meet these tests, it must be dismissed for lack of subject matter jurisdiction. We will explore the substantiality of the federal question raised, infra, in considering whether to invoke a three-judge court. At this point, we will consider defendant's contention that the $10,000 jurisdictional minimum is not present.

Defendant argues that plaintiffs' contingent liability under their policies is several rather than joint or common. Since each policy's contingent liability is only a small fraction of $10,000, and since each policyholder essentially contests the procedure utilized in serving the assessment against him, defendant argues that the claims may not be aggregated to satisfy the jurisdictional requisite. Plaintiffs contrarily argue that in a class action under the new Rule 23, aggregation is permissible.

Under the old Rule 23, aggregation was permitted in "true" class actions where the asserted claim was "joint" or "common" and concerned the interests of the plaintiffs as a body, rather than the interests of the individual plaintiffs. Brown v. Trousdale, 138 U.S. 389, 11 S. Ct. 308, 34 L.Ed. 987 (1891). But where the parties asserted "hybrid" or "spurious" class actions, where the claims were in reality only those relating separately to individual members of the "class", aggregation was disallowed. Troup v. McCart, 238 F.2d 289 (5th Cir. 1956); Andrews v. Equitable Life Assurance Society, 124 F.2d 788 (7th Cir. 1941); Scott v. Frazier, 253 U.S. 243, 40 S.Ct. 503, 64 L.Ed. 883 (1920). 3 Moore, Federal Practice, ΒΆΒΆ 23.08-.10. The language of the insurance contracts at bar makes clear that each policyholder's liability is several, rather than joint or common. Hence, under the pre-amendment Rule 23 these claims would have constituted a "spurious" class action, ...

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