Osuna v. Government Employees Insurance Company

Filing 33

ORDER denying 23 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the plaintiff's motion for summary judgment is denied. SO ORDERED.. Ordered by Judge Joseph F. Bianco on 7/16/2012. (O'Neil, Jacquelyn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-3631 (JFB)(AKT)
_____________________

ROBERT OSUNA,
Plaintiff,
VERSUS

GOVERNMENT EMPLOYEES INSURANCE COMPANY,
Defendant.
___________________
MEMORANDUM AND ORDER
July 16, 2012
___________________

under Section 3420 to cover alleged
negligence to his spouse.

JOSEPH F. BIANCO, District Judge:
Plaintiff, Robert Osuna (“plaintiff” or
“Osuna”) commenced this action in New
York Supreme Court, Kings County, against
defendant,
Government
Employees
Insurance Company (“defendant” or
“GEICO”) alleging violations of Section
3420 of the New York State Insurance Law
(“Section 3420”). This action was removed
by the defendant to this Court on July 27,
2011. Plaintiff claims to be entitled to
insurance coverage under a policy issued by
GEICO. According to the complaint, the
claim relates to an accident on October 4,
2009 involving plaintiff’s automobile, in
which plaintiff’s spouse was injured, and
plaintiff’s spouse has threatened to file a
lawsuit against plaintiff seeking damages for
her personal injuries. Defendant allegedly
disclaimed coverage on or about December
31, 2009 because plaintiff did not purchase
the requisite supplemental spousal coverage

Plaintiff has now moved for summary
judgment alleging that Section 3420(g) is a
prohibited bill of attainder.1 In particular,
Section 3420(g) automatically excludes, by
virtue of marriage, liability coverage
indemnifying an insured for injuries and
damages by the insured’s negligence to his
or her own spouse, unless such injuries and
damages are expressly provided for in the
liability insurance policy and the insured has
paid
an
additional
premium
for
Supplementary Spousal Insurance which
does not increase the monetary limits of the
policy. Plaintiff contends that this law is a
1

Plaintiff’s complaint is devoid of any allegation that
Section 3420(g) is a prohibited bill of attainder.
However, defendant has not argued that it is improper
for plaintiff to raise this ground in his motion for
summary judgment. Accordingly, the Court will
deem plaintiff’s complaint amended to include the
allegation that Section 3420(g) is a bill of attainder.

1

punishment of married persons that
constitutes an unconstitutional bill of
attainder.

6, 2011, plaintiff indicated that he served
notice on the New York State Attorney
General on December 5, 2011. The Court
then scheduled a pre-motion conference and
the defendant submitted a letter prior to the
conference dated December 29, 2011.

For the reasons set forth below, this
Court finds that Section 3420(g) is not a bill
of attainder. The law was enacted to protect
insurance carriers against lawsuits through
collusive actions between married persons
and does not meet the punishment
requirement under the test articulated by the
Supreme Court and Second Circuit for a bill
of attainder. Accordingly, the Court denies
plaintiff’s motion for summary judgment on
that ground.
I.

On January 4, 2012, the Court held a
telephone conference and set a briefing
schedule for plaintiff’s motion for summary
judgment. The Court also issued an Order
setting forth the briefing schedule and
directed that plaintiff serve a copy of the
Order on the New York State Attorney
General. By letter dated April 27, 2012, the
Office of the Attorney General notified the
Clerk of the Court that it will not intervene
in this action. The plaintiff filed his motion
for summary judgment on February 3, 2012.
Defendant filed its opposition March 2,
2012. Plaintiff filed his reply on March 19,
2012. The parties participated in oral
argument on May 22, 2012. The Court has
fully considered all of the arguments
presented by the parties.

PROCEDURAL HISTORY2

Defendant removed this action on July
27, 2011. On October 5, 2011, plaintiff
requested that the Court schedule a premotion conference in anticipation of his
motion for remand.
At a telephone
conference on October 13, 2011, the Court
set a briefing schedule.

II.

By letter dated November 11, 2011,
plaintiff withdrew his motion for remand
and indicated that he would be requesting
that the Court declare the relevant portions
of Section 3420(g) a prohibited bill of
attainder and subsequently requested a premotion conference by letter dated November
24, 2011. Defendant responded by letter
dated November 30, 2011 and indicated that
such a motion would be premature because
the New York State Attorney General had
not been notified. By letter dated December

STANDARD OF REVIEW

The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those

2

Neither plaintiff nor defendant have filed a 56.1
Statement as required by Local Rule 56.1. However,
because plaintiff has only moved for summary
judgment with respect to his claim that Section
3420(g) is a prohibited bill of attainder, the Court
need not provide a recitation of the factual
background of this case.
Accordingly, the
requirement that the parties file Local Rule 56.1
statements is waived.
2

set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Group, Inc. v.
Horn & Hardart Co., 751 F.2d 69, 77 (2d
Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “‘merely
to assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).

made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986) (summary
judgment is unwarranted if “the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party”).

III.
A.

DISCUSSION
Bill of Attainder

Article I, Section 9, Clause 3 of the
United States Constitution states, “No Bill
of Attainder or ex post facto Law shall be
passed.” U.S. Const. art. I, § 9, cl. 3.
Moreover, Article I, Section 9, Clause 10 of
the United States Constitution states, in
relevant part, “No State shall . . . pass any
Bill of Attainder . . .” U.S. Const. art. I,
§ 10, cl. 1. The Supreme Court has held that

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986) (emphasis in original)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at
249-50, 106 S.Ct. 2505 (citations omitted).
Indeed, “the mere existence of some alleged
factual dispute between the parties” alone
will not defeat a properly supported motion
for summary judgment. Id. at 247-48, 106
S.Ct. 2505 (emphasis in original). Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must

[a] bill of attainder is a legislative
act which inflicts punishment
without a judicial trial. If the
punishment be less than death, the
act is termed a bill of pains and
penalties. Within the meaning of the
Constitution, bills of attainder
include bills of pains and penalties.
United States v. Lovett, 328 U.S. 303, 315,
66 S.Ct. 1073, 1078 (1946) (quoting
Cummings v. Missouri, 71 U.S. 277, 323, 18
L. Ed. 356 (1866)). The Supreme Court has
articulated three elements of a bill of
attainder: (1) “specification of the affected
persons,” (2) “punishment,” and (3) “lack of
a judicial trial.” Selective Serv. Sys.v. Minn.
Pub. Interest Research Grp., 468 U.S. 841,
846-47, 104 S.Ct. 3348 (1984).
3

B.

As the Second Circuit has explained,
[W]ith respect to the existence vel
non of punishment, three factors
guide our consideration: (1) whether
the challenged statute falls within the
historical meaning of legislative
punishment (historical test of
punishment); (2) whether the statute,
“viewed in terms of the type of
severity of burdens imposed,
reasonably can be said to further
nonpunitive legislative purposes”
(functional test of punishment); (3)
whether the legislative record
“evinces a [legislative] intent to
punish” (motivational test of
punishment).

New York State Insurance Law
Section 3420(g)

Section 3420(g) states that:
(g) No policy or contract shall be
deemed to insure against any liability
of an insured because of death of or
injuries to his or her spouse or
because of injury to, or destruction
of property of his or her spouse
unless express provision relating
specifically thereto is included in the
policy as provided in paragraphs one
and two of this subsection. This
exclusion shall apply only where the
injured spouse, to be entitled to
recover, must prove the culpable
conduct of the insured spouse.

ACORN v. U.S., 618 F.3d 125, 136 (2d Cir.
2010) (quoting Selective Serv. Sys., 468
U.S. at 853.) “‘[T]h[e] factors are the
evidence that is weighed together in
resolving the bill of attainder claim.’” Id.
(quoting Con Edison Co. of N.Y., Inc. v.
Pataki, 292 F.3d 338, 350 (2d Cir. 2002)).
Moreover, with regards to acts of the
legislature, “[h]owever expansive the
prohibition against bills of attainder, it
surely was not intended to serve as a variant
of the equal protection doctrine, invalidating
every Act of Congress or the States that
legislatively burdens some persons or
groups but not all other plausible
individuals.”
Nixon v. Adm’r of Gen.
Services, 433 U.S. 425, 471, 97 S. Ct. 2777,
2804, 53 L. Ed. 2d 867 (1977). “Forbidden
legislative punishment is not involved
merely
because
the
Act
imposes
burdensome consequences. . . .” Id. at 47273.

(1) Upon written request of an
insured, and upon payment of a
reasonable premium established in
accordance with article twenty-three
of this chapter, an insurer issuing or
delivering any policy that satisfies
the requirements of article six of the
vehicle and traffic law shall provide
coverage against liability of an
insured because of death of or
injuries to his or her spouse up to the
liability insurance limits provided
under such policy even where the
injured spouse, to be entitled to
recover, must prove the culpable
conduct of the insured spouse. Such
insurance coverage shall be known
as “supplemental spousal liability
insurance”.
(2) Upon issuance of a motor vehicle
liability policy that satisfies the
requirements of article six of the
vehicle and traffic law and that
becomes effective on or after
January first, two thousand three,
4

test of punishment and the motivational test
of punishment in turn.3

pursuant to regulations promulgated
by the superintendent, the insurer
shall notify the insured, in writing, of
the availability of supplemental
spousal liability insurance. Such
notification shall be contained on the
front of the premium notice in
boldface type and include a concise
statement that supplementary spousal
coverage is available, an explanation
of such coverage, and the insurer’s
premium
for
such
coverage.
Subsequently, a notification of the
availability of supplementary spousal
liability coverage shall be provided
at least once a year in motor vehicle
liability policies issued pursuant to
article six of the vehicle and traffic
law, including those originally issued
prior to January first, two thousand
three. Such notice must include a
concise statement that supplementary
spousal coverage is available, an
explanation of such coverage, and
the insurer’s premium for such
coverage.

1.

The Historical Test for Punishment
The infamous history of bills of
attainder is a useful starting point in
the inquiry whether the Act fairly
can be characterized as a form of
punishment
leveled
against
appellant. For the substantial
experience of both England and the
United States . . . offers a ready
checklist of deprivations and
disabilities so disproportionately
severe and so inappropriate to
nonpunitive
ends
that
they
unquestionably have been held to fall
within the proscription of [the Bill of
Attainder Clause].

Nixon v. Adm’r of Gen. Servs., 433 U.S.
425, 473, 97 S. Ct. 2777, 2805 (1977).
Examples of historical forms of punishment
are death, imprisonment, banishment,
confiscation of property and legislative
enactment barring designated individuals or
groups from participation in certain
employment. See id. at 473-74.

N.Y. Ins. Law § 3420. Plaintiff contends
that Section 3420(g) is a prohibited bill of
attainder. Specifically, plaintiff argues that
“[t]he entire Section specifically targets
lawfully married persons solely by virtue of
their marriages.” (Pl.’s Br. at 5.) Defendant
argues that Section 3420(g) is not a bill of
attainder because there is no “punishment”
as defined by the Supreme Court and
Second Circuit. For the reasons set forth
infra, the Court finds that Section 3420(g) is
not a bill of attainder because it does not
meet the punishment requirement as set
forth in Supreme Court and Second Circuit
jurisprudence. The Court will address the
historical test of punishment, the functional

Section 3420 does not impose a
historical form of punishment on married
couples. Plaintiff complains that, in order
for a spouse’s injuries to be covered, the
“insured has paid an additional, double
premium
for
Supplemental
Spousal
Insurance which does not increase the
3

In plaintiff’s reply affirmation, plaintiff states that
“Defendant’s reliance on the ‘penalty’ – tests in these
cases is misplaced and factually inappropriate . . .”
(Pl.’s Reply. Aff. at 7.) However, based on clear
Second Circuit precedent, as detailed supra, this
Court disagrees with plaintiff and finds that the three
tests for punishment must be analyzed when
determining whether an act of a governmental
authority meets the punishment requirement of a bill
of attainder.
5

monetary limits of the policy” and “[n]o
other persons sustaining injuries or damage
by the insured’s conduct are similarly
excluded by the scope of indemnity cover.”
(Pl.’s Br. at 5.) However, requiring spouses
to pay an additional premium to be covered
by their spouse’s insurance policy is not a
“deprivation[]
and
disability[y]
so
disproportionately
severe
and
so
inappropriate to nonpunitive ends that they
unquestionably have been held to fall within
the proscription of [the Bill of Attainder
Clause].” See Nixon, 433 U.S. at 473.
Accordingly, Section 3420(g) does not
impose a historical form of punishment.4
2.

burden imposed by Section 3420(g) is that a
married couple must pay a Supplemental
Spousal Insurance premium which does not
increase the limits of the policy, but will add
the additional spouse to the policy.
As
defendant correctly states “[t]he plaintiff’s
view of ‘punishment’ is the inability to
obtain insurance liability coverage under the
Insurance Interspousal Immunity clause.
The ‘punishment’ could easily have been
alleviated by the plaintiff paying the
applicable premium and obtaining the
offered coverage.” (Def.’s Opp. Br. at 6.)
Thus, the “burden” alleged by plaintiff is not
a heavy burden and merely the imposition of
a fee to include a spouse in the insurance
policy.

Functional Test of Punishment

“The functional test of punishment looks
to whether the challenged law, ‘viewed in
terms of the type and severity of burdens
imposed, reasonably can be said to further
nonpunitive legislative purposes.’” ACORN,
618 F. 3d at 138 (quoting Nixon, 433 U.S. at
475).
“‘[A] grave imbalance or
disproportion between the burden and the
purported nonpunitive purpose suggests
punitiveness, even where the statute bears
some minimal relation to nonpunitive
ends.’” Id. (quoting Foretich v. U.S., 351
F.3d 1198, 1222 (D.C. Cir. 2003).

Moreover, as defendant states in its
brief, “the purpose of the act was to protect
insurance carriers against lawsuits through
collusive actions between husband and wife.
The amendment of the insurance law in
2002 to allow for available coverage clearly
removes this legislation from any
‘punishment’ under the constitutional
standard.” (Def.’s Opp. Br. at 7.) This
Court agrees with the defendant that the
burden of paying an additional premium to
extend coverage to a spouse can be
reasonably said to further the nonpunitive
ends of the statute. Moreover, the additional
premium is not in grave disproportion to the
nonpunitive legislative purpose of avoiding
collusion and protecting insurance carriers
against lawsuits. Plaintiff acknowledges
that the purpose of the statute is to avoid
collusion between spouses, but argues that
this was an inappropriate assumption of
culpability by the legislature. (See Pl.’s Br.
at 15-19.) However, plaintiff does not
provide any support for his position that this
was an irrational or unreasonable legislative
determination. In any event, plaintiff does
not
adequately
address
how
the
Supplemental Spouse premium is a burden

Here, there is no “grave imbalance or
disproportion between the burden and
purported nonpunitive purpose.”
The
4

It appears that plaintiff is not arguing that Section
3420(g) imposes a historical form of punishment. In
plaintiff’s reply affirmation, he argues that
“[c]ontrary to Defendant’s contention, violations of
the Attainder Clause are not necessarily viewed
restrictively nor have to closely parallel historical
characteristics of past prohibited legislation.” (Pl.’s
Reply. Aff. at 9.) Although plaintiff is correct that
punishment need not be imposed in the historical
sense for an act to be a bill of attainder, as detailed
infra, Section 3420(g) also does not meet the
functional test of punishment or the motivational test
of punishment, and therefore is not a bill of attainder.
6

IV.

that is disproportionate to the legislative
purpose of avoiding collusion.
Thus,
plaintiff has failed to show that Section
3420(g) imposes punishment under the
functional test.
3.

CONCLUSION

For the reasons set forth supra, the Court
concludes that Section 3420(g) is not a
prohibited bill of attainder. Thus, plaintiff’s
motion for summary judgment on that
ground is denied.5

Motivational Test of Punishment

“The legislative record by itself is
insufficient evidence for classifying a statute
as a bill of attainder unless the record
reflects overwhelmingly a clear legislative
intent to punish.” ACORN, 618 F.3d at 141.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Here, plaintiff has not demonstrated that
there was a “clear legislative intent to
punish.”
As discussed supra, plaintiff
agrees that the legislative purpose of Section
3420(g) is “[t]o prevent collusive and
fraudulent liability claims for injuries and
damages caused by an insured or his or her
spouse.” (Pl.’s Br. at 6.) Although plaintiff
argues that culpability was legislatively
assumed (Id. at 15-19), he points to nothing
in the legislative record that would support a
finding that there was “overwhelmingly a
clear intent to punish” married couples.
Instead, it is clear that the motivation is to
prevent collusion. Thus, plaintiff has not
met his burden and has failed to demonstrate
that Section 3420 is punishment according
to the motivational punishment test.

Dated:

July 16, 2012
Central Islip, NY
***

Plaintiff is being represented by Ian
Anderson, Esq., 11 Park Place, Suite 600,
New York, NY 10007. Defendant is being
represented
by
Francis
Jarlath
Scahill, Esq. of Picciano & Scahill P.C., 900
Merchant Concourse, Ste. 310, Westbury,
NY 11590.

5

Defendant argues that “[i]n this proceeding it is not
the plaintiff but the defendant GOVERNMENT
EMPLOYEES INSURANCE COMPANY who have
met their burden and respectfully request, in accord
with Rule 56(f)(1) summary judgment be awarded to
the non-movant, GOVERNMENT EMPLOYEES
INSURANCE COMPANY.” (Def.’s Opp. Br. at 10
(emphasis in the original).) However, defendant did
not request a pre-motion conference in anticipation of
cross-moving for summary judgment, nor did the
defendant properly file a cross-motion for summary
judgment. Accordingly, it is improper for the Court
to consider any summary judgment motion by
defendant in the absence of a formal motion.
7