# United Stat es Court of Appeals For the First C ircuit

No. 02-1543 METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY,

Plaintiff, Appellee,

v. SHAN TRAC, INC, d/b/a THRIFTY CAR RENTAL; DAIMLER CHRYSLER CORPORATION; YURY SHKOLNIKOV, MARAT R. ROMANOVSKI, Individually and as the surviving spouse of LEYA M. ROMANOVKSI; ELENA BROBRITSKY; SVETLANAROMANOVSKI; VERONICA ROMANOVS KI , a minor through her father and next friend, MARAT P. ROMANOVSKI; SVETLANA SHKOLNIKOV, Defendants. and ANNA N. KUTIKOVA, a/k/a ANNA YANKOVSKAYA, Individually and as the surviving spouse of MARAT KUTIKOVA; MICHAEL ELKIN, Individually and as the surviving spouse of SEYNA ELKIN; ELENA LEVINSON, Administratrix of the estate of SEYNA ELKIN; MIKHAIL PEVTSOV, Individually and as successor of his parents , Z YAMA PEVTSOV and TSILYAPEVTSOV; ALEX PEVTSOV, Individually and as successor of his parents ZYAMA PEVTSOV and TSILYA PEVTSOV; SERGEY RABOVSKY, Individuallyand as the surviving spouse of ALLA R OBO VSKY; LUBA LEVIN, as administrator of the estate of VITALY RABINOVICH and MARIYA VILNER; MICHAEL RABINOVICH, as administrator of the Estate of VITALY RABINOVICH and MARIYA VILNER, Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Reginald C. Lindsay, U.S. District Judge ]* Of the Ninth Circuit, sitting by designation. Before Boudin, Chief Judge , Farris, * Senior Circuit Judge , and Torruella , Circuit Judge .

Marc S. Alpert with whom Marc S. Alpert P.C. was on brief for defendants, appellants. John P. Graceffa with whom Richard W. Jensen , Willia m A. Schneider and Morrison, Mahoney & Miller, LLP were on brief for appellee.

March 31, 2003-3- BOUDIN, Chief Judge . On March 8, 2000, a large rental

van driven by Yury Shkolnikov crashed into a median barrier in Clark County, Nevada. Eight of the van's thirteen passengers were killed, and the other five, including Shkolnikov and his wife, were seriouslyinjur ed . Shkolnikov had a Massachusetts automobile insurance policy issued by Metropolitan Proper ty and Casualty Company ("Metropolitan") that provided a maximum of $300,000 of coverage per accident. Faced with the prospect of claims in excess of the policy, Metropolitan co mmenc ed a statutory interpleader action in the district court of Massachusetts on August 17, 2000. 28 U.S.C. § 1335 (2000).

In its complaint, Metropolitan named 16 parties as having

an interest in the proceeds of the automobile policy. These parties included the injured passengers, the administrators of the deceasedpassengers, dependents, and the renter and manufacturer of the vehicle. Metropolit an pai d $300,000 into the court registry andfiled a motion for summary judgment seekin g int er alia to be releasedfrom further liability and asking that the parties be required to interplead their claims against the fund.

On March 11, 2002, the district judge conducted a summary judgment hearing. At that hearing, counsel representi ng t he passengers, administrators and dependents named in the suit ("the claimants") said that the parties had agreed to an eleven-way split of the i nsuran ce proceeds in which each passenger (not including1 A p parently neither the rental company nor the car

manufacturer sought to collect under the policy, and there is no indication that Shkolnikov or his wife disputes the settlement. -4- Shko lnik ov or his wife) would receive a one-eleventh share ($27,272.27) of the proceeds. 1 The parties agreed that any claims by the dependants of a passenger would then come out of the share attributedto the passenger. The parties also agreedthat a party wouldonly be entitled to a shar e of the policy upon releasing Shkolnikov fromany future liability for bodily injury or wrongful death stemming from the accident.

On this basis, the court issued a final judgment stating that Metropolitan, having paid the full amount of the policy into the court registry, was relieved of further liability. The judgment, which we have reproduced in an addendum, further stated that the parties could obtain a 1/1 1th share of the policy in exchange for releasing Shkolnikov from any further claims of liability arising from the accident. The judgment also said that it precluded persons not a party to the action from "forever mak[ing] [a] claim against Metropolitan" under the policy.

Anu mber of the claimants appeal and challenge the district court's judgment on several grounds. They fi rst as sert that the district court lacked subject matter ju risd iction, an objection that takes priority over all others. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83 , 9 4-95 (1998). The argument is that the claimants had among themselves agreed as to-5-

how to split the $300,000, were not seeking more than $300,000 from the insurer, and were therefore not "adverse" to one another under the terms of the interpleader statute. Our review on this jurisdictional issue is de novo . E.g. , Valentin v. Hosp. Bella Vista , 254 F.3d 358, 365 (1st Cir. 2001).

The interpleader s t atute requires inter alia that the st akehol der point to "two or more adverse claimants" who "are claiming or may claim" the same money or property that the stakeholder has deposited into court. 28 U.S.C. § 1335(a)(1). One might wonder how any of the claimants (except Shkolnikov ) c ould have any c laimagainst the insurance company. The gist of the policyis to indemnify Shkolnikov for judgments against him and the claimant s do not assert that they are third-party beneficiaries. See Keeton & Widiss, Insurance Law § 4.10(a) (1988).

The partial answer may be that w hile Massachusetts apparentlyhas no formal direct action statute, it s l aw does requir e goodfaith by insurers in the prompt settlement of legitimate claims, Mass. Gen. Laws ch. 176D § 3(9) (2000), and that statute has been read in some instances to allow bad-faith claims against the insurer by injured third parties. See Clegg v. Butler , 676 N.E.2d 1134, 1138-39 (Mass. 1997). In addition, Metropolitan probably hoped to escape the obligation t o d efend Shkolnikov in suits against him now pending in state court in California; its policysays that the insurer's duty to defend ends when the policy-6-

maximumhas been paid "to a court of competent jurisdiction." Cf. Keeton & Widiss, supra , § 9.4(c)(2).

In all events, the claimants' jurisdictional objection fails. Long ago, in a somewhat comparable automobile accident case, the Supreme Court brushed aside the Ninth Circuit's concern that the claimants had no direct claim against the insurer. The Court held instead that the federal interple ader embraced an insurer's action against the insured's claimants. State Farm Fire & Cas. Co. v. Tashire , 386 U.S. 523, 532-34 (1967). Whether or not this practice reflects precisely the original theory of the interpleader statute, it has the Court's approval and serves a practical purpose in cases like this one.

Our own case is peculiar only in that the claimants have agreed among themselves as to how to split the pot and do not now saythat they are entitled to more than a total of $300,000 from Metropolitan. However, under the statute it is enough that there "may" be adverse claims by the interpled parties against the property or fund. 2 8 U. S.C. § 1335(a)(1). Until the district court judgment, this certainly was a case in which adverse claims exceeding the value of the policy could have been brought by these very claimants. In deed, the claimants own agreement appears to have been tenuous: there were arguments over the release language throughout the course of the suit an d app arently even as late as the summary judgment hearing.-7- Although it has been said the stakeholder must have real

reason to fear "double liability or the vexat ion of conflicting claims," Indianapolis Colts v. Baltimore , 74 1 F.2d 954, 957 (7th Ci r. 198 4), cert. denied , 470 U.S. 1052 (1985), Metropolitan had

some basis for such a fear. This is no t a case involving only pseudo-adversity where, for example, the stakeholder actually controls one of two claimants to a fund. Id . at 958 . The same practical consider ations that persuaded the Supreme Court in Tashire apply here with equal force. The potential a dver sity presentedhere is entirely suf ficient to meet the relatively undemanding jurisdictional requirement. Equitable Life Assurance. Soc. of the U.S. v. Porter-Englehart , 867 F .2d 79, 84 (1st Cir. 1989) . This brings us t o the merits which concern several disputed provisions of the judgment. At the close of the hearing on summary judgment, the district court ruled that it would grant relief to Metropolitan and asked the insurer's counsel to prepare a draft judgment. This draft was submitted to claimants' counsel who offered various objections by means of a letter to the district court before the judgment was ente red. This being an appeal for summary j ud gment, preserved objections are subject to plenary review. Lewryv. Town of Standish , 984 F.2d 25, 26-27 (1st Cir. 1993). Any objections newly minted for the appeal are subject only-8-

to plain error review. E.g. , Chestnut v. City of Lowell , 305 F.3d 18, 20 (1st Cir. 2002) (en banc).

Claimants make four substantive attacks on the judgment (two others were abandoned at oral argument). They say first that the judgment does not make clear that claimants who seek payment fromthe fund are entitled to an equal one-ele venth share. They point to an ordering paragraph in the judgment that instructs only that "each person or perso ns wh o claim any share" must present a release. It is plain enough, however, from the immediately prior para graph in the judgment that division is to be based u pon "a n equal, eleven way split" so that ambiguity is imaginary.

Second, and more persuasive, is th e cl aim that the judgment leaves it unclear how the claimants are to be grouped. The problem is that there are more than eleven claimants named in the complaint ( e.g. , multiple children of an individual decedent). The agreement among the claimants, as described at the summary judgment hearing, contem plat es that those who claim under an individual passenger will together get a single one-eleventh share. However, the judgment does not so provide. Claimants simply want the judgment to specify the individuals in each of the eleven groups. Metropolitan conspicuously does not respond to this argument although it was clearly pre sented in the district court andon appeal. If there is no dispute about the groupings, counsel-9-

shouldhave handled this by a post-judgment stipulation. But in its absence, the 16 claimants who are named parties--and who are being subject to a judgment they do not want--are entitled to have the judgment reflect accurately who gets what; in this instance identifying the membership of the respective eleven groups (not the split within each group) is all that is sought and can be easily provided on remand.

This brings us to a more serious claim affecting the present claimants, namely, that the release drafted by Metropolitan and attached to judgment releases Yury Shkolnikov from all claims arising out of the automobile accident in question. According to claimants, this could in some jurisdictions constitute a release of other po tentia l defendants ( e.g. , the rental company and the car manufacturer). E.g. , Doughertyv. Cal. Kettleman Oil Royalties , 88 P.2d690, 693 (Cal. 1939) (release of one of two or more joint tort feasors operates as a release of all). Apparently, claimants have in mind suits against these parties.

The issue may not be entirely straightforward. On the

one hand, some or all of the claimants may well have claims against Shkolnikov that greatly exceed the ir sha re of insurance; and the Supreme Court in Tashire said that an insurance interpleader action like this one is not a means of resolvin g claims of potential plaintiffs beyondtheir claims to the insurance. 386 U.S. at 535- 37. However, this does not settle the question whether the insurer2 The judgment itself do es n ot purport to release Shkolnikov

fromanything: it provides that anyone claiming a share of the policywill be entitled to it after presenting either a release in the form attached to the judgment or a final judgment by a court of competent jurisdiction against Shkolnikov. Thus, a claimant could c ollect under the judgment by presenting a judgment, default o r otherwise, against Shkolnikov; and if instead the claimant chooses to tender a release, conceivably this might be viewed as a voluntary settlement. -10- might be entit led to a full discharge of the insuredas part of the negotiatedsettlement with t he claimants. See Lazaris v. Metro. Prop. & Cas. Ins. Co. , 703 N.E.2d 205, 207 (Mass. 1997). 2

Here , the claimants say nothing about further clai m s against Shkolnikov himself; instead, they ask us to modify the judgment to protect them against inadvertent d isch arge of claims against other defendants. This claim of error has been forfeited because not requested in the district court. Faigin v. Kelly , 184 F.3d67, 82 (1st Cir. 2001). Relief might or mi ght not still be available, but not from us. See Fed. R. Civ. P. 60(b). The district judge could consider such a Rule 60(b) request on the remand otherwise required but that is not our business.

The most unusu al pas sage in the judgment remains to be addressed. In its second numbered paragraph, the judgment declares that "all persons with claims against Metropolitan's insured" have agreedto the equal, eleven-way split, and then continues: "Any other persons who have or may have claims against Yury Shkolnikov arising out of the March 8, 2000 accident are hereby bound by the-11-

aforementioned split and no other persons may now or forever make claim against Metropolitan under Part 5 of [the policy]."

Claimants' brief says that there are other heirs at law

an dnext of kin who are not parties to this case but are coplaintiffs in the state court litiga tio n in California. The claimants object, as they did in the district court , to any such cut-off of rights of these non-parties. Met ropo litan, which proposedthe language in t he jud gment, asserts that everyone who couldhave a claim was served but it makes no effort to defend the clause extending the judgment to non-parties. At oral argument it concededthat the judgment does not bind non-parties who were never servedor given an authorized form of notice requiring them to present their claims.

The objection to binding non-parties is clearly correct. Interpleader actions are in personam , not in rem , see New York Life Ins. Co. v. Dunlevy , 241 U.S. 518, 521 (1916), and cannot resolve the rights of non-parties to anything. Ev en in in r emactions, some form of notice ( e.g. , by publication) is ordinarily required to cut off interests in property. E.g. , Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306, 314 (1950). Claimants' standing to raise the issue may be doubtful, but we can and do correct such mistakes even if not raised at all. Cf. Chestnut , 305 F.3d at 21. On remand, the language in question purportedly to bind non-parties should be deleted.-12- Matte rs are somewhat different as to the judgment's related finding that "all persons" with claims against Shkolnikov arising out of the accident are parties to the agreement to split the insu rance eleven ways. Here, two different issues are involved: one is the adequacy of service as to certain named parties--a n obje ction briefed by claimants--and the other is whet her an yone else, apart from named parties, has any potential claimagainst Shkolnikov arising out of the accident. At oral argument, claimants abandoned the first objection but persist as to the second.

The difficulty is that claimants' brief does nothing to show the state of the evidence in the district court as to whether there are other potential claimants against Shkolnikov never named in this case. It is not our job to sift u n aided through the transcript and filings in the district court to see whether a finding now assailed on appeal had or lacked the requisite basis. UnitedStates v. Zannino , 895 F.2d 1, 17 (1st Cir.), cert. denied , 494 U.S. 1082 (1990). Claimants do not say that the failure to

name all potential plaintiffs is a jurisdictional error. See 7 Wright, Miller & Kane, Federal Practice and Procedure § 1611, at 167 & n.20 (3d ed. 2001).

As it happens, the possible incorrectness of the finding maynot matter. If no one beyond the named claimants has a potential claim, then the finding is correct. On the other hand,-13-

if there are other potential plaintiffs against Shkolnikov or Metropolitan, they are likely not bound--being non-parties--by any mistak en declaration that they do not exist. Metropolitan so concededat oral argument, omitting any reservation as to nonparties in privity with claimants. Of course, under the policy Metropolitan's payment of the policy maximum to some claimants may well exhaust any obligations it has to other s, but that is a different matter.

The judgment of the di strict court is affirmedin part and vacatedin part and the matter is remandedfor modifications consis tent with this decision, specifically, to identify the membership of the eleven different groups and to delete the existing language purporting to extend the judgment to non-parties. No costs are awarded to either side.

It is so ordered .-14- ADDENDUM The judgment of the district court (attachments omitted) reads as follows:

On motion made by the plaintiff, Met ropolitan Property andCasualty Insurance Company ("Metropolitan"), for summary judgment, and this Court being satis fied that all interested parties have had both notice and an opportunity to be heard thereon, the Court hereby orders and declares as follows: 1. That Metropolitan, having paid three hundred thousand dollars ($300,000) into the registry of thi s Court, representing the maximu ml imits of bodily injury to others coverage under policy number 039-48-2552-1, effective November 5, 1999 to November 5, 2000, issued to Yury Shkolnikov, is hereby discharged of all its liabilities, duties and obligations arising under or related to the terms of Part 5. Optional Bodily Injury to Others, of the standard Massachusetts (Personal) Automobile Insurance Policy, Sixth Edition, with respect to any and all claims for bodily injury or wrongful death arising out of the March 8, 2000 accident in Clark County, Nevada. 2. That all p ersons with claims against Metropolitan's insured, YuryShkolnikov, arising out of the March 8, 2000 accident have agreedto an equal, eleven way split of the $300,000 policy limits available under Part 5 of policy number 039-48-2552-1, together with any accumulated interest. Any other persons who have or may have claims against Yury Shkolnikov arising out of the March 8, 2000 accident are hereby bound by the aforementioned split and no other persons may now or forever make claim against M etropo litan under Part 5 of policy number 039-48-2552-1. 3. That each person or persons who claim any share or part of Metropolitan's $300,000 policy limit and any accumulated interest will be entitled thereto, after presenting to Metropolitan either a release of claims in the form attached hereto, against its insured, Yury Shkolnikov, for personal injuries or wrongful death ar ising out of the March 8, 2000 accident, or a final judgm en t renderedby a court of competent jurisdiction agai nst Yury Shkolnikov for liability arising out of the March 8, 2000 accident. 4. Metropolitan shall, upon receipt of a release or final judgment as described in the preceding paragraph, file with the Clerk of the Court a "Notice of Claim" in the form attached to the Order and J udgment, directing the Clerk to make payments from the $3 00,00 0-15-

previouslypaid by Metropolitan to the registry of the Court in accordance with 28 U.S.C. § 1335.