Trustmark Insurance v. Gallucci ( 1999 )

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit











No. 99-1882



                   TRUSTMARK INSURANCE COMPANY,



                      Plaintiff, Appellant,



                                v.



           CARMINE J. GALLUCCI, a/k/a Michael Gallucci,



                       Defendant, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



           [Hon. Ernest C. Torres, U.S. District Judge]







                              Before



                    Selya, Boudin and Lynch,

                        Circuit Judges.











     James A. Currier and Hodosh, Spinella & Angelone on Motion to

Remand for appellant.

     Lauren E. Jones and Jones Associates on Objection to Motion

for Remand for appellee.











October 4, 1999













     Per Curiam. Plaintiff Trustmark Insurance Company wishes to

execute a money judgment it obtained against its insured, defendant

Gallucci.  The district court concluded that Trustmark could not

execute the judgment because Trustmark's appeal from the judgment

was pending.  We summarily vacate the order denying Trustmark's

motion for execution of the judgment and remand for further

proceedings.

     Below, Trustmark filed an action against its insured, Carmine

J. Gallucci, seeking to recover payments Trustmark had made to

Gallucci under a disability insurance policy.  Trustmark contended

that Gallucci had claimed to be totally disabled when he fact he

was not.  The jury eventually returned a verdict for Trustmark, and

judgment entered on that verdict. Both Gallucci and Trustmark have

appealed from the judgment, Trustmark challenging the denial of

pre-judgment interest, and those appeals are now pending in this

court.

     As Gallucci had not posted a supersedeas bond under Fed. R.

Civ. P. 62(d), Trustmark moved  to execute the judgment in the

amount of the jury award plus post-judgment interest, but not

including the pre-judgment interest which is the subject of

Trustmark's other pending appeal.  The district court denied the

motion on the ground that Trustmark's appeal from the denial of

pre-judgment interest "indirectly challenges the validity of the

judgment," so "execution cannot issue . . . until the appeal is

resolved."

     The district court's position draws support from Tennessee

Valley Authority v. Atlas Machine & Iron Works, Inc., 803 F.2d 794,

797 (4th Cir. 1986), where the Fourth Circuit indicated that an

appeal by the prevailing party suspends the execution of the

judgment, thereby relieving the judgment debtor from filing a

supersedeas bond.  The Seventh Circuit, however, has disagreed with

the Fourth Circuit and has concluded that Rule 62(d) controls and

"requires a bond as a condition of a money judgment during an

appeal."  BASF Corp. v. Old World Trading Co., 979 F.2d 615, 617

(7th Cir. 1992). "[A] prevailing party's appeal suspends enforcement

of the judgment only when the theory of the appeal is inconsistent

with enforcement in the interim."  Id.; see also Enserch Corp. v.

Shand Morahan & Co., 918 F.2d 462 (5th Cir. 1990).

     We are persuaded by the Seventh Circuit's opinion and adopt

its reasoning.  Here, Trustmark's appeal, which seeks to increase

the amount of the judgment, is not inconsistent with immediate

enforcement of the judgment as it now stands.  Ordinarily,

therefore, Gallucci would be required to post a supersedeas bond if

he wants execution of the judgment stayed pending his appeal.

Consequently, we vacate the district court's  June 28, 1999 order

denying Trustmark's motion to execute the December 18, 1997

judgment and remand for further proceedings.

     Vacated and remanded.