Olick v. John Hancock Mutual Life Insurance

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2350
THOMAS W. OLICK,
Plaintiff, Appellant.
_______________________
RICHARD DUHAIME, ET AL.,
Plaintiffs,
v.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Thomas W. Olick on brief pro se.
Edwin G. Schallert and Debevoise & Plimpton, LLP on brief for
appellees.
July 14, 2004
Per Curiam. This appeal involves a dispute growing out of a
massive class action against John Hancock Mutual Life Insurance
Company and related defendants. The underlying suit, brought on
behalf of nearly four million policyholders, charged defendants
with a number of deceptive sales and marketing practices. In a
December 1997 final judgment, the district court certified the
class and approved a comprehensive settlement agreement imposing a
series of remedial measures. See Duhaime v. John Hancock Mut. Life
Ins. Co., 177 F.R.D. 54 (D. Mass. 1997); cf. Duhaime v. John
Hancock Mut. Life Ins. Co., 183 F.3d 1 (1st Cir. 1999) (collateral
appeal). One such measure enabled class members to obtain
individualized relief through an alternative dispute resolution
(ADR) process.
Appellant Thomas Olick, a former John Hancock agent and
unnamed member of the plaintiff class, here complains about the
manner in which his ADR claims were handled. The ADR mechanism
involves a two-tiered process. A "claim review team" (CRT)
consisting of John Hancock employees initially evaluates a claim
based on objective scoring criteria prescribed by the settlement
agreement. A claimant may then appeal to an independent
arbitrator, who reviews the claim de novo using the same scoring
and relief criteria. The arbitrator's decision is ordinarily
binding. Pursuant to this process, Olick submitted claim forms for
eleven separate policies held by himself and various family
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members. Under circumstances that are unclear from the record
before us, defendants allegedly refused to accept seven of these
claims for ADR resolution. The remaining four were reviewed by the
CRT and given the lowest score of "1." After a hearing, an
arbitrator raised the scores to "2."
When no awards reflecting these revised scores were
immediately forthcoming, Olick filed a trio of motions. First, in
a "motion to compel and to grant sanctions," he accused defendants
of violating the settlement agreement in two ways: (1) by refusing
to comply with the arbitrator's decision (or even to furnish him
with a copy thereof), and (2) by refusing to submit his other seven
claims to ADR at all. By way of relief, he sought an order
compelling defendants to produce the arbitrator's decision and to
offer awards consistent therewith; he also sought punitive damages
for defendants' alleged "misconduct and contempt." Second, Olick
sought to intervene on behalf of a subclass consisting of former
John Hancock agents and their families, contending that defendants
during the CRT stage had improperly undervalued the claims
submitted by such individuals. Finally, Olick sought an emergency
hearing.
While these motions were pending, defendants sent settlement
offers to Olick on each of the four ADR claims; according to
defendants, these offers complied in all respects with the
arbitrator's decision. Olick responded with a fourth motion.
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Charging that the offers were "frivolous and substantially less"
than what was mandated by the settlement agreement, he sought
production of all documents employed by defendants in calculating
those offers.
The district court summarily denied all four motions, but
stated that the motion to compel and for sanctions was denied
"without prejudice pending a showing that defendants have not
complied with the arbitrator's decision, as they represent they now
have." Olick unsuccessfully sought reconsideration without
attempting any such showing. He now appeals. We affirm.
While the district court's 1997 final judgment authorized
"action[s] to enforce the terms of the Settlement Agreement,"
Duhaime, 177 F.R.D. at 77, Olick has failed to carry his burden of
establishing any breach thereof. With respect to the four claims
that were submitted to the ADR process, it suffices to note the
following. Olick's motions are partly moot, now that defendants
have advanced offers in response to the arbitrator's decision. To
the extent not moot, they are misplaced. Olick acknowledges
receiving a "full and fair hearing" before the arbitrator and
concedes that the arbitrator's determination is binding. His vague
accusation that defendants' offers conflict with that determination
is unsupported. And he has not otherwise satisfied the criteria
for intervention. Under these circumstances, the district court
did not err in withholding the relief requested.
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With respect to the seven claims allegedly excluded from the
ADR process, Olick asserts on appeal that he moved to "compel
arbitration." He also suggests that such a procedure is governed
by the Federal Arbitration Act. 9 U.S.C. § 4. Defendants, for
their part, allege that such claims were the subject of earlier
arbitration unconnected to the Duhaime litigation; Olick retorts
that any such "res judicata defense" is one to be determined by the
arbitrator, not the court. Whatever the merit of these positions,
Olick's premise is mistaken: he never did move below to compel
arbitration of these claims. In the motions under review here, the
only thing he sought to "compel" was compliance with the
arbitrator's decision. With respect to the excluded claims, the
only forms of relief requested were sanctions and punitive damages,
and those were properly denied. Whether Olick might still be able
to compel arbitration of these claims is a matter we leave for
resolution, if and when presented by proper motion, by the district
court in the first instance.
Affirmed.
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