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.