Blue Cross v. Harvard Cooperative, 1st Cir. (1992)

USCA1 Opinion
May 11, 1992

[NOT FOR PUBLICATION]
_________________________
No. 91-2247
BLUE CROSS AND BLUE SHIELD OF MASSACHUSETTS,
Plaintiff, Appellant,
v.
THE HARVARD COOPERATIVE SOCIETY, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
________________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Fuste,* District Judge.

______________
_________________________
Norman Jackman, with whom Martha M. Wishart and Jackman &

_______________
_________________
_________
Roth were on brief, for appellant.
____
Francis J. Lawler, with whom Robert M. Shea and Peabody and
__________________
______________
___________
Brown were on brief, for appellees.
_____
_________________________
_________________________
Per
Curiam.
____________
Massachusetts
Blue
(Blue Cross)
Cross
and
settled certain
Blue
claims advanced
David Gaskell and Carolyn Gaskell, husband and wife.

the
of
settlement, Blue Cross assigned

any
kind
whatsoever
that
it
Shield
of
by
As part of
to the Gaskells "all rights

may
have"
against
various
entities, including the present appellees.
The Gaskells then dropped Blue Cross as a defendant and

continued
and others.
the
their original suit (Suit No. 1) against the appellees

Eventually, the district court
Gaskells' amended
verified complaint
ruled on Count X of
(a count
wherein the
plaintiffs sought
to prevail against the
appellees as subrogees
of Blue Cross), granting judgment in appellees' favor.
The court
wrote:
After
a
review
of
the
relevant
provisions of the Blue
Cross Subscriber
Certificate, and after consideration of all
arguments raised by the pleadings, this Court
finds, as
a matter of law,
that Blue
Cross/Blue
Shield
possessed
no
rights
pursuant
to
the Subscriber
Certificate
against the [Harvard Cooperative Society] for
reimbursement of any monies
paid toward
plaintiffs'
medical
bills.
Thus, the
plaintiffs, as assignees of Blue Cross/Blue
Shield, have no right to recover any monies
beyond that which they are receiving in the
form of continued medical benefits.
Little daunted, the Gaskells' attorney filed a new suit

in
2).
Blue Cross's name, in
a Massachusetts state
court (Suit No.
The appellees removed Suit No. 2 to federal district court.
The district judge dismissed

of res judicata."
it "on the basis of
the principles
Blue Cross appeals.
We
proper.
need
See McCoy
___ _____
not linger.
We
note
that the
v. MIT, 950 F.2d 13, 15 n.1

___
petition for cert. filed,
removal was
(1st Cir. 1991),
60 U.S.L.W. 3601 (U.S. Feb.
14, 1992)
________________________
(No.
91-1337).
We
note, further,
judicata was appropriately invoked.

Ins. Co. of America,
___________________
that
the doctrine
See, e.g.,
___ ____
924 F.2d 1161, 1165 (1st
of
res
Kale v. Combined
____
________
Cir.) (describing
essential elements of claim preclusion), cert. denied, 112 S. Ct.

_____ ______
69 (1991).
asserted
We add only
in
Count
two comments.
of
Suit
No.
(1) The causes

1
and
respectively, were sufficiently similar to

of
the rule.
asserted
See
___
id. at
___
1166 (test
concern, or derive from, the
in
of action
Suit
No.
2,
meet the requirements
is whether
the theories
same operative nucleus of
fact); Isaac v. Schwartz, 706 F.2d 15, 17 (1st Cir. 1983) (same).
_____
________
(2)
The "identity of parties" required to meet the requirements
of res
judicata is satisfied
original party
second suit.
stands in as
when a person
a surrogate
in privity with
for that party
an
in the
See, e.g., Fiumara v. Fireman's Fund Ins. Cos., 746

___ ____ _______
________________________
F.2d 87, 92 (1st Cir. 1984).

real parties in interest
Here, the Gaskells were plainly the
on the plaintiffs' side in
Blue Cross having assigned all
its rights to them.
both suits,
No
more was
exigible.
We need go
no further.
Finding, as
we do, that
appeal presents no substantial question, we affirm.

Loc.
R.
27.1.
In
so
doing, we
express
no
the
See 1st Cir.

___
opinion on
the
correctness of any of the district court's rulings in Suit No. 1,

those rulings not being before us at this time.
Affirmed.
Affirmed.
Costs to appellees.
Costs to appellees.
3

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USCA1 Opinion

May 11, 1992

and Fuste,* District Judge.

Norman Jackman, with whom Martha M. Wishart and Jackman &

David Gaskell and Carolyn Gaskell, husband and wife.

settlement, Blue Cross assigned

to the Gaskells "all rights

entities, including the present appellees.

The Gaskells then dropped Blue Cross as a defendant and

their original suit (Suit No. 1) against the appellees

to prevail against the

of Blue Cross), granting judgment in appellees' favor.

Little daunted, the Gaskells' attorney filed a new suit

Blue Cross's name, in

court (Suit No.

The appellees removed Suit No. 2 to federal district court.

The district judge dismissed

it "on the basis of

Blue Cross appeals.

v. MIT, 950 F.2d 13, 15 n.1

petition for cert. filed,

(1st Cir. 1991),

60 U.S.L.W. 3601 (U.S. Feb.

judicata was appropriately invoked.

924 F.2d 1161, 1165 (1st

essential elements of claim preclusion), cert. denied, 112 S. Ct.

(1) The causes

respectively, were sufficiently similar to

concern, or derive from, the

meet the requirements

same operative nucleus of

The "identity of parties" required to meet the requirements

for that party

See, e.g., Fiumara v. Fireman's Fund Ins. Cos., 746

F.2d 87, 92 (1st Cir. 1984).

Here, the Gaskells were plainly the

on the plaintiffs' side in

Blue Cross having assigned all

its rights to them.

appeal presents no substantial question, we affirm.

See 1st Cir.

correctness of any of the district court's rulings in Suit No. 1,

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