Guiel v. Allstate Insurance Company

Guiel v. Allstate Insurance Company  (99-046); 170 Vt. 464; 756 A.2d 777

[Filed 28-Apr-2000]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter  of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 99-046


Jo-Anne Guiel	                               Supreme Court

                                               On Appeal from
     v.	                                       Chittenden Superior Court


Allstate Insurance Company	               December Term, 1999



Matthew I. Katz and Edward J. Cashman, JJ.

       Geoffrey W. Crawford of O'Neill Crawford & Green, Burlington, for
  Plaintiff-Appellee.

       Charles Platto and Eric D. Jones of Brooks McNally Platto & Vitt,
  Norwich, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.



       AMESTOY, C.J.   In response to the parties' cross-motions for summary
  judgment in this  declaratory judgment action, the superior court ruled
  that plaintiff Jo-Anne Guiel, who had obtained  a settlement in a prior
  lawsuit seeking damages for injuries she sustained in an automobile
  accident,  was entitled to deduct a proportionate share of the attorney's
  fees she incurred in the prior lawsuit  from her insurer's subrogation
  interest in the settlement.  On appeal, her insurer, defendant Allstate 
  Insurance Company, contends that it should not have to pay a proportionate
  share of plaintiff's  attorney's fees because it informed plaintiff that it
  was actively pursuing its subrogation claim  directly against the
  tortfeasor's insurer in an independent arbitration proceeding.  In the
  alternative, 

 

  Allstate argues that the court acted improperly and prematurely by deciding
  the matter in a summary  judgment ruling.  We affirm.

       The material facts are not in dispute.  On March 22, 1994, a truck
  owned by Barrett Trucking  Company struck the vehicle plaintiff was
  driving.  At the time of the accident, plaintiff was covered  by an
  Allstate automobile insurance policy.  Plaintiff filed a claim with
  Allstate for medical expenses  and property damage.  In August 1994,
  Allstate wrote to Barrett Trucking's insurer, CNA Insurance  Company,
  stating that Allstate was entitled to subrogation of any payments made to
  plaintiff arising  from injuries she sustained in the Barrett Trucking
  accident, and asking that CNA protect Allstate's  right of subrogation in
  dealing with plaintiff.  In January 1995, Allstate wrote to the attorney
  retained  by plaintiff, stating that its policy allowed it to subrogate
  directly to the liability carrier any amount  paid under the medical
  payments coverage, and noting that it had already advised CNA of Allstate's 
  right of subrogation.  In May 1995, Allstate again wrote to CNA, this time
  indicating how much  money it had paid plaintiff up until that point, and
  stating that it expected to be paid directly for its  subrogation claim. 
  Allstate wrote to CNA a final time in February 1996, reiterating that CNA
  was  responsible for reimbursing Allstate directly for all amounts paid to
  plaintiff "at the time of any  settlement of her claim."

       In April 1996, plaintiff filed a negligence action against Barrett
  Trucking.  That claim was  joined with a lawsuit plaintiff filed at the
  same time against another driver for injuries she sustained  in a July 30,
  1993 accident.  Both plaintiff and the defendants retained medical experts,
  who were  deposed at some point during the ensuing two years as the case
  progressed toward trial.  The parties  disputed causation, apportionment of
  damages, and the reasonableness and necessity of plaintiff's  medical
  charges.  In March 1998, Allstate declined to participate in a mediation
  session between 

 

  plaintiff and Barrett Trucking.  On March 30, 1998, shortly before the
  scheduled trial was to take  place, plaintiff settled her claim against
  Barrett Trucking for $105,000.  The parties' agreement  expressly stated
  that the settlement amount included the $54,747 in medical payments that
  Allstate  had made to plaintiff up until that point.  The claim against the
  other defendant went to trial and  resulted in a $150,000 plaintiff's
  verdict.

       Meanwhile, on March 20, 1997, Allstate had filed a request for
  inter-company arbitration  with CNA.  Stating that it was filing for
  arbitration at that time only to prevent the tolling of the  statute of
  limitations, Allstate requested that the proceedings be deferred on the
  grounds that plaintiff  had not reached a medical end result and was still
  receiving benefits.  Eventually, an arbitration  hearing was set for March
  17, 1998, but was tentatively rescheduled, at Allstate's request, for March 
  20, 1999, "due to companion claims and/or suits pending."  Apparently,
  Allstate sought an  arbitration hearing following resolution of plaintiff's
  lawsuits against the tortfeasors.  No hearing  ever took place, however.

       On April 16, 1998, plaintiff filed the instant declaratory judgment
  action, requesting that the  superior court reduce Allstate's subrogation
  recovery by a proportionate share of the one-third  contingency fee and
  other expenses she incurred in settling the Barrett Trucking claim.  The
  parties  filed cross-motions for summary judgment.  The superior court
  granted plaintiff's motion and denied  Allstate's motion, ruling that under
  the "common fund" doctrine Allstate was obligated to pay a  proportionate
  share of the attorney's fees that plaintiff incurred in creating a common
  fund from  which Allstate benefitted without actively pursuing its
  subrogation interest independently.  On  appeal, Allstate argues that (1)
  Vermont does not recognize the common-fund doctrine; (2) the  doctrine does
  not apply when the insurer elects to arbitrate its subrogation claim; (3)
  the superior 

 

  court inappropriately resolved inferences in plaintiff's favor; and (4) the
  court did not give Allstate  an opportunity to develop a factual record
  that could establish exceptions to the common fund  doctrine.

       "In reviewing a grant of summary judgment, we apply the same standard
  as the trial court."  St. Albans v. Northwest Reg'l Planning Comm'n, 167
  Vt. 466, 469, 708 A.2d 194, 196 (1998).   Summary judgment is appropriate
  when the record demonstrates that there is no genuine issue as to  any
  material fact, and the moving party is entitled to judgment as a matter of
  law.  See Viles v.  Vermont State Colleges, 168 Vt. 459, 461, 724 A.2d 448,
  450 (1998).

                                     I.

       Allstate first argues that Vermont has declined to recognize the
  common fund doctrine as an  exception to the American Rule requiring each
  party to be responsible for its own attorney's fees,  see Robes v. Town of
  Hartford, 161 Vt. 187, 198-99, 636 A.2d 342, 349-50 (1993), and that 
  applying the doctrine in cases such as this would be inappropriate because
  Vermont statutory law  entitles insurers to collect the full amount of
  their subrogation interest, see 8 V.S.A. § 4203(4).

       These arguments are not persuasive.  Under the American Rule, which
  has been consistently  applied in Vermont, "attorney's fees are ordinarily
  unrecoverable in the absence of statutory authority  or the parties'
  contractual provision concerning this expense."  Robes, 161 Vt. at 198, 636 A.2d  at  349.  One of the judicially created equitable exceptions to this
  rule is the common fund doctrine,  which permits a prevailing party - whose
  lawsuit has created a fund that is intended to benefit not  only that party
  but others as well - to recover, either from the fund itself or directly
  from those  others enjoying the benefit, a proportional share of the
  attorney's fees and costs incurred in the  lawsuit.  See id. at 198-99, 636
  A.2d at 349-50; Savoie v. Merchants Bank, 84 F.3d 52, 56 (2d Cir. 

 

  1996).  This Court declined to recognize the doctrine in Robes because the
  defendants had prevailed  on all counts, and the plaintiffs had not
  recovered any damages; thus, there was no "common fund"  from which to
  award attorney's fees.  See 161 Vt. at 199, 636 A.2d  at 350; see also
  Savoie, 84 F.3d   at 56 ("common fund doctrine does not apply . . . when
  fees are sought from the assets of the losing  party").  We did not hold,
  however, as Allstate suggests, that the common fund doctrine could never 
  be applied, regardless of the circumstances, as an equitable exception to
  the American Rule on  attorney's fees.  To the contrary, we indicated that
  the doctrine had been generally accepted by other  jurisdictions that
  applied the American Rule.  See Robes, 161 Vt. at 198, 636 A.2d  at 349.

       Indeed, Allstate does not cite a single jurisdiction in which a court
  has declared that the  common fund doctrine can never be applied as an
  exception to the American Rule, regardless of the  circumstances of the
  particular case being considered.  With respect to application of the
  doctrine  in the context of insurance subrogation cases such as the instant
  one, a leading commentator has  observed:

         When an insurance company lays claim to subrogation proceeds, 
      obviously someone has to collect them, and attorneys rarely work
      for  free.  It is grossly inequitable to expect an insured, or
      other claimant,  in the process of protecting his own interest, to
      protect those of the  company as well and still pay counsel for
      his labors out of his own  pocket, or out of the proceeds of the
      remaining funds.  And this is  precisely the view taken by the
      overwhelming majority of decisions,  in that a proportionate share
      of fees and expenses must be paid by the  insurer or may be
      withheld from its share.

  8A J. Appleman & J. Appleman, Insurance Law and Practice § 4903.85, at 335
  (1981); see 16 R.  Anderson & M. Rhodes, Couch Cyclopedia of Insurance Law
  § 61:47, at 131 (2d ed. 1983) ("Where  the insured prosecutes the suit
  against the tortfeasor, thereby incurring legal expenses and court  costs,
  the insured is generally entitled to recover such expenses prior to any
  recovery going to the 

 

  insurer, or the insurer must at least pay its proportionate share of the
  expenses."); see also Philips  v. State Farm Mut. Ins. Co., 73 F.3d 1535,
  1539 n.2 (10th Cir. 1996) (citing state courts that require  subrogees to
  pay share of attorney's fees incurred by their insureds in prosecuting
  actions against  third-party tortfeasors); Principal Cas. Ins. Co. v.
  Norwood, 463 N.W.2d 66, 68 (Iowa 1990)  (prevailing law in other
  jurisdictions is that insured may retain costs and expenses from fund 
  recovered from wrongdoer and benefitting insurer); Hedgebeth v. Medford,
  378 A.2d 226, 229-30  (N.J. 1977) (rule that right of subrogation carries
  with it equitable requirement of paying  proportionate share of attorney's
  fees "is now clearly accepted"); Amica Mut. Ins. Co. v. Maloney,  903 P.2d 834, 839 (N.M. 1995) (joining majority of jurisdictions that have extended
  common fund  doctrine to insurance cases where insured incurs attorney's
  fees in obtaining judgment or reaching  settlement that benefits subrogated
  insurer); Bowen v. American Family Ins. Group, 504 N.W.2d 604, 606 (N.D.
  1993) (joining "nearly unanimously adopted" rule that insurer's subrogation
  interest  is subject to proportionate share of attorney's fees incurred by
  insured in securing settlement against  third-party tortfeasor).

       We agree with the reasoning of these courts and commentators, and thus
  hold that, under  appropriate circumstances, the common fund doctrine may
  be applied to require an insurer to pay  a proportionate share of the
  attorney's fees incurred by its insured in obtaining a judgment or 
  settlement that satisfies the insurer's subrogated interest.  See York Ins.
  Group of Maine v. Van Hall,  704 A.2d 366, 369 (Me. 1997) ("common fund
  doctrine is available in Maine in cases where an  insured incurs attorney
  fees and expenses in recovering a judgment or settlement that benefits a 
  subrogated insurer").  Nothing in the language of 8 V.S.A. § 4203(4)
  militates against this holding.  Section 4203(4) provides that an insurer
  shall be subrogated to its insured against any party with 

 

  respect to payment of loss or expense under the applicable policy "to the
  amount of such payment,"  and the insured shall cooperate with the insurer
  to secure its right of subrogation.  The phrase "to the  amount of such
  payment" merely sets a limit on the extent of the right of subrogation and
  is not  intended to preclude application of the common fund doctrine in
  insurance cases involving  subrogation rights.  Cf. Van Hall, 704 A.2d  at
  369 (phrase "to the extent of our payment" contained  in insurance contract
  "does not clearly address the question whether the insured is permitted to
  retain  a prorated portion of the cost of recovery from its obligation
  under the contract's subrogation  clause").

       We emphasize, however, that the common fund doctrine should be applied
  only after the trial  court determines that it is equitable to do so
  because of the facts of the particular case at hand.  See  Traveler's Ins.
  Co. v. Williams, 541 S.W.2d 587, 590 (Tenn. 1976) (doubting advisability of 
  attempting to devise single rule to govern all cases concerning application
  of common fund  doctrine).    Before applying the doctrine, the court
  should examine all of the circumstances of the  case, including the nature
  and extent of the subrogee's activities.  See Dunn, Brady, Goebel, Ulbrich, 
  Morel, Kombrink & Hundman v. State Farm Ins. Co., 426 N.E.2d 315, 319-20
  (Ill. App. Ct. 1981). 
 
                                     II.


       Anticipating this holding, Allstate contends that the doctrine should
  not apply when, as here,  the insurer has independently and actively
  pursued its subrogation claim against the tortfeasor's  insurer through
  arbitration proceedings.  Otherwise, according to Allstate, the policies
  served by  allowing insurers to resolve their disputes with other carriers
  informally through arbitration would  be undermined.  Allstate emphasizes
  that it (1) repeatedly notified plaintiff's attorney that it intended  to
  pursue its subrogation claim directly against the tortfeasor's insurer
  through arbitration 

 

  proceedings, (2) expressly rejected the attorney's offer to represent it in
  settling the Barrett Trucking  case, and (3) initiated arbitration
  proceedings against CNA to perfect its claim.  Allstate  acknowledges that
  no arbitration proceedings were held before plaintiff's attorney settled
  the Barrett  Trucking case, but contends that those proceedings were
  delayed only because plaintiff had not  reached a medical end result and
  was continuing to receive benefits from Allstate.  Allstate asserts  that,
  under these circumstances, plaintiff's attorney acted as a "volunteer" to
  the extent that he  rendered any services beneficial to Allstate, and thus
  plaintiff was not entitled to have Allstate pay  a proportionate share of
  her attorney's fees.

       Again, these arguments are not persuasive.  Without question, Allstate
  expressly declined  to take part in litigating or settling plaintiff's
  lawsuit against Barrett Trucking, and indeed eventually  submitted a
  request to have its subrogation claim against CNA determined through
  inter-company  arbitration proceedings.  Nevertheless, the undisputed
  evidence demonstrates that Allstate intended  to, and in fact did, await
  the results of the Barrett Trucking lawsuit, and thus took advantage of the 
  efforts of plaintiff's attorney, before following through with its
  subrogation claim against CNA.   From the outset of the Barrett Trucking
  case, Allstate advised both plaintiff and CNA of their  responsibility to
  protect its subrogation claim.  See 8 V.S.A. § 4203(4) (insured shall
  cooperate with  insurer to secure its subrogation rights); cf. Bowen, 504 N.W.2d  at 606 (neither insurance contract  nor subrogation agreement
  advised insured that, in fulfilling his duty to protect insurer's
  subrogation  interest, he would be responsible for all attorney's fees
  incurred in obtaining settlement with third  party's insurer).  Further, in
  its May 1995 letter to CNA, Allstate acknowledged its assumption that  CNA
  had not paid the subrogation claim because of plaintiff's pending lawsuit,
  and then emphasized  that it expected to be paid directly "at the time of
  any settlement of [plaintiff's] claim."

 

       Allstate contends that it was merely waiting for a medical end result,
  and that the efforts of  plaintiff's attorney were not needed for it to
  secure its subrogation claim.  The undisputed evidence,  however,
  demonstrates otherwise.  Plaintiff had been in two, possibly three, other
  automobile  accidents within months of the March 22, 1994 accident. 
  Barrett Trucking vigorously defended  against plaintiff's lawsuit, raising
  significant disputes concerning causation, apportionment of  damages, and
  the reasonableness and necessity of the medical charges.  Several experts
  were retained  and deposed, and discovery continued over a two-year period. 
  Allstate's assertion that it did all it  could to secure its subrogation
  claim independently rings hollow when contrasted with the efforts  of
  plaintiff's attorney in filing suit, engaging in discovery, and pursuing
  settlement through mediation  to obtain a common fund that secured
  Allstate's subrogation claim.  Moreover, notwithstanding its  bare
  statement that liability was conceded, Allstate plainly benefitted from the
  efforts of plaintiff's  attorney in securing its subrogation claim.  Cf.
  Sobczak v. Whitten, 393 N.E.2d 1080, 1083 (Ill. App.  Ct. 1979)
  (considering that negotiations were required before insured could obtain
  settlement in suit  against tortfeasor, record did not support insurer's
  argument that liability was clear, payment was  certain, and settlement was
  foregone conclusion).

       As noted, the common fund doctrine is grounded on equitable principles
  and applied on a  case-by-case basis.  See Norwood, 463 N.W.2d  at 68
  (equitable principles underlie rule that right  to subrogation carries with
  it duty to pay proportionate share of attorney's fees); Hedgebeth, 378 A.2d  at 230 (common fund doctrine is based on equitable principle that
  insurer should not be entitled  to enjoy fruits of insured's judgment
  against tortfeasor without contributing in any way to costs or  burdens of
  litigating that claim).  In cases where the insurer demonstrates that it
  "actively  participated in, or substantially contributed to," recovery of
  the common fund, "the trial court may 

 

  reduce or waive the insurer's proportionate contribution" to attorney's
  fees and court costs incurred  in securing the fund.  Maloney, 903 P.2d  at
  840.  To claim active participation in a settlement, the  insurer must
  demonstrate that it participated in settlement negotiations and contributed
  to obtaining  the award.  See id.

       Allstate acknowledges not having participated in the instant
  settlement, but claims that it had  a right to secure its subrogation claim
  independently through inter-company arbitration proceedings.  That may be
  so, but rather than do so, Allstate sat back and awaited a settlement or
  judgment in the  Barrett Trucking lawsuit before acting on its claim. 
  Indeed, the arbitration proceedings were  deferred, at Allstate's request,
  "due to companion claims and/or suits pending."  Under the particular 
  circumstances of this case, equity demands application of the common fund
  doctrine.  See id. at 837-38, 840 (common fund doctrine applies in cases
  where, other than writing letters informing  tortfeasors' insurers of
  subrogation interest and notifying insureds of intent to pursue subrogation 
  rights independently, subrogated insurers sat back and waited for insureds
  to reach settlement with  tortfeasors); cf. Van Hall, 704 A.2d  at 369 n.5
  (insurer's letter informing insured that it intended to  pursue subrogation
  claim independently did not insulate insurer from contributing to
  attorney's fees  incurred by insured in protecting insurer's claim; insurer
  cannot recover its subrogation interest from  insured's settlement, and
  then deny responsibility for contributing to costs of that recovery); 
  Hedgebeth, 378 A.2d  at 230 (fact that insurer might have brought
  independent action to obtain  reimbursement for amounts paid under
  insurance policy does not militate against rule that right of  subrogation
  carries with it equitable requirement of paying proportionate share of
  attorney's fees).

       The cases cited by Allstate in support of its position are
  distinguishable.  See CNA Ins. Cos.  v. Johnson Galleries, 639 So. 2d 1355,
  1359 (Ala. 1995) (refusing to apply common fund doctrine 

 

  because attorneys for insured "actively and consistently" sought to prevent
  subrogee from obtaining  any part of settlement); Cockman v. State Farm
  Mut. Auto. Ins. Co., 854 S.W.2d 343, 345 (Ark.  1993) (refusing to apply
  common fund doctrine because arbitration agreement required insurers to 
  forego litigation, evidence clearly demonstrated that insurer had not
  refused to pursue its  independent subrogation claim, and insured warranted
  in subrogation receipt that she would make  no settlement or release
  regarding subrogated rights without insurer's written consent); Osborne v. 
  State Farm Mut. Auto. Ins. Co., 923 P.2d 304, 305-06 (Colo. Ct. App. 1996)
  (refusing to apply  common fund doctrine because insured did not give
  insurer opportunity to participate in settlement  negotiations, insurer
  expressed  intent to pursue its claim independently in arbitration
  proceedings,  and insurer expressed no intention to share in funds
  generated by insured's suit); Dunn, 426 N.E.2d   at 318 (refusing to apply
  common fund doctrine because no "fund" was created where tortfeasor's 
  insurer admitted liability and agreed to pay subrogation claim irrespective
  of insured's personal  injury lawsuit, tortfeasor's insurer began making
  payments on subrogation claim before insured sued  tortfeasor, settlement
  negotiations did not concern subrogated interests, and record demonstrated
  that  subrogee expended substantial energy in pursuing its claim directly
  from tortfeasor's insurer);  Williams, 541 S.W.2d  at 590-91 (refusing to
  apply common fund doctrine because there was no  express, implied, or quasi
  contractual relation between attorney and insurer, and thus attorney acted 
  as volunteer).

                                    III.


       Allstate argues, however, that, in granting summary judgment to
  plaintiff, the superior court  improperly resolved inferences in
  plaintiff's favor.  See Lopez v. Concord Gen. Mut. Ins. Group, 155  Vt.
  320, 324, 583 A.2d 602, 605 (1990) (party opposing motion for summary
  judgment must be  given benefit of all reasonable doubts and inferences in
  determining whether genuine issue of 

 

  material fact exists).  Specifically, Allstate contends that the trial
  court necessarily resolved doubts  in plaintiff's favor by concluding that
  Allstate was not actively pursing its subrogation claim, despite 
  undisputed evidence that (1) Allstate was a party to an arbitration
  agreement; (2) Allstate's practice  was to protect its own subrogation
  interests through arbitration; (3) Allstate notified all parties that  it
  would protect its own interests; and (4) Allstate commenced arbitration
  proceedings.

       For the reasons discussed in Part II of this opinion, we find no merit
  to this argument.  The  facts cited by Allstate are, for the most part,
  undisputed but not material to the trial court's  determination that in
  this particular case Allstate did not actively pursue an independent action 
  directly against CNA to secure its subrogation claim.  The trial court
  concluded, and we agree, that  the undisputed facts demonstrate that
  Allstate intended to, and in fact did, await the settlement in the  Barrett
  Trucking litigation before collecting its subrogated interest.

                                     IV.

       Finally, Allstate argues that even if this Court concludes that the
  common fund doctrine was  properly applied in this case, we must remand the
  matter to permit Allstate to develop a factual  record to determine if
  other exceptions to the doctrine may apply.  Specifically, Allstate asserts
  its  right to engage in additional discovery (1) to show that it actively
  participated to protect its own  interest; (2) to determine whether
  plaintiff and her attorney understood that the attorney represented  only
  her interests, and not those of Allstate; and (3) to explore whether the
  attorney's fees incurred  by plaintiff were reasonable.

       Once again, we find no merit to this argument.  Allstate had the
  opportunity to avoid  summary judgment by positing material facts in
  dispute.  Indeed, the parties filed cross-motions for  summary judgment
  that relied on affidavits supporting their respective positions. 
  Nevertheless, 

 

  Allstate was unable to point to disputed material facts precluding summary
  judgment.  Nor did  Allstate challenge before the superior court the
  reasonableness of the one-third contingency-fee  arrangement between
  plaintiff and her attorney in the Barrett Trucking case.  Although it had
  access  to the fee agreement and voluminous medical records, depositions,
  pleadings, discovery materials,  and other documents related to the Barrett
  Trucking case, Allstate provided no reason to suggest that  the contingency
  fee was excessive or unreasonable.  See Maloney, 903 P.2d  at 841 (in
  determining  whether attorney's fees apportioned to subrogated insurer are
  equitable, court must consider whether  fee agreement was consistent with
  customary fee arrangements, keeping in mind that attorney's  efforts in
  reaching entire settlement, not just in protecting subrogated amount, must
  be considered;  in this case, insurers neither presented evidence that
  contingency fees were unreasonable in relation  to amount of work done to
  achieve final settlement, nor suggested that contingency fee agreement  was
  inconsistent with standard industry practice in such cases).  Accordingly,
  we see no reason to  remand the case to reopen these matters.

                                     V.

       The material facts in this case are not in dispute.  Allstate urged
  plaintiff's attorney and CNA  to protect its subrogation interest in the
  Barrett Trucking litigation, which would resolve any   disputes concerning
  the extent of the tortfeasor's liability.   Allstate's pre-settlement
  conduct, which  Allstate characterizes as actively pursuing its subrogation
  interest independent of plaintiff's lawsuit,  was described by the trial
  court as Allstate "sitting on its subrogation tuffet."  Whatever the merits 
  of Allstate's objection to the trial court's colorful phraseology, Allstate
  plainly sought to benefit from  the services of plaintiff's attorney in
  securing its subrogation claim without paying for those services.  Given
  the undisputed material facts, the law does not allow Allstate to do so.

 


       Affirmed.


                                         FOR THE COURT:
                                         
                                         ________________________________________
                                         Chief Justice