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August 26, 2008
EMPLOYERS INSURANCE COMPANY OF WAUSAU, PLAINTIFF,v.HARLEYSVILLE INSURANCE COMPANY OF NEW JERSEY, DEFENDANT.
Presently before the Court are the parties' cross-motions for summary judgment in plaintiff's action for a declaration of insurance coverage and reimbursement of attorneys' fees and costs. For the reasons expressed below, plaintiff's motion will be granted and defendant's motion will be denied.
Plaintiff, Employers Insurance Company of Wausau ("Wausau"), has brought this action against Defendant, Harleysville Insurance Company of New Jersey ("Harleysville"), seeking a declaration that Harleysville has a duty to defend and indemnify Wausau's insured in an personal injury action that was brought in New Jersey state court. Wausau is also seeking reimbursement of its attorneys' fees and costs associated with defending the state court action as well as bringing this action. Harleysville is seeking a determination that it had no duty to defend or indemnify Wausau's insured.
These cross-motions are the parties' second summary judgment filings. When considering the parties' first set of cross-motions, the Court denied the motions without prejudice and stayed the case pending the outcome of the underlying state court tort action brought by a personal injury plaintiff against Wausau's and Harleysville's insureds. That course was taken because the parties' motions required the Court to rule on an unsettled area of New Jersey law that the state court in the underlying action was also required to consider. The parties were directed to notify the Court when the underlying state court action was resolved, so that this action could be re-activated and the parties' motions decided. The state court action has now concluded, and the parties' motions are ripe for decision.
The following background was included in the Court's prior opinion, and is helpful to restate here.
A. State Court Action
On January 21, 2003, Michael Johnson, an employee at Seaman's Furniture, was injured when he slipped and fell on ice and snow when he was taking out trash to the dumpster behind the store. On December 1, 2004, Johnson filed an action in the New Jersey Superior Court against Ackrik Associates ("Ackrik"), owner of the shopping center on Route 38 in Cherry Hill, New Jersey where Seamans was located, and ABC Corporations, the unknown entities responsible for the removal of snow and ice from the shopping center's parking lots, driveways and walkways. On April 27, 2005, Johnson amended his complaint to specifically assert claims against Excell Maintenance Services, Inc. ("Excell"), which was under contract with Ackrik to provide snow and ice removal services. The state court action has now settled.
B. Contract between Ackrik and Excell
In September 2002, Ackrik and Excell entered into a contract regarding snow removal services for the Route 38 Shopping Center. The contract provided that "You [Excell] will plow snow, as needed at your [Excell's] sole discretion and responsibility, in the entire parking lot, roadways, sidewalks and loading docks during any and all snow fall. . . . Salt will be spread when and where needed." (Pl.'s Ex. 2.) The contract also provided that Excell "maintain proper Workmen's Compensation Insurance as required by law," as well as "maintain General Liability Coverage of One Million ($1,000,000) Dollars and Automobile Insurance Coverage of Five Hundred Thousand ($500,000) Dollars." The contract further required that Excell provide Ackrik "with Certificates of Insurance evidencing such coverage within ten (10) days after the execution of this Contract naming Ackrik Associates on the policy as additional insured." The contract term was "November 1, 2002 through March 31, 2003."
C. Insurance Policies
1. Harleysville Policy
Excell fulfilled its duty under the contract to obtain general liability coverage and name Ackrik as an additional insured. Excell obtained insurance from Harleysville, Commercial Package Policy No. MPA-8E6323, with a policy period from May 1, 2002 to May 1, 2003. The insuring clause in the policy provides, in relevant part,
We [Harleysville] will pay those sums that the insured [Excell] becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages.
(Pl.'s Ex. 11.)
The policy also contains an additional insured endorsement, which provides,
Who Is An Insured is amended to include as an insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured. A person's or organization's status as an insured under this endorsement ends when your operations for that insured are complete.
The policy also contains an "Other Insurance" provision that provides that "[t]his insurance is primary," but it will be considered excess insurance in certain circumstances. (Id.)
2. Wausau Policy
Wausau issued to Ackrik a Commercial General Liability Policy No. TBC-Y91-509212-022, with a policy period from January 31, 2002 to January 31, 2003. The policy contains an "Other Insurance" provision, which provides that it is excess insurance over "[a]ny other primary insurance available to you [Ackrik] covering liability for damages arising out of the premises or operations for which you have been added as an additional insured by attachment of an endorsement." (Pl.'s Ex. 7.)
D. Tender of Defense
Believing that under the terms of the additional insured provision Harleysville was contractually required to provide Ackrik indemnity and defense in the underlying state court action, Wausau tendered Ackrik's defense and indemnity to Harleysville in a letter dated March 28, 2005. (Pl.'s Ex. 5.) Harleysville responded to Wausau's tender in a letter dated April 5, 2005, advising Wausau that it would not accept the tender and would not "defend, indemnify, and/or hold harmless your insured Ackrik Associates, or Wausau Insurance Company." (Pl.'s Ex. 6.) Harleysville explained, "As we were just recently put on notice for this loss, our investigation is incomplete. Once we complete our investigation, we will advise you if our position changes." (Id.) Harleysville never accepted tender of the defense.
A. The Parties' Arguments
The parties' renewed cross-motions essentially make the same arguments as before. Wausau argues that Ackrik is entitled to coverage as an additional insured under the Harleysville policy because: 1) the Harleysville policy is primary and the Wausau policy is excess; 2) Excell agreed in writing to include Ackrik as an additional insured under its Harleysville policy; and 3) the claims arise out of Excell's "ongoing operations" performed for Ackrik. Wausau also argues that the complaint in the underlying state court action triggered Harleysville's duty to defend and, as a result, Wausau should be entitled to attorneys' fees and costs associated with defending the underlying action and in bringing this action.
Harleysville argues that Ackrik is not entitled to coverage under the Harleysville policy because Mr. Johnson's accident did not arise out of the "ongoing operations" of Excell because Excell had completed its operations of removing the snow and ice from a January 17, 2003 snowfall. Harleysville argues that Excell's operations were "completed" rather than "ongoing" because 1) there was no snowfall between that date and the date of Johnson's fall on January 21, 2003, other than a .01 inch of snow on January 20, 2003, 2) Excell had not been called back to the shopping center after January 17, and 3) there had been no complaints about Excell's snow and ice removal on January 17.*fn1 Correspondingly, Harleysville argues that the complaint in the state court action did not trigger a duty to defend because nothing in Mr. Johnson's complaint "indicates that Excell's work of January 17, 2003 was still 'ongoing' when Michael Johnson fell four days later on January 21, 2003." (Def. Br. at 10.)
As an initial matter, Wausau pointed out in the parties' prior briefing that Harleysville does not contest that the Harleysville policy is primary insurance and that the Wausau policy is excess to that policy. Thus, the main issue of contention between the parties is whether Mr. Johnson's accident arose out of Excell's "ongoing operations." A corollary issue is whether the complaint in the underlying state court action triggered Harleysville's duty to defend.
Even though the duty to defend is broader then the duty to indemnify, Rosario ex rel. Rosario v. Haywood, 799 A.2d 32, 40 (N.J. Super. Ct. App. Div. 2002) (citation omitted), and it is the nature of the damage claim, rather than the ultimate liability of the insurer, that determines whether the insurer is obliged to defend, Hofing v. CNA Ins. Companies, 588 A.2d 864, 867-68 (N.J. Super. Ct. App. Div. 1991), it is the "obligation to indemnify, either actual or potential, which invokes the duty to defend," Sears Roebuck and Co. v. National Union Fire Ins. Co. of Pittsburgh, PA, 774 A.2d 526, 538 (N.J. Super. Ct. App. Div. 2001). Thus, "when the allegation in the underlying complaint triggering the duty to defend is determined to be groundless, the duty to defend dissipates unless there remains other viable grounds for coverage." Sears, 774 A.2d at 538. Accordingly, the Court will first determine whether Harleysville had a duty to indemnify prior to determining whether it had a duty to defend.
B. Whether Harleysville had a duty to indemnify
When the parties filed their motion papers, they agreed that there was no New Jersey case interpreting the "ongoing operations" language contained in the additional insured endorsement in the Harleysville policy.*fn2 The parties cite to a few cases from other states that have discussed similar issues, but there was no guidance under New Jersey state law, which governs the interpretation of the insurance policies at issue, as well as the contract between Ackrik and Excell. It was this lack of precedent that led this Court to stay the action pending the state court's resolution of the case--if this Court had answered the questions concerning the contract between Ackrik and Excell, the Court would have been addressing unsettled issues of state law at the exact same time the state court was addressing the same issues. Now that the state court action has settled, the Court is not faced with that concern, and the issue may be decided.
As a primary matter, it must be noted that in New Jersey, insurance contracts are subject to special rules of interpretation because they are contracts of adhesion. Zacarias v. Allstate Ins. Co., 775 A.2d 1262, 1264 (N.J. 2001) (citations omitted). When there is ambiguity, the insurance policy should be interpreted to "comport with the reasonable expectations of the insured, even if a close reading of the written text reveals a contrary meaning." Id. (citations omitted). Even in the absence of ambiguity, however, "[u]nder certain circumstances, . . . the plain meaning of policy language may be overcome if it conflicts with the reasonable expectations of the insured." Am. Motorists Ins. Co. v. L-C-A Sales Co., 713 A.2d 1007, 1013 (N.J. 1998) (citation omitted). If an insurance policy's terms are capable of supporting two distinct outcomes as to whether there is coverage, "the subject language must be interpreted in favor of the insured." Mazzilli v. Accident & Cas. Ins. Co. of Winterthur, Switzerland, 170 A.2d 800, 803 (N.J. 1961). "Courts are bound to protect the insured to the full extent that any fair interpretation will allow." Id.
Here, the question that must be answered is whether "the cause of the injury, although neither expected nor foreseen, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the . . . risk against which they may reasonably expect those insured under the policy would be protected." Sears, 774 A.2d at 533. In other words, the question that must be answered is whether Ackrick, by virtue of being an additional insured under Excell's insurance, expected to be insured for Mr. Johnson's injuries. To answer that question, the maintenance contract between Ackrik and Excell must be interpreted.
The contract provides that from November 1, 2002 through March 31, 2003, Excell "will plow snow, as needed at . . . [Excell's] sole discretion and responsibility, in the entire parking lot, roadways, sidewalks and loading docks during any and all snow fall. . . . Salt will be spread when and where needed." Harleysville argues that under its interpretation of "ongoing" in the additional insured clause in its insurance policy issued to Excell, Excell's operations were completed, and not ongoing, and because its operations were not ongoing, Mr. Johnson's claims would not fall within the purview of coverage. One of Harleysville's arguments for why Excell's service was not ongoing is that only .01 inch of snow fell between Excell's last plow and salt and Mr. Johnson's fall, and that Excell was not under an obligation to monitor the parking lot in the absence of snowfall. Harelyesville further argues that because Excell was not actively plowing and salting on the day Mr. Johnson fell, its operations were not ongoing.
Harleysville's argument is unpersuasive because it improperly focuses on whether, at the time of an accident, Excell was actively plowing and salting, and whether there was a sufficient amount of snow to trigger the need for plowing and salting in the first place. Under Harleysville's argument, its policy only covers Ackrick for injuries occurring while Excell is in the process of plowing and salting an unspecified, yet sufficient, amount of snow. This interpretation, if adopted, would effectively subject insurance coverage to the whims of the weather, and to the speed and competence of Excell's plowing.
Instead, the proper focus should be on whether an injury "arose out of" Excell's "ongoing operations." The additional insured provision in the Harleysville policy provides coverage "with respect to liability arising out of [Excell's] ongoing operations performed for that [Ackrick]." Simply looking at the "ongoing operations" language independent of the "arising out of" language impermissibly narrows the policy coverage.
Looking at the additional insured endorsement as a whole, it is clear that even though Mr. Johnson's accident did not occur at the time Excell was plowing and salting Ackrick's property, or even on the day that the snow fell, but rather four days later, Mr. Johnson's fall arose out of Excell's ongoing obligation to plow and salt. Here is why:
1. The term of Ackrick's contract with Excell spanned from November 1, 2002 through March 31, 2003. Thus, Excell's operations for Ackrick--to plow and salt as needed--were ongoing from November 1, 2002 through March 31, 2003. If Excell's operations were "complete" after the plowing and salting of each and every discrete snowfall, the contract term from November through March would be rendered meaningless.
2. The additional insured endorsement provides, "A person's or organization's status as an insured under this endorsement ends when your operations for that insured are complete." If Excell's operations were "complete" after the plowing and salting of each and every discrete snowfall, Ackrick would not have had insurance coverage following the first snowfall after November 1, 2002. This result was not contemplated by the parties.
3. The term "arising out of" in additional insured provisions is broadly construed in New Jersey. The New Jersey Appellate Division recently explained,
We have considered the meaning of the phrase "arising out of" in insurance policies. In Westchester Fire we stated that the phrase did not justify a requirement that "the injury is a direct and proximate result, in a strict legal sense, of the" insured risk. Rather, "the phrase 'arising out of' must be interpreted in a broad and comprehensive sense to mean 'originating from' or 'growing out of'" the insured risk.
"So interpreted, there need be shown only a substantial nexus between the injury and the [insured risk] in order for the obligation to provide coverage to arise. The inquiry should be whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the [insured risk], and thus a risk against which they might reasonably expect those insured under the policy would be protected. Whether the requisite connection or degree of relationship exists depends upon the circumstances of the particular case."
Hartz Mountain Industries, Inc. v. Preserver Ins. Co., 2008 WL 351244, *5-6 (N.J. Super. Ct. App. Div. Feb. 11, 2008) (citing and quoting Westchester Fire Insurance Co. v. Continental Insurance Cos., 312 A.2d 664 (N.J. Super. Ct. App. Div. 1973), aff'd 319 A.2d 732 (N.J. 1974)); see also Federal Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 444 (3d Cir. 2003) ("New Jersey courts have given a broad and liberal interpretation to common insurance policy language pertaining to coverage for additional insured parties for injuries 'arising out of' work performed by the main policyholder.").
5. Based on the New Jersey courts' interpretation of "arising out of," Mr. Johnson's fall on the ice arose out of Excell's contract with Ackrick to salt and plow as needed from November 1, 2002 through March 31, 2003. Ackrick asked to be an additional insured on Excell's insurance policy because it did not want to be liable for injuries "originating from" or "growing out of" snow and ice under the care of Excell during that time period. Mr. Johnson fell in an area that Excell was obligated to salt and plow. Thus, it was the contemplation of the parties that Excell's insurance policy would protect Ackrick from such a risk.
6. The only New Jersey court to substantively address the "ongoing operations" provisions in an additional insured provision supports the finding that Mr. Johnson's injuries arose out of Excell's ongoing operations. In Hartz Mountain Industries, Inc. v. Preserver Ins. Co., 2008 WL 351244, *5-6 (N.J. Super. Ct. App. Div. Feb. 11, 2008), a snowplow company was under contract with a property owner to perform snow and ice removal. As part of that contract, the snowplow company was required to name the property owner as an additional insured on its insurance policy. The additional insured provision provided,
Section II--Who Is An Insured is amended to include as an insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured. A person's or organization's status as an insured under this endorsement ends when your operations for that insured are completed.
The accident that triggered the insurance dispute occurred on January 7, 2003. At 5:00am that morning, the property owner notified the snowplow company of icy conditions on the property. At 6:00am the snowplow company began salting the premises, but ran out of salt before the entire property was salted. The snowplow truck left the site to reload its truck, and while it was gone, an employee of a bank located on the property slipped and fell on black ice as she was walking on an unsalted roadway. When the snowplow returned, the driver saw an ambulance on the scene.
The bank employee sued the property owner, who tendered its defense to the insurance company which provided the additional insured policy to the snowplow company. The insurance company refused the tender and refused to indemnify. The underlying personal injury case was settled, and the property owner then sued the insurance company in a declaratory judgment action for defense and indemnification. The trial court found in favor of the insurance company, but the appellate division reversed.
The appeals court noted that in New Jersey insurance policies should be broadly construed in favor of the insured and that "arising out of" language is also interpreted broadly. In finding for the property owner, the court explained,
When Gage fell on black ice, Hirth [the snowplow operator] was in the midst of salting Hartz's property to melt ice in order to render the roadways, driveways and parking stalls and aisles safe for driving and walking and had failed to salt all roadways and driveways before salting some parking areas. Had Hirth salted all roadways and driveways before any parking areas, which it clearly could have accomplished because they comprised less than half of the work, the driveway on which Gage fell would have been salted before Hirth went to reload his truck. Thus, it seems abundantly clear that Gage's injuries had a substantial nexus to Hirth's ongoing operations performed for Hartz. The fact that Hirth was not on the property at the moment of the accident is not determinative. Coverage for Hartz as an additional insured had not ended because Hirth's operations were not yet complete. They were only interrupted to reload with more salt. Even if the phrase "arising out of" is ambiguous, the phrase must be construed in favor of the insured, that is, in favor of coverage. Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 175 (1992). Thus, Hartz was entitled to a defense and indemnification under the Preserver policy as an additional insured. The issue of whether Hirth was or was not negligent has no bearing on Hartz's status as an additional insured under the Preserver policy.
Hartz Mountain, 2008 WL 351244 at *6.
7. The Hartz case supports the Court's interpretation of the additional insured provision in this case. Although it is unclear whether the contract in Hartz spanned the winter season, similar to the contract here, the snowplow company in Hartz contracted with the property owner to remove snow and ice from all roads, parking lots and driveways. Also similar to the case here, the property owner in Hartz was an additional insured on the snowplow company's insurance policy, and that policy contains identical language to the Harleysville policy. In determining whether the property owner was entitled to indemnification and defense for the slip and fall, the court in Hartz did not only focus on whether the snowplow operations were ongoing, but also considered whether the slip and fall "arose out of" those snowplow operations.
Even though the court in Hartz did not need to consider the scenario presented here--where the snowplow company failed to salt an icy area it was required to salt, and a person fell on that unsalted ice a few days later--the holding of Hartz could be applied to such a scenario. When a snowplow company does not fulfill its obligation to salt the areas it is required to salt under the contract, its operations cannot be rendered "complete." If someone falls and injures herself on that unsalted ice, that injury has a substantial nexus--i.e., arises out of--those not- yet-complete--i.e., ongoing--operations of the snowplow company. The same analysis can be applied in this case.
Consequently, for the foregoing reasons, the Court finds that Mr. Johnson's injuries arose out of Excell's ongoing operations for Ackrick. As such, Ackrick is entitled to indemnification as an additional insured on the Harleysville policy.
C. Whether the State Court Complaint Triggered Harleysville's Duty to Defend
It must next be determined whether Harleysville had a duty to defend Ackrick. The duty to defend is broader then the duty to indemnify. Rosario ex rel. Rosario v. Haywood, 799 A.2d 32, 40 (N.J. Super. Ct. App. Div. 2002) (citation omitted). An insurer's duty to defend an action against its insured is measured by the allegations contained in the complaint. Hofing v. CNA Ins. Companies, 588 A.2d 864, 867-68 (N.J. Super. Ct. App. Div. 1991) (citing Ohio Cas. Ins. Co. v. Flanagin, 210 A.2d 221 (N.J. 1965)) (other citations omitted). More specifically,
The duty to defend arises when the complaint states a claim constituting a risk falling within the purview of the policy language. If the pleadings state facts bringing the injury within the coverage of the policy, the insurer must defend regardless of the insured's ultimate liability to the complainant. The nature of the damage claim, rather than the actual details of the accident or the ultimate liability of the insurer, determines whether the insurer is obliged to defend.
Id. (citations omitted). Thus, the sole issue in determining whether Harleysville had a duty to defend is whether the allegations in Michael Johnson's state court complaint triggered that duty.
Harleysville states that the additional insured endorsement provided coverage to Ackrick, as an additional insured, "only with respect to liability arising out of [Excell's] ongoing operations performed for [Ackrick]." Accordingly, Harleysville argues that the complaint in the state court action did not trigger a duty to defend because nothing in Mr. Johnson's complaint "indicates that Excell's work of January 17, 2003 was still 'ongoing' when Michael Johnson fell four days later on January 21, 2003." (Def. Br. at 10.) Harleysville's argument was unavailing with regard to its duty to indemnify, and it is similarly unavailing with regard to its duty to defend.
Mr. Johnson's complaint alleged that the defendants, which included Ackrick, owed a duty of care to maintain its premises in a reasonably safe condition. (State Ct. Compl. ¶ 3.) Mr. Johnson claimed that on January 21, 2003, while walking on Ackrick's premises, he slipped and fell on a snow and ice-covered surface, causing him to sustain severe and permanent injuries. (Id. ¶ 5.) Mr. Johnson claimed that Ackrick, through its servants, agents and employees, caused these injuries because it negligently and carelessly failed to, among other things, "Repair or correct any unsafe or hazardous walking conditions caused by an accumulation of snow and ice," and "Empoy[], hire[] or engage[] persons or entities which defendant knew or should have known were incapable of performing in a safe and timely manner the duties of maintaining the walkways, driveways and/or parking lots in a safe and snow and ice-free condition." (Id. ¶ 4.)
These allegations in the complaint were sufficient to trigger Harleysville's duty to defend. Mr. Johnson alleged that Ackrick, or whomever Ackrick hired, failed to properly remove the ice and snow from the area in which Mr. Johnson fell. Even though not mentioned by name, Mr. Johnson specifically referenced the entity which was responsible for the removal of ice and snow on the Ackrick property, and the failure to remove that ice and snow was the alleged cause of Mr. Johnson's injuries. Ackrick had a contract with Excell that required Excell to "plow snow, as needed at [Excell's] sole discretion and responsibility, in the entire parking lot, roadways, sidewalks and loading docks during any and all snow fall. . . . Salt will be spread when and where needed." Mr. Johnson alleged, by reference to Ackrick's "servants, agents and employees," that Excell's failure to plow and salt caused his injuries. Thus, the allegations in Mr. Johnson's complaint come within the purview of Excell's contract with Ackrick, and, correspondingly, come within the purview of Excell's additional insured policy with Harleysville.
Harleysville argues, however, that under its interpretation of "ongoing" in the additional insured clause in its insurance policy issued to Excell, Excell's operations were completed, and not ongoing, and because its operations were not ongoing, Mr. Johnson's claims would not fall within the purview of coverage. As explained above, Harleysville interpretation of the additional insured provision is too narrow, as it fails to contemplate the "ongoing operations" language in conjunction with the "arising out of" language, and because it fails to fulfill the reasonable expectations of Ackrick and Excell.
Consequently, the Court finds that Harleysville had a duty to provide a defense to Ackrick in the underlying state court action.
For the reasons expressed above, Wausau's motion for summary judgment is granted and Harleysville's motion is denied. Wausau is entitled to be indemnified for the $30,000 it paid as part of the settlement in the underlying action. Wausau is also entitled to be reimbursed for its attorneys' fees and costs associated with defending the state court action, as well as bringing this action.*fn3 An appropriate Order will be entered.
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Looking at Religion and Spirituality
Religion and Spirituality are often viewed as unconnected matters by a certain group in the society. Some individuals find that the religion and spirituality are both opposing terms. There is a third group prevailing in the society that considers that the religion is the mother that gives birth life to spirituality. And this group of people in the society is considered to be positive minded and they receive a lot of support from a number of external factors. Many institutions support them to flourish more and more.
There is a concept in the society that people follow. This concept is that when the spirituality grows the religion declines. If you visit a library o modern book shop, then you will find an array of books that are having the subject of spirituality within. Many books describe the beliefs of the eastern spiritual leaders in a very new and western format so that the western people that are interested in spirituality can comprehend them in a better manner. These books do have Christian materials, but it depicts the thoughts of various religious leaders that were non Christians. Many times the beliefs and thoughts mentioned in the Bible are also depicted in the books written on Spirituality. After the development of modernization and globalization, all the citizens of the world are free to choose from the assortment of spiritual beliefs that are prevailing in the world. There is no kind of restriction on any individual because there is a freedom of accepting and following any particular religion of their choice in most of the countries on that are present on the face of this earthen globe. In most of the western countries, people have adopted various other concepts of spirituality and so the religion is deemed to be declining in these regions.
Another concept widespread in the society is that spirituality is good in comparison to the religion. In the current day and age, the spirituality is augmenting to a higher level. Many people do not think that there is any sort of link between the spirituality and religion. Many people in the society of the modern day think that religion is not at all meant to pursue spirituality, it is only meant for carrying on the external customs and ceremonies. Many of the spiritual and religious individuals are portrayed as two faced as well as duplicitous. There are various violent aspects related with the religion also, and so it is often believed to be dangerous if you are too religious or rather an orthodox. The spirituality that does not include the gibbets of the religion is tending to become very much prejudiced as well as individual. The individuals will only focus on their personal experiences and are tend to become more selfish. There would be no kind of support from the society during the times of spiritual crisis. The society would also not share the similar point of view. There would also be no kind of dependable tradition in the society to connect you. There would be no ethics in addition to justice in the society, due to this.
One more concept in the society related to religion and spirituality is that people consider themselves as spiritual but they do not want to follow any particular religion. Nowadays in the present times, more and more people in the west are following this concept for a healthy living.

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text:
Find a copy in the library
Finding libraries that hold this item...
|Document Type:
|All Authors / Contributors:
Isidore Epstein
|OCLC Number:
|Originally published , 1935-1948.
|34 volumes ; 24 cm
|Section Moed (Festivals) --
v. 1-2. Tract Sabbath / rev. and corr. by Isaac M. Wise. c1896. --
v. 3. Tract Erubin. c1897. --
v. 4. Tracts Shekalim and Rosh hashana. Hebrew and English. c1896. --
v. 5. Tract Pesachim (Passover). c1898. --
v. 6. Tracts Yomah and Hagiga. c1899. --
v. 7. Tracts Betzah, Succah, and Moed katan. c1899. --
v. 8. Tracts Taanith, Megilla, and Ebel Rabbathi or Semáhoth. Section Jurisprudence (Damages) --
v. 9. Tracts Aboth (fathers of the synagogue), with Aboth of R. Nathan, Derech Eretz Rabba and Zuta / rev. by Godfrey (Shajah) Taubenhaus. c1900. --
v. 10. Tracts [sic] Baba Kama (First gate). c1900. --
v. 11-12. Tract Baba Metzia (Middle gate). 2 v. c1900-c1901. --
v. 13-14. Tract Baba Bathra (Last gate). 2 v. c1902. --
v. 15-16. Tract Sanhedrin. c1902. --
v. 17. Tracts Maccoth, Shebuoth and Eduyoth. c1903. --
v. 18. Tracts Abuda Zara and Horioth. 1903.
|Other Titles:
|Talmud Bavli.
|translated into English, with notes, glossary and indices under the editorship of I Epstein.
User-contributed reviews


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text:
Most Overrated Sonic Games
The Top TenXW
Best Sonic game ever? Ha! Yeah right. SA1 was awesome and deserves all the love it gets. This game is only okay at best for me. After all, I only like the speed stages (minus crazy gadget) and two mech shooting stages. That's not even half the game! Sure it has the best 3D multiplayer in the battle port but I think the Genesis and Sonic 4 games have better multiplayer. Not to mention the inconsistent story, crappy camera, mad space, meteor herd and crazy gadget being stages I loathe, I dislike this game. I respect you opinion if you like the game, but I'm not as nostalgia blinded or community blinded as I once was. At best, part of the game is fun making it an okay, somewhat solid game but at worst, the game is so poorly designed it blows.
Some of the game is good. Other sections very boring and dull. The game has not aged well at all. Adventure 1 was a much better game.
Thing is though, SA1 had Big the Cat, horrible lip sinking, god awful voice acting, and the camera was probably a bigger enemy then Eggman's robots and Chaos combined. I'd say the adventure series as a whole was bad and super overrated. I respect your opinion if you like either two, but nostalgia is definitely a huge factor for why these games are loved. If they came out today, I'm pretty sure it would get bashed harder than Sonic 06 and Sonic Boom: Rise of Lyric.
On the top ten greatest sonic the hedgehog games, this guy said that you can play as 6 different characters, but in my opinion there are only three characters as the dark side is just a complete skin makeover for Sonic Tails and Knuckles.V4 Comments
Well This Game is Good. But I Think The Award For The Best Sonic Game Ever is Getting Replaced Because Due To The Level Design, Generic Boss Battles and The Overrated JAP/EUP Soundtracks. As For The US Version: it is Very Underrated. Anyways Sonic CD is Good, But Not That Good and No It is Not The Best Sonic Game Ever.
This is great it might not be the best sonic game but its good even if the Japanese and europa versions were different also metal sonic first appearinceV1 Comment
I do love this game but I think it gets WAY too much attention because of the wisps I mean sure they're good but it's not speedy which is what sonic unleashed was and people say that this game brought sonic back to fame but I think unleashed did that.
I'm sorry, but I don't like this game at all. There's far too much 2.5D, which isn't very impressive. There's barely any 3D, which means you can't really explore the vibrant landscapes. And the voice acting is really annoying too, although Roger Craig Smith definitely improved since this game.
"Sonic Colours" is definitely overrated!
I strongly prefer "Mario Colours".
Uh, no. This game gets hate from all of the genesis fans. - DCfnafV2 Comments
Good but WAY OVERRATED The 2D Modern Sonic sections are HORRENDOUS Classic Sonic stages were okay and about half of the Modern Sonic were AWESOME and the other half were either okay or RETARDED And Sonic Colors and Unleashed were FAR Superior to this and even the Adventure games were betterV1 Comment
I know They Are Both Great Genesis Games. But They Are Getting A Little Too Old Really Fast (At Least There Are Still Fun Classic)
Old is great for a video game! Also, this game is great!
No, it's underrated. This game is getting more and more hate due to Sonic Adventure series.
Horrible difficulty balancing, horrible special stages, no save feature, boring boss fights, and too many horribly placed enemies and hazards
This game was never supposed to exist anyways. Besides, Pac-Man Unleashed would be much better.
Yeah, pacman would obviously be amazing as a were whatever pacman is. I was being sarcastic by the way
Do people seriously count werehog stages appropriate for a Sonic game?!
The whole Sonic Adventure series sucks major balls anyways.V1 Comment
I know it The First Game in The Sonic Series. But I Think is Overrated Because Of Sega Genesis Ads Where They Bash About The Super Nintendo and Super Mario World With it. I Still Love Sonic, But I Think The Sonic Fanbase Needs To Stop Bashing Mario and Nintendo.(PLEASE)
I agree with the Nintendo stuff you said but this is not the original Sonic the Hedgehog. It's Sonic 06. They both share the same name.
This must ironic I cannot belive anyone have sonic 06 on a list like this
This picture is the wrong one if you are talking about the FIRST GAME!V3 Comments
I Have NO Idea How Everyone Likes This...
Flaws:TOO HARD, I DIED ON THE FIRST BOSS, YOU HEAR ME, THE FIRST BOSS!
BORING LEVEL DESIGN, NOT A TON OF REPLAY VALUE, And A Bad Soundtrack... Please do me a favor, and play sonic rush adventure.
This should be top 1, not a Classic Sonic game!
Seriously, Modern Sonic is overrated & Classic Sonic is overrated!
Levels sucked, music sucked, story sucked, Sonic's slow even whioe boosting, Sonic Rush Adventure for the win!
Agreed! Sonic Rush was too hard for me! And Sonic should just die!V1 Comment
The Newcomers
The Contenders
It's a bit overrated but still AN EPIC START TO SONIC'S 3D GAMES
This list has Sonic games that are not even overrated, people are just dumping random games on here.
How dare this be top 12. Some considered Sonic Adventure to be the best Sonic game (or so one of the best) so thus Sonic Adventure should be top 1.
Sonic Adventure should be ripped off by Pac-Man Adventure.V1 Comment
More like "underrated". This game is perfect with graphics, music, nostalgia cause, adaptions, being a Classic Era game, the worlds & etc..
This should be top 1! Seriously, I don't want to get this awful game again! Why do people prefer Modern Sonic over Classic Sonic?!
Modern Amy Rose fans (that pathetically overrate this girl due to her mean-spirited demeanor, how she gets riled up, her arch-rivalry with Rouge the Bat, her sisterly relations with Cream the Rabbit, fangirling over Sonic and dress skirt that sticks out like a tutu) would rage when they see the Modern Sonic games (take for instance, the one and only Sonic RPG and quite a disappointment) on the list. Say, did I, Kieran Glen Harris Stark put this here, by the way?
Amy Rose is not the best Sonic character, Knuckles is.
The weakest of the 3 advance games in my opinion. There are 4 characters, but the levels are all the same and as a result the characters unique abilities feel underused. Plus after Ice Mountain the level design takes a nosedive with terrible pit and enemy placement, and TOO MANY SPIKES!
Sonic Advance: a game with terrible graphics (which is not worse than the 2-D animation & character voices), & inappropriately positive reception. Also, Sonic is not awesome! Pac-Man is much better. Let Pac-Man replace Sonic & let there be a Sonic & Pac-Man Archie Comics.V1 Comment
Wait what? OVERRATED? Yeah, this game actually got good reviews from critics. Believe it or not IGN said it was better than Sonic Adventure 2 Battle.
So a game with fidgety controls and level designs that might as well be train tracks is better than Sonic Adventure 2 Battle? Seriously?
Me too. Sonic & the Secret Rings is the best non-crossover Modern Sonic game in the 7th-gen era!
This game shall be replaced by "Pac-Man & the Secret Rings".
I strongly prefer "Mario & the Secret Rings".
I like megaman and the secret rings
Very overrated indeed that it deserves the top 1 spot. Many seem to know about this game, and Amy Rose has no reason to be in this 2D crap game.
Who can argue? This game is 2-D & should be ripped off by Pac-Man Battle & Sonic Battle crossovers. Also, shouldn't there be a Sonic Battle 3D/3DS sequel?
This game is overrated because of Princess Peach & her unreasonable talent of Skill-based events, right? Of course this game is what most people had fun with, but it was supposed to come after Super Mario Galaxy, not before Super Mario Galaxy. Also, its graphics suck & the 2008 Olympics should be the Vancouver Olympics then. But why is Princess Peach in this game, huh?! This game sucks for a crossover, but the arch-rivalry between Bowser & Vector is hilarious. But seriously? The Wii version of this game is boring & too long & confusing! Also, the voices of Princess Peach & Sonic the Hedgehog suck major ass!
Recommended Lists
Related ListsTop 10 Greatest Sonic The Hedgehog Games Most Overrated Video Games Most Overrated Video Games of 2013 Top 10 Video Games, Movies and Shows That Are Greatly Overrated Due to Their Nostalgia Factors Top 10 Video Games With the Most Overrated Storyline
List StatsUpdated 10 Dec 2016
31 listings
3 years, 46 days old
Top Remixes
2. Sonic CD
3. Sonic Unleashed
2. Sonic R
3. Sonic Generations


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Vital Care Rx Streamlines Reporting and Data Analytics with CPR+
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In addition to these required reports, Vital Care Rx also uses compliance reports and audit reports, so the team can fix internal issues as they occur. Another method that Doxey uses to monitor internal issues is the workflow functionality of CPR+. "We can see who needs to do what, so we can delegate tasks. And we can identify bottlenecks," she says.
"Using the workflow queues has helped us refine our processes." Today, with the help of CPR+, Vital Care Rx, which started with just one specialty medication, now provides treatment for more than 30 disease states. The specialty pharmacy is also accredited by both URAC and the Accreditation Commission for Health Care (ACHC).
About Vital Care Rx
Vital Care Rx of Meridian, Miss, is a comprehensive specialty pharmacy that offers cost-effective treatment options and personalized patient care. Vital Care Rx is part of Vital Care of Meridian, which also provides home infusion (IV), ambulatory infusion, compounding, and respiratory home medical equipment services. Vital Care Rx is accredited by both URAC and ACHC.


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Each member type corresponds to a group of countries within a SETAC Geographic Unit that share the same administrative process.
Here is a general breakdown of member types:
Type 10: Africa low-income countries
Type 11: Africa lower/upper-middle-income countries
Type 07: Asia/Pacific Region 1
Type 08: Asia/Pacific Region 2 low-income countries
Type 09: Asia/Pacific Region 3 lower/upper-middle-income countries
Type 02: Europe, Russia and Middle East
Type 05: Europe, Russia and Middle East low-income countries
Type 06: Europe, Russia and Middle East lower/upper-middle-income countries
Type 03: Latin America
Type 01: North America
Type 04: Mexico
If you have any questions about member type, please contact the SETAC office for more information.
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5/7/2017 » 5/11/2017SETAC Europe 27th Annual Meeting
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Kenneth Dozler
July 28, 2016 by lmorgan · Comments Off
Kenneth Jerome Dozler
1933 — 2016
Kenneth Jerome Dozler, 83, of Oshkosh, Wisconsin, passed away on June 15, 2016 at his home.
Kenneth Jerome was the oldest of five children born on October 26, 1933 to Joseph G. and Elizabeth Lampman Dozler on a farm south of Elgin. He attended District #82 Country School for two years and completed his education at St. Boniface School in 1951.
After graduation, he worked as a farmhand until entering the Army in 1953. After service, he attended the Milwaukee School of Engineering.
On October 19, 1957, he married Carolyn Lee Niemann. They lived most of their married life in Berlin, Wis., where he was Vice President of the Realist Company. He was also very active in civic activities. In later years, they lived in Neshkoro, Wis., and presently in Oshkosh, Wis. After his retirement, he was a tax preparer for 12 years.
Kenneth was preceded in death by his parents, a son Steven and a brother Gerald.
He is survived by his wife Carol, daughter Debra and her husband Ron Strauss, two grandsons, Eric and David Strauss and five great grandchildren; one brother Denis (Mary) Dozler of Albion; two sisters, Pat (Steve) Grosserode of Lincoln and Donna (John) Knust of Petersburg; and sister-in-law, Pat Hruby of Elgin and many nieces and nephews.
Joyce Temme
July 28, 2016 by lmorgan · Comments Off
Joycelaine Temme
1931 — 2016
Joycelaine M. "Joyce" Temme, 85 of Petersburg, passed away Tuesday July 12, 2016 at her home surrounded by her family.
A Mass of Christian Burial was held Monday, July 18, 2016 at St. John the Baptist Catholic Church in Petersburg, with Fr. Mark Tomasiewicz officiating. Interment followed in the parish cemetery.
In Lieu of flowers donations can be made to the Petersburg Community Club or Petersburg Volunteer Fire Dept. Levander Funeral Home of Albion, is in charge of arrangements.
Condolences may be sent to the family at www.levanderfunderalhome.com
Joycelaine (Selting) Temme, the daughter of Frank and Elizabeth (Dozler) Selting, was born March 27th, 1931 at Raeville Nebraska.
She was baptized and confirmed at St. Bonaventure Catholic Church in Raeville, and grew up on the family farm 3 miles north of Raeville.
She attended school at St. Bonaventure in Raeville graduating from high school in 1948.
On November 16, 1948, Joyce was united in marriage to Joseph Temme at St. Bonaventure Catholic Church in Raeville. Joyce and Joe lived on a farm five miles east and 1 ½ miles north of Petersburg, Nebraska for 3 years. The family then moved to Denver, Co. in 1951 where they lived for 5 years. Joyce and Joe were owners of Lakewood Auto in Colorado specializing in pickups.
In 1957 the family moved back to the home place 5 ½ miles east of Petersburg where they farmed and raised livestock. Although farming was their main occupation they also operated the Knotty Pine Inn during the 1960's.
In 1992 Joyce and Joe retired moved to Petersburg.
After retirement Joyce worked as an in-home private caretaker.
She was a member of the Petersburg Legion Auxiliary Post #334, Christians Mother's St. John's Altar Society, charter member of Rae Valley Heritage Association and was a volunteer for the Make-A-Wish Foundation.
Joyce enjoyed her numerous card clubs, morning coffee groups with friends, bingo, driving through the Niobrara Valley and spending time with her family.
She was well known by her family for her cinnamon rolls, homemade bread and popcorn balls.
Survivors include six children: Jim (Kathy) Temme of Omaha, NE; Jolene Thiem of Omaha, NE; Joe (Sue) Temme of Omaha, NE; Jeff (Jan) Temme of Petersburg, NE; John (Cindy) Temme of Petersburg, NE; and Jayne Prince of Petersburg, NE; 18 grandchildren: Melissa (Wes) Quinn of Winter Springs, FL; Christopher Temme of Omaha, NE; Adam McGinnis of Washington D.C.; Abby(Adam) Hill of Indianola, IA; Joy (Mark) Kellerman of West Des Moines, IA; Jason (Stephanie) Thiem of Aurora, CO; Bill (Dawn) Thiem of Elkhorn, NE; Joe Henry (Megan) Temme III, of Omaha, NE; Jared (Leslee) Temme of Omaha, NE; Joelle (Jimmy) Feeney of Petersburg, NE; Jenna Temme of Chicago, IL; Julia Temme of Omaha, NE; Justin (Beth) Temme of Petersburg, NE; Jesse (Angie) Temme of Chancellor, SD; Jonathan (Angela) Temme of Petersburg, NE; Clarissa (Brian) Stuhr of Petersburg, NE; Christina (Josh) Sirek of Pierce, NE; Jacalyn (Billy) Kroupa of Denver, CO; 33 great-grandchildren; one sister: Lorene Oberhouser; one brother: Mel (Pat) Selting; five sister-in-laws: Cecilia Ausdemore; Leona Seier; Lois Zegers; Sylvia Temme; and Janet Buerer.
She was preceded in death by her husband Joe; parents Frank and Elizabeth Selting; and sisters: Delores Schulze and Irma Hagemann.
Doris Slajchert
Doris Kinney Slajchert
1924 — 2016
Doris Kinney Slajchert, daughter of Ernest Charles and Alta V. Jenkins Kinney was born August 25, 1924, on the family farm west of Elgin.
She grew to womanhood in the Park Center community west of Elgin where she was a member of the Park Congregational Church and attended Park Center School through the tenth grade.
After graduating with the Class of 1941 from the Elgin High School, she taught for two years at Park Center School before entering Wayne State College. She transferred to the University of Nebraska in the fall of 1944 where she became a member of Rho Chapter, Alpha Xi Delta social sorority. Doris graduated from the University in 1947 with a degree in elementary education. She taught in the Lincoln Public Schools for several years.
On July 5, 1950, at the Park Congregational Church, Do-ris was married to George Slajchert.
As newlyweds, they moved to Berkeley, CA, where Doris taught in the Berkeley Public Schools. They lived in San Mateo, CA, for 57 years until retiring to Westlake Village, CA, in 2014.
Doris died on May 26, 2016, in Los Angeles. She is survived by her husband of nearly 66 years, George; her two children: Peg (Bill) Jensen of San Mateo, CA, and Davis (Laura) Slajchert of Westlake Village, CA; six grandchildren and three great grandchildren.
She was preceded in death by her parents, her brothers Burt and Laverne Kinney, and her sister, Lorraine Huffman.
Burial will be in the Park Cemetery west of Elgin at a future date.
Vincent Thiele
Vincent M. Thiele
1919 — 2016
Funeral Services for Vincent M. Thiele age 97 of Clearwater, NE were held at 10:30 am Wednesday, July 6, 2016 at St. John's Catholic Church with Father James Kramper, Officiating. Burial was in St. Patrick's Cemetery with Military Rites conducted by Clearwater American Legion Post #267 and Legion Riders. Pallbearers were Brett Wells, Jared Wells, Jeff Thiele, Nick Thiele, James Thiele and Kevin Thiele. Visitation was on Tuesday, July 5, 2016 3:00 to 5:00 at Snider Memorial Funeral Home in Clearwater, NE followed by a Wake Service at 7:30 pm at St. John's Catholic Church rural Clearwater. Vincent passed away Saturday, July 2, 2016 in Beatrice, NE. Snider Memorial Funeral Home is handling arrangements.
Memorials may be directed to CCPJ, St Patrick's Cemetery, and Antelope Memorial Hospital
Vince Thiele was one of 12 children born rural Clearwater March 6, 1919 to Carl and Rose (Funk) Thiele. He married Marie K. Pistulka in Fairfax, South Dakota on November 26, 1945. They spent their life raising their family in the St. John's community. Vince and Marie enjoyed 60 years of marriage until her passing in 2006. Vince was a farmer by occupation and was an extremely "Handy" person and truly could engineer and fix anything. By example, he taught all of his children the value of hard work and instilled tremendous work ethic. Vince served in the United States Army and was stationed in Iran during World War II from September 4, 1941 to November 6, 1945. Vince was a member of the Knights of Columbus and the American Legion. He was a member of the Pope John School board and active with St. Johns Parish. He was instrumental in the care of Saint Patrick's Cemetery
Vince is preceded in death by his loving wife, Marie; his sons, Thomas in infancy, Bob, Pat and Joe; his parents and four brothers Augie, Chuck, Louis, and Clement in infancy; and sisters, Theresa, Lillian, Cecelia, Geraldine and Bernadette.
Survivors include his daughter Kathryn (Dennis) Wells of Beatrice, son John (Patty) Thiele of Clearwater and daughter-in-law Nancy Thiele of Elgin. 10 grandchildren, 21 great grandchildren; sisters in Arkansas, Margaret Fiser and Lou Hamm. Sister-in-law, Connie Thiele and brother-in-law, Percy Payne.
Condolences may be directed to the family at www.snidermemorialfh.com.
Mildred Pelster
Mildred A. Pelster
1926 — 2016
Mildred A. Pelster, 89 of Elgin, passed away Wednesday, July 6, 2016 at the Golden Living Center in Neligh.
A Mass of Christian Burial was held at 10:30 a.m. Monday, July 11, 2016 at St. Boniface Catholic Church in Elgin, with Rev. Kevin Vogel officiating. Interment followed in the parish cemetery. Huffman-Levander Funeral Home of Elgin is in charge of arrangements.
Condolences may be sent to the family at www.huffmanlevander.com.
Mildred Ann Pelster, daughter of Ferdinand and Anna (Funk) Hupp, was born July 28, 1926 on the family farm in the St. John's Community southwest of Clearwater, NE. She attended rural school District #29 in Wheeler County, District #46 in Holt County, and graduated from St. Boniface High School at Elgin in 1942 with normal training. She attended summer school at Creighton University in Omaha, then taught in rural schools for three years in Holt County.
On August 13, 1946, Mildred married Phillip "Pete" Pelster at St. John's Church, rural Clearwater. The couple made their home on a ranch in the Beaver Valley west of Elgin, in Wheeler County. To this union 10 children were born. Following the death of her sister, Mildred welcomed in and cared for two nieces, Joan (Weidner) Perez and Mary (Weidner) Carroll, for several years. While raising their family, Mildred also raised chickens, grew a large garden and cooked for the hired men. In 1986, Pete retired from the ranch and they permanently moved to town.
Mildred was a member of St. Boniface Church, St. Boniface Altar Society serving as President, St. Boniface Quilters, along with being active in many other groups including the Beaver Valley Women's Club, Scattered Neighbors Club, card club, the Red Hatters and Block Rosary.
She was a member of the committee that formed the Elgin Senior/Community Center, chairman of the Red Cross Blood Mobile in Elgin for years, and spent many hours on other volunteer work in the church and community. She always made her home a welcome place for kids waiting in town for after school activities to begin.
She enjoyed watching the Chicago Cubs and Kansas City Royals baseball games, watching Husker sports, canning, sewing, baking bread and birthday cakes for her grandchildren, taking pleasure trips including a trip to Rome, and most of all, watching her children and grandchildren participate in their activities.
Mildred is survived by 10 children: JoAnn (Jim) Penne of Oakdale; Dodi (Don) Bauer of Oakdale; Bonnie (Gary) Dinslage of Elgin; Phyllis (Dennis) Cleveland of Ewing; Bob (Janice) Pelster of Bartlett; Denny (Judy) Pelster of Burwell; Jeanine (Kurt) Saner of Dunning; Jeanette (Dave) Henn of Petersburg; Marcia (Bob) Redler of Milford; Ginni (Bill) Fangman of Petersburg; 35 grandchildren; 45 great-grandchildren; one brother-in-law Peter Larson of Omaha; two sisters-in-law: Lucille Jillson of Lincoln; and Alfreda Pelster of Neligh; along with nieces, nephews, other relatives and friends.
She was preceded in death by her parents; husband Pete in 2009; great-grandson Kayson Lauridsen; two sisters: Marie Larson and Betty Weidner; six brothers: Msgr. Robert Hupp, Joe, Maurice, Ferdinand Jr., Andy and Jim Hupp.


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Sports, the only reason to watch live TV anymore
The NFL draft, one of countless reasons to turn off the TV!
Ah, the NFL Draft. A large reason we are having a global weather concern. All that hot air spewing from the "experts" is beyond annoying. A certain four letter World Wide Leader in Sports that pimps the NFL beyond all belief. What's even more amusing is that they (the "experts") give grades to all the franchises on how they drafted.
gee, that sounds like the NHL draft.
The NFL has figured out a way to have a 12-month season.
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California Court of Appeals, Second District, Fifth Division
December 5, 2013
HEATHER EDWARDS, Plaintiff and Appellant,v.BROADWATER CASITAS CARE CENTER , LLC, et al., Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC442997 Rolf M. Treu, Judge. Motion to Dismiss.
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[Copyrighted Material Omitted]
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Lyon Law and Geoffrey C. Lyon for Plaintiff and Appellant.
Levinson Arshonsky & Kurtz, Robert A. Levinson and Yoonis J. Han for Defendants and Respondents.
Plaintiff, Heather Edwards, has appealed cost and attorney fee awards imposed by the trial court against her following the unsuccessful arbitration of her employment discrimination claim. She argues the trial court exceeded its jurisdiction in awarding costs and attorney fees to defendants, Broadwater Casitas Care Center, LLC and Nathan Ure. Defendants have moved to dismiss plaintiff's appeal as moot. Defendants argue the merits of plaintiff's appeal have been resolved against her in a bankruptcy proceeding under title 11 United States Code section 1301 et seq. (chapter 13).[1] Plaintiff initiated the bankruptcy proceeding prior to filing the present appeal. The bankruptcy court confirmed plaintiff's chapter 13 debt adjustment plan while this appeal was pending. We heard oral argument on defendants' dismissal motion on October 1, 2013. We now deny defendants' dismissal motion.
On September 19, 2012, following confirmation of the arbitration award, the trial court awarded defendants $19, 826 in costs. A writ of execution
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issued on October 25, 2012. On January 16, 2013, the trial court granted defendants' motion for $158, 471.25 in attorney's fees. On February 9, 2013, plaintiff filed a chapter 13 bankruptcy petition. Plaintiff's chapter 13 bankruptcy petition listed the trial court's October 25, 2012, $19, 836 cost award. But the petition made no reference to the trial court's January 16, 2013, $158, 471.25 attorney fee award. On February 25, 2013, defendants filed their proof of claim in the bankruptcy court. The proof of claim lists both the trial court's $19, 826 cost and $158, 471.25 attorney fee awards. On March 15, 2013, plaintiff filed her notice of appeal in the present case. On June 12, 2013, the bankruptcy court confirmed plaintiff's chapter 13 debt repayment plan. Plaintiff never objected to defendant's claim. Under the plan, plaintiff is to pay defendants 8 percent of the costs and attorney fees awarded in this case. No appeal was taken from the plan confirmation order.
Defendants assert the chapter 13 plan confirmation order precludes plaintiff from challenging the cost and attorney fee awards issued by the trial court. The res judicata effect of the chapter 13 plan confirmation order is primarily a question of law. (In re Summerville (Bankr. 9th Cir. 2007) 361 B.R. 133, 139; In re Brawders (Bankr. 9th Cir. 2005) 503 F.3d 856 [325 B.R. 405, 410]; see State Farm General Ins. Co. v. Workers' Compensation Appeals Board (2013) 218 Cal.App.4th 258, 268, fn. 4 [159 Cal.Rptr.3d 779]; Noble v. Draper (2008) 160 Cal.App.4th 1, 10 [73 Cal.Rptr.3d 3].) We disagree with defendants' position.
Chapter 13 allows an individual with regular income to adjust his or her debts under a repayment plan. (§ 1301 et. seq.; see In re Nolan (6th Cir. 2000) 232 F.3d 528, 530; In re Estus (8th Cir. 1982) 695 F.2d 311, 313-314 & fn. 3.) Under chapter 13, debt repayment is funded primarily through the debtor's post-petition income. (See § 1322(a)(1); In re Michael (3rd Cir. 2012) 699 F.3d 305, 309; In re Clark (Bankr. S.D. Ohio 1997) 207 B.R. 559, 563.) The debtor makes regular payments to the trustee, who then distributes funds to creditors. (See § 1326(a)(1)-(2); In re Michael, supra, 699 F.3d at p. 309; In re Howell (Bankr. W.D. Pa. 1992) 138 B.R. 484, 489; see generally, A Chapter 13 Primer for Non-Chapter 13 Bankruptcy Attorneys (2009) 30 Cal. Bankr. J. 41.) A confirmed plan is subject to modification by the debtor or a creditor under specified circumstances. (§ 1329(a)[2].) And as will be noted, res
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judicata principles do not prevent the bankruptcy court from modifying the confirmed plan. (In re Taylor (Bankr. E.D.Penn. 1997) 208 B.R. 828, 832-833; In re Frost (Bankr. S.D.Ohio 1990) 123 B.R. 254, 256, 259.)
The preclusive effect of a confirmed plan is defined in section 1327(a). Section 1327(a) states, "The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan." Because we are applying a federal statute, section 1327(a), we follow rules of statutory construction enunciated by the United States Supreme Court. In Kaiser Aluminum & Chemical Corp. v. Bonjorno (1990) 494 U.S. 827, 835 [108 L.Ed.2d 842, 110 S.Ct. 1570], the United States Supreme Court held: "The starting point for interpretation of a statute 'is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.'" (See Ransom v. FIA Card Services, N.A. (2011) 562 U.S.
__, __ [178 L.Ed.2d 603, 131 S.Ct. 716, 723] ["Our interpretation of the Bankruptcy Code starts 'where all such inquiries must begin: with the language of the statute itself.'"].) When a statute is unambiguous, its language cannot "be expanded or contracted by the statements of individual legislators or committees during the course of the" legislative process. (West Virginia Univ. Hospitals, Inc. v. Casey (1991) 499 U.S. 83, 98-99 [113 L.Ed.2d 68, 111 S.Ct. 1138]; accord Huff v. DeKalb County (11th Cir. 2008) 516 F.3d 1273, 1280.)
In cases which require construction of statutory language, the United States Supreme Court has noted, "[T]he statutory language controls its construction." (Ford Motor Credit Co. v. Cenance (1981) 452 U.S. 155, 158, fn. 3 [68 L.Ed.2d 744, 101 S.Ct. 2239]; see Griffin v. Oceanic Contractors, Inc. (1982)
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458 U.S. 564, 571 (73 L.Ed.2d 973, 102 S.Ct. 3245] [" There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the [L]egislature undertook to give expression to its wishes.'"].) Further, in interpreting a statute, the Supreme Court has emphasized the importance of avoiding: "absurd results" (United States v. Turkette (1981) 452 U.S. 576, 580 [69 L.Ed.2d 246, 101 S.Ct. 2524]); "'an odd result'" (Public Citizen v. Department of Justice (1989) 491 U.S. 440, 454 [105 L.Ed.2d 377, 109 S.Ct. 25581); or "unreasonable results whenever possible." (American Tobacco Co. v. Patterson (1982) 456 U.S. 63, 71 [71 L.Ed.2d 748, 102 S.Ct. 1534]). Moreover, the United States Supreme Court has noted, "Judicial perception that a particular result would be unreasonable may enter into the construction of ambiguous provisions, but cannot justify disregard of what Congress has plainly and intentionally provided." (Commissioner v. Asphalt Products Co., Inc. (1987) 482 U.S. 117, 121 [96 L.Ed.2d 97, 107 S.Ct. 2275]; see U.S. v. Ninety-Three Firearms (6th Cir. 2003) 330 F.3d 414, 420.) In Griffin v. Oceanic Contractors, Inc., supra, 458 U.S. at p. 571, the Supreme Court stated: "Nevertheless, in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling.... [Citation.]" (See United States v. Ron Pair Enterprises, Inc. (1989) 489 U.S. 235, 242 [103 L.Ed.2d 290, 109 S.Ct. 1026] ["In such cases, the intention of the drafters, rather than the strict language, controls."].)
Under section 1327(a), a confirmed plan is binding on both the debtor and his or her creditors. The binding effect extends to all questions pertaining to the plan that were or could have been raised. (In re Enewally (9th Cir. 2004) 368 F.3d 1165, 1172; In re Demarco (Bankr. M.D.Fla. 2000) 258 B.R. 30, 34-35.) As the Court of Appeals for the Ninth Circuit explained in Enewally, "'[O]nce a bankruptcy plan is confirmed, it is binding on all parties and all questions that could have been raised pertaining to the plan are entitled to res judicata effect.' [Citation.]" (In re Enewally, supra, 368 F.3d at p. 1172; see In re Mansaray-Ruffin (3rd Cir. 2008) 530 F.3d 230, 241.)
However, the res judicata effect of a confirmed chapter 13 plan is limited. (See In re Enewally, supra, 368 F.3d at pp. 1172-1173; In re Seidler (11th Cir. 1995) 44 F.3d 945, 948-949; In re Summerville, supra, 361 B.R. at p. 140; In re Brawders, supra, 325 B.R. at p. 411.) As the United States District Court for the Western District of Virginia has explained: "Generally, [section] 1327(a) does provide a res judicata effect to the terms of a confirmed plan. [Citation.] This effect, however, is premised on the notion that the bankruptcy court has addressed in the confirmed plan and order only those issues that are properly within the scope of the confirmation hearing."
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(In re Linkous (Bankr. W.D.Va. 1992) 141 B.R. 890, 898, affd. (4th Cir. 1993) 990 F.2d 160, 163.) Thus, the federal courts have held in specified circumstances that a confirmed chapter 13 plan has limited preclusive effect. Among the specified circumstances are cases where there were issues that were or could not have been resolved in the confirmation process. (See In re Seidler, supra, 44 F.3d at pp. 948-949 [mortgage lien]; In re Summerville, supra, 361 B.R. at pp. 140-141 [validity of note and deed of trust]; In re Brawders, supra, 325 B.R. at pp. 410-411 [county tax lien]; In re Beard (Bankr. N.D.Ind. 1990) 112 B.R. 951, 954 [federal tax lien]; In re Minick (Bankr. D.C. 1986) 63 B.R. 440, 441-442 (Minick) [mortgage].)
For example, a confirmed plan has no preclusive effect as to issues that must be brought by an adversary proceeding in the bankruptcy court. (See In re Enewally, supra, 368 F.3d at p. 1173 ["a Chapter 13 plan confirmed while an adversary proceeding was pending would not have res judicata effect on the adversary proceeding."]; In re Summerville, supra, 361 B.R. at p. 141 [quoting Enewally]; In re Beard, supra, 112 B.R. at p. 956 ["If an issue must be raised through an adversary proceeding it is not part of the confirmation process and, unless it is actually litigated, confirmation will not have a preclusive effect."].) A confirmed plan is not binding as to the amount of a creditor's claim when the claims bar date has not passed. (In re Grogan (Bankr. E.D.Cal. 1993) 158 B.R. 197, 199-200; see Minick, supra, 63 B.R. at p. 442.) And a confirmed plan is not res judicata if to so conclude would result in a due process denial. (In re Linkous, supra, 990 F.2d at pp. 162-163; see In re Summerville, supra, 361 B.R. at p. 141; In re Brawders, supra, 325 B.R. at p. 411.)
Moreover, federal decisional authority explains that section 1327(a) does not say or mean the precise amount of each creditor's claim is binding where it has not been determined. (See In re Seidler, supra, 44 F.3d at pp. 948-949; In re Summerville, supra, 361 B.R. at pp. 140-141; In re Tucker (Bankr. E.D.Tenn. 1999) 231 B.R. 284, 287; In re Grogan, supra, 158 B.R. at pp. 199-200; Elliott v. ITT Corp. (Bankr. N.D.III. 1992) 150 B.R. 36, 37-38 (Elliott); Minick, supra, 63 B.R. at pp. 441-442; March et al., Cal. Practice Guide: Bankruptcy (The Rutter Group 2013)
¶ 13:1133, p. 13-142 (rev. # 1, 2013 ["the plan is only binding as to treatment, not claim amount, unless a specific claim was actually determined preconfirmation"].)
In Elliott, supra, 150 B.R. at page 38 for example, the debtors filed a chapter 13 bankruptcy petition in which they acknowledged a debt to certain ITT Corporation entities (ITT). The bankruptcy court confirmed the plan. The
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debtors subsequently filed lawsuits against ITT for consumer fraud in connection with the debt. ITT asserted the confirmed bankruptcy plan precluded the debtors from challenging the legality of the debt. As noted, the confirmation plan acknowledged the debt. The United States District for the Northern District of Illinois disagreed with ITT's argument that the debtors were bound by the confirmed plan: "[U]nderlying debts are not 'confirmed' in a Chapter 13 plan. Instead, a Chapter 13 plan confirms the manner in which the debtor will discharge his financial obligations. In fact, several bankruptcy courts have expressly ruled that res judicata does not bar a debtor who has confirmed a Chapter 13 plan from objecting to claims under the Truth-In-Lending Act.... See In re Woolaghan, 140 B.R. 377, 380 (Bankr. W.D.Pa. 1992)...; In re Marshall, 121 B.R. 814 (Bankr. C.D.Ill. 1990).... Accordingly, we do not find that [the debtors are] precluded from challenging the Debt by virtue of [their] prior bankruptcy proceedings." (Elliott, supra, 150 B.R. at pp. 39-40, fns. omitted.) In a footnote, the district court observed: "[B]ecause Chapter 13 is a voluntary proceeding designed to expeditiously develop a plan for putting the debtor's fiscal house in order, there is little time for a debtor to thoroughly explore possible challenges to his [or her] underlying debts. [Citation.] Because requiring full investigation and disclosure of possible claims would defeat the summary nature of Chapter 13, it would be inconsistent and inappropriate to give confirmation of a plan res judicata effect with respect to underlying claims." (Elliot, at p. 40, fn. 6.).
Similarly, in Minick, supra, 63 B.R. at page 441, the United States Bankruptcy Court for the District of Columbia confirmed a chapter 13 plan. The confirmation order was based on the amount the creditor claimed was due rather than the lesser amount the debtor acknowledged. The bankruptcy court determined it was more important to begin to cure the debtor's arrears than to delay while determining the precise amount thereof. (Minick, at p. 441.) The creditor argued the precise amount of its claim should have been judicially determined prior to confirmation of the debtor's chapter 13 plan. The bankruptcy court disagreed. The bankruptcy court held: "[Section] 1327(a), which states that 'the provisions of a confirmed plan bind the debtor and each creditor...', does not say and certainly does not mean that something that is not a 'provision of a confirmed plan'—that is, the precise amount of each creditor's claim—is 'binding' when it has not yet been determined. [¶]... [¶] Bankruptcy courts nationwide routinely confirm Chapter 13 plans without awaiting judicial resolution of all claims. Indeed, in most Chapter 13 cases, the time for creditors even to file their claims... does not expire until some two months after the date normally set for the
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confirmation of a plan is contrary to well-established custom and practice, is unsupported by anything in the statute or case law, and would inordinately delay plan confirmation to no good purpose and indeed to the detriment of all parties in interest, including creditors." (Minick, at pp. 441-442; see In re Euliano (Bankr. D.Mass. 2010) 442 B.R. 177, 189; In re Grogan, supra, 158 B.R. at pp. 199-200.)
Moreover, as noted, under specified circumstances, a debtor or creditor may seek to modify a confirmed plan. Section 1329(a) (see fn. 2, ante) permits the debtor, trustee or an unsecured claim holder to seek to modify a plan to increase or reduce payments. (Barbosa v. Soloman (1st Cir. 2000) 235 F.3d 31, 33-41 [confirmation plan modified on trustee's motion to use proceeds from sale of bankruptcy estate asset to increase payments to creditors]; In re Arnold (4th Cir. 1989) 869 F.2d 240, 241-244 [trustee could seek modification of confirmation plan to increase payments to creditors after debtor's financial condition improved].)
We believe the following Seventh Circuit analysis describes why res judicata principles do not in every case apply to a debtor's modification petition: "Similarly, the statutory framework of the Bankruptcy Code plainly assumes the possibility of modifications of bankruptcy plans after they are confirmed. Section 1327 of the bankruptcy code provides that 'the provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.' § 1327. Congress, however, also provided a mechanism to change the binding effect of § 1327 when it passed § 1329 to allow for modifications. 'If the drafters of the Bankruptcy Code intended for a confirmation hearing to have res judicata effect, there would be little or no reason for Section 1329.' In re Williams, 108 B.R. 119, 123 (Bankr. N.D.Miss.1989). Moreover, Congress could have specifically imposed a precondition to a § 1329 modification, but it did not do so. In fact, where it deemed appropriate, Congress could have specifically provided a 'change in circumstance' prerequisite under another provision of the Bankruptcy Code. § 1328(b). See In re Phelps, 149 B.R. 534, 538 (Bankr. N.D.Ill. 1993); In re Powers, 140 B.R. 476, 479 n. 3 (Bankr. N.D.Ill. 1992). This provision makes it clear that Congress did not intend the common law doctrine of res judicata to apply to § 1329 modifications." (In re Witkowski (7th Cir. 1994) 16 F.3d 739, 745; see In re Taylor, supra, 208 B.R. at p. 833; In re Duke (Bankr. N.D.Ala. 1993) 153 B.R. 913, 918 [§ 1329 "permits a modification of a plan's treatment of a claim, which must be strictly and narrowly construed as an exception to the binding effect of § 1327(a)"].) Thus, if plaintiff is successful in her appeal, she can move to modify the confirmation plan to reduce her payments, i.e., eliminate them, to defendants.
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We conclude, utilizing established rules for construing federal statutes, section 1327(a) does not require us to find the present appeal is moot. The limited res judicata effect of a confirmed plan does not apply when a state court action remains unresolved at the time bankruptcy proceedings commence. Section 1327(a) does not expressly address our procedural and factual scenario. Congress plainly and intentionally intended to permit debtors to amend a confirmed plan by expressly enacting section 1329(a). There is no evidence Congress in enacting section 1327(a) intended to foreclose a state court from adjudicating a dispute's merits before or after the confirmation plan's approval. The rigid application of res judicata principles is inapplicable because it conflicts with a plainly stated Congressional purpose--permitting a debtor to amend a confirmation plan. (Astoria Federal S. & L. Assn. v. Solimino (1991) 501 U.S. 104, 108 [115 L.Ed.2d 96, 111 S.Ct. 2166]; In re Witkowski, supra, 16 F.3d at pp. 744-745.).
We now turn to our case. Here, it is undisputed the trial court's authority to impose costs and attorney fees was not actually litigated in the bankruptcy court. The parties did not raise the issue in the bankruptcy court other than to report each side's view as to the amount due. Nor did the bankruptcy court address the question of the correctness of the cost and attorney fees awards. The issue was not actually litigated and decided in the chapter 13 confirmation process. Nor was it necessary to determine the validity of the obligation in order to resolve any plan confirmation issue. The confirmed chapter 13 plan does not preclude plaintiff's appeal challenging the trial court's cost and attorney fees award. No doubt, plaintiff acknowledged the existing debt in her chapter 13 plan and voluntarily agreed to make payments on it. But nothing in federal bankruptcy law prevents her from, outside the bankruptcy proceeding, challenging the trial court's authority to impose the obligation on her in the first instance.
This appeal would be moot if we could not potentially grant plaintiff any effectual relief. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [63 Cal.Rptr. 21, 432 P.2d 717]; Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 77-78 [70 Cal.Rptr.3d 88].) However, because of the limited res judicata effect of the confirmed plan, we can determine if plaintiff owes no or less money to defendants. Further, if plaintiff is successful, she can seek modification of the confirmed plan to limit her payments to defendants. We recognize the bankruptcy court may not permit the confirmation plan to be amended or the judgment in our case to be affirmed. What the future holds for the litigants is unclear. And that is why this appeal is not moot. We need not address any issues at this point concerning the authority of a bankruptcy court to determine the merits of state court suit which does not involve public rights. (Stern v. Marshall (2011) 564 U.S.
__, __-__ [180 L.Ed.2d 475, 131 S.Ct. 2594, 2608-2620]; Crowell v. Benson (1932) 285 U.S. 22, 50 [76 L.Ed. 598, 52 S.Ct. 285].)
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Defendants' motion to dismiss the appeal is denied. The foregoing conclusions are fully consistent with federal bankruptcy decisional authority.
Kriegler, J., and Kumar, J., [*] concurred.
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