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decided: June 6, 1955.
CARROLL ET ALv.LANZA, DOING BUSINESS AS LAKE CHARLES ELECTRIC CO.
Warren, Black, Frankfurter, Douglas, Burton, Clark, Minton, Harlan
[ 349 U.S. Page 409]
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Carroll, the petitioner, was an employee of Hogan, an intervenor, who in turn was a subcontractor doing work for the respondent Lanza, the general contractor. Carroll and Hogan were residents of Missouri; and Carroll's employment contract with Hogan was made in Missouri. The work, however, was done in Arkansas; and it was there that the injury occurred.
Carroll, not aware that he had remedies under the Arkansas law, received 34 weekly payments for the injury under the Missouri Compensation Act. The Missouri Act is applicable to injuries received inside or outside the State where the employment contract, as here, is made in the State. Mo. Rev. Stat., 1949, § 287.110. The Missouri Act also provides that every employer and employee shall be "conclusively presumed to have elected to accept" its provisions unless "prior to the accident" he shall have filed with the compensation commission a written notice that he "elects" to reject the compensation provision. Id., § 287.060. No such notice, however, was filed in this case. Moreover, the Missouri Act provides that the rights and remedies granted by it "shall exclude all other rights and remedies . . . at common law or otherwise," on account of the injury or death.*fn1 Id., § 287.120.
[ 349 U.S. Page 410]
Arkansas also has provisions for workmen's compensation. Ark. Stat., 1947, § 81-1301 et seq. It provides the exclusive remedy of the employee against the employer (id., § 81-1304) but not against a third party. Id., § 81-1340. And the court below, on review of Arkansas authorities, concluded that a general contractor, such as Lanza, the respondent, was a third party within the meaning of the Arkansas Act. And see Baldwin Co. v. Maner, , Ark. , 273 S. W. 2d 28.
While Carroll was receiving weekly payments under the Missouri Act, he decided to sue Lanza for common-law damages in the Arkansas courts. Lanza had the case removed to the Federal District Court where judgment was rendered for Carroll.*fn2 116 F.Supp. 491. The Court of Appeals, while agreeing with the District Court that the judgment was sustainable as a matter of Arkansas law, reversed on the ground that the Full Faith and Credit Clause of the Constitution*fn3 (Art. IV, § 1) barred recovery. 216 F.2d 808. The case is here by petition for certiorari which we granted (348 U.S. 870) because of doubts as to the correctness of the decision raised by Pacific Employers Insurance Co. v. Commission, 306 U.S. 493.
The Court of Appeals thought Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, to be controlling. There the employee having received a final award for compensation
[ 349 U.S. Page 411]
in the forum of the injury returned to his home State and sued to recover under its Compensation Act. We held that the latter suit was precluded by the Full Faith and Credit Clause. But here there was no final award under the Missouri Act. Under that Act the statutory payments apparently start automatically on receipt of notice of the injury. Mo. Rev. Stat., 1949, §§ 287.380, 287.400. While provision is made for an adjudication of disputes between an employee and his employer (id., §§ 287.400, 287.450), no adjudication was sought or obtained here.
Nor do we have a case where an employee, knowing of two remedies which purport to be mutually exclusive, chooses one as against the other and therefore is precluded a second choice by the law of the forum. Rather we have the naked question whether the Full Faith and Credit Clause makes Missouri's statute a bar to Arkansas' common-law remedy.
A statute is a "public act" within the meaning of the Full Faith and Credit Clause. See Bradford Electric Co. v. Clapper, 286 U.S. 145, 154-155, and cases cited; Alaska Packers Assn. v. Commission, 294 U.S. 532. It was indeed held in the Clapper case that a Vermont Compensation Act, which purported to give an exclusive remedy, barred a common-law action on the same claim in the New Hampshire courts by a Vermont employee against a Vermont employer, even though the injury occurred in New Hampshire. The Clapper case allowed a State to fix one exclusive remedy for personal injuries involving its residents, and required the other States to refuse to enforce any inconsistent remedy. Thus, as respects persons residing or businesses located in a State, a remedy was provided employees that was "both expeditious and independent of proof of fault," and a liability was imposed on employers that was "limited and determinate." 286 U.S., at 159.
[ 349 U.S. Page 412]
refusing to make relief by way of workmen's compensation the exclusive remedy. Baldwin Co. v. Maner, supra. Her interests are large and considerable and are to be weighed not only in the light of the facts of this case but by the kind of situation presented. For we write not only for this case and this day alone, but for this type of case. The State where the tort occurs certainly has a concern in the problems following in the wake of the injury. The problems of medical care and of possible dependents are among these, as Pacific Employers Insurance Co. v. Commission, supra, emphasizes. Id., at 501. A State that legislates concerning them is exercising traditional powers of sovereignty. Cf. Watson v. Employers Liability Corp., 348 U.S. 66, 73. Arkansas therefore has a legitimate interest in opening her courts to suits of this nature, even though in this case Carroll's injury may have cast no burden on her or on her institutions.
This is not a case like Hughes v. Fetter, 341 U.S. 609, where the State of the forum seeks to exclude from its courts actions arising under a foreign statute. In that case, we held that Wisconsin could not refuse to entertain a wrongful death action under an Illinois statute for an injury occurring in Illinois, since we found no sufficient policy considerations to warrant such refusal. And see Broderick v. Rosner, 294 U.S. 629. The present case is a much weaker one for application of the Full Faith and Credit Clause. Arkansas, the State of the forum, is not adopting any policy of hostility to the public Acts of Missouri. It is choosing to apply its own rule of law to give affirmative relief for an action arising within its borders.
[ 349 U.S. Page 414]
Missouri can make her Compensation Act exclusive, if she chooses, and enforce it as she pleases within her borders. Once that policy is extended into other States, different considerations come into play. Arkansas can adopt Missouri's policy if she likes. Or, as the Pacific Page 414} Employers Insurance Co. case teaches, she may supplement it or displace it with another, insofar as remedies for acts occurring within her boundaries are concerned. Were it otherwise, the State where the injury occurred would be powerless to provide any remedies or safeguards to nonresident employees working within its borders. We do not think the Full Faith and Credit Clause demands that subserviency from the State of the injury.
216 F.2d 808, reversed.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON and MR. JUSTICE HARLAN join, dissenting.
In order to place the problems presented by this case in the proper context for adjudication, it has seemed to me desirable to examine the course of the Court's decisions touching the constitutional requirement for giving full faith and credit to statutes of a sister State.
The cases fall into three main groups:*fn1
(1) Those in which the forum was called upon to give effect to a sister-state statute and declined to do so.
Hancock National Bank v. Farnum, 176 U.S. 640; Atchison, Topeka & Santa Fe R. Co. v. Sowers, 213 U.S. 55; Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354; Clark v. Williard, 292 U.S. 112; Broderick v. Rosner, 294 U.S. 629; Hughes v. Fetter, 341 U.S. 609; First National Bank of Chicago v. United Air Lines, Inc., 342 U.S. 396; Wells v. Simonds Abrasive Co., 345 U.S. 514.
[ 349 U.S. Page 415]
From these cases it appears that the forum cannot, by statute or otherwise, refuse to enforce a sister-state statute giving a transitory cause of action, whether in contract or tort. E. g., Broderick v. Rosner, supra; Hughes v. Fetter, supra. Indeed, the forum may permissibly go a step in the other direction and disregard the venue provisions of an out-of-state statute which would have prevented the forum from enforcing the right. Tennessee Coal, Iron & R. Co. v. George, supra. The forum may, however, apply its own more restrictive statute of limitations to an outside wrongful death action, Wells v. Simonds Abrasive Co., supra, and dicta indicate that it may refuse to enforce a penal law, a law found antagonistic to the forum's public policy, or a law which requires specialized proceedings or remedies not available in the forum, see Broderick v. Rosner, 294 U.S., at 642-643; Hughes v. Fetter, 341 U.S., at 612.
(2) Those in which the forum applied its own statute rather than that of a sister State because the latter was not of limiting exclusiveness, or in which the forum applied the sister-state statute because the forum's was not exclusive.
Bond v. Hume, 243 U.S. 15; Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439; Industrial Commission v. McCartin, 330 U.S. 622. See also Bonaparte v. Tax Court, 104 U.S. 592; American Fire Insurance Co. v. King Lumber & Mfg. Co., 250 U.S. 2.
These cases prove that, where the statute of either the forum or the outside State is not found to be exclusive regarding remedies or rights elsewhere, the statute need not be accorded exclusive effect. Further, the Court has stated that, in the area of workmen's compensation, "unmistakable language" is required before exclusiveness will be attributed. See Industrial Commission v. McCartin, 330 U.S., at 628.
[ 349 U.S. Page 416]
(3) Those in which the forum applied its own substantive law, statutory or judicial, when clearly in conflict with the out-of-state statute.
National Mutual Building & Loan Association v. Brahan, 193 U.S. 635; Olmsted v. Olmsted, 216 U.S. 386; Converse v. Hamilton, 224 U.S. 243; New York Life Insurance Co. v. Head, 234 U.S. 149; Supreme Council of the Royal Arcanum v. Green, 237 U.S. 531; Hood v. McGehee, 237 U.S. 611; Marin v. Augedahl, 247 U.S. 142; Aetna Life Insurance Co. v. Dunken, 266 U.S. 389; Modern Woodmen of America v. Mixer, 267 U.S. 544; Bradford Electric Light Co. v. Clapper, 286 U.S. 145; Alaska Packers Association v. Industrial Accident Comm'n, 294 U.S. 532; Chandler v. Peketz, 297 U.S. 609; John Hancock Mutual Life Insurance Co. v. Yates, 299 U.S. 178; Sovereign Camp of the Woodmen of the World v. Bolin, 305 U.S. 66; Pacific Employers Insurance Co. v. Industrial Accident Comm'n, 306 U.S. 493; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487; Griffin v. McCoach, 313 U.S. 498; Pink v. A. A. A. Highway Express, Inc., 314 U.S. 201; State Farm Mutual Automobile Insurance Co. v. Duel, 324 U.S. 154; Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469; Order of United Commercial Travelers v. Wolfe, 331 U.S. 586.
These cases have arisen in three principal fields: (a) commercial law; (b) insurance; and (c) workmen's compensation. As a statistical matter, in 21 cases of direct conflict the Court held for the forum 10 times and for the sister State 11 times.
(a) In commercial law a number of cases have involved statutory assessment against out-of-state shareholders under the laws of the State of incorporation of an insolvent corporation. The Court's consistent position has
[ 349 U.S. Page 417]
been that the law of the incorporating State must be given effect by the forum. E. g., Converse v. Hamilton, supra. That law is deemed to create a transitory cause of action based on the contractual relation between the corporation and the shareholder by which the shareholder is held to have consented to reasonable state regulation. The Court has relied on the fact that in each case a judicial proceeding in the incorporating State had previously passed upon the necessity and amount of the assessment, and that, although shareholders in the forum were not parties to such a proceeding, their interest was adequately represented by other shareholders. Personal defenses, such as the nonexistence of the shareholder relation, may still be asserted. Cf. Pink v. A. A. A. Highway Express, Inc., 314 U.S., at 208.
When the commercial context is not that of shareholder-corporation but simple contract, the Court has found less need for uniformity and accordingly has given greater leeway to the forum on a showing of substantial interest in the contract, e. g., that one of the parties is a resident of the forum or that the contract is to be performed within its borders. The Court has spoken of the presumed acceptance of the forum's laws by a corporation doing business in the forum. National Mutual Building & Loan Association v. Brahan, supra. In other cases the argument has been narrower, for instance that the forum can control an incidental item of damages such as interest. Klaxon Co. v. Stentor Elec. Mfg. Co., supra. Occasionally reliance has rested on ordinary conflict of laws doctrine. See Olmsted v. Olmsted, supra (holding that the forum can exclusively control disposition of land within its borders).
(b) The insurance cases reflect considerations similar to those in the commercial cases. The Court has found in fraternal benefit societies an "indivisible unity" among the members and a resultant need for uniform construction
[ 349 U.S. Page 418]
of rights and duties in the common fund. E. g., Order of United Commercial Travelers v. Wolfe, supra. Hence the law of the society's home State (and bylaws adopted under it) has prevailed. The Court has been able to draw support from decisions of the home State validating either the practice under question or one similar to it. (The cases have involved increase of dues, presumption of death from long absence, ultra vires certificates, and time limitation on bringing suit.) In an analogous situation, the forum has prevailed on the question whether an individual is in fact an assessable member of a mutual insurance company (rather than a mere policyholder), on the ground that the interpretation and legal effect of the contract is peculiarly within the competence and sphere of interest of the forum. Pink v. A. A. A. Highway Express, Inc., supra.
As to ordinary insurance contracts, the forum has had a much wider scope. The Court has balanced the interests of the competing jurisdictions, including factors such as the residence of the insured, where premiums were paid or payable, where the policy was applied for and delivered, where the insured died, what law the policy itself provided should govern, and whether loan agreements and new policies were ancillary to the initial policy. The forum has been permitted to protect its residents against insurance companies, but the Court has required the forum to have more than a casual interest. It has not been sufficient, for example, that the forum was the State of initial issue of the policy on which a defaulted loan was obtained, New York Life Insurance Co. v. Head, supra, or the place of issue of a converted policy and the residence at death of the insured, Aetna Life Insurance Co. v. Dunken, supra, or the place where suit has been brought, John Hancock Mutual Life Insurance Co. v. Yates, supra. On the other hand, the forum would succeed if it asserted a strong local policy requiring an insurable
[ 349 U.S. Page 419]
interest, see Griffin v. McCoach, supra, or a reserve requirement more stringent than that of the State of incorporation, State Farm Mutual Automobile Insurance Co. v. Duel, supra.
(c) In workmen's compensation cases the Court has likewise adopted an interests-weighing approach. The relevant considerations have been: the place of the employment contract; the residence of the parties; the place of injury; the possibility of the workman becoming a public charge in the State seeking to award compensation, see Alaska Packers Association v. Industrial Accident Comm'n, supra ; the interest of a State in securing prompt payment of medical fees to its residents, see Pacific Employers Insurance Co. v. Industrial Accident Comm'n, supra ; the aspect of exclusiveness of the foreign statute, see Industrial Commission v. McCartin, supra ; the State's interest in the bodily safety and economic protection of workers within it; the difference between a defense (which if rejected results in irremediable liability) and a cause of action (which if not allowed in one State can be pursued in another), see Bradford Electric Light Co. v. Clapper, supra ; the amount of work to be performed in a State, see Cardillo v. Liberty Mut. Ins. Co., supra ; and the policy of determinate liability and prompt remedy underlying workmen's compensation acts. The Court first enunciated the rule that the forum must permit a defense based on the exclusiveness of the sister-state statute where the only contact of the forum was that it was the place of injury. Bradford Electric Light Co. v. Clapper, supra. Conversely, the Court held that the place of contract could award compensation though the injury occurred elsewhere. Alaska Packers Association v. Industrial Accident Comm'n, supra. Subsequently, the Court held that the forum could prevail, even though the parties resided and the contract was entered in another State whose statute was exclusive, if
[ 349 U.S. Page 420]
the injury occurred in the forum and enforcement of the defense of the outside statute was deemed "obnoxious" to the forum's policy. Pacific Employers Insurance Co. v. Industrial Accident Comm'n, supra.
In applying to the immediate situation the fair guidance offered by the past decisions of the Court regarding full faith and credit, a number of considerations become apparent:*fn2 (1) Unlike the other workmen's compensation cases -- or, for that matter, any of the cases in which the forum has prevailed in a conflict between the forum and the outside law -- the interest of the forum here is solely dependent on the occurrence of the injury within its borders. No rights of Arkansas residents are involved, since none of the parties is an Arkansan; the workman was removed immediately to a Missouri hospital and has, so far as appears, remained in Missouri. What
[ 349 U.S. Page 421]
might be regarded as the societal interest of Arkansas in the protection of the bodily safety of workers within its borders is an interest equally true of any jurisdiction where a workman is injured and exactly the sort of interest which New Hampshire had in Clapper. (2) Thus, the Court is squarely faced with the Clapper problem.*fn3 To make the interest of Arkansas prevail over the interest of Missouri on the basis of the Full Faith and Credit Clause would require that Clapper be explicitly overruled and that, in the area of workmen's compensation law, the place of injury be decisive. And if Clapper is to be overruled, on which I and those who join me express no opinion, it should be done with reasons making manifest why Mr. Justice Brandeis' long-matured, weighty opinion in that
[ 349 U.S. Page 422]
case was ill-founded. It should not be cast aside on the presupposition that full faith and credit need not be given to a sister-state workmen's compensation statute if the law of the forum happens to be more favorable to the claimant. (3) Furthermore, the new provision of 28 U. S. C. § 1738 cannot be disregarded. In 1948 Congress for the first time dealt with the full faith and credit effect to be given statutes.*fn4 The absence of such a provision was used by Mr. Justice Stone to buttress the Court's opinions both in Alaska Packers, 294 U.S., at 547, and Pacific Employers, 306 U.S., at 502. Hence, if § 1738 has any effect, it would seem to tend toward respecting Missouri's legislation. See Reese, Full Faith and Credit to Statutes: The Defense of Public Policy, 19 U. of Chi. L. Rev. 339, 343 et seq.
There is, however, a readily available alternative short of overruling Clapper which dispenses with the difficulties inherent in applying the Full Faith and Credit Clause. This alternative proceeds along the following lines:
Missouri's workmen's compensation statute is in terms applicable and exclusive as to workmen injured outside the State under Missouri employment contracts.*fn5 Hogan
[ 349 U.S. Page 423]
(the subcontractor here) was a Missouri employer and had a Missouri employment contract with Carroll (the injured workman). Thus when Carroll sought workmen's compensation in Arkansas (where he was hurt), Hogan and his insurer could have relied on the Missouri statute and the Clapper case as a defense. They did not, presumably since Arkansas workmen's compensation cost them no more than Missouri's and they had an opportunity to recoup from the prime contractor as a third party under Arkansas law.*fn6
But Lanza (the prime contractor) was not a Missouri employer, nor does the record disclose that he had a Missouri employment contract either with Hogan or Carroll. The basic contract between Lanza and Hogan was on a Louisiana letterhead and is a contract for work apparently to be performed exclusively in Arkansas. Hogan promised to furnish workmen and "It is further understood that . . . Hogan . . . will carry the necessary insurance on his men in according [ sic ] with the rules of the state of Arkansas." The supplemental contract for the particular
[ 349 U.S. Page 424]
work on which Carroll was injured consisted of a letter bid by Hogan to Lanza and a letter reply authorizing Hogan to proceed. From the point of view of choice of law, the various aspects of the contract combine to make it governed either by Arkansas or Louisiana -- but not Missouri -- law. Cf. Johnson v. Great Lakes Pipe Line Co., 358 Mo. 445, 215 S. W. 2d 460.
The Missouri workmen's compensation statute provides that "Where a third person is liable to the employee . . . for the injury or death, the employer shall be subrogated . . . and the recovery by such employer shall not be limited to the amount payable as compensation to such employee . . . ." Mo. Rev. Stat., 1949, § 287.150. The Missouri Supreme Court has read this provision as allowing a common-law action by a worker against a negligent third party, e. g., Schumacher v. Leslie, 360 Mo. 1238, 232 S. W. 2d 913, on the theory that the worker may secure common-law recovery against anyone "'upon whom no liability could be entailed under the Act,'" 360 Mo., at 1246, 232 S. W. 2d, at 918.
But the Missouri Supreme Court has held that a prime contractor is not liable as a third party for his negligence to an employee of a subcontractor. Bunner v. Patti, 343 Mo. 274, 121 S. W. 2d 153; see also New Amsterdam Casualty Co. v. Boaz-Kiel Construction Co., 115 F.2d 950 (C. A. 8th Cir.). And this because prime contractors are subject to liability under the workmen's compensation statute, which states: "Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer . . . . The immediate contractor . . . shall be liable as an employer of the employees of his subcontractors. . . . No such employer shall be liable . . . if
[ 349 U.S. Page 425]
the employee was insured by his immediate or any intermediate employer." Mo. Rev. Stat., 1949, § 287.040.
The rationale of the Missouri decisions prohibiting a negligence action against a prime contractor is this: a person clearly subject to statutory liability cannot be sued as a third party. Cf. Schumacher v. Leslie, 360 Mo. 1238, 1247, 232 S. W. 2d 913, 918. But the Missouri rule has only been applied in cases where three preconditions were present: (a) all parties were subject to the Missouri workmen's compensation act; (b) the prime and subcontractor were doing business in Missouri; and (c) the injury took place on a project in Missouri.
Under the circumstances of the case before us, there is no basis for finding that Missouri would deem Lanza to be a Missouri employer and as such subject to liability for Missouri workmen's compensation. His contract had no Missouri ties other than the bare fact that the subcontractor was a Missouri resident.*fn7 And there is no indication that Lanza has ever done business in Missouri. Furthermore, Missouri requires that a defendant in a negligence suit who relies on the exclusiveness of the workmen's compensation statute must plead and prove as an affirmative defense that the parties are subject to it, Kemper v. Gluck, 327 Mo. 733, 39 S. W. 2d 330, a burden which Lanza certainly has not met. See State ex rel. St. Louis Car Co. v. Hostetter, 345 Mo. 102, 131 S. W. 2d 558. Thus there is no warrant for believing that the Missouri courts would refuse to allow suit against him as an ordinary third party. Presumably, then, Carroll could sue Lanza under either Missouri or Arkansas law for his negligence.
[ 349 U.S. Page 426]
Accordingly, the constitutional question presented should not be passed on.
But we ought not to rest on the initial determination of Missouri law here. In a number of the full faith and credit cases this Court has remanded for further consideration of state law. E. g., Klaxon Co. v. Stentor Elec. Mfg. Co., supra; Griffin v. McCoach, supra; Clark v. Williard, supra. Hence, I would remand this case to the Court of Appeals with instructions to determine whether our reading of Missouri law is wrong.
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UBS Asset Management Americas Inc. increased its stake in Kennedy-Wilson Holdings Inc. (NYSE:KW) by 8.4% during the second quarter, according to its most recent filing with the Securities and Exchange Commission (SEC). The firm owned 55,557 shares of the company's stock after buying an additional 4,290 shares during the period. UBS Asset Management Americas Inc.'s holdings in Kennedy-Wilson Holdings were worth $1,054,000 as of its most recent filing with the SEC.
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United States District Court, C.D. Illinois, Rock Island Division
September 23, 2014
OSF HEALTHCARE SYSTEM, an Illinois not for profit corporation d/b/a SAINT FRANCIS MEDICAL CENTER, Plaintiff,v.CONTECH CONSTRUCTION PRODUCTS INC. GROUP COMPREHENSIVE HEALTH CARE, Defendant.
SARA DARROW, District Judge.
Plaintiff OSF Health Care System ("OSF") is suing Defendant Contech Construction Products Inc. Group Comprehensive Health Care ("Plan") under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., and Illinois state law for compensation for medical services OSF rendered to a Plan participant at its St. Francis Medical Center. The Plan has moved to dismiss OSF's Complaint on several grounds. Mot. Dismiss 1, ECF No. 5. Plaintiff's Motion for Leave to File Supplemental Response to Motion to Dismiss, ECF No. 14, is DENIED. For the following reasons, Defendant's Motion to Dismiss, ECF No. 5, is GRANTED IN PART and DENIED IN PART.
The Plan is a health care plan for employees of Contech Engineered Solutions, LLC ("Contech"), formerly Contech Construction Products Inc. The Plan is a self-funded employee welfare benefit plan as defined by ERISA, 29 U.S.C. § 1002. United Medical Resources, Inc. ("UMR") administers claims under the Plan. OSF, as St. Francis Medical Center, is a health care services provider in Peoria, Illinois.
In October 2011, OSF provided medical services to J.G., son and dependent of James Giordano, a Contech employee and Plan participant. J.G. was taken to OSF St. Margaret's-an in-network provider in Spring Valley, Illinois-on October 29, 2011, while suffering seizures and partial paralysis, among other symptoms. Medical staff at St. Margaret's told J.G.'s parents that he required immediate evaluation by a pediatric facility with neurological capability, and the nearest such facility was OSF St. Francis Medical Center. Accordingly, J.G. was transferred to the pediatric intensive care unit at St. Francis, an out-of-network provider in Peoria, Illinois. There, J.G. received treatment on October 30 and 31, 2011, at a total cost of $21, 332.00. OSF billed the Plan for this amount. The Plan only paid $9, 176.23, refusing to pay the $12, 155.77 balance.
The Summary Plan Description ("SPD"), the Plan's governing document, provides that participants may appeal a benefits claim denial within 180 days following receipt of notice of an adverse benefit determination. That notice is to contain, among other information, a "reference to the specific portion of the SPD upon which a denial is based" and "[s]pecific reasons for denial."
In a January 2, 2012 Explanation of Benefits notice sent to Giordano and OSF, the Plan indicated that it refused to pay $1, 409.43 in "Room & Board" and $10, 522.34 in "Hospital Extras" because these services "exceed[ed] the usual, reasonable, and customary amounts. Refer to the General Exclusions in your SPD." The Plan also refused to pay two charges labeled as "Hospital Extras, " in the amounts of $112.00 apiece, stating that they were "denied as unbundled/unrelated/undocumented/unidentified/duplicated or erroneous. Refer to the General Exclusions in your SPD." The notice further indicated that an appeal of this denial must be submitted in writing within 180 days of its receipt, and it must include "proof that the claim for benefits is payable under the provisions of the Plan. Failure to include relevant facts will be considered a waiver of your right to include them in your appeal."
In a May 3, 2012 letter, OSF identified Giordano's claim by name, account number and member ID, and demanded payment of the $12, 155.77 balance. OSF explained:
[W]e are unable to accept your request for usual and customary pricing. It is standard practice for all of our Entities to bill according to the guidelines set forth by Medicare. In keeping with that doctrine, we expect the same principles to apply to any party who accept[s] responsibility for claims processing. This letter shall serve as our intent to be paid in full for all billed charges. Non-compliance with this directive will result in added financial responsibility for the patient. Please remit additional payment immediately.
OSF submitted an identical request on May 25, 2012. Additionally, in a June 30, 2012 document addressed to UMR and entitled "Appeal for Additional Finalized Payment, " James Giodarno discussed the circumstances leading to his son's treatment at OSF, explained that UMR led him to believe his son qualified for treatment at St. Francis at an in-network rate, and requested that the Plan pay the balance of OSF's bill.
On February 7, 2013, counsel for OSF submitted a letter requesting payment from the Plan for the remaining balance, asserting OSF's beneficiary status under ERISA, 29 U.S.C. § 1002(8), and stating that OSF would interpret failure by the Plan to respond within 30 days as exhaustion of OSF's administrative remedies. The Plan replied on February 20, 2013, stating that OSF's appeal was received on February 12, 2013; therefore, it was time-barred under the 180-day deadline for appeals following receipt of an adverse benefit determination. On March 20, 2013, counsel for OSF responded that its February 7, 2013 correspondence with the Plan was part of a "continued appeal" that began with OSF's May 3, 2012 letter.
On November 23, 2013, OSF filed the instant suit as a "beneficiary" under ERISA, 29 U.S.C. § 1132(a)(1)(B), seeking payment of the balance for Giordano's treatment, which OSF claims it is owed pursuant to the Plan's terms and federal law governing health insurance coverage of out-of-network emergency care, see 42 U.S.C. § 300gg-19a(b)(1)(C)(II). OSF additionally seeks payment of interest, running from December 15, 2011, on this allegedly delinquent payment of a claim for health care services pursuant to 215 ILCS 5/368a(c). On February 5, 2014, the Plan moved to dismiss the Complaint in its entirety.
The Plan moves to dismiss on the following grounds: (1) OSF lacks standing to maintain this lawsuit under ERISA § 502(a)(1)(B); (2) OSF's administrative appeal is untimely under the terms of the Plan; and (3) ERISA pre-empts application of Illinois law requiring payment of interest. Def.'s Mem. in Supp. Mot. Dismiss 1, ECF No. 6.
I. Standing to Sue as Beneficiary
A. Legal Standard
The party invoking federal jurisdiction has the burden of establishing his standing to sue. Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999). When standing is challenged in a motion to dismiss, the court must accept as true all well-pleaded allegations inthe complaint. Id.
An ERISA plan "participant" or "beneficiary" may sue to recover benefits due to him, to enforce his rights, or to clarify his rights to future benefits under the terms of the plan. 29 U.S.C. § 1132(a)(1)(B). ERISA defines a "beneficiary" as a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder. Id. § 1002(8). The Seventh Circuit has held that a medical services provider suing as an assignee of a participant has standing as a "beneficiary." Kennedy v. Connecticut Gen. Life Ins. Co., 924 F.2d 698, 700 (7th Cir. 1991). To satisfy standing, the would-be beneficiary need only have a "colorable claim to benefits" under the plan. Id. "Only if the language of the plan is so clear that any claim as an assignee must be frivolous is jurisdiction lacking." Id. Under this standard, even where the plan's terms prohibit assignment without its consent, "the possibility of direct payment" to the provider suffices to state a colorable claim. Id. at 701. This standard sets a "low threshold" for standing: even where the merits of the claim are weak, the mere possibility of success establishes beneficiary standing to sue. See Neuma, Inc. v. AMP, Inc., 259 F.3d 864, 878-79 (7th Cir. 2001) (quoting Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786, 790 (7th Cir. 1996)).
B. Analysis
OSF claims standing as an ERISA "beneficiary" on the basis of receiving direct payment of benefits from the Plan. Compl. ¶ 31, ECF No. 1. On this point, the SPD provides:
Benefits for medical expenses covered under this Plan may be assigned by a Plan participant to the provider; however, if those benefits are paid directly to the employee, the Plan will be deemed to have fulfilled its obligations with respect to such benefits. The Plan will not be responsible for determining whether any such assignment is valid. Payment of benefits that have been assigned will be made directly to the assignee unless a written request not to honor the assignment, signed by the covered employee and the assignee, has been received before the proof of loss is submitted.
Compl., Ex. B at 74, ECF No. 1-2. These terms allow for direct payment to a provider assignee, see Kennedy, 924 F.2d at 701, and the parties agree that the Plan did directly pay OSF part of the claimed cost of Giordano's treatment. See Compl. ¶ 5; Def.'s Mem. in Supp. Mot. Dismiss 2. By comparison with the beneficiary in Kennedy, moreover, OSF has a far more "colorable" claim to assignee status because the Plan here has no prohibition on assignment absent its consent. See Kennedy, 924 F.2d at 700-01.
The Plan argues that OSF cannot claim "beneficiary" status under Kennedy because OSF does not allege receiving an assignment of Giordano's rights under the plan. Def.'s Mem. in Supp. Mot. Dismiss 7. Indeed, the Plan maintains, OSF implicitly denied the possibility of assignment when it stated that the Plan's refusal to pay the balance "will result in added financial responsibility" for Giordano. The Plan, however, does not provide legal authority for the proposition that such language negates the possibility of assignment in all circumstances, see, e.g., United States v. Useni, 516 F.3d 634, 658 (7th Cir. 2008) (noting that failure to cite relevant legal authority constitutes a waiver of an argument), and the Court is not convinced of its universal truth.[2]
The Plan's reliance on OSF Healthcare v. Weatherford, No. 10-1400, 2012 U.S. Dist. LEXIS 40021, at *14-16 (C.D. Ill. Mar. 23, 2012) is unavailing. In that case, the benefit plan prohibited assignment and the circumstances precluded OSF there from receiving direct payment. Id. Here, by contrast, the language of the Plan does not clearly prohibit assignment and OSF alleged that it has received direct payment from the Plan. OSF has met the low threshold for statutory standing as a beneficiary under ERISA at the motion to dismiss stage. See Kennedy, 924 F.2d at 700-01.
II. Untimely Appeal
The Seventh Circuit has interpreted ERISA to require a plaintiff to exhaust plan administrative remedies before bringing suit. Schorsch v. Reliance Standard Life Ins. Co., 693 F.3d 734, 739 (7th Cir. 2012). Administrative exhaustion serves to minimize the number of frivolous lawsuits, promote non-adversarial dispute resolution, and decrease the cost and time necessary for claim settlement. Gallegos v. Mount Sinai Med. Cntr., 210 F.3d 803, 808 (7th Cir. 2000). Courts may excuse a failure to exhaust administrative remedies "where there is a lack of meaningful access to review procedures, or where pursuing internal plan remedies would be futile." Id. (quoting Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 361 (7th Cir. 2011)). Failure to exhaust administrative remedies includes failure to file a timely appeal from denial of benefits. Gallegos, 210 F.3d at 808. Whether to dismiss an ERISA claim for failure to exhaust administrative remedies lies within the discretion of the trial court. Gilbride v. Highmark Blue Shield of PA, No. 13-CV-2047, 2013 WL 6247447, at *3 (C.D. Ill. Nov. 7, 2013) (citing Edwards, 639 F.3d at 361).
An ERISA plan's notice of denial of benefits must include: (1) the specific reasons for a denial of benefits; (2) a reference to the specific plan provisions on which the determination is based; (3) a description of any additional material or information necessary for the claimant to perfect the claim; and (4) a description of the plan's review procedures and the applicable time limits. 29 C.F.R. § 2560.503-1(g)(l)(i)-(iv); see Herman v. Cent. States, Se. & Sw. Areas Pension Fund, 423 F.3d 684, 693 (7th Cir. 2005). This content requirement "ensures that a full and fair review is conducted by the administrator, enables the claimant to prepare adequately for appeal to the federal courts or further administrative review, and makes it possible for the courts to perform the task, entrusted to them by ERISA, of reviewing that denial." Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 693 (7th Cir. 1992). A plan administrator's substantial compliance with this requirement is sufficient. Id.
Substantial compliance occurs when the plan's notice identifies the items of evidence the plan considered, including the weight given to each, and "sufficiently indicate[s] the reasoning underlying" its decision. See id. at 694 (quoting Brown v. Ret. Comm. of the Briggs & Stratton Ret. Plan, 797 F.2d 521, 535-36 (7th Cir. 1986)). In other words, the court must determine whether "the beneficiary [was] supplied with a statement of reasons that, under the circumstances of the case, permitted a sufficiently clear understanding of the administrator's position to permit effective review." Dade v. Sherwin-Williams Co., 128 F.3d 1135, 1142 (7th Cir. 1997) (internal quotation omitted) (finding substantial compliance where letters informing plaintiff that skilled nursing services would be limited included "specific reasons, " namely that care could be provided by lay family member, and cited specific plan provisions). If a plan fails to follow claims procedures consistent with 29 C.F.R. § 2560.503-1, a claimant shall be deemed to have exhausted the plan's administrative remedies. 29 C.F.R. § 2560.503-1(l).
The Plan argues that OSF's letters of May 5 and May 23, 2012 "contain no rationale or evidence to support reversal of the adverse benefits decision, " and therefore do not constitute appeals of that decision. Def.'s Mem. in Supp. Mot. Dismiss 8. OSF's first appeal, therefore, is its February 7, 2013 letter, the Plan maintains. Id. Because OSF submitted this appeal more than 180 days following its receipt of the January 2, 2012 denial of benefits letter, it is time barred and OSF's suit must be dismissed for failure to exhaust administrative remedies, the Plan concludes. Id. at 8-9. For its part, OSF alleges that the denial-of-benefits notice failed to meet the 29 C.F.R. § 2560.503-1(g)(l) standard, so its administrative remedies are to be deemed exhausted. Compl. ¶ 21.
In its January 2, 2012 notice of denial of benefit, the Plan indicated that it was not paying $12, 155.77 of Giordano's expenses on the grounds that they either exceeded the "usual, reasonable, and customary amounts" or were denied as "unbundled/unrelated/undocumented/ unidentified/duplicated or erroneous, " in both cases citing the basis for such determination solely as "the general exclusions in your SPD."
These vague and formulaic recitations do not identify the evidence considered by the administrator and the weight assigned, nor do they provide a sufficiently clear picture of the reasoning underlying the administrator's decision to deny benefits. See Dade, 128 F.3d at 1142; Halpin, 962 F.2d at 694. Further, the Court can identify no provision in the SPD entitled "General Exclusions." To the extent that the notice invites the Plan participant to comb the 121-page SPD, not including amendments, for any and all discussion of coverage exclusions, and then deduce which one(s) relate, this provision reference is the opposite of "specific." See 29 C.F.R. § 2560.503-1(g)(l)(ii). Because the notice of benefits denial does not even substantially comply with the content requirements of § 2560.503-1(g)(l), OSF is deemed to have exhausted its administrative remedies. See id. § 2560.503-1(l).
Moreover, OSF furnished sufficient material to constitute an appeal within the 180-day window. OSF's May 3, 2012 and May 25, 2012 letters indicated OSF's refusal to accept the administrator's decision, its intent to pursue full payment, and its reason: it could not provide "usual and customary" pricing because it set its rates according to Medicare guidelines. The SPD does not mandate that an appeal be labeled as such, but merely that it include the participant's identification information, "facts and theories supporting the claim for benefits" and any supporting material, and a "statement in clear and concise terms of the reason or reasons for disagreement with the handling of the claim."[3] Compl., Ex. A at 72, ECF No. 1-2. OSF's appeal provided such identifying information and a statement of reasons. To the extent it was light on supporting facts or theories, the SPD and appeal notice both provide that the penalty is waiver of the ability to argue those facts or theories on appeal, but not nullification of the appeal. See id. Moreover, supplementing OSF's notice was James Giordano's expressly titled "appeal" letter of June 30, 2012-within 180 days of OSF's likely receipt of the denial notice, by the Court's count-which gives a detailed factual account of the circumstances surrounding his son's treatment at St. Francis and the reasons OSF should receive full compensation. Giordano's letter therefore shored up any possible gaps in OSF's initial appeal.
Because OSF and Giordano timely appealed the Plan's benefits denial after the Plan provided deficient notice of that denial, OSF's suit is not barred for failure to exhaust administrative remedies.
III. ERISA Pre-Emption
ERISA supersedes state laws insofar as they "relate to" employee benefit plans. 29 U.S.C. § 1144(a). ERISA's "savings clause" preserves state laws that regulate insurance, banking, or securities from pre-emption. Id. § 1144(b)(2)(A). However, state laws that purport to regulate insurance by "deeming" an ERISA plan to be an insurer are subject to pre-emption. See id. § 1144(b)(2)(B); Moran v. Rush Prudential HMO, Inc., 230 F.3d 959, 970 (7th Cir. 2000). The Supreme Court has held that ERISA's "deemer clause" exempts self-funded ERISA plans from the application of state laws that "regulate insurance" within the meaning of the Savings Clause. Id. (citing FMC Corp. v. Holliday, 498 U.S. 52, 61 (1990)).
A state law "relates to" an ERISA plan under § 1144(a) if it "has a connection with or reference to" a plan. Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 147 (2001). A state law "has reference to" an ERISA plan if it "acts immediately and exclusively upon ERISA plans" or if "the existence of ERISA plans is essential to the law's operation." Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 563 (7th Cir. 2002). To determine whether a state law "has a connection" to an ERISA plan, a court "look[s] both to the objectives of the ERISA statute... as well as to the nature of the effect of the state law on ERISA plans." Id. at 565 (quoting Egelhoff, 532 U.S. at 147).
Egelhoff found the state law at issue, concerning a divorced spouse's beneficiary status, had an impermissible connection because, unlike generally applicable laws with only incidental effect on ERISA plans, it purported to govern the payment of plan benefits, a "central matter of plan administration." 532 U.S. at 147-48. Where a plan employer was located in one state, the participant in another, and a former spouse and potential "beneficiary" in a third, administrators would be forced to familiarize themselves with different state statutes, and plan payments may be subject to conflicting legal obligations. Id. at 148-49. These circumstances would undermine Congress's goals for ERISA "to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits, " id. at 148 (quoting Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 9 (1987)), and to "minimize the administrative and financial burden" on plan administrators, often passed along as costs to the participants, id. at 150 (quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990)). See also Holliday, 498 U.S. at 60 ("We have not hesitated to apply ERISA's pre-emption clause to state laws that risk subjecting plan administrators to conflicting state regulations.")
An ERISA plan administrator must notify a claimant within 30 days of an adverse benefit determination. 29 C.F.R. 2560.503-1(f)(2)(iii)(B). The Illinois Insurance Code provides, in pertinent part, that an insurer or health care plan's failure to pay for health care services within 30 days of receipt of the claim entitles the services provider to 9% interest per year until the payment is made. 215 ILCS 5/368a(c). Whether ERISA pre-empts claims under this Illinois provision by health care providers against self-insured ERISA plans appears to be a matter of first impression.
Courts addressing the ERISA pre-emption of claims under similar "prompt pay" state statutes tend to find pre-emption unless the claim for payment arises from an independent agreement between provider and plan. Compare Schoedinger v. United Healthcare of Midwest, Inc., 557 F.3d 872, 875-76 (8th Cir. 2009) (finding provider's claim, based on assignment of benefits from participant, for interest under Missouri prompt pay statute pre-empted by ERISA); Productive MD, LLC v. Aetna Health, Inc., 969 F.Supp.2d 901, 938 (M.D. Tenn. 2013) (finding Tennessee Prompt Pay Act claim pre-empted because provider brought it as assignee of plan participant) with In re Managed Care Litig., 298 F.Supp.2d 1259, 1294 (S.D. Fla. 2003) (finding no pre-emption of providers' prompt pay claims arising from "a separate relationship between the provider and plan administrator, " not assignment from participants). Additionally, the Eleventh Circuit found a Georgia prompt-pay provision pre-empted as applied to self-funded ERISA plans because the provision interfered with uniform administration of plan benefits. America's Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1331 (11th Cir. 2014). That is, policies subject to the law would require determination or payment by the plan within the specified timeframe, and plans would have to pay more to those beneficiaries where the action was late.
See id.
Similarly, district courts have found ERISA to supersede other Illinois statutes regulating payment from health care plans because of their interference with plan administration. For example, a claim under an Illinois statute guaranteeing a right to payment for health care services provided, see 810 ILCS 5/9-607(d), whose aim was to facilitate insurance companies' direct payment to medical providers, had an impermissible connection with ERISA plans. Surgicore, Inc. v. Principal Life Ins. Co., No. 01 C 9387, 2002 WL 1052034, at * 3-4 (N.D. Ill. May 22, 2002). The court reasoned that the Illinois law "seeks to shift control over benefit distribution, " thus interfering with plan administration. Id. Similarly, ERISA was found to pre-empt a claim under 215 ILCS 5/370(a)-which requires an insurer or plan to directly pay a health care professional or facility if an enrollee assigns her claim-because the provision (1) imposes additional burdens on administrators and shifted control over benefit distribution from the administrators to the beneficiaries, (2) potentially reduces a plan's ability to enter into an agreement with a provider, and (3) interferes with uniform national administration of the plan. DeBartolo v. Blue Cross/Blue Shield of Ill., No. 01 C 5940, 2001 WL 1403012, at *3-4 (N.D. Ill. Nov. 9, 2001).
The Plan argues for dismissal because OSF requests interest under 215 ILCS 5/368a(c) and ERISA pre-empts the Illinois prompt-pay statute's application to self-funded ERISA plans.[4] Def.'s Mem. in Supp. Mot. Dismiss 9-10. The Court reads OSF's Complaint, however, as asserting a claim for the balance of Giordano's care under ERISA, and asserting a second, collateral claim, solely for interest, under 215 ILCS 5/368a(c). Therefore, while the Court finds the prompt-pay claim pre-empted by ERISA, as explained below, this determination has no bearing on OSF's primary claim, which survives.
OSF's claim for interest payment under 215 ILCS 5/368a(c) has an impermissible connection to an ERISA plan. See Egelhoff, 532 U.S. at 147. Regulation promulgated under ERISA requires notice of adverse benefits determination within 30 days, but under Illinois law, notice is insufficient-a claim must be paid within 30 days or interest accrues. The Plan thus faces a penalty if it does not expedite claims from providers subject to 215 ILCS 5/368a(c), affecting timing and potential cost of plan administration. See Hudgens, 742 F.3d at 1331. Moreover, the fact that the Plan could owe significant interest if UMR determines a claim is not payable but is reversed after years of litigation may influence the Plan's willingness to dispute claims in adherence to its interpretation of the SPD. The prompt-pay requirement thus affects fundamental plan decision-making, undermines any effort by the Plan to maintain a "standard procedure[] to guide processing of claims and disbursement of benefits, " and exacerbates the burden on the Plan by subjecting it to potentially conflicting payment deadlines and costs state-to-state. See Egelhoff, 532 U.S. at 147-50. In this way, the prompt-pay provision shares fatal flaws with other Illinois insurance laws that courts have found pre-empted by ERISA. See, e.g., DeBartolo, 2001 WL 1403012, at *3-4.
Additionally, OSF has only articulated a right to payment deriving from Giordano's participation in the Plan. OSF has not alleged any separate agreement with the Plan. The lack of independent agreement supporting its claim for prompt payment further weighs in favor of finding 215 ILCS 5/368a(c) superseded by ERISA under the trend emerging among federal courts considering prompt pay statutes. See, e.g., Productive MD, LLC, 969 F.Supp.2d at 938. Accordingly, OSF's claim under 215 ILCS 5/368a(c) "relates to" an ERISA plan under 29 U.S.C. § 1144(a). Even if it could be "saved" under § 1144(b) as an insurance regulation, the Plan's self-insured status means that application of 215 ILCS 5/368a(c) would fall within the Deemer Clause. See Holliday, 498 U.S. at 61. Therefore, OSF's claim for interest under 215 ILCS 5/368a(c) is dismissed as pre-empted by ERISA.
Plaintiff's Motion for Leave to File Supplemental Response to Motion to Dismiss, ECF No. 14, is DENIED. Defendant's Motion to Dismiss, ECF No. 5, is GRANTED IN PART and DENIED IN PART. Plaintiff's claim for interest pursuant to 215 ILCS 5/368a(c) is dismissed. Defendant's Motion is otherwise denied.
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Expert Recommendation.
My Best In Class Pick
Fujifilm FinePix S6000fd
While both cameras mentioned here make good travel cameras, and even competent low-light cameras to an extent, fast action photography is perhaps the most demanding of all (one of the reasons sports photographers spend thousands of dollars on equipment - they need every last ounce of performance they can get). While SLR cameras are very competent, ordinary consumer cameras can't focus nearly as fast, can't continuously shoot as frequently, and can't produce anywhere near the same high ISO performance needed to freeze action - outside of outdoor, daylight situations, all non-SLR cameras will struggle mightily to get usable pictures.
In many ways, the Sony H9 is the better fast action camera. It can take many continuous pictures in a row (which the S6000fd can't do), and has a much longer telephoto lens to zoom in for close-up pictures. Despite all this, the overriding factor for fast action is high ISO and the ability to use fast shutter speeds - it doesn't matter what features a camera has to more consistently take action photos, if all the photos are too blurry or too grainy to be usable. For this reason, the S6000fd is the best fast action camera, even if it is slightly inferior in all other fast action aspects, simply because it can freeze motion while no other consumer camera can.
Outside of fast action, the Fuji S6000fd is clearly a better camera for travel (where its wider 28mm lens makes it more versatile than the 31mm on the H9) and for low-light (where its high ISO ability works on moving subjects, where as the H9's image stabilization only works for static subjects). Perhaps the only drawback to the S6000fd is its somewhat large size - the H9 is certainly a more portable camera, something that should be a consideration if you're planning to carry around a camera all day on travel.
Where to buy
Fujifilm FinePix S6000fd
- Zoom: 10.7x
- Image Stabilization: No
- Resolution: 6.3MP
- AF Shutter Lag: 0.5 - 0.6s
- Burst Speed: 2.3 fps
- Max ISO: 3200
- Size: 5.2 x 3.8 x 5.0 in.
- Battery Life: 400 shots
- Easy to Use: Yes
- Highly Recommended at DPReview.com
- Dave's Pick at Imaging-Resource.com
- Rated Very Good by CNET.com
Comparing My Best In Class Pick with Other Good Choices
|Fujifilm FinePix S6000fd
|Sony Cybershot DSC-H9
|Customer Rating
|Size (W x H x D)
|5.2 x 3.8 x 5.0 in.
|4.3 x 3.3 x 3.4 in.
|Weight (with batteries)
|23.3 oz
|19.5 oz
|Max Shooting Speed (continuous)
|2.2fps for first 3, 0.7 frames/sec after
|2.0 frames/sec
Close Min Focal Length (35 mm equivalent) The 35 mm equivalent focal length is a measure that indicates the angle of view of a particular combination of a camera lens and the sensor size. The term originates from the time when the vast majority of photography was done with 35 mm film. On any 35 mm film camera, a 30 mm or less lens is considered a wide-angle lens.
|28 mm
|31 mm
Close Image Stabilization Available Image stabilization features are designed to reduce the blur that results from normal, minute shaking of a lens due to hand-held shooting. However, image stabilization does not prevent motion blur caused by the movement of the subject or by extreme movements of the camera.
|Storage Media
|xD-Picture Card
|Memory Stick Duo, Memory Stick PRO Duo
|Battery Type
|AA-size (x4)
|Proprietary Lithium Ion Rechargeable
|Battery Life
|400 shots
|280 shots
|Max Usable ISO (subjective)
Sony Cybershot DSC-H9
The Sony H9 is a medium-sized ultrazoom camera that is loaded with features and manual controls, although like all cameras it retains a user-friendly automatic mode for those who want to just point and shoot. The H9 has a big 31-465mm (15x) zoom range which isn't quite as wide as the 28mm on other cameras, but is still a big step up from the 35mm or 36mm of most other cameras, and is adequate enough to cover most travel situations. The long telephoto end of the zoom is perfect for zooming in for close-up pictures of fast action.
The H9 uses a conventional image sensor (unlike the Fuji S6000fd), so high ISO results won't be extraordinary. Because of Sony's slightly more aggressive noise reduction, however, the out-of-camera high-ISO pictures will be slightly better than what you'd typically find in this class. While it may be good enough for slower subjects like simple people portraits, the H9 simply won't be able to photograph any sort of fast action in low light situations, and will produce some grainy/noisy photos even in daylight situations.
While it won't help much for moving subjects, for static subjects in low light the H9 makes up for the lack of high ISO performance with its "Super SteadyShot" image stabilization (IS) system, which will help greatly with low-light pictures of static scenes, like buildings or landscapes. The H9 does have a pop-up flash, so flash results will be slightly better than the kind typically found on built-in camera flashes, but not by much.
The H9 can take photos continuously at 2 frames per second for an unlimited number of pictures - extremely good for a consumer camera, and allowing the H9 to capture a whole series of photos and increase your keeper rate - a useful feature for consumer cameras that otherwise struggle with things like consistently focusing. As with the S6000fd and other non-SLR cameras, the autofocus system of the H9, while among the best in the consumer market, is simply not good enough to keep up with fast action subjects in low light, and is just barely able to keep up with the fastest subjects even in daylight situations.
The H9 uses a Sony battery which lasts 280 shots (CIPA standard) - a bit below average for cameras in this class, but still good enough to last a day of travel for most people.
While not the leading camera in terms of image quality (especially in low-light and fast-action situations), the Sony H9 is still above average, and the more compact size makes it a better option for those who don't want to carry something as big as an SLR or bridge camera.
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March 4, 1933
FIDELITY-PHILADELPHIA TRUST CO.v.COMMISSIONER OF INTERNAL REVENUE
Petition by the Fidelity-Philadelphia Trust Company, trustee under the will of William L. Du Bois, deceased, to review a decision of the Board of Tax Appeals sustaining the action of the Commissioner of Internal Revenue in assessing deficiency taxes.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
WOOLLEY, Circuit Judge.
William L. Du Bois, a resident of Pennsylvania, died in 1918. By his will he bequeathed the bulk of his estate in trust to predecessors of the petitioner, now the sole trustee, and provided that they should collect the income and pay annually the sum of $4,000 to his son until the death of his mother, and pay the balance to his (the testator's) wife for life, and on her death to pay twothirds of the income to his said son for life, and thereafter distribute two-thirds of the principal of the estate as the son should appoint, or, failing appointment and issue, to named charities; and as to the remaining one-third of the estate, to pay the income to his granddaughter for life, with remainders over to her issue or, issue failing, to named charities.
The testator's wife elected to take under the will in lieu of the interest in her husband's estate which the law of Pennsylvania gave her.
During 1926 and 1927, the tax years in question, the trustee made payments of income to the widow in amounts which, together with payments made in other years, were not equal to the value of her statutory interest in her husband's estate, had she elected to take against the will. In 1924, the testator's granddaughter died while a minor and without issue. His wife died in 1927.
In computing taxable net income in its returns for the stated tax years, the trustee deducted the income it had distributed to the widow under what it conceived to be authority conferred by section 219 of the Revenue Act of 1926 (44 Stat. 9, 32 [26 USCA § 960 note]). The Commissioner of Internal Revenue, being influenced by the decisions in Warner v. Walsh (C.C.A.) 15 F.2d 367, United States v. Bolster, 26 F.2d 760, 59 A.L.R. 491, and Allen v. Brandeis (C.C.A.) 29 F.2d 363, disallowed the deductions and assessed deficiency taxes against the trustee. On appeal the United States Board of Tax Appeals sustained the Commissioner on authority of its decision in Julia Butterworth et al., Trustees, 23 B.T.A. 839. The case is in this court on the trustee's petition to review the action of the Board.
Two questions were decided by the Board and the same questions are submitted here. The first -- the right of a trustee, under the statute, in computing taxable income, to deduct income distributed, after her election, to a widow as beneficiary -- is the question which was submitted and decided in different ways by the Board and by this court in Butterworth v. Commissioner, 63 F.2d 944. The other arises out of provisions in the Du Bois will for limitations over to charities, and in substance is, whether the Commissioner erred in disallowing the trustee's deductions in amounts at least equal to one-third of the income of the trust paid to the widow, in view of the provision that one-third of the corpus of the estate should, after the death of both his wife and granddaughter, be paid to named charities. The Board sustained the Commissioner's disallowance of deductions on both points, the practical effect of which was to place in some measure a tax burden upon the widow, who was exempt under the cited decisions, and upon remaindermen, in this case charities, which otherwise are exempt under the law.
Our decision on the first question will make consideration of the second unnecessary. We hold that the decision in Butterworth et al. v. Commissioner, 63 F.2d 944, rules the instant case and, accordingly, calls for a reversal of the judgments of the Board of Tax Appeals in the two appeals there consolidated and heard together.
THOMPSON, Circuit Judge, dissenting.
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Farmstay | Coromandel Township | #32917
We offer a small but cozy little cabin for couples to relax and enjoy their country surroundings.
The cabin is basic but a great alternative to sleeping in a tent. There is a very comfortable queen size bed. Table and chairs. Crockery, cutlery and pots and pans are supplied.
A separate little cabin has a hot shower, hand basin and a chemical cassette toilet.
The Cabin is located up a quiet little road, on our 3 acre lifestyle block. We have about 15 coloured sheep, (lambs in the spring time), a couple of miniature horses and two resident cats - who will more than likely pay you a visit. This is a great place to make your base while you explore the scenery and fabulous activities the Coromandel has to offer.
Walk for about 2 minutes up the road and you will enter a beautiful pine forest with amazing views of the sea and islands surrounding Coromandel Town. You may also stumble across an old miners hut and the entrances to some old mine shafts (not to be entered), relics from Coromandel's gold-mining days.
Driving Creek Railway, one of Coromandel's biggest tourist attractions, is just a 10 minute walk away. Wind your way up through the native forest on a narrow gauge mountain railway to the 'Eyeful Tower', a viewing platform overlooking Coromandel Town and beyond.
If you enjoy fishing or just enjoy exploring the islands in your own boat, we have plenty of room to park your boat in the paddock next to the cabin. Alternatively, you could book a fishing trip on one of the many fishing charters available in the area. You can't beat fresh snapper for dinner!
Nearby Coromandel Town offers many fantastic restaurants. Mussels, Oysters and Fishing are the major industries in Coromandel so seafood is always top of the list on the menu's in the local restaurants. Visit one or all of our 3 pubs to meet some of the locals & hear a few tall tales. Our local cabby, Jane, will drop you back to your cabin.
Special conditions: Accommodation suitable for singles or couples Not suitable for children or babies No fires No pets
One room cabin
Combined living/sleeping area,Comfortable queen size bed with linen supplied.
1 x Queen bed
|Rate period
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04-Dec-16 to 30-Apr-17
|2 night minimum stay
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01-May-17 to 04-Mar-18
|2 night minimum stay
*Pricing may vary depending on the dates you choose and the number of guests. Additional charges (extras) and minimum stay criteria may also apply. Bookings paid for through Bookabach online payments incur a 3% credit card transaction fee.
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The shed was cosy, warm and private. The facilities were great, and we did not need to bring anything. The view from the porch where we had breakfast every morning, even in the rain, was great. We had a lovey view over the paddock and friendly sheep to greet us. It is centrally located, with Coromandel Town a few minutes drive and all the tourist spots easily accessible. It was a great stay and we will definitely go back. We had a nice break.
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The stock of Endo International plc – Ordinary Shares (NASDAQ:ENDP) is a huge mover today! About 1.82M shares traded hands. Endo International plc – Ordinary Shares (NASDAQ:ENDP) has declined 40.84% since March 15, 2016 and is downtrending. It has underperformed by 46.32% the S&P500.
The move comes after 6 months positive chart setup for the $4.29 billion company. It was reported on Oct, 18 by Barchart.com. We have $24.10 PT which if reached, will make NASDAQ:ENDP worth $900.90 million more.
Analysts await Endo International plc – Ordinary Shares (NASDAQ:ENDP) to report earnings on November, 3. They expect $0.84 EPS, down 17.65% or $0.18 from last year's $1.02 per share. ENDP's profit will be $180.90 million for 5.93 P/E if the $0.84 EPS becomes a reality. After $0.86 actual EPS reported by Endo International plc – Ordinary Shares for the previous quarter, Wall Street now forecasts -2.33% negative EPS growth.
Endo International plc – Ordinary Shares (NASDAQ:ENDP) Ratings Coverage
Out of 16 analysts covering Endo International plc (NASDAQ:ENDP), 9 rate it a "Buy", 0 "Sell", while 7 "Hold". This means 56% are positive. Endo International plc has been the topic of 35 analyst reports since August 11, 2015 according to StockzIntelligence Inc. The firm has "Market Perform" rating by Leerink Swann given on Friday, May 6. The firm earned "Outperform" rating on Tuesday, August 11 by Leerink Swann. Mizuho initiated the shares of ENDP in a report on Friday, October 9 with "Buy" rating. The firm has "Underperform" rating given on Friday, May 6 by Mizuho. The firm earned "Overweight" rating on Monday, March 21 by JP Morgan. The company was downgraded on Friday, May 6 by Piper Jaffray. The rating was maintained by Barclays Capital with "Equal Weight" on Friday, May 6. BMO Capital Markets initiated the shares of ENDP in a report on Wednesday, June 29 with "Market Perform" rating. The firm earned "Outperform" rating on Thursday, September 29 by Northland Capital. The stock of Endo International plc – Ordinary Shares (NASDAQ:ENDP) has "Buy" rating given on Friday, May 6 by Stifel Nicolaus.
According to Zacks Investment Research, "Endo International plc is a global specialty healthcare company. It develops, manufactures, markets, and distributes quality branded pharmaceutical and generic products as well as medical devices. Endo offers branded prescription products, including Lidoderm, Opana ER, Percocet, Voltaren Gel, Frova, Supprelin LA, Vantas, Valstar and Fortesta Gel for pain, urology, endocrinology, and oncology. The company also provides non-branded generic products in the pain management, urology, central nervous system disorders, immunosuppression, oncology, women's health, and hypertension markets. Endo International plc, formerly known as Endo Pharmaceuticals Holdings Inc., is headquartered in Dublin, Ireland."
Insitutional Activity: The institutional sentiment increased to 0.95 in Q2 2016. Its up 0.03, from 0.92 in 2016Q1. The ratio improved, as 76 funds sold all Endo International plc – Ordinary Shares shares owned while 90 reduced positions. 42 funds bought stakes while 115 increased positions. They now own 192.40 million shares or 1.49% more from 189.57 million shares in 2016Q1.
Jensen holds 27,840 shares or 0.01% of its portfolio. Royal Bancorp Of Canada accumulated 32,425 shares or 0% of the stock. First Tru Advsr L P holds 0.03% or 517,586 shares in its portfolio. Icon Advisers Inc Com has 14,000 shares for 0.01% of their US portfolio. Henderson Gp Public Ltd Liability last reported 0% of its portfolio in the stock. Connor Clark And Lunn Inv Management Limited owns 661,964 shares or 0.08% of their US portfolio. Moreover, Croft has 0.37% invested in Endo International plc – Ordinary Shares (NASDAQ:ENDP) for 106,502 shares. Signaturefd Limited Liability Company has 1,068 shares for 0% of their US portfolio. Monroe Hall Asset Management Limited Liability last reported 2.42% of its portfolio in the stock. Globeflex Cap Lp holds 0.1% or 22,390 shares in its portfolio. Teacher Retirement System Of Texas last reported 0.05% of its portfolio in the stock. Gargoyle Invest Advisor Limited Co, a New Jersey-based fund reported 20,462 shares. Da Davidson owns 2,000 shares or 0% of their US portfolio. Shelton Cap holds 0.02% or 14,969 shares in its portfolio. Citigroup reported 135,644 shares or 0% of all its holdings.
More news for Endo International plc – Ordinary Shares (NASDAQ:ENDP) were recently published by: Valuewalk.com, which released: "Endo International plc – Ordinary Shares (ENDP) Collapses Taking Hedge Fund …" on May 06, 2016. Valuewalk.com's article titled: "Endo International plc – Ordinary Shares (ENDP) Shares Soar" and published on August 09, 2016 is yet another important article.
ENDP Company Profile
Endo International plc, incorporated on October 31, 2013, is a global specialty pharmaceutical firm focused on developing, manufacturing, marketing and distributing branded and generic pharmaceutical products, as well as over-the-counter medications through its operating companies- Endo Pharmaceuticals, Par Pharmaceutical, Paladin Labs and SOMAR. The Company's divisions include U.S. Branded Pharmaceuticals, which offer portfolio of branded pharmaceuticals such as Lidoderm, OPANA ER, Voltaren Gel, Percocet, BELBUCA, Fortesta Gel, Testim, Aveed, Supprelin LA, and XIAFLEX; U.S. Generic Pharmaceuticals portfolio consists of tablets, capsules, powders, injectables, liquids, nasal sprays, ophthalmics and patches, and International Pharmaceuticals segment includes various specialty pharmaceutical products for the Canadian, Latin American, South African and world markets. It sells generic products primarily in the United States across multiple therapeutic categories.
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