EQUITAS REINSURANCE
LTD., EQUITAS LTD., AND EQUITAS MANAGEMENT SERVICES LTD., Appellants V.
BROWNING-FERRIS INDUSTRIES, INC.; BROWNING-FERRIS INDUSTRIES, INC. (MA);
BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC.; BROWNING-FERRIS INDUSTRIES OF
CONNECTICUT, INC.; BROWNING-FERRIS INDUSTRIES OF FLORIDA, INC.; BROWNING-FERRIS
INDUSTRIES OF ILLINOIS, INC.; BROWNING-FERRIS INDUSTRIES OF NEW YORK, INC.;
BROWNING-FERRIS INDUSTRIES OF OHIO, INC.; BROWNING-FERRIS INDUSTRIES OF PUERTO
RICO, INC.; BROWNING-FERRIS INDUSTRIES OF TENNESSEE, INC.; BROWNING-FERRIS
INDUSTRIES LTD.; BROWNING-FERRIS, INC. (MD); BROWNING-FERRIS CHEMICAL SERVICES,
INC.; BFI WASTE SYSTEMS OF NEW JERSEY, INC.; BFI WASTE SYSTEMS OF NORTH
AMERICA, INC.; CECOS INTERNATIONAL, INC.; AND WOODLAKE SANITARY SERVICE, INC.,
Appellees
NO. 14-99-01084-CV
COURT OF APPEALS OF
TEXAS, FOURTEENTH DISTRICT, HOUSTON
2001 Tex. App. LEXIS
2710
April 26, 2001, Judgment Rendered
April 26, 2001, Opinion Filed
NOTICE: [*1]
PURSUANT TO THE TEXAS RULES OF APPELLATE PROCEDURE, UNPUBLISHED OPINIONS
SHALL NOT BE CITED AS AUTHORITY BY COUNSEL OR BY A COURT.
PRIOR HISTORY: On Appeal from the 80th District Court. Harris County,
Texas. Trial Court Cause No. 98-56362.
DISPOSITION: Affirmed.
JUDGES: Panel consists of Senior Chief Justice
Paul C. Murphy and Justices Hudson and Amidei. n3
n3 Senior Chief Justice Paul C. Murphy and
Former Justice Maurice Amidei sitting by assignment.
OPINIONBY: Paul C. Murphy
OPINION: Equitas Reinsurance Ltd., Equitas Ltd.,
and Equitas Management Services Ltd., appeal from the denial of their special
appearance. Because we find that appellants have not met their burden of
negating all bases of asserting specific jurisdiction, we affirm the judgment
of the court below.
I. Background
This case involves a series of claims asserted
by appellees, here collectively called BFI, against various Lloyd's
Underwriters and appellants, the Equitas companies. n1 Unless otherwise
indicated, the Equitas companies will be referred to herein as Equitas.
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n1 The five Equitas companies are Equitas Ltd.,
Equitas Reinsurance Ltd., Equitas Management Services Ltd., Equitas Holdings
Ltd., and Equitas Policyholders Trustee Ltd. Equitas Reinsurance entered into
the Reinsurance and Run-Off Contract with the Lloyd's Underwriters and then
transferred the reinsurance business to Equitas Ltd., which is the primary
operating company within Equitas. Equitas Management provides management
services to the other Equitas companies. Equitas Holding is a holding company,
and Equitas Policyholders Trustee is a dormant trust company. BFI has abandoned
its jurisdictional claims over Equitas Holding and Equitas Policyholders Trust.
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[*2]
Lloyd's, an insurance marketplace in London,
does not itself underwrite insurance. Rather, individuals, called
"Names," join into syndicates to insure various risks. The Names
provide the underwriting capital and maintain unlimited individual liability.
An operating period for a syndicate generally is three years. At the end of the
period, syndicate managers determine the syndicate's profits, losses, and
estimated outstanding liabilities. The outstanding liabilities then are
reinsured by another syndicate. Through this process, called "reinsurance
to close," a syndicate can close its books. For the system to work,
however, the syndicate managers must be able to estimate accurately a closing
syndicate's outstanding liabilities. If the managers cannot, each Name within
the syndicate remains liable on a proportionate share of the risk and the
syndicate is not able to close its books.
In the mid- to late 1980s, due to various
natural and man-made disasters and asbestos- related claims, claims against
insurance policies began to outpace premiums collected. Syndicates began having
difficulty reinsuring to close through other syndicates. Litigation ensued
between the Names and the Lloyd's
[*3] Underwriters. In an
effort to address the Names' liability with respect to pre-1993 losses and to
resolve the litigation between the Names and the underwriters, Lloyd's
developed a plan to restore market integrity. Lloyd's formed the Equitas
companies to handle those reinsurance-to-close functions that previously would
have been handled by other Lloyd's syndicates.
As part of the program, Equitas, in exchange for
a premium, reinsured the syndicates' losses before and through 1992. Equitas
also agreed to perform various claims-handling functions, such as settlement
and adjustment of all future and outstanding claims for which Equitas reinsured
the Names. For background see generally Employers Ins. of Wausau v. Certain
London Market Cos., 1997 U.S. Dist. LEXIS 22027, No. 97- C-0409-C, 1997 WL
1134980 (W.D. Wis. Oct. 27, 1997) and 14 ERIC MILLS HOLMES & L. ANTHONY
SUTIN, HOLMES' APPLEMAN ON INSURANCE 2D ¤ 106.7.F (1999).
This case is one of many filed nationwide
concerning Equitas in which Equitas has challenged the courts' exercise of
personal jurisdiction. Courts are divided on the issue. Cases in which courts
have asserted personal jurisdiction over Equitas include Central Maine
Power [*4] Co. v. Ernest A. Moore, No. CV-93-489 (Me.
Super., Kennebec Co. Jan 11, 2000); Employers Mut. Cas. Co. v. Owens Ins.,
Ltd., No. MRS-C-51-96 (N.J. Super. Nov. 10, 1999); Unisys Corp. v. Ins. Co. of
N. Am., No. L-1434-94S (N.J. Super., Middlesex Co. Dec. 7, 1999); Employers
Ins. of Wausau v. Certain London Mkt. Cos., 1997 U.S. Dist. LEXIS 22027, 1997
WL 1134980, 97-C-0409-C (W.D. Wis. Oct. 27, 1997). Cases in which courts have
declined to assert jurisdiction over Equitas include Millenium Petrochemicals
v. C.G. Jago, 50 F. Supp. 2d 654 (W.D. Ky. 1999); Malone v. Equitas Reinsurance
Ltd., 84 Cal. App. 4th 1430, 101 Cal. Rptr. 2d 524 (Cal. Ct. App. 2000); Union
Pac. R.R. Co. v. Equitas, Ltd., 987 P.2d 954 (Colo. App. 1999); B.F. Goodrich
v. Commercial Union Ins. Co., No. CV 9902 0410, slip op. (Ct. Common Pleas,
Summit Cty., Ohio Oct. 14, 1999); Boeing Corp. v. Certain Underwriters at
Lloyd's, No.99-2-03873 SEA, slip op. (Sup. Ct., King Cty., Wash. Nov. 23, 1999,
and Dec. 16, 1999); and Archdiocese of Millwaukee v. Certain Underwriters at
Lloyd's, London, No. 96-CV-00662, slip op. (Cir. Ct. Milwaukee Cty., Wis. July
13, 1999). [*5]
Generally, Equitas has argued that it is a mere
reinsurer of the original underwriters and that its connections with the
various forum states are too tenuous for courts to constitutionally exercise
personal jurisdiction. For their part, many of the various plaintiffs argue
that Equitas has assumed control over the insurance policies and that it has
stepped into the shoes of the underwriters.
In the suit here at issue, BFI sued various
underwriters in connection with BFI's insurance coverage under Lloyd's policies
issued during the 1960s, '70s, and '80s. BFI has alleged breach of contract
against the underwriters. Against Equitas, BFI has alleged breach of the duty
of good faith and fair dealing and violations of the Texas Insurance Code. The
underwriters remain parties to the suit below. Equitas filed a special
appearance asserting that the trial court had no personal jurisdiction over it.
The trial court denied the special appearance.
II. Discussion
On appeal, Equitas advances its complaint that
the trial court erred in finding it had personal jurisdiction. Equitas argues
the trial court lacks general jurisdiction because Equitas does not conduct
continuous and systematic
[*6] business activities in
the forum state. It argues further that the trial court lacks specific
jurisdiction because the claims-handling activities upon which BFI relies are
not actionable as to Equitas and that these activities, therefore, cannot
sustain an exercise of specific personal jurisdiction. The companies also argue
that subjecting Equitas to suit in a Texas court would violate the
constitutional concept of fair play.
The plaintiff has the initial burden of pleading
allegations sufficient to bring the nonresident defendant within the provision
of the Texas long-arm statute. C-Loc Retention Sys., Inc. v. Hendrix, 993
S.W.2d 473, 476 (Tex. App.-Houston [14th Dist.] 1999, no pet.). The defendant
contesting the assertion of personal jurisdiction has the burden of negating
all bases of asserting jurisdiction. Id. The determination of whether the court
may assert personal jurisdiction over a nonresident is a question of law, but
the court may resolve factual disputes in its determination. Id. We review the
resolution of those factual disputes using the same standard we use in
reviewing the factual sufficiency of the evidence. Id. We consider all the [*7] evidence in the record. Id. If the special appearance is
based on undisputed and established facts, we conduct a de novo review of the
trial court's order denying the special appearance. Id. We presume the court
below made findings sufficient to support the judgment. Id.
For a Texas court to exercise personal
jurisdiction over a nonresident defendant, (1) the state's long-arm statute
must authorize the exercise of jurisdiction and (2) the exercise of
jurisdiction must comport with federal and state due-process guarantees.
Schlobohm v. Schapiro, 784 S.W.2d 355, 356 (Tex. 1990). The long-arm statute
authorizes a court to exercise personal jurisdiction over a nonresident
defendant "doing business" in the state. TEX. CIV. PRAC. & REM.
CODE ANN. ¤ 17.042 (Vernon 1997). A tort committed in whole or in part in the
state is deemed to be doing business in the state for purposes of acquiring
jurisdiction. Id. The "doing business" requirement allows the statute
to reach as far as the federal constitutional requirements of due process will
allow. Guardian Royal Exchange Assur., Ltd. v. English China Clays, P.L.C., 815
S.W.2d 223, 226 (Tex. 1991).
[*8] For purposes of a
court's exercise of personal jurisdiction, due process comprises two
components: (1) whether the nonresident defendant has purposefully established
minimum contacts with the forum state, and (2) if so, whether the exercise of
jurisdiction comports with fair play and substantial justice. Id. A nonresident
defendant who has purposefully availed itself of the privileges and benefits of
conducting business in the forum state has sufficient contacts with the forum
to confer personal jurisdiction on the court. CSR Ltd. v. Link, 925 S.W.2d 591,
594 (Tex. 1996).
A nonresident defendant's contacts can give rise
to two types of jurisdiction, general and specific. Id. General jurisdiction
may be asserted when the cause of action does not arise from or relate to the
nonresident defendant's purposeful conduct within the forum state but there are
continuous and systematic contacts between the nonresident defendant and the
forum state. Id. Specific jurisdiction is established when the plaintiff's
cause of action arises out of, or relates to, the defendant's contacts with the
forum state. Guardian Royal Exchange, 815 S.W.2d at 228. The [*9] defendant's actions must have been purposefully directed
toward the forum state. Id. Under specific jurisdiction, the minimum contact
analysis focuses on the relationship among the defendant, the forum, and the
litigation. Id.
In connection with general jurisdiction, Equitas
argues that it has no systematic and continuous contacts with the forum state
sufficient to permit the exercise of general jurisdiction. Because we find that
Equitas has not met its burden of negating all bases of asserting specific
jurisdiction, we need not address the question of general jurisdiction. In this
case, Equitas does not seem to argue that it does not have sufficient contacts
to establish specific jurisdiction. Rather, in connection with specific
jurisdiction, it argues that (1) the claims-handling activities upon which BFI
relies to assert jurisdiction are not actionable, (2) the Insurance Code does
not provide an insured with a cause of action against a reinsurer, and (3) the
Insurance Code specifically exempts reinsurance from the definition of the
"business of insurance."
A. Claims-handling activities actionable
Equitas argues that the court may not exercise
specific jurisdiction [*10] because BFI asserts no cognizable cause
of action against Equitas. It argues that the actions upon which a plaintiff
relies to establish specific jurisdiction must be actionable. The claims
asserted by BFI are violations of the common-law duty of good faith and
violations of the Insurance Code. Equitas argues that the duty of good faith
arises from the special relationship that exists only because the insured and
the insurer are parties to a contract that is the result of unequal bargaining
power. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 698 (Tex. 1994). Because
Equitas is not the original insurer, but a reinsurer and claims-handling agent,
it owes no duty of good faith to the original insured. Id. Further, Equitas
argues that without a common-law bad-faith cause of action, there can be no
statutory bad-faith cause of action under the Insurance Code. Stewart Title
Guar. Co. v. Aiello, 941 S.W.2d 68, 72 (Tex. 1997).
Because we determine that BFI asserts recognized
causes of action under the Insurance Code apart from any claim grounded in the
common-law duty of good faith, we do not address the issue of whether a
common-law good-faith claim exists against [*11] Equitas.
In its second amended petition, BFI asserts various bad faith actions and
unfair settlement practices in violation of the Insurance Code. BFI accuses
Equitas of failing to attempt in good faith to effectuate prompt, fair, and
equitable settlement of claims with respect to which liability has become
reasonably clear, TEX. INS. CODE ANN. art. 21.21, ¤ 4(10)(iii) (Vernon Supp.
2000); failing to provide promptly to BFI a reasonable explanation of the basis
in the policy, in relation to facts or applicable law, for any denial of or
refusal to pay BFI's claims, art. 21.21, ¤ 4(10)(iv); failing within a
reasonable time to affirm or deny coverage of BFI's claims, art. 21.21, ¤
4(10)(v); refusing to pay claims without conducting a reasonable investigation
with respect to the claims, art. 21.21, ¤ 4(10)(viii); and representing that an
agreement confers or involves rights, remedies, or obligations which it does
not have or involve, TEX. COM. & BUS. CODE ANN. ¤ 17.46(b)(12)(Vernon Supp.
2000); TEX. INS. CODE ANN. art. 21.21, ¤ 16 (Vernon Supp. 2000).
The Insurance Code prohibits any person,
including adjusters, from engaging in unfair [*12] or
deceptive acts in the "business of insurance." Art. 21.21, ¤¤ 2, 3
(Vernon 1981 & Supp. 2000). Under the Insurance Code, a "person,"
engaged in the "business of insurance" may be sued for unfair
settlement practices. Art. 21.21, ¤ 2; Liberty Mut. Ins. Co. v. Garrison
Contractors, Inc., 966 S.W.2d 482, 487 (Tex. 1998). The code does not limit
liability to companies in contractual privity with the insured. See Liberty
Mututal, 966 S.W.2d at 487 (finding that article 21.21's definition of
"person" includes insurer's employee-agent).
Here, Equitas acknowledges that it is acting as
an adjuster for the underwriters. The Insurance Code makes actionable an
enumerated list of unfair claims-settlement practices. See art. 21.21., ¤ 4
(10). When BFI alleges that Equitas, as adjuster, has engaged in certain unfair
claim-settlement practices, BFI has made actionable claims. Such actionable
claims will support a finding of specific jurisdiction. Equitas's reliance on
Stewart Title is misplaced. The court in Stewart Title was interpreting a
version of the Insurance Code predating the 1995 amendment that enumerated
prohibited deceptive settlement
[*13] practices. See Act
May 17, 1995, 74th Leg., R.S., ch. 414, ¤ 11, 1995 Tex. Gen. Laws 2988, 2999
(now TEX. INS. CODE ANN. art. 21.21, ¤ 4(10) (Vernon Supp. 2000)). Moreover,
even if we were to agree that a party cannot assert a bad-faith claim under the
Insurance Code in the absence of a common-law bad-faith claim, it does not
follow that the Insurance Code prohibits only bad-faith activities. The code
prohibits several enumerated deceptive practices, many of them not grounded on
a duty of good faith.
B. Equitas as reinsurer
Second, Equitas argues that it is a mere
reinsurer and that the Insurance Code does not provide for a cause of action by
the original insured against a mere reinsurer. See Malaysia British Assur. v.
El Paso Reyco, Inc., 830 S.W.2d 919, 921 (Tex. 1992). We note that commentators
and courts disagree about whether Equitas is a mere reinsurer or a successor in
interest to the underwriters. One learned authority argues that direct action
should be allowed against Equitas because under the reinsurance-to-close
arrangement, Equitas does not act as a mere reinsurer but rather has taken up
the duties of an "assumption
[*14] reinsurer,"
which traditionally has been held to be liable to the original insured. Holmes
& Sutin, ¤ 106.7. Some courts have found otherwise, though. See Millenium
Petrochemicals, 50 F. Supp. 2d 654.
Under the Insurance Code, a "person does
not have any rights against a reinsurer that are not specifically set forth in
the contract of reinsurance or in a specific agreement between the reinsurer
and the person." TEX. INS. CODE ANN. art. 5.75-1(g) (Vernon Supp. 2000).
In Malaysia British, relied upon by Equitas, the reinsurer owed no duties to
the original insurer apart from reinsurance duties. Equitas, on the other hand,
through the Reinsurance and Run-Off Contract with the original underwriters,
assumed certain claims-handling responsibilities with respect to the original
insurers and the insureds. Under the terms of the contract, Equitas has the
power (1) to adjust, handle, agree, settle, pay, compromise, or repudiate any
claim against the Lloyd's underwriters; (2) to commence, conduct, pursue,
prosecute, settle, appeal, or compromise any legal proceedings by or against
the Lloyd's underwriters; (3) to engage in any discussion or negotiation [*15] with any insured person, reinsured person, class of insured
or reinsured persons, reinsurer, broker, legal or other representative of
insureds, or any other party in relation to any claim or any other matter; (4)
to enter into, amend, or cancel any claims handling arrangement; and (5) to
instruct lawyers, claim adjusters, or any other experts or consultants in any
matter. Equitas is charged to exercise these powers to the fullest extent
possible "as if it were the principal." Moreover, Equitas is
"not bound to comply with any instructions" from the underwriters.
Indeed, the contract bars the underwriters from interfering with the
"management or control" by Equitas. Thus, Equitas, in addition to
whatever reinsurance duties it owes to the underwriters, also has assumed
certain claim-handling duties. Equitas, therefore, may be liable under the
Insurance Code for any deceptive settlement practice it might have committed as
an adjuster dealing with the insured. We do not view the Insurance Code as
immunizing a party against any allegations of deceptive claims-settlement
practices simply because the party may also have certain reinsurance duties.
C. Insurance Code's Reinsurance Exemption [*16]
Third, Equitas argues that the court cannot
exercise specific jurisdiction because the Insurance Code specifically exempts
reinsurers. Thus, it argues, the grounds relied upon for asserting specific
jurisdiction are not actionable. Equitas argues that article 1.14-1 of the
Insurance Code, in effect at the time, exempts the "lawful transaction of
reinsurance by insurers," from the definition of the "insurance
business," which, it claims, is an essential element of any cause of
action for a violation of any of the listed provisions relied upon by BFI. n2
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n2 See Act of May 30, 1993, 73rd Leg., R.S., ch.
685, ¤¤ 3.03, 3.031, 1993 Tex. Gen. Laws 2559, 2576-77 (formerly TEX. INS. CODE
art. 1.14-1, ¤ 2, current version at TEX. INS. CODE ANN. ¤¤ 101.051,
101.053(b)(2) (Vernon Supp. 2000)).
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The Texas Supreme Court has determined that
article 1.14-1 of the code was enacted after article 21.21 and deals
primarily [*17] with the regulation of unauthorized
insurers. See Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1, 908
S.W.2d 415, 424 (Tex. 1995); Dagley v. Haag Eng'g Co., 18 S.W.3d 787, 792-93
(Tex. App.--Houston [14th Dist.] 2000, no pet.). The Legislature did not intend
to impose upon the Insurance Code, including article 21.21, a uniform
definition of the "business of insurance." See Great American, 908
S.W.2d at 424; Dagley, 18 S.W.3d at 792-93. Article 1.14-1 does not control the
definition of "business of insurance" for purposes of determining
liability under article 21.21. Thus, even though article 1.14-1 may exempt a
"transaction of reinsurance" from the definition of an
"insurance business" for purposes of regulating unauthorized
insurers, article 1.14-1 does not immunize an adjuster from liability for
deceptive claim-settlement practices.
Summarizing, Equitas on appeal argues that the
acts relied upon by BFI to establish specific jurisdiction are not actionable
and so cannot be used to establish specific jurisdiction. We have determined
that BFI does allege actionable claims under the Insurance Code. Equitas [*18] has not met its burden of negating all bases of asserting
specific jurisdiction.
D. Fair Play and Substantial Justice
Equitas on appeal also argues the fair-play
prong of the constitutional test acts as an independent ground for reversal.
In determining whether the exercise of personal
jurisdiction comports with fair play and substantial justice, a court weighs
several factors, including (1) the burden on the defendant, (2) the interests
of the forum state in adjudicating the dispute, (3) the plaintiff's interest in
obtaining convenient and effective relief, (4) the interstate judicial system's
interest in obtaining the most efficient resolution of controversies, and (5)
the shared interest of the several states in furthering fundamental substantive
social policies. Guardian Royal Exchange, 815 S.W.2d at 228. When an international
dispute is involved, the court also should consider (a) the unique burdens
placed upon the defendant who must defend itself in a foreign legal system; and
(b) the procedural and substantive policies of other nations whose interests
are affected as well as the federal government's interest in its foreign
relations policies. Guardian Royal Exchange, 815 S.W.2d at 229. [*19] Only in rare instances will the exercise of personal
jurisdiction not comport with fair play and substantial justice when the nonresident
defendant has purposefully established minimum contacts with the forum state.
Guardian Royal Exchange, 815 S.W.2d at 231.
Drawing from this list of factors, Equitas on
appeal relies upon three considerations, as follows: (1) the interests of the
state in adjudicating the allegations in the particular dispute; (2) the
interest of BFI in pursuing its claims against Equitas in Texas; and (3) the
countervailing interests of Equitas in not being forced into court here,
"bearing in mind the unique nature of Equitas and the very specific role
it was created to fulfill."
As to the first consideration, Equitas argues
that Texas has "zero" interest in refereeing a dispute between BFI
and Equitas because BFI alleges tort theories that "do not exist." As
discussed above, BFI has alleged that Equitas, acting as an adjuster, has
engaged in various deceptive claim-settlement practices in violation of the
state Insurance Code. These causes of action are recognized. Texas does have an
interest in preventing deceptive claim-settlement practices in Texas.
As to the second consideration, [*20] Equitas argues that BFI's interest in obtaining effective
relief does not require the presence of Equitas because BFI will be able to
obtain any needed relief from the underwriters. BFI, based in Texas, has chosen
to seek relief in Texas courts against these defendants. Moreover, some of the
claims asserted against Equitas seem to be aimed directly at the allegedly
deceptive claim-settlement practices engaged in by Equitas as adjuster.
Although the underwriters may be liable for such activities under a theory of
respondeat superior, Equitas as adjuster also may be liable for its own
activities. Morever, as discussed above, Equitas, pursuant to the Reinsurance
and Run-Off Contracts, has assumed control of the lawsuits involving the
underwriters.
As to the third consideration, the burden
Equitas would face in defending itself in a Texas lawsuit, Equitas, as
mentioned above, is already directing the lawsuit and even if excluded as a
defendant likely will continue directing the suit. We do not see that Equitas
will be subject to additional substantial hardship by being included as a
defendant.
Equitas has not demonstrated that the trial
court's exercise of personal jurisdiction over [*21] it will
violate the fair-play and substantial-justice prong of the constitutional test.
III. Conclusion
We have determined that Equitas has failed to
meet its burden of negating all bases of asserting specific jurisdiction. Nor
has Equitas demonstrated that the trial court's exercise of personal
jurisdiction will violate the fair-play and the substantial-justice prong of
the test. Equitas has failed to demonstrate that the trial court erred in
finding it had personal jurisdiction over the companies. We affirm the trial
court's denial of Equitas's special appearance.
/s/ Paul C. Murphy
Senior Chief Justice
Judgment rendered and Opinion filed April 26,
2001.
Panel consists of Senior Chief Justice Murphy
and Justices Hudson and Amidei. n3
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n3 Senior Chief Justice Paul C. Murphy and
Former Justice Maurice Amidei sitting by assignment.
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