2001 Tex. App. LEXIS 2710,*
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RULES OF APPELLATE PROCEDURE, UNPUBLISHED OPINIONS SHALL NOT BE CITED AS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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