NO. 94-239
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
JENNIFER NIMMICK,
Plaintiff and Respondent,
v.
STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY,
Defendant and Appellant
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Lon T. Holden and Francis X. Clinch, Jardine,
Stephenson, Blewett & Weaver, P.C., Great
Falls, Montana
For Respondent:
William J. Gregoire, Smith, Walsh, Clarke
& Gregoire, Great Falls, Montana
Submitted on Briefs: November 3, 1994
MAR 2 3 19% Decided: March 23, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
State Farm Mutual Automobile Insurance Company (State Farm)
appeals the decision of the Eighth Judicial District Court, Cascade
County, which concluded that Tammy Sobieck (Sobieck) was an
uninsured motorist under the terms of Jennifer Nimmick's (Nimmick)
State Farm policy. We affirm in part and reverse in part.
As rephrased by this Court, the issues are:
1. Did the District Court err in determining that, prior to
Nimmick's settlement with Employers Mutual Insurance Company
(Employers Mutual), Sobieck was an uninsured motorist pursuant to
the terms of Nimmick's State Farm insurance policy?
2. Did the District Court err in determining that Nimmick's
settlement with Employers Mutual did not affect Sobieck's status as
an uninsured motorist?
Nimmick filed a complaint in the Fourth Judicial District
Court, Ravalli County, Montana, alleging the following facts. On
May 17, 1990, Sobieck drove an automobile in which Chris White,
Allissa Mattson and Nimmick were passengers. The automobile
belonged to Sobieck's boyfriend, Cory Harmon, and was insured by
Employers Mutual. Sobieck lost control of the vehicle which
ultimately left the road and struck a tree, injuring Nimmick. The
complaint accused Harmon of negligent entrustment, White of
negligently instructing Sobieck in the operation of a vehicle with
which she was unfamiliar and Sobieck of negligent operation of a
motor vehicle.
2
Nimmick's parents maintained automobile insurance with State
Farm at the time of the 1990 accident. While the Ravalli County
complaint was pending, Nimmick was also negotiating with State
Farm. Nimmick sought to recover under the uninsured motorist
provision, claiming that since Employers Mutual denied coverage,
the vehicle was uninsured under the terms of the State Farm
policy.
Nimmick subsequently entered into a settlement agreement with
Employers Mutual, and the Ravalli County cause of action was
dismissed. Employers Mutual paid Nimmick $200,000. In the
settlement agreement, Employers Mutual stated that it believed that
Harmon and White were "likely to have insurance coverage for their
liabilities." The settlement was made expressly on behalf of
Harmon and White but not on behalf of Sobieck. The settlement
released Harmon and White from any and all future liability or
claims arising from the accident. Pursuant to the settlement
agreement, the claims against Harmon and White were dismissed.
The settlement agreement purported not to be a release of
Sobieck, claiming that the $200,000 payment was not made on her
behalf. While the Employers Mutual policy covered Harmon and
White, the settlement agreement denied that the policy covered
Sobieck.
However, the agreement also explained, at some length, what
rights Nimmick relinquished in relation to further action against
Sobieck. The complaint against Sobieck was to be dismissed without
3
prejudice. Nimmick covenanted that neither she nor her heirs or
assignees would execute against Sobieck's personal assets. The
settlement agreement specifically reserved State Farm's right to
seek subrogation against Sobieck. The terms and conditions of the
settlement agreement, proposed by Nimmick, were drafted to
accomplish two goals: (1) to establish that the $200,000 payment
was made on behalf of Harmon and White, not Sobieck, and (2) to
preserve Nimmick's right to seek recovery under her uninsured
motorist coverage with State Farm.
On December 29, 1992, Nimmick filed a complaint against State
Farm in the Eighth Judicial District Court, Cascade County,
Montana. Nimmick claimed that the vehicle in which she was riding
at the time of the accident was an uninsured motor vehicle as
defined by her parents' State Farm policies. The basis of the
claim was that since Sobieck, the unauthorized driver at the time
of the accident, was not covered under the Employers Mutual policy,
Nimmick is entitled to uninsured vehicle coverage under the State
Farm policy.
On April 15, 1993, State Farm moved for summary judgment,
arguing that Nimmick was not entitled to uninsured vehicle coverage
under the State Farm policy. The District Court denied State
Farm's motion, concluding that Sobieck was an uninsured motorist.
The parties stipulated to the District Court entering a judgment on
the issue of uninsured vehicle coverage pursuant to Rule 54(b),
M.R.Civ.P. State Farm appeals.
4
ISSUE 1
Did the District Court err in determining that, prior to
Nimmick's settlement with Employers Mutual, Sobieck was an
uninsured motorist pursuant to the terms of Nimmick's State Farm
insurance policy?
Our standard of review of a district court's summary judgment
ruling is the same as that initially used by the district court.
Cooper v. Sisters of Charity (1994), 265 Mont. 205, 207, 875 P.2d
352, 353. We examine the record to determine whether a genuine
issue of fact exists. If there is no genuine issue of fact, we
determine whether the moving party is entitled to judgment as a
matter of law. Cooper, 875 P.2d at 353. We review district court
conclusions of law to determine if the court's interpretation of
the law is correct. Steer, Inc. v. Department of Revenue (1990),
245 Mont. 470, 474-75, 803 P.2d 601, 603. The District Court
concluded that "Tammy Sobieck was an uninsured driver by definition
under [the State Farm] insurance policy."
Nimmick's State Farm policy defines an uninsured motor vehicle
as a vehicle which is "uninsured" as to its ownership, maintenance
or use. This policy language reads:
We will pay damages for bodily injury an insured is legally
entitled to collect from the owner or driver of an
uninsured motor vehicle. The bodily injury must be caused by
accident arising out of the operation, maintenance or use
of an uninsured motor vehicle.
Uninsured Motor Vehicle - - means :
1. a land motor vehicle, the ownership, maintenance
or use of which is: . . . [Italics in original;
underscore added.1
5
We have interpreted this policy language to provide uninsured motor
vehicle coverage "if there is no insurance as to either [the
vehicle's] ownership a its maintenance z its use." State Farm
Auto. Ins. Co. v. Taylor (1986), 223 Mont. 215, 218, 725 P.2d 821,
823 (citing Finney v. Farmers Ins. Co. (Wash. App. 1978), 586 P.Zd
519, 526, aff'd, 600 P.2d 1272 (Wash. 1979)). Thus, even though
the ownership of the vehicle in this case was insured by Harmon's
Employers Mutual policy, the vehicle was "uninsured" pursuant to
Nimmick's State Farm policy if Sobieck's use of the vehicle was not
insured.
Nimmick's State Farm policy goes on to define an uninsured
motor vehicle as a vehicle, the ownership, maintenance or use of
which is:
a. not insured or bonded for bodily injury liability at
the time of the accident; or
b. insured or bonded for bodily injury liability at the
time of the accident; but
1) the limits of liability are less than required by
the financial responsibility act of the state where
yourcur is mainly garaged; or
2) the insuring company denies coverage or is or
becomes i n s o l v e n t [Italics in original;
underscore added.1
Employers Mutual initially denied coverage of Sobieck's use of
the vehicle. Therefore, in regard to any claim against Sobieck,
the vehicle was uninsured under the express terms of the State Farm
policy. Even though the Harmons maintained an insurance policy on
the vehicle, Employers Mutual's denial of coverage rendered the
vehicle uninsured under the State Farm policy. Nimmick's State
6
Farm policy's uninsured vehicle provision therefore applied to any
claims against Sobieck arising from the accident.
We conclude that the District Court properly determined that,
prior to Nimmick's settlement with Employers Mutual, Sobieck was an
uninsured motorist pursuant to the terms of Nimmick's State Farm
insurance policy.
ISSUE 2
Did the District Court err in determining that Nimmick's
settlement with Employers Mutual did not affect Sobieck's status as
an uninsured motorist?
State Farm argues that while Sobieck may have originally been
an uninsured motorist because Employers Mutual initially denied her
claim, her status was altered when Nimmick entered into a settle-
ment agreement with Employers Mutual. State Farm claims that the
settlement between Employers Mutual and Nimmick was not solely on
behalf of Harmon and White, but rather was on behalf of Sobieck as
well.
State Farm relies on a series of cases which stand for the
proposition that if the liability insurer initially denies
coverage, but later settles with the injured party on behalf of the
liable party, the liable party is not "uninsured" and thus the
injured party may not recover from his or her own uninsured
motorist coverage.. It is immaterial whether the insurer continues
to deny coverage if it in fact settles on behalf of the liable
party. See Jones v. Sentry Insurance Co. (Ct.App.Minn. 1990), 462
7
N.W.2d 90; Fryer v. National Union Fire Ins. Co. (Minn. 1985), 365
N.W.Zd 249; Coleman v. Florida Insurance Guaranty Assoc. Inc. (Fla.
19881, 517 So.2d 686; Rister v. State Farm Mut. Auto. Ins. Co.
(M0.App. 1984), 668 S.W.2d 132.
For example, in Rister, Ricky Rister was killed when the
prckup truck in which he was a passenger collided with a fuel
transport truck. Rister, 668 S.W.2d at 133. In a suit brought by
Rister's family, the insurer of the pickup denied coverage for the
driver, invoking the "fellow employee" exclusion in its policy.
The insurer of the pickup later settled with Rister's family, and
the claims against the driver's estate were dismissed. The
Missouri Court of Appeals concluded that, although the insurer of
the pickup initially denied coverage, the settlement with Rister's
family revoked the initial denial. Rister, 668 S.W.2d at 134-35.
Since Rister's family recovered insurance benefits on behalf of the
driver, he was no longer considered uninsured. Therefore, the
Risters could no longer pursue their uninsured motorist claim
against Rister's own insurance company.
We must examine the terms of the settlement agreement to
determine if the settlement was in fact on behalf of Sobieck. We
first note that Nimmick proposed the relevant terms of the
agreement to further her attempt to recover from both Employers
Mutual and State Farm. The agreement states, in relevant part:
Nimmick proposed the basic terms of this agreement for
the sole purpose of (i) settling her disputes with Harmon
8
and White and (ii) protectino her claims under the
underinsured and uninsured provisions of her insurance
policv with State Farm Insurance Company ("State Farm
Policv") and (iii) reachina a settlement which would
comply with all of the terms and provisions of said State
Farm Policy . [Emphasis added. 1
Any ambiguities must be construed against the drafter. Wyman v.
DuBray Land Realty (1988), 231 Mont. 294, 298, 752 P.2d 196, 199.
In determining the contract's purpose and intent, we examine the
contract as a whole, giving no special deference to any specific
clause. Peterson v. Hopkins (1984), 210 Mont. 429, 684 P.2d 1061;
St. Paul Fire and Marine Ins. Co. v. Cumiskey (1983), 204 Mont.
350, 665 P.2d 223.
After reviewing the settlement agreement as a whole, we
conclude that the settlement was made on behalf of Sobieck as well
as Harmon and White. First, we note that Sobieck was a party to
the settlement agreement. Had the settlement not been on her
behalf, she would not have been included as a party to the
agreement. The terms of the settlement also indicate that it was
in fact made on her behalf. The settlement agreement reads, in
relevant part:
In consideration of the mutual understandings and
promises contained herein, the parties hereto hereby
covenant and agree as follows:
b(l). Execute a covenant not to execute against
Sobieck's personal assets wherein Nimmick and her
parents, on behalf of themselves, their agents, heirs,
successors, and assigns, shall covenant that they (and
all of them) shall never initiate, pursue, or levy any
execution for any judgment (obtained or obtainable)
against Sobieck, and shall likewise forever forebear to
9
collect (or attempt to collect) any amount as a debt,
obligation, or otherwise, relating to any of Nimmick's
claimed injuries arising from the Accident, from the
personal assets of Sobieck or any member of Sobieck's
family. This covenant is not intended to affect any
right of State Farm, if any, to seek subrogation.
b(2). Execute an agreement not to assign any action,
claim or judgment of Nimmick against Sobieck to any other
person or entity, including without limitation Mid-
Century Insurance Company or any of its affiliates or
State Farm Insurance Company or any of its affiliates.
C. Dismiss Nimmick's Complaint in the tort action
against Sobieck without prejudice
f. Execute a full, final and unconditional release of
Employers Mutual for any and all claims under Section 33-
18-201 and 33-18-242, Montana Code Annotated, in respect
of any claims arising from Tammy Sobieck's putative
status as an insured under the Employer's Mutual Policy.
In light of this broad sweeping release language, it is disingenu-
ous for Nimmick to claim the settlement was not made on Sobieck's
behalf. A basic premise of contract law is mutuality of consider-
ation. See Richardson v. Safeco 'Insurance Co. (19831, 206 Mont.
73, 76, 669 P.2d 1073, 1074. The language above, which releases
Sobieck from financial responsibility for the accident, clearly
appears to be in exchange for the monetary settlement with
Employers Mutual. We do not believe releasing Sobieck was a
gratuitous act on Nimmick's part.
Nimmick relies on the purported reservation of State Farm's
right of subrogation found in the settlement agreement. As
previously stated, the terms of the settlement agreement state:
This covenant is not intended to affect any right of
State Farm, if any, to seek subrogation.
10
Nimmick argues that because the settlement agreement reserved State
Farm's right to seek subrogation against Sobieck, she has not been
"released" from liability for Nimmick's injuries. Nimmick claims
that because Sobieck is still potentially liable to State Farm
under a subrogation action, she has not been released and,
therefore, the settlement with Employers Mutual was not on her
behalf.
This argument is faulty for several reasons. First, an
insurer's subrogation right vests upon its payment of a claim. One
authority summarized this principle as follows:
No right of subrogation arises until the claim has been
paid. [Footnote omitted.] Thus, before subrogation can
be had, the insurer must have paid the insured his loss
according to the contract, for it is this securing of
satisfaction by the insured which gives the insurer the
right to be subrogated to the rights of the insured
against a wrongdoer primarily liable for the loss.
[Footnote omitted.]
16 Couch on Insurance 2d, § 61:49 (1983). This principle is well-
established in our case law. See St. Paul Fire and Marine v.
Allstate (1993), 257 Mont. 47, 51, 847 P.2d 705, 707; Skauge v.
Mountain States Tel. 6, Tel. Co. (1977), 172 Mont. 521, 525, 565
P.2d 628, 630
1n this case, State Farm has not paid any benefits to Nimmick.
Therefore, State Farm does not have a vested right to seek
subrogation against Sobieck
Secondly, an insurer seeking subrogation has only those rights
maintained by its insured. The insurer steps into its insured's
shoes. Therefore, in a subrogation action, the insurer sues the
11
purported tortfeasor in place of its insured. In St. Paul Fire &
Marine V. Glassing (1994), P.2d_, 51 St.Rep. 1437, we adopted
language from Couch on Insurance in stating:
The right of subrogation is purely derivative as the
insurer succeeds only to the rights of the insured, and
no new cause of action is created. In other words, the
concept of subrogation merely gives the insurer the right
to prosecute the cause of action which the insured
possessed against anyone legally responsible for the
latter's harm .
Glassinq, 51 St.Rep. at 1439, (citing 16 Couch on Insurance Zd, 5
61:37 (1983)).
In this case, Nimmick executed broad sweeping covenants not to
execute against the personal assets of Sobieck or her family.
State Farm, stepping into Nimmick's shoes, has likewise been
limited from executing against Sobieck. While the settlement
agreement purports to maintain State Farm's right of subrogation,
this subrogation right, if any, is very limited.
By severely limiting or destroying State Farm's right of
subrogation, Nimmick further released Sobieck from any potential
liability arising from the accident. In a section entitled
"Release of Tortfeasor and Effect Thereof," Couch on Insurance
states:
If the employer's or insurance carrier's statutory
right of subrogation is impaired by the act of the
employee in settling with the wrongdoer, the employee's
right to compensation is barred.
A covenant not to levv aaainst the tortfeasor bv the
insured destroys the risht to subrosation, [footnote
12
omitted1 and as such may bar the insured's recovery under
the policv. [Emphasis added.]
16 Couch on Insurance Zd, § 61:191 (1983). By inhibiting subroga-
tion, Nimmick has barred her claim against State Farm.
After examining the settlement agreement and its underlying
effects as a whole, we conclude that the settlement between
Employers Mutual and Nimmick was made on behalf of Sobieck as well
as Harmon and White. Because the settlement was on behalf of
Sobieck, she is no longer an uninsured motorist under the terms of
Nimmick's State Farm policy. we affirm as to issue one and reverse
as to issue two the decision of the District Court.
We concur:
Justice W. William Leaphart specially concurring.
I concur in the result. However, I think the Court has
needlessly relied upon both subrogation and insurance contract
analyses. Despite the document's protestations to the contrary,
the settlement agreement between Nimmick and Employers Mutual did
include Sobieck. Sobieck was a signatory to the settlement and
Nimmick gave Sobieck a covenant not to execute against her assets
or those of her family. As the Court correctly points out, because
the settlement was on behalf of Sobieck, she is no longer an
uninsured motorist under the terms of Nimmick's State Farm policy.
The Court does not need to further analyze the case in terms of
subrogation theory because a right of subrogation does not even
arise unless there is coverage under the policy resulting in
payment by the insurer. Here, although Sobieck initially fit the
definition of an uninsured motorist under the terms of the policy,
the subsequent settlement changed her status.
Since the Court does engage in subrogation analysis, I must
observe that, strictly in the context of subrogation law, I would
reverse and remand for a determination as to whether or not Sobieck
had any assets with which to respond to State Farm's potential
subrogation claim. In other words, I would adopt a "no prejudice"
rule whereby a settlement with a tortfeasor would not release an
insurer such as State Farm if the plaintiff could show that the
tortfeasor was judgment proof and, thus, there was no prejudice to
the insurer. However, in the context of an uninsured motorist's
14
policy, if the insured (Nimmick) entered into an insurance
settlement with the tortfeasor (Sobieck), regardless of the amount,
Sobieck is no longer "uninsured" under the State Farm policy and
there is no insurance coverage. In the absence of coverage and
payment by State Farm, the right of subrogation does not come into
play. Thus, the question of whether State Farm has, in fact, been
prejudiced is not an issue.
15
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
The only issue in this case is whether Tammy Sobieck is an
uninsured driver within the meaning of the insurance policy
provided by State Farm to Jennifer Nimmick. That policy provided,
in relevant part, that:
We will pay damages for bodily injury an insured is
legally entitled to collect from the owner or driver of
an uninsured motor vehicle. . . .
Uninsured Motor Vehicle -- means :
1. a land motor vehicle, the ownership,
maintenance or use of which is:
a. not insured . . . .
(Underlining added.)
Tammy Sobieck's use of Cory Harmon's vehicle was not insured.
Cory Harmon's vehicle was insured by Employers Mutual
Companies. The policy which was issued to him, and which applied
to the vehicle being driven by Tammy Sobieck at the time of her
accident, had the following exclusion:
A. We do not provide Liability Coverage for any
person:
8.' Using a vehicle without a reasonable belief
that that person is entitled to do so.
According to the deposition testimony of Cory Harmon taken in
Employers Mutual's Ravalli County declaratory judgment action,
Tammy Sobieck did not have permission to operate the Harmon vehicle
at the time and place where she negligently caused Jennifer
Nimmick's injuries. Based on the arguments of the parties in
16
District Court and on appeal, that testimony is uncontroverted and
assumed to be true for purposes of the issue involved in this
proceeding. Therefore, based on the plain language of the State
Farm and Employers Mutual policies, Tammy Sobieck was uninsured
when she negligently lost control of Cory Harmon's vehicle and
caused severe injuries to Jennifer Nimmick. Because she was
uninsured, and pursuant to our prior decision in State Farm Mutual
AutomobileInsurance Co. v. Taylor (1986)) 223 Mont. 215, 218, 725 P.2d 821,
823, the majority correctly notes that uninsured coverage was
initially available pursuant to the terms of the State Farm policy.
That should be the end of our analysis.
However, based on decisions from other jurisdictions which are
factually inapposite to this case, the majority concludes that an
uninsured driver can become an insured driver because of references
to that person in a settlement agreement in which third persons are
released.
In all of the cases relied on by the majority, settlement
amounts were ultimately paid on behalf of the person for whom
coverage was originally denied. See Jones v. Sentry Ins. Co. (Minn. Ct.
App. 1990), 462 N.W.2d 90; Fryerv. NationalUnionFireIns. Co. (Minn. 19851,
365 N.W.2d 249; Coleman v. Florida Ins. Guaranty Assn., Inc. (Fla. 1988), 517
So.2d 686; Rister v. State Farm Mut. Auto. Ins. Co. (MO. Ct. App. 1984) , 668
s.w.2d 132.
17
For example, in the Rister decision, the Missouri Court of
Appeals simply held that where an uninsured motorist claim is based
on an insurer's denial of coverage, the unconditional withdrawal of
that denial precludes uninsured coverage.
Both the Jones decision, and the Fver decision merely stand for
the principle that:
[Wlhere the liability carrier denies coverage for the
involved motor vehicle but subsequently admits coverage
prior to the arbitration hearing, such motor vehicle is
not an uninsured motor vehicle within the meaning of the
policy provision.
Fver , 365 N.W.2d at 254.
The Florida Supreme Court's decision in Coleman has nothing to
do with the issue involved in this case, but instead relates to
when an insured may stack a number of uninsured motorist coverages
for which he had paid more than one premium. The case does make
passing reference to when an injured party can recover under his or
her own uninsured motorist policy, but only in the context of
Florida law. The reference has nothing to do with the policy
provisions involved in this case, nor the facts involved in this
case.
Here, denial of coverage for Sobieck was never withdrawn.
Employers Mutual denied coverage for Sobieck the first time a claim
was filed, and denied coverage for Sobieck when it ultimately paid
money to Nimmick on behalf of Cory Harmon and Chris White.
There is nothing similar about this case and those authorities
relied on by the majority.
The settlement agreement upon which the majority opinion is
based begins by pointing out that Sobieck did not have permission
to drive Harmon's car at the time of Nimmick's accident. The
agreement specified that while Cory Harmon was an insured according
to the terms of Employers Mutual's liability policy, and that while
there was a possibility the District Court would conclude that
Chris White was also covered, Employers Mutual continued to deny
any coverage for Tammy Sobieck.
The agreement specifically provided that the settlement
amounts paid by Employers Mutual were paid on behalf of White and
Harmon, and that only White and Harmon and Employers Mutual were
released from liability for Nimmick's injuries. The agreement
provided that Nimmick's tort claim against Harmon and White would
be dismissed with prejudice, but that any claim against Sobieck
would be dismissed without prejudice.
Furthermore, while Nimmick and her parents agreed not to
execute against Sobieck's personal assets to recover any damages
due them, the agreement specifically provided that “[tl his covenant
is not intended to affect any right of State Farm, if any, to seek
subrogation."
If these were the terms negotiated in exchange for payment on
behalf of Sobieck, they are most inadequate and unlike any other
settlement agreement with which I am familiar. To say the least,
19
the terms differed significantly from any of the agreements
involved in the cases relied on by the majority.
Based on the language of the agreement entered into between
Nimmick and Employers Mutual, I necessarily conclude that nothing
therein changed the fact that Sobieck was uninsured based on the
plain language of the State Farm and Employers Mutual policies.
Whether or not the majority "believe releasing Sobieck was a
gratuitous act on Nimmick's part," is irrelevant. The fact is that
based on the plain language in the settlement agreement, Sobieck
was not released from future liability for her conduct.
The majority next reasons that since an insurer subrogates to
only those rights possessed by its insured, State Farm was
prejudiced by Nimmick's waiver of her right to execute against
Sobieck's assets. However, the majority's subrogation analysis is
incomplete and out of context. Nimmick provided only a partial
waiver of the right to execute. She specifically reserved whatever
right State Farm could claim by operation of law or pursuant to its
contract with her.
The plain terms of Nimmick's agreement with Employers Mutual
provided that although neither she nor her parents would execute
against Sobieck's assets, State Farm's rights to do so would not in
any way be impaired. It is the majority's selective and incomplete
discussion of subrogation principles to establish that State Farm's
rights have been diminished in spite of plain contract language to
20
the contrary, which is disingenuous--not Nimmick's arguments on
appeal.
For these reasons, I would conclude that Sobieck was an
uninsured driver at the time she negligently caused Jennifer
Nimmick's injuries, and that State Farm's policy, therefore,
provided uninsured motorist coverage to Jennifer Nimmick for Tammy
Sobieck's conduct.
I would affirm the judgment of the District Court.
us ce
Justice William E. Hunt, Sr., joins in the foregoing dissenting
opinion.
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