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Simmons v. Insurance Company of North America (2/16/01) sp-5363
Simmons v. Insurance Company of North America (2/16/01) sp-5363
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
TEISHA SIMMONS, )
) Supreme Court No. S-9256
Appellant, )
) Superior Court No.
v. ) 3AN-95-8578 CI
)
INSURANCE COMPANY OF NORTH ) O P I N I O N
AMERICA, )
) [No. 5363 - February 16, 2001]
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: Michael W. Flanigan, Walther &
Flanigan, Anchorage, for Appellant. Michael
D. Corey, Sandberg, Wuestenfeld & Corey, Anchorage, for Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
When Teisha Simmons was injured in a car accident, she
sought underinsured motorist benefits from the insurer of her
father's business. The insurer declined coverage because the
policy did not list Simmons's father as a named insured. Although
Simmons sought reformation of the policy, the superior court
granted summary judgment to the insurer, ruling that, even if the
policy were to be reformed to include the father as a named
insured, persons insured under their trade names are not
"individuals" to whom family coverage extends. Because we conclude
that when a business owner acquires insurance under a trade name,
coverage extends to that individual owner as well as the business,
we reverse the superior court's decision and remand for a
determination of whether the policy should be reformed.
II. FACTS AND PROCEEDINGS
A. Factual Background
On August 20, 1992, fourteen-year-old Teisha Simmons was
in a serious car accident while riding as a passenger in her
friend's car. The accident rendered Simmons a quadriplegic with
damages far exceeding the $100,000 that she recovered from the
driver's insurance company. Teisha Simmons sought underinsured
motorist benefits from the Insurance Company of North America (INA)
under a policy issued to her father's business, Happy Puppy
Enterprises, but the policy did not specifically include her father
as a named insured.
Teisha's father, James Walldow, began a business called
"Happy Puppy Enterprises" in 1990 with his live-in girlfriend,
Carol Mills. [Fn. 1] They ran a bed and breakfast and a school bus
operation. When Walldow and Mills bought the bus in 1990, they
sought insurance for it under both of their names, doing business
as Happy Puppy Enterprises for the years 1990-93.
The previous owners of Walldow and Mills's school bus had
insured it under an INA policy issued by the Stein Insurance
Agency. Before Walldow and Mills acquired the school bus, however,
the Stein Agency had agreed with INA's parent organization CIGNA
not to write new business policies but only to service existing
ones. Thus, when Walldow and Mills sought insurance for the school
bus, the Stein Agency could not accept Walldow and Mills's
application for a new insurance policy. Instead, the Stein Agency
asked INA to issue an endorsement to change the name of the insured
to Carol Mills d/b/a Happy Puppy Enterprises. INA agreed to do so,
and issued an endorsement changing the named insured to Carol Mills
d/b/a Happy Puppy Enterprises. The policy did not list James
Walldow as a named insured, but it did list him as a "driver."
After Teisha's accident in 1992, she made an underinsured
motorist (UIM) claim on the INA policy issued to Happy Puppy
Enterprises. The UIM endorsement provides that INA "will pay all
sums the insured is legally entitled to recover as damages from the
owner or driver of an 'uninsured motor vehicle' or 'underinsured
motor vehicle.'" The policy states that UIM coverage extends to
the insured and, if the insured is an "individual," to "any family
member."
B. Procedural History
After INA denied Simmons's UIM claim, she initiated this
lawsuit in October 1995. INA moved for summary judgment in
September 1997 on the ground that Walldow was not a named insured
on the policy. Simmons cross-moved for summary judgment, arguing
that Walldow and Mills were partners in Happy Puppy Enterprises,
that the policy should be reformed to meet the parties'
expectations to include Walldow as a named insured on the policy,
and that as Walldow's daughter, Simmons was covered by the UIM
provision.
INA responded that the contract cannot be reformed
because Happy Puppy Enterprises is Carol Mills's sole
proprietorship, and because no partnership exists between Mills and
Walldow. INA also argued that there was no mutual mistake in only
listing Mills as the insured on the INA policy, because only she is
listed on the Happy Puppy Enterprises business license. Simmons
replied that Walldow and Mills have operated Happy Puppy
Enterprises as a de facto partnership, even if the business license
was in Mills's name only.
Superior Court Judge Rene J. Gonzales heard oral argument
in March 1999. The court determined that UIM coverage only extends
to family members of an insured "individual," that "coverage did
not extend to family members of partners or employees in the
business," and that the policy therefore did not confer coverage
upon Simmons. Simmons filed a motion for reconsideration, which
the court denied, and Simmons subsequently appealed.
III. STANDARD OF REVIEW
We review the superior court's decision to grant summary
judgment de novo. [Fn. 2] We will affirm that decision "if there
are no genuine issues of material fact and if the moving party is
entitled to judgment as a matter of law." [Fn. 3] In making this
determination, "we draw all reasonable inferences in favor of the
non-moving party." [Fn. 4] Moreover, we may affirm the superior
court's decision to grant summary judgment on "any basis appearing
in the record." [Fn. 5]
We also review de novo the interpretation of contract
language, which is a question of law. [Fn. 6] We look to four
factors when interpreting contracts: (1) the language of the
disputed policy provisions; (2) the language of other provisions in
the policy; (3) relevant extrinsic evidence; and (4) case law
interpreting similar provisions. [Fn. 7]
IV. DISCUSSION
A. Simmons Has Standing to Seek Reformation of the INA
Policy Naming "Carol Mills d/b/a Happy Puppy Enterprises" as the
Insured.
INA briefly argues that because Simmons is not a party to
the insurance policy, she lacks standing to sue for its
reformation. INA's argument warrants little discussion.
In order to have standing, a party need only demonstrate
"a sufficient 'personal stake' in the outcome of the controversy."
[Fn. 8] In this case, Simmons stands to gain considerably if the
contract is reformed to include Walldow as a named insured, for
then the policy may confer coverage on her as a family member.
In addition, we have specifically stated that "an unnamed
party may have rights as an implied beneficiary of an insurance
contract." [Fn. 9] Thus, we have permitted an unnamed party to
seek reformation of an insurance policy. [Fn. 10] In this case, we
conclude that Simmons's personal stake in the reformation of the
insurance policy is therefore sufficient to confer standing.
B. It was Error to Conclude that Regardless of Whether
Walldow Were Named on the Policy, Simmons Is Not Entitled to
Coverage.
The superior court determined that because the policy
only covers family members of "individual" insureds, and because
Happy Puppy Enterprises is a business rather than an individual,
coverage would not extend to Simmons even if the contract were
reformed to add Walldow as a named insured. Thus, the court did
not address the question whether the contract should, in fact, be
reformed to include Walldow as a named insured. Simmons argues
that a UIM policy issued to "individual(s) d/b/a partnership or
trade name" covers those individuals as well as the business
entity. INA responds by stressing the policy's distinction between
the individual and partnership forms of business. [Fn. 11] INA
argues that because the reformation sought by Simmons would
identify the named insured as a partnership, not an individual, the
condition precedent to the inclusion of any family member will not
have been met. [Fn. 12] INA therefore asserts that the superior
court properly granted summary judgment without considering whether
Simmons is entitled to reformation.
1. When a business owner acquires insurance in his or
her trade name, coverage extends to the owner as well as to the
business.
We first address the issue upon which the superior court
based its decision: whether a policy issued to individuals or
partners, d/b/a a partnership or trade name, covers the individuals
as well as the business entity. Thus, the question is whether,
assuming that the policy does name Walldow d/b/a Happy Puppy
Enterprises as an insured, Walldow is an "individual" to whom
family coverage extends.
We have stated that "a partnership is not a legal entity
separate from its partners." [Fn. 13] In the auto liability
insurance context, various treatises have observed that where the
policy names a partnership as the insured, coverage extends to the
individuals comprising the partnership as well. For example, one
treatise states:
Where an automobile liability policy names a
partnership as the insured and then lists the names of the
individual partners in describing the named insured, the partners
as individuals, as well as the partnership as an entity are
covered.
. . . .
A policy purchased by an insured father in his
trade name would be viewed as if issued in his given name, and
references to the named insured in the policy would be deemed to
refer to him individually.[ [Fn. 14]]
Another observes:
When a motor vehicle insurance policy is
issued to a partnership, the courts have usually concluded that it
is appropriate to extend coverage to family members of the
partners. Similarly, when insurance -- acquired by the owner of a
business -- is issued in the trade name of the owner, coverage
claims by that individual's relatives have usually been sustained.[
[Fn. 15]]
Other jurisdictions agree that when an insurance policy
names individuals along with their trade names, coverage extends to
those individuals as well as their businesses. For example, in
O'Hanlon v. Hartford Accident & Indemnity Co., the Third Circuit
held that an insurance policy, which was issued in the insured's
trade name and which agreed to cover the named insured's resident
relatives, provided uninsured motorist coverage to the named
insured's son. [Fn. 16] In that case, O'Hanlon sought UIM coverage
under the policy after his son suffered devastating injuries. [Fn.
17] The policy agreed to cover "the Named Insured . . . and, while
residents of the same household, the . . . relatives of [the Named
Insured]." [Fn. 18] The policy designated the named insured as
"Coe Management Company," the trade name under which O'Hanlon
conducted business. [Fn. 19]
In determining whether the policy covered O'Hanlon's
son's injuries, the Third Circuit stated that "an insured's trade
name and given name should be equated," and that "where an insured
purchases a policy in a trade name, the policy will be viewed as if
issued in his given name." [Fn. 20] The court also observed that
"[o]nce it is established that the named insured is Patrick J.
O'Hanlon, the policy is unambiguous and plainly affords uninsured
coverage to [O'Hanlon's son]." [Fn. 21]
And in Watson v. Agway Insurance Co., a New Jersey court
stated that "a trade name [is] nothing more than the alter ego of
the individual." [Fn. 22] Thus, a UIM policy that listed a
partnership (and the individuals comprising it) as the "named
insured" extended coverage to a partner's wife -- a "family member"
of the "named insured." [Fn. 23]
In the Watson case the policy language was identical to
the language at issue here. It defined an insured in part as
1. You.
2. If you are an individual, any "family
member."[ [Fn. 24]]
The insurer argued, as INA does here, that partners could not be
considered individuals under the policy. [Fn. 25] The court
disagreed and stated that a person does not "lose[] his identity as
an individual because he is a partner in" a business. [Fn. 26]
"Reduced to its essence, the [insurer's] argument is untenable
because it is contrary to the reasonable expectations of an average
person who reads the policy and is conversant with the English
language." [Fn. 27]
Numerous other courts have agreed with this position as
well, holding that policies that list a partnership or trade name
as the "named insured" also extend coverage to the individuals
comprising those businesses, and extending coverage to family
members of the individual insureds. [Fn. 28] This case law, the
treatises, and our previous observation that "a partnership is not
a legal entity separate from its partners," [Fn. 29] all support
the conclusion that insurance policies which list trade or
partnership names as the "insured" extend coverage to the
individuals comprising those businesses as well as to the
businesses themselves. [Fn. 30]
2. We resolve any ambiguity in Simmons's favor by
determining Walldow's reasonable expectations.
Assuming arguendo that the term "individual" is
ambiguous, we resolve any ambiguity in Simmons's favor, because she
is the purported insured. [Fn. 31] A contract provision is
"ambiguous" if "it is reasonably susceptible to more than one
interpretation." [Fn. 32] We have stated that courts must resolve
ambiguity in insurance contracts "by determining the reasonable
expectations of the contracting parties." [Fn. 33] We discern the
reasonable expectations "from the language of the disputed
provisions, other provisions, and relevant extrinsic evidence, with
guidance from case law interpreting similar provisions." [Fn. 34]
The question is, assuming the policy had named Walldow
d/b/a Happy Puppy Enterprises as an insured, whether Walldow could
have reasonably expected the policy to cover him as an
"individual," thereby affording coverage to his household family
members. Given the broad consensus that a private, noncorporate
business is not separate from the individuals comprising it, and
that a trade name is merely "the alter ego" [Fn. 35] of the
individual, we conclude that Walldow's expectation was reasonable.
The case law, other legal authority, and our analysis of
reasonable expectations all support the conclusion that, where
individual persons are listed as insureds under their trade names
or partnerships, coverage extends to those individuals as well as
to their businesses. Thus, it was error to conclude that Walldow
would not have been covered as an individual even if the policy had
listed him along with Carol Mills under their trade name Happy
Puppy Enterprises, and it was error to grant summary judgment to
INA on those grounds.
C. The Superior Court Should Determine Whether the Contract
Should Be Reformed to Include Walldow as an Insured.
In the alternative, INA argues that summary judgment was
proper because the contract cannot be reformed to include Walldow
in any event. INA asserts that Happy Puppy Enterprises was Mills's
sole proprietorship, and that there was no mutual mistake to
justify reformation. Simmons responds that reformation is proper
because the parties' clear intention was to include Walldow as a
named insured on the policy, and because his name was omitted only
due to the insurance agency's mistake. She contends that the
superior court should have granted her summary judgment on those
grounds.
Whether the evidence regarding the parties' intentions
justifies reformation of a contract is ordinarily a question of
fact for the superior court. [Fn. 36] In this case, however, the
superior court did not reach this issue, so there are no findings
for us to review on appeal.
We have stated that reformation of a contract is proper
when "it is alleged that the instrument does not conform to the
actual intentions of the parties." [Fn. 37] Moreover, reformation
"is justified when the parties have come to a complete mutual
understanding of all the essential terms of their bargain, but by
reason of mutual mistake the written agreement is not in conformity
with such understanding." [Fn. 38] Thus, in determining whether to
reform a contract, the parties' intentions are dispositive. [Fn.
39] The party wishing to reform the contract bears the burden of
establishing through clear and convincing evidence that the
omission was a mutual mistake. [Fn. 40]
A leading treatise has stated that "[r]eformation will be
granted where property owned jointly was, through the . . . mutual
mistake of the parties, insured in the name of one as sole owner."
[Fn. 41] Also, when an individual partner seeks insurance on
behalf of the partnership, but by mistake the insurance contract
lists only the individual partner, courts "will decree its
reformation so as to make it cover the partnership interest, even
after loss." [Fn. 42]
Although Simmons submitted substantial evidence that
Happy Puppy Enterprises was a joint business and that all the
parties intended to insure both Mills and Walldow under the policy,
INA also submitted evidence that Happy Puppy Enterprises was
Mills's sole proprietorship. Thus, a genuine factual dispute
remains as to whether Walldow and Mills jointly owned and operated
Happy Puppy Enterprises and whether the parties intended to insure
both Mills and Walldow under the trade name Happy Puppy
Enterprises. We therefore conclude, based on the record before us,
that neither INA nor Simmons is entitled to summary judgment on
this issue, and we remand for a determination of whether the
evidence supports reforming the policy to include James Walldow as
a named insured.
INA also asserts that even if the Stein Agency's Marlo
Miller did make a mistake in failing to include Walldow's name on
the policy, that mistake "is not a mistake attributable to INA."
But the CIGNA companies (including INA) never terminated their
agency relationship with the Stein Agency, which serviced the Happy
Puppy Enterprises policy.
Simmons produced an agreement between INA and the Stein
Agency in which INA appointed Stein to be its insurance agent,
instructing Stein to "act as our agent," and to "solicit, accept
and bind risks in accordance with the underwriting rules,
regulations and directives we give you." Thus, because Stein acted
as INA's agent, INA is responsible for any mistake made by the
Stein Agency. [Fn. 43]
D. The Superior Court Should Determine Whether Simmons Is
Entitled to Coverage as a "Family Member" of James Walldow.
If the superior court reforms the Happy Puppy Enterprises
policy to include Walldow as a named insured, the final issue is
whether Simmons qualifies for coverage as his family member.
The INA policy defines "family member" as "a person
related to you by blood, marriage or adoption who is a resident of
your household, including a ward or foster child." We have
declined to formulate a fixed rule for determining whether a person
is a "resident" of an insured's "household." [Fn. 44] Rather, we
have stated that "the facts of each case must be examined to
determine whether the named insured . . . and his relatives have
ceased to be residents of the same household." [Fn. 45] Moreover,
we have noted that a child may be a resident of the household of
one parent for coverage purposes even when the other parent has
custody. [Fn. 46]
In this case, the superior court did not address whether
Simmons qualifies as a resident of Walldow's household. Because
this is a factual issue, we remand for a determination of whether
Simmons is a "family member" of Walldow's "household" for purposes
of the INA UIM policy.
V. CONCLUSION
Because it was error to conclude that a person who is
insured under his trade name is not an "individual" insured, we
REVERSE the grant of summary judgment. Moreover, because genuine
factual issues remain as to whether Happy Puppy Enterprises was a
partnership and whether the parties intended to insure both Mills
and Walldow under the policy, we REMAND to the superior court. On
remand, the court should determine whether the UIM policy should be
reformed to include Walldow as a named insured and whether the UIM
policy covers Simmons as a resident of Walldow's household.
FOOTNOTES
Footnote 1:
Teisha Simmons is the daughter of James Walldow and Marie
Simmons, an unmarried couple who lived together from 1972 until
1981. When James and Marie separated in 1981, Teisha remained
close to both parents and visited her father from time to time.
Footnote 2:
See Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska
1998).
Footnote 3:
Id.
Footnote 4:
Id.
Footnote 5:
Id.
Footnote 6:
See Cox v. Progressive Cas. Ins. Co., 869 P.2d 467, 468 n.1
(Alaska 1994).
Footnote 7:
See id.
Footnote 8:
Mathis v. Sauser, 942 P.2d 1117, 1126 (Alaska 1997) (quoting
Kleven v. Yukon-Koyukuk Sch. Dist., 853 P.2d 518, 525 (Alaska
1993)).
Footnote 9:
Stewart-Smith Haidinger, Inc. v. Avi-Truck, Inc., 682 P.2d
1108, 1112 (Alaska 1984).
Footnote 10:
See id. at 1113-14.
Footnote 11:
On the declarations sheet of the policy, there are squares
opposite "corporation," "partnership," "individual," and "other."
In this particular policy the square opposite "individual" was
checked. If the policy were to be reformed so that the named
insured was Carol Mills and James Walldow d/b/a Happy Puppy
Enterprises, and Mills and Walldow are a partnership, then the
"partnership" box should be checked rather than the "individual"
box.
Footnote 12:
The policy does not define the term "individual," but it
defines an "insured" as "any person or organization qualifying as
an insured in the Who Is An Insured provision of the applicable
coverage." The policy goes on to state that "[e]xcept with respect
to the Limit of Insurance, the coverage afforded applies separately
to each insured who is seeking coverage or against whom a claim or
'suit' is brought."
Footnote 13:
Williams v. Mammoth of Alaska, Inc., 890 P.2d 581, 584 (Alaska
1995).
Footnote 14:
7 Couch on Insurance sec. 110:5, at 110-12, 110-13 (3d ed.
1997)
(citations omitted).
Footnote 15:
Alan I. Widiss, Uninsured and Underinsured Motorist Insurance
sec. 4.4(C), at 83 (rev. 2d ed. 1999) (internal footnotes omitted).
Still another treatise notes:
A policy issued under the trade name of an
individual is viewed as if issued under his given name. Thus
coverage is extended to his resident relatives even though the
accident was not business connected. Members of a partner's family
who are resident relatives of a partner are treated as members of
the named insured group on the ground that the partnership, for
insurance purposes, is an "aggregate of persons" rather than a
single legal entity.
2 Irvin E. Schermer, Automobile Liability Insurance sec. 40.02[2],
at
40-13 - 40-14 (3d ed. 1995) (citations omitted).
Footnote 16:
639 F.2d 1019, 1020, 1026 (3d Cir. 1981).
Footnote 17:
See id. at 1020.
Footnote 18:
Id. at 1026 (ellipses and brackets in original).
Footnote 19:
See id. at 1021.
Footnote 20:
Id. at 1025.
Footnote 21:
Id. at 1026.
Footnote 22:
677 A.2d 788, 792 (N.J. Super. App. Div. 1996) (interpreting
O'Hanlon).
Footnote 23:
Id. at 789, 790, 794.
Footnote 24:
Id. at 790.
Footnote 25:
See id. at 790-91.
Footnote 26:
Id. at 791.
Footnote 27:
Id.
Footnote 28:
See, e.g., Ohio Cas. Ins. Co. v. Fike, 304 So. 2d 136 (Fla.
Dist. App. 1974) (policy listing partnership and individual
partners as named insured and providing benefits for any relative
of named insured would afford coverage to partner's daughter);
Patrevito v. Country Mut. Ins. Co., 455 N.E.2d 289 (Ill. App. 1983)
(driver was "named insured" within automobile policy provisions
issued to his noncorporate business); Hartford Accident & Indem.
Co. v. Huddleston, 514 S.W.2d 676 (Ky. 1974) (contract for
partnership liability insurance contemplates partnership as
aggregate of persons rather than as legal entity and therefore
extends coverage to partner's son under uninsured motorist
provision, which applies to named insured and family members of
same household); American Bankers Ins. Co. of Fla. v. Stack, 504
A.2d 1219 (N.J. Super. 1984) (son is entitled to uninsured motorist
benefits under policy issued to father's trade name); Nationwide
Mut. Ins. Co. v. United States Fidelity & Guar. Co., 529 F. Supp.
194 (E.D. Pa. 1981) (policy listing as named insured the
partnership of which the victim's father was a member extended
coverage to the victim's father and to his family); McDonald v.
Aetna Cas. & Sur. Co., 177 N.W.2d 101 (Wis. 1970) (automobile
insurance policy covers partners as individuals as well as
partnership as an entity).
Footnote 29:
Williams v. Mammoth of Alaska, Inc., 890 P.2d 581, 584 (Alaska
1995).
Footnote 30:
Simmons correctly notes that this situation differs from
insurance policies that name a corporation as the insured. Unlike
partnerships and common trade names, courts generally consider
corporations to be separate legal entities apart from their owners.
See Widiss, Uninsured and Underinsured Motorist Insurance sec.
4.4(B),
at 67-82; 2 Schermer, Automobile Liability Insurance sec. 40.02[1],
at
40-6 - 40-13.
Footnote 31:
See Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292,
1295 (Alaska 1994).
Footnote 32:
D.D. v. Insurance Co. of N. Am., 905 P.2d 1365, 1368 (Alaska
1995).
Footnote 33:
Zito v. Zito, 969 P.2d 1144, 1147 n.4 (Alaska 1998).
Footnote 34:
Williams v. Crawford, 982 P.2d 250, 253 (Alaska 1999).
Footnote 35:
Watson v. Agway Ins. Co., 677 A.2d 788, 792 (N.J. Super. App.
Div. 1996).
Footnote 36:
See Groff v. Kohler, 922 P.2d 870, 874 (Alaska 1996).
Footnote 37:
Ahwinona v. State, 922 P.2d 884, 889 n.3 (Alaska 1996)
(quotations omitted).
Footnote 38:
Id. at 873 (emphasis and ellipsis omitted) (quoting AMFAC
Hotels v. State, Dep't of Transp., 659 P.2d 1189, 1192 (Alaska
1983), overruled on other grounds by Atlantic Richfield Co. v.
State, 723 P.2d 1249, 1252 (Alaska 1986)).
Footnote 39:
See id.
Footnote 40:
See id.
Footnote 41:
Couch on Insurance sec. 27:31, at 27-39.
Footnote 42:
Couch on Insurance sec. 27:51, at 27-57 - 27-58.
Footnote 43:
See Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1147 n.9
(Alaska 1999) ("A master is subject to liability for the torts of
his servants committed while acting in the scope of their
employment.") (quoting Restatement (Second) of Agency sec. 219(1)
(1958)); Winn v. Mannhalter, 708 P.2d 444, 451 (Alaska 1985) ("A
broker is liable for the actions of his agents under the doctrine
of respondeat superior."); City of Delta Junction v. Mack Trucks,
Inc., 670 P.2d 1128, 1129 (Alaska 1983) (principal is liable for
acts of agent or apparent agent, including liability for breach of
warranty).
Footnote 44:
See Wainscott v. Ossenkop, 633 P.2d 237, 240 (Alaska 1981).
Footnote 45:
Id. at 240.
Footnote 46:
See id. at 244 n.16.
