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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Allstate Insurance Company v. Falgoust (06/01/2007) sp-6129
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ALLSTATE INSURANCE COMPANY, | ) |
| ) Supreme Court No. S-12090 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-02-6444 CI |
| ) | |
| MELISSA V. FALGOUST; DOUGLAS J. | ) O P I N I O N |
| FALGOUST; D.D., a minor, by and | ) |
| through his guardian ad litem; A.J., a minor, | ) |
| by and through his guardian ad litem; | ) |
| STATE OF ALASKA, DEPARTMENT | ) |
| OF ADMINISTRATION, | ) |
| ) | |
| Appellees. | ) No. 6129 June 1, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: Alfred Clayton, Jr., Maryanne
Boreen, Bliss, Wilkens & Clayton, Anchorage,
for Appellant. Christine S. Schleuss,
Anchorage, for Appellees D.D. and A.J. Megan
R. Webb, Assistant Attorney General,
Anchorage, David W. M rquez, Attorney
General, Juneau, for Appellee State of
Alaska, Department of Administration.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
The household exclusion in a homeowners policy bars
from liability coverage the claims of an insured person against
the named insured. Insured person includes any dependent person
in [the named insureds] care if a resident of [the named
insureds] household. The question presented is whether a foster
child is an insured person under the household exclusion. We
answer in the affirmative. Foster children readily meet the
insured person definition, and other jurisdictions have so held.
II. FACTS AND PROCEEDINGS
This is a declaratory judgment action brought by
Allstate Insurance Company. Allstates amended complaint sought a
declaration that the household exclusion in the homeowners policy
that it issued to Melissa and Douglas Falgoust excluded liability
coverage of claims that the Falgousts former foster children D.D.
and A.J. had asserted against the Falgousts. Allstate also
sought a declaration that if its policy covered these claims, the
coverage Allstate provided was excess to coverage provided by the
State of Alaska. The final count of Allstates amended complaint
asserted a claim for equitable subrogation against the State.
This count concerned the claim of the estate of a third foster
child, S.M., who died as a consequence of an assault on him by
Melissa Falgoust. Allstate settled this claim and sought
reimbursement from the State for its defense costs and the amount
of the settlement.
The superior court set the context of this case as
follows:
1. In 1996, Melissa and Douglas Falgoust
became licensed foster parents through
the Division of Family and Youth
Services (DFYS), State of Alaska
Department of Health and Social
Services.
2. Between 1997 and July 27, 1999, the
Falgousts were the foster parents of
D.D., a minor, and A.J., a minor. S.M.,
a minor, was also placed with the
Falgousts for foster care between June
1998 and July 27, 1999.
3. On July 27, 1999, Melissa Falgoust
fatally injured S.M. Melissa Falgoust
pled no contest and was convicted of
manslaughter, a Class A felony in
violation of AS 11.41.120.
4. Douglas Falgoust was never charged with
a crime relating to S.M.s death.
5. A.J. and D.D. claim that they sustained
damages as a result of events they
witnessed in the Falgousts foster home.
They also claim that they suffered abuse
in the Falgousts foster home prior to
July 27, 1999.
6. Neither of the Falgousts were charged
with criminal conduct relating to their
treatment of A.J. and D.D. There have
not been any findings of fact made in a
civil or criminal proceeding relating to
A.J.s and D.D.s treatment in the
Falgousts care.
7. Allstate Insurance Company (Allstate)
provided homeowners insurance to Melissa
and Douglas Falgoust for their residence
in Anchorage, Alaska where they lived
with the three foster children.
8. Allstate and the State of Alaska settled
claims presented by S.M.s estate.
9 Allstates Amended Complaint for
declaratory relief against Melissa
Falgoust, Douglas Falgoust, D.D., A.J.,
and Department of Administration, State
of Alaska, filed April 17, 2003, seeks:
(1) declaration of no coverage for
Melissa Falgoust arising from D.D.s
claims; (2) declaration of no coverage
for Douglas Falgoust arising from D.D.s
claims; (3) declaration that Allstates
coverage of Melissa Falgoust arising
from D.D.s claim, if any, is excess; (4)
declaration that Allstates coverage of
Douglas Falgoust arising from D.D.s
claim, if any, is excess; (5)
declaration of no coverage for Melissa
Falgoust arising from A.J.s claim; (6)
declaration of no coverage for Douglas
Falgoust arising from A.J.s claim; (7)
declaration that Allstates coverage of
Melissa Falgoust arising from A.J.s
claim, if any, is excess; (8)
declaration that Allstates coverage of
Douglas Falgoust arising from A.J.s
claim, if any, is excess; and (9)
equitable subrogation.
10. In a separate case pending in the
superior court, D.D. and A.J. filed a
complaint against the State of Alaska,
Department of Health and Social
Services, Office of Childrens Services,
Douglas Falgoust and Melissa Falgoust
alleging claims arising from acts or
omissions of the Falgousts while A.J.
and D.D. were in their care. See Case
No. 3AN-04-4058 Civil.
11. The Alaska Foster Parent Handbook was
prepared by DFYS (now Office of
Childrens Services). The Handbook is
supposed to be given to all foster
parents. It has a section called,
Liability Insurance that states, in
part:
Liability coverage is provided
for all Division of Family and
Youth Services foster families
. . . . This coverage is
designed for legal actions
brought against the foster
parents because of accidental
injury to the child or damage
caused by the child to someone
elses property or person.
This coverage is in effect
during any period in which you
are providing foster care.
12. 7 AAC 53.100 provides, in part:
(a) It is the policy of the
State of Alaska . . . to
indemnify and defend a foster
parent for injuries occurring
during the performance and
within the scope of duty of
the foster care program,
including (1) accidental
injury to a child placed by
the division; or (2) injury to
others by a child placed by
the division. (b) The state
will not defend or indemnify
foster parents for acts of
intentional and willful
misconduct . . . .
13. The State is self-insured for any
obligation it has to defend or indemnify
foster parents.
14. Allstates homeowners policy provides
that it is to be treated as excess
coverage when there is other insurance
for a loss. (Other Coverage Clause).
With respect to the claims in the separate tort action
described by the superior court in paragraph 10, Allstate is
currently defending the Falgousts under a reservation of rights.
In the present action Allstate moved for summary
judgment. Allstate sought (1) a declaration that the household
exclusion relieves Allstate from any duty to defend or indemnify
the Falgousts with respect to the claims of D.D. and A.J.; and
(2) a declaration that the State is the primary insurer of the
Falgousts and that any coverage by Allstate is excess to the
States coverage. The superior court denied both aspects of
Allstates motion.
The superior court then held a status conference in
order to determine what issues remained to be resolved. Allstate
argued that the court should issue a declaration that the State
has a duty to defend the Falgousts with respect to the claims
brought against them by D.D. and A.J. Allstate noted that it was
presently conducting the defense of these claims and that it had
an equitable claim against the State for its defense costs. The
State countered that the question of the States duty to defend
the Falgousts on the claims of A.J. and D.D. was not before the
court and properly should be decided in the separate tort action
that had been brought by A.J. and D.D. No decision was made on
this question at the status conference. Soon after the
conference Allstate filed a memorandum arguing that its claims
against the State concerning the defense of the claims of D.D.
and A.J. were fairly within its amended complaint.
At about the same time, the State filed a motion for
summary judgment seeking dismissal of Allstates equitable
subrogation claim arising out of Allstates settlement on behalf
of the Falgousts with the estate of S.M. Allstate did not
directly oppose this motion. Instead, it moved for leave to file
a second amended complaint. The proposed second amended
complaint deleted the subrogation claim in the amended complaint
with respect to the defense and settlement of the claim of the
estate of S.M. The proposed second amended complaint also sought
a declaration that the State had a duty to defend and indemnify
the Falgousts for some or all of the claims asserted by A.J. and
D.D. and sought damages against the State for Allstates costs
incurred in defending the Falgousts with respect to those claims.
The superior court denied Allstates motion to file a second
amended complaint, stating that Allstate could seek the same
relief in the tort action filed by A.J. and D.D. Subsequently,
the court granted the States motion for summary judgment
pertaining to Allstates equitable subrogation claim relating to
the claim of the estate of S.M., observing that Allstate had not
opposed the motion.
Allstate asked the superior court to incorporate its
various rulings into a final judgment so that Allstate could
appeal. The court obliged and entered written findings of fact,
conclusions of law, and a final judgment against Allstate in
favor of the Falgousts and the State.
Allstate now appeals, challenging the superior courts
conclusion that the household exclusion in the Falgousts
homeowners policy did not exclude the claims of A.J. and D.D. and
the courts refusal to entertain Allstates claim that the State
has a duty to defend the Falgousts with respect to the claims of
D.D. and A.J.
III. DISCUSSION
A. The Household Exclusion Applies.
The main question presented in this case is whether the
claims of the former foster children A.J. and D.D. against the
Falgousts are excluded by the terms of the household exclusion in
the Falgousts homeowners policy.
The liability insurance coverage provided by the
homeowners policy issued by Allstate to the Falgousts protects
insured person[s] from liability claims brought by others. The
term insured person[s] encompasses the Falgousts as named
insureds and also includes relatives and dependent persons in the
Falgousts care residing with the Falgousts. The homeowners
policy defines insured persons as:
Insured person(s) means you and, if a
resident of your household:
(a) any relative; and
(b) any dependent person in your care.
(Emphasis in original.) The policy defines you and your as the
named insured:
You or your means the person named on the
Policy Declarations as the insured and that
persons resident spouse. [Here, Douglas and
Melissa Falgoust.]
(Emphasis in original.)
Although the policy thus broadens the category of
insured persons to include resident relatives and dependents, it
also provides that claims brought by insured persons against
other insured persons under the policy are excluded from
liability coverage. The exclusion provides:
We do not cover bodily injury to an insured
person or property damage to property owned
by an insured person whenever any benefit of
this coverage would accrue directly or
indirectly to an insured person.
(Emphasis in original.) This is the so-called household
exclusion that is the centerpiece of this case.
The superior court denied Allstates motion for summary
judgment concerning the household exclusion because it concluded
that the word dependent is ambiguous. The court stated:
Regardless of the length of placement,
all foster care is intended to provide the
children with a safe, caring environment
where they are clothed, fed, sheltered,
disciplined and supervised. Allstate is
correct that there is conclusive evidence
that A.J. and D.D. lived with the Falgousts
for extended periods of time and that the
Falgousts cared for them, but the term
dependent is susceptible to more than one
meaning. Dependent is often used in the
sense of being financially dependent. A.J.
and D.D. were in the legal custody of the
State of Alaska at the time of S.M.s death.
They were financially dependent upon the
State of Alaska (and, in D.D.s case, upon his
natural parents). They were not financially
dependent upon [the] Falgousts.
(Citations omitted.) Having found that the term dependent is
ambiguous, the superior court construed the ambiguity against the
insurer and thus concluded that the foster children did not fall
within the meaning of the term.
We construe insurance policies in such a way as to
honor a lay insureds reasonable expectations.1 And, as the
superior court correctly observed, ambiguities in insurance
policies should be construed most favorably to an insured.2 But
the latter rule only applies when there are two or more
reasonable interpretations of particular policy language.3 Here,
for the reasons described below, we conclude that this condition
is not present.
In our view the term any dependent person in the policy
cannot reasonably be read as referring only to persons who are
financially dependent on the named insureds. The term any
dependent person is inclusive. The only textual limitations on
the term are that the dependent person must be in the care of the
named insured and a resident of the named insureds household.
There is no suggestion in the policy language that some
subcategories of dependent persons that satisfy these limitations
are meant to be excluded.
Policy language is construed in accordance with
ordinary and customary usage.4 The common usage of the adjective
dependent when used to describe a person is lacking the necessary
means of support and receiving aid from others (as from persons
outside the immediate family or from a private or public welfare
agency) such as a program of assistance for children.5 Blacks
first definition of the noun dependent is [o]ne who relies on
another for support.6 Under these definitions foster children
clearly are dependent persons.
We conclude that the term any dependent person in your
care as used in the policy includes foster children who have been
committed to the care of the named insured. If the term did not
encompass foster children, it would seldom be applied. The
household exclusion (setting aside for the moment the dependent
person clause) encompasses any relative who is a resident of the
named insureds household. Thus, all natural or adopted children
of the named insured are included regardless of their dependent
status. Adult dependent persons not related to the named insured
are included within the term, but that is a category that is much
less common than the foster parent/child relationship.
Case law from other jurisdictions supports our
conclusion. Allstate Insurance Co. v. Thom, from the Court of
Appeals of Michigan, is squarely on point.7 In Thom an insurance
company sought a declaratory judgment that it did not have an
obligation to defend or indemnify a foster parent whose alleged
negligence caused the injury of a foster child who had been in
the foster parents custody for some eleven months.8 The Michigan
Court of Appeals held that the foster child was a dependent
person in the foster parents care and thus an insured under the
household exclusion of the foster parents homeowners policy:
On de novo review, we agree with the
lower court that [the child] met this
definition, even though [the childs]
placement with the [foster parents] was
temporary and the placement agency . . . had
ultimate responsibility and control over [the
childs] care and funded his support.[9]
Other courts have also found foster children to be
within the household exclusion of the homeowners policies of
their foster parents.10 But there is a difference between the
homeowners policy in this case and the homeowners policies in
most other cases. Whereas the present policy speaks of any
dependent person in [the insureds] care, the other policies
commonly refer to any person under twenty-one in the care of the
insured.11 It appears that by using the present language Allstate
sought to broaden the insured persons category to include
dependent adults. Since virtually all non-relative minors in the
care of an insured are dependents, a convenient way to accomplish
this purpose was to describe the newly broadened category in
terms of dependency. Therefore, despite the language difference,
we believe that these cases are persuasive precedents as to the
intended operation of the household exclusion with respect to
foster children.
The remaining question is whether A.J. and D.D. were
residents of the Falgousts household. The homeowners policy does
not define the term resident. A.J. and D.D. argue that the term
resident is ambiguous and requires further factual inquiry. We
disagree.
In determining who qualifies as a resident of a
household under insurance policies, we have declined to formulate
a fixed rule but instead look closely at the facts of each case.12
We have stated that a child may be a resident of the household of
one parent for coverage purposes even when the other parent has
custody.13 In Dugan v. Atlanta Casualty Co., we noted that
residents differs from visitors [or] guests in that the former
term requires something more than a temporary habitation.14 In
this case, A.J. and D.D. lived with the Falgousts for periods of
fifteen and seven months respectively before S.M.s death.15 There
is no evidence that there were definite plans for either child to
leave the Falgousts care at that time.16 Without demarcating the
precise time boundary separating residents from temporary guests,
we think that it is clear that A.J. and D.D. were residents of
the Falgousts household. We are supported in this view by
numerous decisions of courts in other jurisdictions holding that
foster children are residents for the purpose of similar
homeowners policies where the foster children had been with their
foster parents for more than a few months and had no definite
date of departure.17
We conclude that the household exclusion excludes the
claims of D.D. and A.J. from coverage under the Falgousts
homeowners policy. Allstate thus has no further obligation to
defend the Falgousts against those claims.18
B. The Court Did Not Err in Refusing To Adjudicate the
States Duty To Defend.
Allstate also challenges the superior courts ruling
that (1) declined to adjudicate whether the State had an
obligation to defend the Falgousts against the claims of D.D. and
A.J.; and (2) declined to rule whether Allstate had a claim
against the State for its costs incurred in the defense of those
claims. It is our view that the superior court did not err
concerning these points. Given the superior courts ruling that
Allstates policy provided coverage to the Falgousts, there was
substantial uncertainty as to how the defense responsibility
between Allstate and the State should be shared. The answer to
this question was complex because of the uncertainty as to which
of the claims might be partially excluded by the intentional and
willful misconduct exclusion applicable to the State19 and the
similar exclusion relating to intentional or criminal acts or
omissions in the Allstate policy. Without knowing which of the
claims of D.D. and A.J. were excluded under these provisions, the
court would face great difficulty in attempting to sort out the
respective defense responsibilities of Allstate and the State.
Under todays decision the uncertainty with respect to
Allstates obligations is ended. Nonetheless, there is little to
recommend remanding this case to the superior court for a
declaration concerning the States duty to defend or for
adjudication of any monetary claim that Allstate may have against
the State. Declaratory judgments are primarily useful because
they provide parties with legal guidance regarding prospective
conduct.20 As a result of our decision on the household exclusion
issue, Allstates concerns with respect to whether it should
continue to conduct its defense of the Falgousts and, if so,
whether it should seek State participation in their defense are
put to rest. If Allstate has a claim against the State, it has
now fully taken shape, and Allstate can decide whether or not to
pursue it. Allstate may do so either as a cross-claim in the
separate tort action brought by D.D. and A.J., as suggested by
the superior court,21 or in an independent action. Employing a
declaratory judgment proceeding is no longer either necessary or
appropriate.
IV. CONCLUSION
For the above reasons, the judgment in this case is
reversed with respect to the applicability of the household
exclusion and affirmed with respect to the superior courts
refusal to adjudicate questions of the States defense
responsibility. This case is therefore REVERSED IN PART,
AFFIRMED IN PART, and REMANDED for entry of judgment in
accordance with this opinion.
_______________________________
1 Allstate Ins. Co. v. Teel, 100 P.3d 2, 6 (Alaska 2004)
([A]lthough we will not ignore or rewrite provisions in an
insurance contract, even unambiguous language in an insurance
contract will be interpreted to comport with the reasonable
expectations of a layperson.); C.P. ex rel. M.L. v. Allstate Ins.
Co., 996 P.2d 1216, 1222 (Alaska 2000) ([B]ecause an insurance
policy is a contract of adhesion, we construe it to give effect
to the insureds reasonable expectations.).
2 Morgan v. Fortis Benefits Ins. Co., 107 P.3d 267, 270
(Alaska 2005); State Farm Mut. Auto. Ins. Co. v. Lawrence, 26
P.3d 1074, 1080 (Alaska 2001); C.P., 996 P.2d at 1222.
3 See, e.g., Krossa v. All Alaskan Seafoods, Inc., 37
P.3d 411, 416 (Alaska 2001) (A contract is ambiguous only if,
taken as a whole, it is reasonably subject to differing
interpretations. (quoting Williams v. Crawford, 982 P.2d 250, 253
(Alaska 1999))); 11 Samuel Williston & Richard A. Lord, Williston
on Contracts 30:4 (4th ed. 1999) (noting that a contract is
ambiguous if the written instrument remains reasonably
susceptible to at least two reasonable but conflicting meanings).
4 See C.P., 996 P.2d at 1223 n.41 (using the ordinary
usage of the term accident to interpret an insurance policy).
5 Websters Third New International Dictionary 604 (1961)
(emphasis omitted).
6 Blacks Law Dictionary 470 (rev. 8th ed. 2004).
7 No. 203676, 2001 WL 1523847 (Mich. App. May 18, 2001).
8 Id. at * 1.
9 Id.
10 Merchs. Mut. Ins. Co. v. Artis, 907 F. Supp. 886, 890
(E.D. Pa. 1995); Country Mut. Ins. Co. v. Peoples Bank, 675
N.E.2d 1031, 1033-34 (Ill. App. 1997); Prudential Prop. & Cas.
Ins. Co. v. LaMarr, 635 N.E.2d 63, 65 (Ohio App. 1993); State
Farm Fire & Cas. Co. v. Breazell, 478 S.E.2d 831, 833 (S.C.
1996); Easter ex rel. M.D.E. v. Providence Lloyds Ins. Co., 17
S.W.3d 788, 792 (Tex. App. 2000).
11 Merchs. Mut. Ins. Co., 907 F. Supp. at 888; Country
Mut. Ins. Co., 675 N.E.2d at 1033-34; Prudential Prop. & Cas.
Ins. Co., 635 N.E.2d at 64; State Farm Fire & Cas. Co., 478
S.E.2d at 832; Easter, 17 S.W.3d at 790; see also 9A Steven Plitt
et al., Couch on Insurance 3D 128:2 (2005) (stating that it is
common for homeowners policies to expressly exclude from
liability protection other persons under the age of 21 and in the
care of the insured or their resident relatives); 7A John Alan
Appleman, Insurance Law and Practice 4501.04 (Walter F. Berdal
ed. 1979) (The definition of the insured in homeowners policy
includes the named insured stated in the declaration of the
policy and includes if residents of the named insureds household,
his spouse, the relatives of either, and any other person under
the age of twenty-one in the care of an insured. ).
12 Dugan v. Atlanta Cas. Cos., 113 P.3d 652, 657 (Alaska
2005).
13 Simmons v. Ins. Co. of N. Am., 17 P.3d 56, 64 (Alaska
2001).
14 Dugan, 113 P.3d at 658.
15 The record also suggests that each child had lived with
the Falgousts before the immediate period of time leading to
S.M.s death such that they had each spent a total of about twenty-
two months in the Falgousts care.
16 Even if such plans existed, we are not convinced that a
set date of departure would necessarily destroy residence status.
Otherwise, a scheduled future move would leave children with no
residence in the eyes of the law, regardless of how long they
might have lived in their current placement.
17 See Merchs. Mut. Ins. Co., 907 F. Supp. at 890 (holding
that foster children who lived with their foster parents for at
least nine months and had no set date for departure were
residents of their foster parents household under their
homeowners policy); Country Mut. Ins. Co., 675 N.E.2d at 1033-34
(holding that a foster child who lived with her foster parents
for twelve months and had no set date for departure was a
resident of her foster parents household under their homeowners
policy); Prudential Prop. & Cas. Ins. Co., 635 N.E.2d at 65
(holding that a foster child who lived with her foster parents
for more than six months and had no set date for departure was a
resident of her foster parents household under their homeowners
policy); State Farm Fire & Cas. Co., 478 S.E.2d at 832 (holding
that a foster child who had lived with his foster parents for
twenty months and had no set date for departure was a resident of
his foster parents household under their homeowners policy);
Easter, 17 S.W.3d at 790 (holding that a foster child who lived
with her foster parents for five months was a resident of her
foster parents household under their homeowners policy). But see
Risk Mgmt. Div., Gen. Servs. Dept of State ex rel. Apodaca v.
Farmers Ins. Co. of Ariz., 75 P.3d 404, 410 (N.M. App. 2003)
(remanding for the lower court to consider 1) the intent of the
parties to the insurance contract and 2) the nature of the childs
stay in the foster home where the foster child in question had
lived with his foster parents for more than six months).
18 See Merchs. Mut. Ins. Co., 907 F. Supp. at 890 (holding
that an insurance company had no duty to defend or indemnify
where a policys household exclusion applied); Country Mut. Ins.
Co., 675 N.E.2d at 1031-32 (recognizing that if a policys
household exclusion applies, the insurance company has no duty to
defend or indemnify); State Farm Fire & Cas. Co., 478 S.E.2d at
832 (affirming the lower courts decision that an insurance
company did not have a duty to defend or indemnify because the
household exclusion applied).
19 See 7 AAC 53.100(b).
20 See Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler
Corp., 129 P.3d 905, 912 (Alaska 2006) (noting that two factors
favoring the issue of a declaratory judgment are (1) when the
judgment will serve a useful purpose in clarifying and settling
the legal relations in issue, and (2) when it will terminate and
afford relief from the uncertainty, insecurity, and controversy
giving rise to the proceeding (quoting Broadview Chem. Corp. v.
Loctite Corp., 417 F.2d 998, 1001 (2d Cir. 1969))); 10B Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure 2751 (3d ed. 1998) ([The declaratory judgment
remedy] gives a means by which rights and obligations may be
adjudicated in cases involving an actual controversy that has not
reached the stage at which either party may seek a coercive
remedy and in cases in which a[nother] party who could sue for
coercive relief has not yet done so.); 22A Am. Jur. 2d
Declaratory Judgments 1 (2003) (A declaratory judgment is an
action in which the court declares the rights, duties, status, or
other legal relations between the parties. Declaratory judgments
resolve uncertainties and controversies before obligations are
repudiated, rights are invaded or wrongs are committed.).
21 If permitted by the judge in the tort case.
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