King v. Fierro Trucking, Inc.
United States District Court,N.D. Indiana,Hammond Division.
FIERRO TRUCKING, INC., and Tobias Ledezma, Defendants.
JOSEPH S. VAN BOKKELEN, District Judge.
This matter is before the Court on the Motion of Defendant Fierro Trucking, Inc, for summary judgment on Counts II and III of Plaintiffs’ First Amended Complaint (DE 38) and its motion for oral argument on the summary judgment motion (DE 40). The motion for oral argument is DENIED.For the reasons set forth below, the motion for partial summary judgment is GRANTED.
On September 20, 2004, Plaintiff Martin King and Defendant Tobias Ledezma were both driving tractor trailers in the right hand east bound lane of Interstate 80/94 in a construction zone near the city of Gary in Lake County, Indiana. Plaintiff Martin King’s truck was in front of the truck driven by Defendant Ledezma. Plaintiff Freeda King was a passenger in the truck driven by her husband. The front end of Defendant Ledezma’s truck struck the rear of the Kings’ trailer.
On June 5, 2006, Plaintiffs filed this action against Fierro Trucking, Inc., and Ledezma. Plaintiffs’ First Amended Complaint, filed on March 6, 2007, is in three counts. Count I is based on negligence on the part of Defendant Ledezma and the doctrine of respondeat superior against Defendant Fierro Trucking. Count II alleges negligent entrustment, supervision, and hiring on the part of Fierro Trucking; Count III claims wilful and wanton entrustment, supervision, and hiring. Federal jurisdiction is based on diversity of citizenship: Plaintiffs are citizens of Tennessee; Defendant Fierro was incorporated and had its principal place of business in Illinois; Defendant Ledezma is a resident of Illinois, but appears to be a citizen of Mexico without permanent resident alien status in the United States.See Ledezma Deposition at 10 and 12. Plaintiffs have alleged that the amount in controversy exceeds $75,000, the jurisdictional minimum amount under 28 U.S.C. § 1332.
Title 28 U.S.C. § 1332(a) confers on federal districts courts jurisdiction of civil actions between citizens of a State and citizens of a foreign state as well as actions between citizens of different States.
A motion for summary judgment must be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”Fed.R.Civ.P. 56(c).Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party supports its motion for summary judgment with affidavits or other materials, the burden of showing that an issue of material fact exists thereby shifts to the non-moving party. Kaszuk v. Bakery & Confectionery Union & Indus. Int’l Pension Fund, 791 F.2d 548, 558 (7th Cir.1986).“Whether a fact is material depends on the substantive law underlying a particular claim and “only disputes over facts that might the outcome of the suit under governing law will properly preclude the entry of summary judgment.’ “ Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir.1988), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Rule 56(e) specifies that once a properly supported motion for summary judgment is made, “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts to establish that there is a genuine issue for trial.”Fed.R.Civ.P. 56(e).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party.NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir.1995). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249-50 (1986).
Jose Fierro, as president and owner of Defendant Fierro Trucking, Inc., hired Defendant Ledezma as a truck driver for his company.Fierro Trucking consisted of Jose Fierro and two drivers. Jose Fierro had five months’ truck driving experience at Midwest Fence Company and five months’ experience driving a truck for his brother’s company when he started Fierro Trucking.
I n its Statement of Material Facts, Defendant Fierro Trucking cites to the depositions of Jose Fierro and Defendant Ledezma. However, the Court is unable to locate their depositions among the exhibits filed with Fierro Trucking’s Motion. Plaintiffs have filed excerpts from both depositions; however, the pages cited by Defendant Fierro Trucking are not included in many instances, so that the Court is unable to verify Fierro’s citations. Nonetheless, to the extent that Plaintiffs have not designated evidence showing that matters set forth in Fierro Trucking’s Statement of Material Facts are disputed, the Court will accept them as true.
Fierro Trucking did not have written rules and procedures or require a written application from its drivers. Jose Fierro did not contact references or perform a background check on Defendant Ledezma before he hired Ledezma. Jose Fierro did not periodically check the status of his drivers’ licenses. The company had no written policy for drug testing of employees generally or following an accident. Defendant Ledezma took a drug test before beginning work for Fierro Trucking, but does not recall any other drug testing during his employment there. The Company did not require him to take a drug test following the accident on September 20, 2004. No vehicle maintenance records were kept for the truck involved in the accident. The Company did not give its drivers copies of the Federal Motor Carrier Safety Rules and Regulations, or any other written manuals or directives.
Before Defendant Ledezma started working for Defendant Fierro Trucking, Ledezma gave Jose Fierro written proof of the Illinois Department of Transportation’s inspection of his tractor trailer, a copy of his commercial driver’s license, and his medical card. Jose Fierro questioned Ledezma about his driving record and his medical status as part of the application process. Defendant Ledezma’s on the job training with Fierro Trucking consisted of two weeks of driving with Jose Fierro during which Jose Fierro confirmed that Ledezma was skilled and reliable. Jose Fierro held weekly safety meetings, usually on Fridays, which Defendant Ledezma attended, in which he discussed matters such as vehicle and equipment maintenance and rules of the road.
Before his employment with Defendant Fierro Trucking, Defendant Ledezma drove a truck for Midwest Fence for four to five months. Ledezma had worked for Defendant Fierro Trucking for almost a year when the September 20, 2004, collision occurred. The only known blemishes on Defendant Ledezma’s driving record before the collision were two tickets for logbook violations. Ledezma had not consumed any alcoholic beverages, drugs, tranquilizers, sedatives, sleeping pills, medicines, narcotics, or other pills in the 24 hours before the collision. The morning of September 20, he had started work at around 5:00 or 6:00 am after a full night’s sleep. Before starting out that day Ledezma performed a pre-trip inspection of his vehicle, consisting of a check of the brakes, lights, tires and mirrors on both the tractor and the trailer, which revealed no problems.
Defendant Ledezma worked for no other employer during the time he worked for Defendant Fierro Trucking. He was paid for a completed load and not by mileage or weight. Defendant Fierro Trucking received a percentage of each load.
It is not clear to the Court who owned the truck Defendant Ledezma drove. As Plaintiffs point out in their Designation of Material Facts, Defendants admitted in both their Answer and Amended Answer that Defendant Fierro Trucking owned the vehicle. Nonetheless, Defendant Fierro Trucking claims that Defendant Ledezma owned the truck and leased it to Fierro Trucking, but that no written lease exists. Fierro Trucking paid no rent for the vehicle. The ICC number on the tractor trailer and the DOT number were in the name of “Fierro.” (Pls.’ Statement of Material Facts, ¶ 15.) It is not clear whether “Fierro” refers to the trucking company or the individual.
According to Defendant Ledezma, immediately before the collision he looked over to the right shoulder. As his gaze returned to the traffic ahead, the front end of his tractor trailer struck the rear of Plaintiffs’ trailer. According to Plaintiff Martin King, a tractor trailer driver is supposed to maintain a distance of fifty feet from the vehicle in front of him.
Defendant Fierro Trucking argues that the foregoing facts are insufficient to state claims of negligent or wilful and wanton entrustment, supervision, and hiring under Indiana law. Fierro Trucking maintains that Plaintiffs do not make out a case for negligent entrustment in light of the fact that Fierro Trucking had no right to control the vehicle because the Defendant Ledezma owned the truck involved in the accident and Ledezma was an independent contractor. Defendant Fierro Trucking argues further that Plaintiffs have not shown that Fierro Trucking entrusted the vehicle to Ledezma with knowledge that he was incompetent to drive. Regarding Plaintiffs’ allegations of negligent hiring and supervision, Defendant Fierro Trucking asserts that Indiana law assigns liability for the negligent hiring of an independent contractor only in specific circumstances not present in this case.
Plaintiffs maintain that Fierro Trucking’s failure to comply with a number of statutory and regulatory provisions constitutes negligent entrustment, hiring, and supervision per se, and that jury questions are presented as to whether the violations were a proximate cause of the collision and whether Defendant Ledezma was a Fierro Trucking employee rather than an independent contractor. Fierro Trucking counters that summary judgment is appropriate because Plaintiffs have failed to raise a genuine issue of material fact as to whether the claimed statutory and regulatory violations were the proximate cause of the Plaintiffs’ injuries.
The Court’s resolution of other issues makes determination of Ledezma’s status as a common law employee or and independent contractor vis-a-vis Fierro Trucking unnecessary.
Defendant Fierro Trucking concedes that it is vicariously liable without fault under Count I of the Complaint if Defendant Ledezma is determined to be liable, on the basis of its oral lease of Ledezma’s truck from him, FMCS regulations, and the fact that its placards were on the vehicle.
Under Indiana law, an unexcused violation of a statutory duty is negligence per se. Inland Steel v. Pequignot, 608 N.E.2d 1378, 1383 (Ind.App., 1993). However, negligence per se does not mean that there is liability per se. The violation of a statutory duty is not actionable negligence unless it is also a proximate cause of the plaintiff’s injury such that the injury “would not have occurred if the requirements of the statute had been observed.”Ray v. Goldsmith, 400 N.E.2d 176, 179 (Ind.App.1980). Thus, assuming that Defendant Fierro Trucking violated statutory and regulatory duties without excuse, the trucking company is still entitled to summary judgement if there is no genuine issue of material fact that the violations were a proximate cause of Plaintiffs’ damages. See Munsell v. Hambright, 776 N.E.2d 1272, 1279 (Ind.App.2002). A party’s act or omission is the proximate cause of an injury if the injury is the natural and probable consequence of the act or omission and should have been reasonably foreseen and anticipated in light of the circumstances. Id. at 1280.
The Federal Motor Carrier Safety Regulations (“FMCSR”) have been incorporated by reference into the Indiana Code at I.C. 8-2.1-24-18(a).
Plaintiffs’ brief is by no means clear as to the identity of the specific statutory and regulatory violations they maintain proximately caused the September 20 collision. In their brief, at page 7, Plaintiffs state: “Fierro Trucking, Inc., failed to comply with even the most basic fundamental statutory requirements of the FMCSR when it hired driver Ledezma. (Plaintiffs’ Statement of Material Facts # 7 [no written rules and procedures, no written application], 8 [failed to contact references or perform a background check, or ask previous employers about Ledezma’s job performance, or make periodic checks into the status of employees’ CDL licenses], 9 [no written policy for drug testing; Ledezma took a drug test before beginning work for Fierro Trucking, but does not recall other tests], 10 [no written policy for employees involved in a crash], 14 [no written lease of the truck owned by Ledezma; no rent paid for the vehicle], 17 [no drug test required of Ledezma after the September 20, 2004 collision], 18 [Ledezma was a resident alien with an expired work permit who speaks and writes very little English], 19 [Ledezma received his CDL license in Chicago in May, 2003. He was not asked to show proof of a valid work visa when he obtained his CDL], 20 [before driving for Fierro, Ledezma had driven a truck for Midewest Fence for four to five months. Ledezma worked at Fierro Trucking for almost a year before the September 20, 2004 collision] ).” Plaintiffs for the most part have not identified which, if any, regulations Defendant Fierro Trucking violated by each of the specified acts and omissions they complain of.
It is clear that Plaintiffs charge Defendant Fierrro Trucking with failing to require Defendant Ledezma to complete a written application form containing the information required by 49 C.F.R. § 391.21: the company’s name and address; the applicant’s name, address, date of birth, and social security number; his residence during the three years preceding the application; the issuing State, number, and expiration date of the applicant’s commercial motor vehicle drivers license; the nature and extent of the applicant’s experience in the operation of motor vehicles, including the types of equipment the applicant has operated; a list of all motor vehicle accidents in which the applicant was involved during the preceding three years; a list of all the applicant’s convictions for violations of motor vehicle laws during the previous three years; information on any license or permit denial, revocation, or suspension; a list of the applicant’s employers during the preceding three years, including employment dates and the reason for leaving that employer. Significantly, however, Plaintiffs do not draw the Court’s attention to any evidence in the record that a written application would have afforded evidence of Ledezma’s inability to safely operate his truck.
The Plaintiffs also claim, though not so clearly, that Defendant Fierro Trucking did not conduct all the investigations and inquiries required by 49 C.F.R. § 391.23 before hiring Defendant Ledezma.Plaintiffs also refer to the fact that 49 C.F.R. § 391.11(a) prohibits a motor carrier from permitting a person to drive a commercial motor vehicle unless that person is qualified to drive the vehicle under the standards of § 391.11(b) but Plaintiffs do not show that Ledezma failed to meet any of the requirements of that section, with the exception of mentioning Ledezma’s limited ability to speak and write English.
Title 49 C.F.R. § 391.23 requires motor carriers to review their drivers’ driving record and safety performance history and to make inquiries to previous employers concerning previous accidents as well as alcohol and substance testing violations and to verify employment.
Title 49 C.F.R. § 391.11(b)(2) requires the driver of a commercial motor vehicle to be able to speak and read English well enough to allow him to converse with the general public, to understand highway traffic signs and signals, to respond to official inquiries and to make reports and keep records. Other qualifications of § 391.11 include being at least 21 years old; possessing the ability “by reason of experience, training, or both [to] safely operate the type of commercial motor vehicle he/she drives;” being physically qualified as defined elsewhere in the regulations; holding a currently valid commercial motor vehicle operator’s licence; having furnished his employer with the list of violations or the certificate required by § 391.15; not being disqualified under the rules in § 391.15; having been issued a certificate of driver’s road test in accordance with § 391.3 1, or having presented an operator’s license or a certificate of road test which the motor carrier accepts as equivalent to a road test.
Defendant Fierro Trucking concedes that no written application form was furnished to or completed by Defendant Ledezma and that its pre-employment investigation did not include contacting previous employers. However, Plaintiffs fail to point to any evidence in the record which would suggest that a written application from Defendant Ledezma or a more thorough pre-employment investigation would have disclosed information calling into question Defendant Ledezma’s ability to safely operate a tractor trailer or contributed to the collision in any other way.
Assuming that Defendant Ledezma’s English is deficient by the standards of 49 C.F.R. § 391.11, once again, the Court has not been made aware of any evidence or reasonable inferences which would suggest his lack of proficiency in English in any way caused or contributed to the collision. If the Plaintiffs could demonstrate the existence of some evidence from which to infer that a formal written application or inquiries to previous employers would have revealed information impugning Defendant Ledezma’s driving ability, or that Defendant Ledezma’s lack of fluency in English somehow contributed to the collision, a jury question would be presented.
For example, in Indian Trucking v. Harber, 752 N.E.2d 168 (Ind.App.2001), cited by Defendant Fierro Trucking for the proposition that violation of FMCS regulations is negligence per se, there was evidence that the defendant truck driver did not feel qualified to adjust the brakes on his truck, that the brakes were “at the outer limits of adjustment” and that faulty brake adjustment contributed to the accident. Id. at 173.
In the absence of evidence tending to establish a connection between Defendant Fierro’s faulty pre-employment screening procedures or Defendant Ledezma’s lack of English and Plaintiffs’ injury, no genuine issue is presented for trial with respect to Defendant Fierro Trucking’s negligent or wilful and wanton entrustment, supervision and hiring. Accordingly, Defendant Fierro Trucking’s motion for summary judgment as to Count II of Plaintiffs’ First Amended Complaint is granted.
It is unclear whether Count III of Plaintiffs’ First Amended Complaint rests on any foundation other than statutory and regulatory violations. However, Plaintiffs do refer to the fact that Jose Fierro hired Defendant Ledezma with perhaps five months’ truck driving experience to drive a truck that when fully loaded weighed 68,000 to 69,000 pounds and that Jose Fierro himself had a similar lack of experience as a truck driver when he hired Ledezma and conducted his road test. The Plaintiffs do not maintain that these circumstances constitute any sort of statutory or regulatory violation.
Wilful and wanton misconduct consists of the conscious and intentional performance of a wrongful act or the omission of a duty with reckless indifference to the consequences, under circumstances which show that the alleged miscreant has knowledge of existing conditions and that injury would probably result. Brown v. Saucerman, 145 N.E.2d 898, 899 (Ind.1958). In light of this standard, the Court finds, as a matter of law, that Defendant Fierro Trucking’s alleged dereliction in hiring a driver with five months’ experience to drive a big truck, without knowledge of or the existence of any other circumstances which would suggest that Ledezma was not a competent driver, does not constitute wilful and wanton misconduct. Accordingly, Count III of Plaintiffs’ Complaint is dismissed.
For the foregoing reasons, Defendant Fierro Trucking’s Motion for Partial Summary Judgment is GRANTED.Counts II and III of Plaintiffs’ Complaint are hereby DISMISSED.Defendant Fierro Trucking’s motion for oral argument is DENIED.
Moper Transportation v, Norbet Trucking Corp.
NORBET TRUCKING CORP. and The Insurance Company of the State of Pennsylvania, XYZ Corp. (said name being fictitious and unknown), Defendants-Appellants.
Defendants, Norbet Trucking Corporation and the Insurance Company of the State of Pennsylvania (ICSOP), appeal from a final judgment based on an order of October 4, 2006, and orders of June 20, 2006, entered in favor of plaintiffs, Great American Assurance Company, Moper Transportation Inc. and Manuel Flores, declaring that ICSOP must provide coverage in the case of Colon v. Moper, and requiring reimbursement to Great American by ICSOP for counsel fees and costs in that matter and this declaratory judgment action. The court had ruled by order of June 20, 2006, that Flores, Moper’s sole shareholder and president, was using “the subject-matter tractor to return home after leaving Norbet Trucking’s facility after completing his dispatch duties … in the course and scope of the commercial business of Norbet Trucking as that term is defined in the respective policies and applicable case law,” that “the non-trucking [or business use] exclusion contained in the Great American non-trucking liability policy is applicable” so that Great American did not provide coverage for Flores’ accident with David Colon in January 2004, and that ICSOP “must provide primary coverage” for injuries and damages resulting from the accident.
Moper had entered into a Transportation Service Agreement (TSA) with Norbet, and ICSOP issued a commercial trucker’s liability policy to Norbet while Great American issued a “non-trucking liability” policy to Moper. Due to the weather, Flores missed his normal ride home from work, and was driving the tractor from its New Jersey garage to his New York home when the accident occurred on the West Shore Expressway on Staten Island, New York.
Defendants argue New York law should apply, Great American’s “business use exclusion” is invalid thereunder, and, in any event, the tractor was not being used for business purposes. Thus, defendants assert that Great American provides coverage. They further contend that Great American, as an insurer, cannot collect counsel fees under Rule 4:42-9(a)(6) even if we affirm the judgment as to coverage, but that if a carrier can so collect, ICSOP is entitled to its fees and costs if we reverse the coverage determination. We affirm the judgment.
As already stated, this declaratory judgment stems from a motor vehicle accident that occurred on January 27, 2004, on the West Shore Expressway in Staten Island when vehicles driven by Flores and David Colon were involved in an accident. The vehicle driven by Flores was a 1998 Kenilworth tractor (“the tractor”) registered in New Jersey. Colon was a resident of New York. He was driving a car registered in New York and owned by Kate Agugliaro, a resident of New York. Flores was also a resident of New York.
The tractor driven by Flores was owned by Moper, a New Jersey corporation which has its principal place of business in Jersey City. Flores is the sole shareholder of Moper. Moper owned only one tractor and Flores was the sole driver.
It is undisputed that Norbet’s principal place of business is South Plainfield and Moper is in Jersey City.
Prior to the date of the accident Moper leased the tractor to Norbet pursuant to the TSA dated December 1, 2003. Pursuant to their agreement, Moper performed “transportation services” for Norbet as a “contractor” while using its tractor. Norbet is a New Jersey trucking company that transports goods in interstate commerce.
“A bobtail is the popular term for a tractor (cab) without an attached trailer. Since a trucker who is ‘bobtailing’ is generally not using the vehicle for trucking purposes, non-trucking-use insurance is often called bobtail insurance.” Royal Indem. Co. v. Providence Wash. Ins. Co., 92 N.Y.2d 653, 684 N.Y.S.2d 470, 707 N.E.2d 425, 426 n. 1 (1998).
The carriers are not parties to the TSA agreement and plaintiffs do not argue that this provision by itself requires that New Jersey law must be utilized to govern the coverage dispute before us.
Sometime between 1:00 and 2:00 a.m. on the day of the accident, Flores arrived at the Norbet Terminal where he turned his “tractor on” and attached the “flatbed” assigned by Norbet’s dispatcher to his tractor. Cargo was loaded, and Flores proceeded to make several interstate deliveries. He returned to the Norbet Terminal around 8:00 p.m.
Normally Flores would have received a ride home from a co-worker, but his co-worker was unable to give him a ride on that day because he had left due to the heavy snowfall. As a result, Flores drove the tractor home instead. On the way home, at approximately 10:15 p.m., he was traveling on the West Shore Expressway when he saw the Colon car, a Toyota, “sliding” and “spinning or going around.” According to Flores, the car driven by Colon slid backwards into his rear axle, causing the accident. Flores testified that no damage was caused to his trailer, but he observed damage to the bumper and trunk of Colon’s car.
Colon filed suit against Flores, Moper and Norbet in the Supreme Court of New York. Great American initially declined to defend or indemnify, and disclaimed any responsibility to defend Moper and Flores under its non-trucking liability policy “because of the trucking use of the vehicle at the time of the loss.” Specifically, Great American concluded that the accident occurred while Flores was “under dispatch for Norbet Trucking Corporation,” and therefore the accident arose out of a “trucking use” not covered by the policy. Great American took the position that because Flores was operating the tractor within the scope of Norbet’s business, ICSOP was “obligated to provide defense and indemnification to [Moper and Flores].” ICSOP also declined to defend Flores and Moper because Flores “was not working for [its] insured at the time of [the] accident.” ICSOP took the position that Great American was required to defend Moper and Flores under the “non-trucking policy” issued to Moper.
One. Both lessor/operator (Moper Transportation/Flores) and lessee/motor carrier (Norbet Trucking) are incorporated in and have their principal place of business in New Jersey.
Two. The nontrucking policy with its business exclusion provision issued by Great American to lessor/operator Moper/Flores was written in New Jersey in compliance with New Jersey statutory, regulatory, and other legal requirements.
Three. Likewise, the trucking policy issued by [ICSOP] was written in New Jersey in compliance with New Jersey’s statutory, regulatory, and other legal requirements.
Four. At the time of the accident on January 27th, 2004, both policies were in effect.
Five. New Jersey has a significant interest in the enforcement of its insurance laws and in the interpretation of New Jersey insurance policies in accordance with New Jersey law.
Six. New York’s only interest in this matter derives from the fact that the injured party, Colon, is a New York resident and the accident occurred in New York. New York’s only interest, therefore, is insuring, if possible, that the quantum of insurance coverage available to Colon would be comparable to the coverage required if the policy had been written under New York law.
Seven. It cannot be argued that New York can legitimately claim that New Jersey’s coverage requirements must be the same as New York’s coverage requirements. Indeed, ICSOP [ ] does not so argue. However, ICSOP is contending that New York has a significant interest in the particular language and/or phraseology used in New Jersey policies.
ICSOP is contending that the nontrucking policy issued by Great American should be deemed void as against public policy simply because it failed to contain particular language and/or phraseology which New York requires in policies written in New York. This Court rejects [ICSOP’s] contention. No legal authority has been offered to support it and it does not square with practical realties.
The judge further concluded that Flores was “returning home” from Norbet’s terminal “after a day of delivering cargo for Norbet,”“that the use was occasioned by a snow emergency” and that Norbet did not object to such use. Accordingly, the judge concluded that “the tractor was being used in furtherance of Norbet’s trucking business interest,” and its carrier was obligated to cover the accident.
As summarily noted above, ICSOP argues that “pursuant to relevant New York statutes governing mandatory insurance on motor vehicles by insureds doing business in New York,” the trial court erred in failing to apply New York law, which ICSOP maintains would have required Great American to provide coverage to Flores and Moper “by reason of New York deemer statute.” It argues that “traditional standards of choice of law do not apply” because, as a carrier, “Great American had agreed to be bound by New York financial responsibility laws when it undertook to do business in New York.” ICSOP further contends that, as a result of the “deemer statute,” that Great American policy must be “reformed” to void the “trucking” or “business use” exclusion with respect to the Colon accident. ICSOP independently contends that, even if the “deemer statute is not dispositive of the choice of law issue,”“New York has the most significant contacts with the issues” in this case, and therefore the business use exclusion under Great American’s policy covering the tractor is unenforceable.
Norbet is also an appellant, but we refer to ICSOP because it is the carrier.
Plaintiffs argue that New Jersey has a far greater interest in this case than New York, noting among other things that Moper and Norbet are both New Jersey corporations, the lease agreement was signed in New Jersey, and both insurance policies were written in New Jersey. According to plaintiffs the only connection this case has to New York is the fact that the accident occurred there and Colon is a resident of New York. Plaintiffs also argue that “[u]nder the choice of law doctrines of both New Jersey and New York, it is well settled that the law of the state where the insurance contract was formed is the law which governs an action involving the rights and duties to parties of that insurance contract.” Great American asserts that ICSOP’s interest in having New York law applied to this case lies in the fact that New York law does not honor business use exclusions like the one contained in Great American’s insurance policy with Moper. Plaintiffs further contend that the public policy of New York, and its “deemer” statute, will not be offended by applying New Jersey law, as Colon would be compensated under the ICSOP policy if it is found that Flores negligently operated his tractor, thereby causing the accident.
Choice-of-law determinations are made in accordance with the law of the forum state. New Jersey now applies a “governmental interest” test in a case like this, Fu v. Fu, 160 N.J. 108, 118, 733 A.2d 1133 (1999), and the “first prong” of that analysis requires a determination that an actual conflict exists between the laws of New York and New Jersey, and is to be decided “on an issue-by-issue basis,” Rowe v. Hoffman-LaRoche Inc., 189 N.J. 615, 621, 917 A.2d 767 (2007); Fu, supra, 160 N.J. at 117-18, 733 A.2d 1133.
Because both states have “deemer” statutes, and the issue of coverage may turn on resolution of the factual dispute as to whether the accident occurred during a “trucking” or “non-trucking” event, we invited the parties to file supplementary briefs addressing both New York and New Jersey law and whether there is an “actual conflict” as to the meaning of “business use,” and how any “factual dispute as to whether the Colon-Flores accident on Staten Island occurred incident to Norbet’s trucking business” is to be resolved. Stated differently, we are concerned if “an actual conflict” results only if the accident occurred during use in Norbet’s business but not otherwise.
See N.J.S.A. 17:28-1.4; N.Y. Ins. Law § 5107 (McKinney 2007); see also Craig & Pomeroy, New Jersey Auto Insurance Law (Gann 2008), § 3.1-3.5.
The defendants attempt to confuse the issue by arguing that New York’s McKinney’s Insurance Law § 5107 is analogous to New Jersey’s Deemer Statute, and therefore traditional standards for choice of law do not apply. The defendants argue that these deemer statutes have the effect of eliminating choice of law issues, in that they effectively “reform” out of state policies to conform to the state’s mandatory insurance requirements. However, the defendants point to no case or statute that so holds. In fact, it is clear that this is not the case. In New Jersey, case law has held that the stated legislative purpose of the so-called Deemer Statutes is to provide insurance (PIP coverage) for any New Jersey resident who is not required to maintain such coverage and “who is not otherwise eligible for such benefits.” Government Employees Ins. Co. v. Allstate Insurance Co., 358 N.J.Super. 555, 561, 818 A.2d 474 (App.Div.2003). Therefore it is clear that the Deemer Statutes apply to those instances where there is no available insurance coverage to an aggrieved party. Here, there is clearly ample insurance coverage available to Mr. Flores and Moper Transportation; the issue is not lack of coverage, but rather which policy shall provide coverage. The defendants’ attempt to utilize the Deemer Statute to, in effect, invalidate prior choice of law reasoning is baseless and such an argument should be given no credence here.
Moreover, New Jersey appears to permit the “business-use” exclusion used by Great American “so long as the truck is covered by an additional policy providing coverage for business use.” Connecticut Indemn. Co., supra, 392 N.J.Super. at 482, 921 A.2d 458.
Accordingly, because the record supports the trial court’s opinion that a business use was involved, see Planet Ins. Co. v. Anglo American Ins. Co., 312 N.J.Super. 233, 240-41, 711 A.2d 899 (App.Div.1998)-an issue we must decide under New Jersey law in the absence of an actual conflict relating to the determination of that issue-, we proceed to consider the issue presented on the basis of an actual conflict with respect to the validity or enforceability of the “non-trucking” or “business use” exclusion in the Great American policy. As to that subject, there is an actual conflict. We add, however, that we are cited to no authority suggesting that a choice-of-law analysis becomes irrelevant merely because the state in which the accident occurs has a “deemer” statute that would apply because the accident occurred in that state. Craig and Pomeroy suggest that the New Jersey “deemer” statute would trump any choice-of-law analysis with respect to coverage under a policy issued out-of-state on an out-state vehicle involved in an accident and litigation here. Craig & Pomeroy, New Jersey Automobile Insurance Law (Gann 2008), § 3.1-3.2. It may well be that New York law is similar, which would point to its governmental interest under a choice-of-law analysis and application of that principle if New York law applies.
“The second prong of the governmental-interest analysis requires the Court to determine which state has the most significant relationship to the occurrence and the parties,”Fu, supra, 160 N.J. at 119, 733 A.2d 1133,“or most significant connections with the issues raised or the parties and the transaction[,]”Lonza, Inc. v. The Hartford Acc. and Indem. Co., 359 N.J.Super. 333, 342, 820 A.2d 53 (App.Div.2003) (citing Veazey v. Doremus, 103 N.J. 244, 247-49, 510 A.2d 1187 (1986)); see also Rowe, supra, 189 N.J. at 621, 917 A.2d 767.
It is not disputed that both Moper and Norbet are New Jersey corporations with their principal places of business in New Jersey. It is also undisputed that the TSA was “formed and executed in New Jersey,” and the TSA specifically requires that any issue arising under it be decided under New Jersey law. In addition, the tractor driven by Flores during the accident was registered in New Jersey, and both policies were issued here to New Jersey entities.
However, the accident occurred in New York, and the injured plaintiff lived there, sustained his losses there, was treated there, and sought his recovery there. The other driver in the accident, Flores, also lived in New York, and he would be subject to enforcement there of any judgment against him not covered by insurance. Moreover, New York’s statutory law and public policy preclude enforcement of business use exclusions in “bobtail” or “non-trucking” policies. See Royal Indemn. Co., supra, 707 N.E.2d at 428 (finding that a business use exclusion in a non-trucking policy is “void as against public policy” and reading the policy “as if the exclusion did not exist”).
Fu dealt with a suit by the passenger of a car rented in New Jersey against the rental agency following “an automobile accident in New York involving only New Jersey residents.” Fu, supra, 160 N.J. at 113, 733 A.2d 1133. The Court held that New York’s vicarious law applied.
However, we conclude that our choice-of-law principles point to the law of New Jersey in this declaratory judgment action where the issue is which carrier provides coverage. The New York resident has settled the personal injury action and has been fully compensated. In any event, this is not a personal injury action in which he is a party. As a result, as between the carriers in this action dealing with loss allocation under policies issued to New Jersey insureds under a contract expressly governed by New Jersey law, we do not believe New York has the greater governmental interest. See, e.g., Fu, supra, 160 N.J. 108, 733 A.2d 1133;Erny v. Merola, 171 N.J. 86, 792 A.2d 1208 (2002); Dolan v. Sea Transfer Corp., 398 N.J.Super. 313, 942 A.2d 29 (App.Div.2008); Restatement of the Law (Second), Conflict of Laws 2d § 188.
Accordingly, we affirm the judgment of the Law Division and uphold the award of fees for the declaratory judgment against defendant ICSOP because it did not embody a first party claim, ICSOP declined to defend the Colon action against Great American’s insureds, and there is no dispute about the quantum of fees if sustainable under Rule 4:42-9(a)(6).0 This was not a direct action by an insured against its carrier but a declaratory judgment premised on ICSOP’s failure to defend a liability action commenced by a third party. See Tooker v. Hartford Accident & Indem. Co., 136 N.J.Super. 572, 347 A.2d 371 (App.Div.1975), certif. denied,70 N.J. 137, 358 A.2d 184 (1976) (“the rule applies to all successful claimants, including an excess or secondary carrier which successfully prosecutes a coverage action against the primary carrier when the latter has wrongfully refused to defend its assured”); see, generally, Shore Orthopaedic Group, LLC v. Equitable Life Assur. Soc’y of the United States, 397 N.J.Super. 614, 938 A.2d 962 (App.Div.2008).
0. ICSOP “concedes … that [it] was obligated to reimburse Great American for the costs of defense in the Colon action” if we affirm the judgment on coverage. However, it contends the Rule does not apply “to an insurance company which prevails after commencing a declaratory judgment action against its insured and establishes that coverage does not extend.” However, the declaratory judgment action obtained coverage for Moper and Flores in circumstances involving a disclaimer by ICSOP and Great American’s assertion that its exclusion was valid. Accordingly, we find no abuse of discretion in the award of counsel fees. See Messec v. USF & G Ins. Co., 369 N.J.Super. 61, 64, 848 A.2d 36 (App.Div.), certif. denied,181 N.J. 287, 854 A.2d 921 (2004).


Petitioners, husband and wife, were both convicted in a Federal District Court for stealing government property in violation of 18 U.S.C. § 641, and the wife was convicted also on a separate count for receiving and concealing part of the same property in violation of the same section. On the larceny conviction, the husband was sentenced to imprisonment for five years and the wife for ten years. In addition, the wife received a five-year concurrent sentence on the receiving count. The Court of Appeals sustained both convictions on the larceny count, but it reversed the wife's conviction on the receiving count. It set aside the wife's five-year sentence for receiving, but it let stand her ten-year sentence for larceny.
Held: the judgment as to the husband is affirmed, but the judgment as to the wife is set aside, and the cause is remanded to the District Court for a new trial. Pp. 365 U. S. 552-556.
(a) The wife could not validly be convicted under 18 U.S.C. § 641 both for stealing government property and for receiving and concealing the same property. Hein v. United States, 358 U. S. 415. Pp. 553-554.
(b) The trial judge erred in not charging that the jury could convict the wife of either larceny or receiving, but not of both. Pp. 365 U. S. 554-555.
(c) Since there is no way of knowing whether a properly instructed jury would have found the wife guilty of larceny or of receiving or of neither, the mere setting aside of the shorter concurrent sentence for receiving did not suffice to cure any prejudice resulting from the judge's failure to instruct the jury properly. Pp. 365 U. S. 555-556.
275 F.2d 716 affirmed in part and set aside in part.
The petitioners are husband and wife. They were both convicted in a Federal District Court for stealing several thousand dollars in currency from a commissary store at a United States Naval Base. The wife was convicted also on a separate count for receiving and concealing the stolen currency. [Footnote 1] Both petitioners were sentenced to prison on the larceny conviction, the husband for a term of five years and the wife for a ten-year term. In addition, the wife received a five-year concurrent sentence on the receiving count.
an acquittal on the receiving count in the husband's case, the trial judge overruled a similar motion on behalf of the wife. Counsel then clearly indicated his intention to request that the jury be instructed that it could not find the wife guilty of both stealing and receiving. [Footnote 3] The trial judge responded by pointing out that the Fourth Circuit had decided, in Aaronson v. United States, 175 F.2d 41, that it is possible that, as long as the person did not actually participate in the actual taking of the goods, that same person may be found guilty of receiving and concealing, and may also be found guilty as an accessory before the fact or as an aider and an abetter of the actual charge of theft. Faced with this controlling Fourth Circuit authority, counsel did not engage in the futile exercise of submitting a more formal request for such instructions.
and also for receiving the same goods."
"no differences between the two statutes or their legislative histories justifying divergent interpretations in respect to the issue before us."
the jury that a guilty verdict could be returned upon either count, but not both. It is urged that, since it is now impossible to say what verdict would have been returned by a jury so instructed, and thus impossible to know what sentence would have been imposed, a new trial is in order. This was the view of Chief Judge Sobeloff, dissenting in the Court of Appeals. 275 F.2d at 721.
We think that the point is well taken. In Heflin, we were not concerned with the correctness of jury instructions, since that case arose out of a collateral proceeding to correct an illegal sentence where the petitioner was asking only that the cumulative punishment imposed for receiving be set aside. In this case, by contrast, a direct review of the conviction brings here the entire record of the trial. We hold, based on what has been said as to the scope of the applicable statute, that the trial judge erred in not charging that the jury could convict of either larceny or receiving, but not of both.
that the trial judge would have imposed the maximum ten-year sentence on that count alone. But for a reviewing court to make those assumptions is to usurp the functions of both the jury and the sentencing judge.
We find no merit in the petitioners' argument as to the trial court's conduct with respect to cautionary instructions to the witnesses for the Government. Accordingly, the judgment as to Mike Milanovich is affirmed. For the reasons stated, the judgment as to Virginia Milanovich is set aside, and her case remanded to the District Court for proceedings consistent with this opinion.
"Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or"
"Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted --"
"[W]e feel, sir -- for the jury to be considering both receiving and stealing -- that both charges are inconsistent, and if the evidence is to be believed that these people are participants, then they cannot be guilty of receiving, and if they are guilty of receiving, they cannot be guilty of participating."
"Your Honor, we will ask the Court to instruct the jury that, inasmuch as they are inconsistent counts, that they can only come back, if they come back with a verdict of guilty, as to one or the other, but not both."
It is acknowledged here that the evidence was sufficient to support a jury finding that both petitioners aided and abetted the larceny, and thus were guilty as principals under 18 U.S.C. § 2. It is also conceded that the evidence was sufficient to support the wife's conviction for receiving and concealing the stolen property (a substantial amount of silver currency having been found in a suitcase in her home two weeks after the robbery).
This is a prosecution brought under 18 U.S.C. § 641, [Footnote 2/1] upon an indictment containing several counts. One charged the defendant Virginia Milanovich, petitioner herein, with the theft of government property; another charged her with receiving the stolen property with an intent to convert it to her own use. Both counts were allowed to go to the jury, which explicitly found the defendant guilty on each of the two counts.
This was the evidence on which the jury must have based their verdict against the defendant. She and her husband, as owners of an automobile, transported three others under an arrangement whereby the three were to break into a United States naval commissary building with a view to stealing government funds. Defendant and her husband were to remain outside for the return of their accomplices after the accomplishment of the theft. In fact, for one reason or another, husband and wife drove off without awaiting the return of their friends. Not finding the automobile where they had left it, the thieves buried the booty. No share of the stolen money ever touched the hand of petitioner or was in any sense received by her until seventeen days later when, after she had removed some of the booty from the base, it was soon after discovered by FBI agents during a legal search of the premises. Since she herself was not an active participant in the breaking in and thieving, she was amenable to § 641 because she, as an accessory, was legally deemed a principal under 18 U.S.C. § 2. [Footnote 2/2] On this basis, the trial judge submitted the case to the jury and the jury was enabled to find her guilty of the substantive offense of stealing government property, as well as to return a verdict of guilty on the receiving charge. The trial judge then sentenced the defendant on each of the counts. Because of the extensive criminal record of the defendant, he imposed a sentence of ten years on the thieving count and five years on the receiving count, the sentences to run concurrently.
The Court of Appeals, drawing on our decision in Heflin v. United States, 358 U. S. 415, deemed it necessary to set aside the sentence imposed on the receiving count. It read Heflin as holding that the crime of receiving was solely directed to those who were not convicted of stealing; the latter conviction was therefore invalidated. The Court, likewise relying on Heflin, today holds that, since the jury should have been instructed that they had power to return a verdict of guilty on only one count, the proceedings against the defendant must start all over again, since a reviewing court cannot predict what the jury would have done under proper instructions.
Both of these conclusions rest, I believe, on a wholly unwarranted reliance on Heflin. They disregard the only issue that was before the Court in that case, and thereby misconceive its holding. Today's decision reflects the common law doctrine of merger and the consequences of such merger on the requirements of criminal procedure -- specifically, what separate counts may be laid in an indictment and the duty of a trial judge in charging the jury the kind of a verdict they may return to an indictment of multiple counts.
The case before us presents a totally different situation -- not a coincidental or even a contemporaneous transaction, in the loosest conception of contemporaneity. Here, we have two clearly severed transactions. The case against the defendant -- and the only case -- presented two behaviors or transactions by defendant clearly and decisively separated in time and in will. The intervening seventeen days between defendant's accessorial share in the theft and her conduct as a recipient left the amplest opportunities for events outside her control to frustrate her hope of sharing in the booty, or ample time for her to change her criminal purpose and avail herself of a locus poenitentiae. Two larcenies, separated in time, would not be merged; what legal difference between the two situations here?
by any fictive notions of law or even by the most sentimental attitude toward criminals. I venture to believe that not a single case concerned with a situation comparable to that now before the Court can be found in the law reports of England, of any of the States of this country, or of the federal courts, in which it was held or suggested that two disjointed, decisively separated manifestations of conduct constitute as a matter of law a single, fused transaction. An ample canvass of the reports has certainly not revealed the existence of such a case, and one reads the opinion of the Court in vain to find a suggestion that any such precedent is available.
One can say with confidence that Heflin is no warrant for the conclusion pronounced by the Court. There was not the remotest suggestion in the petition that brought that case here, in the briefs that were submitted before argument, in the oral argument, or in the opinion which formulated the decision, that the case was concerned with the power of the court to submit the several counts to the jury and the right of the jury to convict on separate counts for conduct charging separate transactions clearly separated in fact. In Heflin, the jury convicted defendant on separate counts of bank robbery and receiving stolen money. We held that we could find "no purpose of Congress to pyramid penalties for lesser offenses following the robbery," and therefore ruled against the cumulation of punishments, but found no impropriety in submitting both counts to the jury. I find not a word, not a hint, not a subtle innuendo suggesting that the case dealt with criminal procedure -- that is, with submission of different counts to a jury, with the appropriateness of the judge's charge to the jury, or with the right of a jury to bring in separate verdicts on separate counts on the basis of evidence justifying such submission and such verdicts.
Heflin is one of a recent series of cases having to do with what the Court, in Prince v. United States, 352 U.S.
"It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment . . . [when] Congress does not fix the punishment for a federal offense clearly and without ambiguity. . . ."
Bell v. United States, supra, at 349 U. S. 83-84. In not one of these cases will there be found a word having to do with how crimes should be charged, how submitted to the jury, or what verdicts the jury may return. Heflin, like the rest of these cases, was concerned with the duty of the trial judge in sentencing after the jury was through with its job. Indeed, in all these cases, there were several counts on which the jury found a verdict and the issue arose not as to the propriety of leaving all the counts to the jury, but what sentence should be imposed after the verdict had been returned.
"(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."
"simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported."
349 U.S. at 349 U. S. 82-83.
In Prince, two counts of an indictment charging, respectively, entering a bank with intent to rob and robbery were submitted to the jury, which returned verdicts of guilty on both. The Court held that the sentences could not be cumulated, and remanded the case to the District Court for resentencing, but made no reference to the fact that two counts were laid and found by the jury.
In Callanan v. United States, 364 U. S. 587, defendant was convicted on separate counts for conspiracy and extortion. In view of the historic distinctiveness of a conspiracy from the substantive offense which is its object, we held that Congress had made allowable consecutive sentences under the applicable statute.
set forth in the record, urged no such ground as error. Nonetheless, the Court reverses, saying that "counsel for the petitioners consistently maintained the position" throughout the trial "that a thief could not be convicted of receiving from himself." Judge Hoffman did not try the case, nor was it submitted to the jury, on that theory. The record shows, as my Brother FRANKFURTER points out, that, beyond question, Mrs. Milanovich took no part in the actual physical looting of the safe, and first received any of the stolen money more than two weeks later, not from herself, but from where the safecrackers had buried it. It was on that theory, to which petitioner made no objection, that Judge Hoffman submitted the case to the jury.
With all deference, I must point out that, in support of its view as to Mrs. Milanovich, the Court has quoted merely an excerpt from a statement of this petitioner's counsel, ante, p. 365 U. S. 552, note 2, made in chambers on his motion to require the United States Attorney to elect as between the two counts of aiding and abetting, and receiving. Admittedly, this motion was not well taken. However, during that presentation, counsel stated: "we will ask the Court to instruct the jury" that it cannot find petitioner guilty on both counts. (Emphasis supplied.) But, after the motion to elect was denied, no such instruction was offered, nor was there made on that ground any objection to the charge omitting such instruction. Now petitioners have chosen to abandon a claim of error in the denial of their motion to elect, and rely instead upon error in the charge, although no objection had been made on that ground.
aiding and abetting count. Each count carried the same possible penalty, and, even if the case had been submitted to the jury as is now required, it seems rather unreal for us to consider as anything more than so remotely possible as to be highly improbable that, in sentencing this petitioner on the single count, the trial judge, who would nonetheless have heard all the evidence on both counts, would be more likely to impose a lesser sentence than the 10 years already given.
The Court does not mention the dilemma which its ruling produces. It says the jury should have been instructed that a guilty verdict could be returned on either count, but not both. This would require the jury to return a not guilty verdict on one count. Here, where the jury had in fact found Mr. Milanovich guilty of both offenses, it could yet be required to return a false verdict, i.e., false in fact, even if true in law, on one of them. Except for its imperfect analogy to the case of factually inconsistent counts charging lesser-included offenses of the main count (as in first degree murder), in which the trial judge gives the jury instructions to be applied successively, the rule suggested today is unheard of in our jurisprudence. For here, the jury is invited to consider counts not factually inconsistent, and in such sequences as it chooses, with no more reason to convict on one rather than another except its election on how to characterize the grounds supporting petitioner's imprisonment. Since such a result is required by the present disposition, it would have been better to rule that the prosecutor must elect between the counts, as petitioner originally wished.
means through which the fact of this requisite knowledge was demonstrated was the clear and convincing proof given by her partners in the crime whose testimony beyond any peradventure proved her guilty of both offenses. How, I ask, could she have been harmed by the jury finding her guilty of both offenses, rather than choosing between the two?
To me, it is clear that, where the evidence is sufficient, the jury should be left free, as it always has been, to find the fact of guilt. If, in law, the verdicts so found, although proper determinations of fact, are not all enforceable, the dilemma is adequately resolved by requiring the trial judge to forego sentencing on the unenforceable verdicts.


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INDICTMENTS found and returned in the Superior Court on May 6, 1971.
A motion for a new trial, filed on May 9, 1991, was heard by John J. Irwin, Jr., J.
Kenneth J. King for the defendant.
Scott H. Kremer, Assistant District Attorney, for the Commonwealth.
NOLAN, J. The sole issue in this appeal from the denial of the defendant's motion for new trial concerns the trial judge's instructions to the jury on the Commonwealth's burden of proving guilt beyond a reasonable doubt. We reverse the judge's denial of the defendant's motion and order a new trial.
and a failure to charge on the defendant's theory of the case. The motion was denied in the Superior Court, but a single justice of this court in 1993, pursuant to G. L. c. 278, Section 33E (1992 ed.), allowed an appeal on the sole question "whether, in the circumstances of the entire case, the judge's charge on proof beyond a reasonable doubt was reversible error on the basis of principles of law that have been established since the date his appeal was argued."
In a criminal case, the Commonwealth must prove a defendant's guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). "[T]he Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. . . . Rather, `taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.'" (Citation omitted.) Victor v. Nebraska, 114 S. Ct. 1239, 1243 (1994), quoting Holland v. United States, 348 U.S. 121, 140 (1954). When reviewing a jury instruction defining reasonable doubt, the constitutional question is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction on proof insufficient to meet the Winship standard." Id. A constitutionally deficient reasonable doubt instruction amounts to a structural error which defies analysis by harmless error standards. See Sullivan v. Louisiana, 113 S. Ct. 2078, 2082-2083 (1993).
(1989). As case law regarding the constitutionality of the phrase moral certainty in a reasonable doubt instruction developed after the date of the defendant's original appeal, and there were no other postconviction claims, we may properly consider this claim. [Note 1] See Commonwealth v. Ambers, 397 Mass. 705, 708 (1986) (relevant inquiry under c. 278, Section 33E, is whether legal basis for defendant's argument is sufficiently developed at time of appeal).
The use of the phrase moral certainty in a reasonable doubt instruction was first criticized by the Supreme Court of the United States in Cage v. Louisiana, supra at 41. In Cage, the Court reversed a defendant's conviction because of a flawed instruction on reasonable doubt. Id. The trial judge in that case had instructed the jury that reasonable doubt meant "such doubt as would give rise to a grave uncertainty" and "an actual substantial doubt." Id. at 40. The instruction also contained the sentence: "What is required is not an absolute or mathematical certainty, but a moral certainty." Id. The Court held that use of the phrase moral certainty, as opposed to "evidentiary certainty," in conjunction with the words "substantial doubt" and "grave uncertainty," words which suggest a higher degree of doubt than is required for acquittal, could have been interpreted by a reasonable juror to allow a finding of guilt based on a degree below that required by due process. Id. at 41.
"We do not think it reasonably likely that the jury understood the words moral certainty either as suggesting a standard of proof lower than due process requires or as allowing conviction on factors other than the government's proof. At the same time, however, we do not condone the use of the phrase. As modern dictionary definitions of moral certainty attest, the common meaning of the phrase has changed since it was used in the Webster instruction, and it may continue to do so to the point that it conflicts with the Winship standard."
charge lessens the potential for any harmful inferences to be drawn by jury). Even where a Webster charge is not given, we have upheld the use of the moral certainty language in a reasonable doubt instruction if it is linked with language that lends content to the phrase. See Commonwealth v. Gagliardi, supra. We have recognized, however, that the use of this language in isolation, without further explanation, might amount to an erroneous instruction on reasonable doubt. Id.
the instructions to allow conviction on a standard of proof lower than that required by due process.
The judge used the phrase moral certainty three times in the reasonable doubt instruction. The first two times, the phrase was used in isolation without further explanation as to the meaning of the phrase. Following the third use of the phrase, the judge included language which properly impressed upon the jury the need to reach a subjective state of near certitude of the guilt of the accused. The numerous inconsistencies that permeated the charge on the definition of reasonable doubt, however, undermined the effectiveness of this mitigating language.
The judge's first use of the moral certainty language was followed by an incorrect definition of reasonable doubt. The judge equated reasonable doubt with "some doubt" a juror can find "if he goes looking for doubt." Although this instruction may have had the effect of increasing the Commonwealth's burden, the incorrect instruction contributed to the potential confusion of the jurors. The judge then defined reasonable doubt as a doubt which a juror "finds abiding in his mind at the end of a full consideration of the facts of the case." Instead of requiring the Commonwealth to prove guilt, the jury could have interpreted this language as calling upon the defendant to establish doubt in the jurors' minds, thereby lowering the Commonwealth's burden of proof. See Dunn v. Perrin, 570 F.2d 21, 23-24 (1st Cir.), cert. denied, 437 U.S. 910 (1978).
doubt, nor proof beyond the possibility of innocence. It is rarely if ever possible to find a case so clear that there cannot be a possibility of innocence. If a reasonable doubt or a mere possibility of innocence were sufficient to prevent a conviction, practically every criminal would be set free to prey upon the community, and such a rule would be wholly impractical and would break down the forces of law and order and make the lawless supreme."
charge could well have led the jury to believe that the degree of certainty required to convict was far lower than that properly demanded in a criminal case. At a minimum, these instructions must have left the jury badly confused." Commonwealth v. Wood, 380 Mass. 545, 548 (1980).
Because the inconsistencies throughout the instruction failed adequately to lend meaning to the phrase moral certainty, we conclude that there was a reasonable likelihood that the jurors understood the reference to moral certainty to allow a conviction on a standard insufficient to satisfy due process. The moral certainty phrase in the defendant's instruction was used in conjunction with language that both overstated and understated the degree of certainty necessary to convict. The use of the moral certainty language, which potentially understated the degree of certainty required to convict, in conjunction with conflicting reasonable doubt definitions, inevitably lead us to the conclusion that the instruction failed to convey accurately to the jury the meaning of reasonable doubt.
Accordingly, the order denying the defendant's motion for new trial is reversed, and the case is remanded to the Superior Court for a new trial.
[Note 1] As the "moral certainty language cannot be sequestered from its surroundings," Victor v. Nebraska, 114 S. Ct. 1239, 1248 (1994), we must consider whether the moral certainty language was used in a context which adequately stressed to the jury the high degree of certainty required before convicting a defendant. Although we agree with the Commonwealth that many of the errors in the jury instruction could have been raised at the time of the defendant's original appeal, we do not consider these errors as a basis for reversing the defendant's conviction. Rather, we consider the language in order to determine whether the context in which the moral certainty language was used adequately clarified the proper meaning of this phrase.
[Note 2] The reasonable doubt instruction in Victor v. Nebraska, 114 S. Ct. 1239, 1244 (1994), closely resembled the Webster charge: "Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." Id.
[Note 3] The judge in Victor instructed the jury that they were required to have "an abiding conviction, to a moral certainty, of the truth of the charge." The Court held the inclusion of the "abiding conviction" language tended to alleviate any concerns that the phrase moral certainty might be misunderstood.
"Now, what do I mean when I say that the government must prove to you beyond a reasonable doubt that this defendant is guilty of the crimes charged? I can first say to you that it does not mean that the government must prove to you beyond all doubt, that the government is required to prove to you beyond a mathematical certainty that this defendant is guilty. If that standard of proof were required of the prosecution in any criminal case, there would rarely, if ever, be a conviction.
"Proof beyond a reasonable doubt requires that a jury be satisfied of all of the facts necessary to convict to a moral certainty.
"I can state it in another way: That any jury and any juror in any case can find some doubt if he goes looking for doubt. That type of doubt is the doubt that I refer to when I refer to reasonable doubt.
"Reasonable doubt is that type of a feeling of doubt about the essential facts that an honest juror, honestly and earnestly seeking the truth, finds abiding in his mind at the end of a full consideration of the facts of the case and the law as given to you by the Court. If such a doubt lingers in the minds of any one of you, then that doubt, of course, must be resolved in favor of the defendant.
"But, on the other hand, if you are satisfied to a moral certainty and beyond any such doubt as I have just described, then the government has sustained its burden. "It is not enough that the government prove that it is more likely than not. That is a different standard of proof. The proof does require that you be satisfied beyond this doubt which would be a doubt which you could base on reason; and, again, as I say, in arriving at that process, you will use your intelligence and your common sense and your honest efforts and consideration as jurors.
"Again, I state that your job here is to seek and to find and to state the truth.
"`In a criminal case, in order to convict, the existence of a set of facts that under the law constitutes the defendant guilty of the crime charged must be proved, not merely by the preponderance of greater weight of the evidence, but beyond a reasonable doubt.
"`Proof beyond a reasonable doubt does not mean beyond all doubt, nor beyond a whimsical or fanciful doubt, nor proof beyond the possibility of innocence. It is rarely if ever possible to find a case so clear that there cannot be a possibility of innocence. If a reasonable doubt or a mere possibility of innocence were sufficient to prevent a conviction, practically every criminal would be set free to prey upon the community, and such a rule would be wholly impractical and would break down the forces of law and order and make the lawless supreme.
"`A reasonable doubt does not mean such a doubt as may exist in the mind of a man who is earnestly seeking doubts or for an excuse to acquit a defendant, but it means such doubt as remains in the mind of a reasonable man who is earnestly seeking the truth.
"`A fact is proved beyond a reasonable doubt when it is proved to a moral certainty, as distinguished from a mathematical or absolute certainty, when it is proved to a degree of certainty that satisfies the judgment and conscience of the jury as reasonable men and women and leaves in their mind as such a clear and settled conviction of guilt.
"`But if, when all is said and done, there remains in the minds of a jury any reasonable doubt as to the existence of any fact which is essential to the guilt of the defendant on the particular charge, the defendant must have the benefit of it and cannot be found guilty of the charge.'"

matches: v. v. v. v. v. v. v. v. v. v.


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The group's papers have been cited so far over 56,000 times (ISI, August 2015), and according to Google Scholar over 160,000 times (as of July 2017). See highly cited publications. Our group's papers have made a few journal covers.
M. P. Muller*, T. Jiang*, C. Sun, M. Lihan, S. Pant, P. Mahinthichaichan, A. Trifan, and E. Tajkhorshid (2019) Characterization of Lipid-Protein Interactionsand Lipid-mediated Modulation of MembraneProtein Function Through Molecular Simulation. Chemical Reviews, In Press.
J. Coleman, D. Yang, Z. Zhao, P. C. Wen, C. Yoshioka , E. Tajkhorshid, and E. Gouaux (2019) Serotonin transporter-ibogaine complexes illuminate mechanisms of inhibition and transport. Nature, In Press.
M. B. Prigozhin, Y. Zhang, K. Schulten, M. Gruebele, and T. V. Pogorelov (2019) Fast pressure-jump all-atom simulations and experiments reveal site-specific protein dehydration-folding dynamics. PNAS, 116(12):5356-5361.
I. G. Denisov ,Y. V. Grinkova,P. Nandigrami, M. S. Shekhar, E. Tajkhorshid, and S. G. Sligar (2019) Allosteric Interactions in Human Cytochrome P450 CYP3A4: The Role of Phenylalanine 213. Biochemistry, 58(10):1411-1422.
M. L. Starr, R. P. Sparks, A. S. Arango, L. R. Hurst, Z. Zhao, M. Lihan, J. L. Jenkins, and E. Tajkhorshid, and R. A. Fratti (2019) Phosphatidic acid induces conformational changes in Sec18 protomers that prevent SNARE priming. Journal of Biological Chemistry, 294(9):3100-3116.
P. Mahinthichaichan, D. M. Morris, Y. Wang, G. J. Jensen, and E. Tajkhorshid. (2018) Selective permeability of carboxysome shell pores to anionic molecules. Journal of Physical Chemistry B (web version; page numbers forthcoming).
C. Martens, M. Shekhar, A. Borysik, A. Lau, E. Reading, E. Tajkhorshid, P. J. Booth, and A. Politis. (2018) Direct protein-lipid interactions shape the conformational landscape of secondary transporters. Nature Communications, 9:4151.
D. T. Infield, K. Matulef, J. D. Galpin, K. Lam, E. Tajkhorshid, C. A. Ahern, and F. I. Valiyaveetil. (2018) Main-chain mutagenesis reveals intrahelical coupling in an ion channel voltage-sensor. Nature Communications, 9:5055.
Y. Wang, M. Shekhar, D. Thifault, C. J Williams, R. Mcgreevy, J. Richardson, A. Singharoy, and E. Tajkhorshid. (2018) Constructing atomic structural models into Cryo-EM densities using molecular dynamics - pros and cons. Journal of Structural Biology, 204:319-328.
A. Chakravarti, K. Selvadurai, R. Shahoei, H. Lee, S. Fatma, E.Tajkhorshid, and R. H. Huang. (2018) Reconstitution and substrate specificity for isopentenyl pyrophosphate of the antiviral radical SAM enzyme viperin. Journal of Biological Chemistry, 293:14122-14133.
P.-C. Wen, J. M. Vanegas, S. B. Rempe, and E. Tajkhorshid. (2018) Probing key elements of teixobactin-lipid II interactions in membrane. Chemical Science, 9:6997-7008.
J. V. Vermaas, S. B. Rempe, and E. Tajkhorshid. (2018) Electrostatic lock in the transport cycle of the multi-drug resistance transporter EmrE. Proceedings of the National Academy of Sciences, USA, 115:E7502-E7511.
E. Tajkhorshid. (2018) Molecular insight into drug exporters within the cellular membrane. Pharmacological Research, 133:328.
P.-C. Wen, P. Mahinthichaichan, N. Trebesch, T. Jiang, Z. Zhao, E.Shinn, M. Shekhar, Y. Wang, K.Kapoor, C. K. Chan, and E. Tajkhorshid. (2018) Microscopic view of lipids and their diverse biological functions. Current Opinion in Structural Biology, 51:177-186.
D. Kerr, G. T. Tietjen, Z. Gong, E. Tajkhorshid, E.J Adams, and K. Y. C. Lee. (2018) Sensitivity of peripheral membrane proteins to the membrane context: A case study of phosphatidylserine and the TIM proteins. Biochimica et Biophysica Acta - Biomembranes, 1860:2126-2133.
P. Mahinthichaichan, R. B. Gennis, and E. Tajkhorshid. (2018) Bacterial denitrifying nitric oxide reductases and aerobic respiratory terminal oxidases use similar delivery pathways for their molecular substrates. Biochimica et Biophysica Acta - Bioenergetics, 1859:712-724.
C K. Cassidy, B. A. Himes, Z.Luthey-Schulten, and P. Zhang. (2018) CryoEM-based hybrid modeling approaches for structure determination. Current Opinion in Microbiology, 43:14-23.
C. R. Benson, C. Maffeo, E. M. Fatila, Y. Liu, E. G. Sheetz, A. Aksimentiev, A. Singharoy, and A. H. Flood. (2018) Inchworm movement of two rings switching onto a thread by biased Brownian diffusion represent a three-body problem. Proceedings of the National Academy of Sciences, USA, 115:9391-9396.
J. A. Hadden, J. R. Perilla, C. J. Schlicksup, B. Venkatakrishnan, A. Zlotnick, and K. Schulten. (2018) All-atom molecular dynamics of the HBV capsid reveals insights into biological function and cryo-EM resolution limits. eLife, 7:e32478.
T. E. Speltz, C. G. Mayne, S. W. Fanning, Z. Siddiqui, E. Tajkhorshid, G. L. Greene, and T. W. Moore. (2018) A "cross-stitched" peptide with improved helicity and proteolytic stability. Organic & Biomolecular Chemistry, 16:3702-3706.
J. A. Katzenellenbogen, C. G. Mayne, B. S. Katzenellenbogen, G. L. Greene, and S. Chandarlapaty. (2018) Structural underpinnings of oestrogen receptor mutations in endocrine therapy resistance. Nature Reviews Cancer, 18:377-388.
L. F. Milles, K. Schulten, H. E. Gaub, and R. C. Bernardi. (2018) Molecular mechanism of extreme mechanostability in a pathogen adhesin. Science, 359:1527-1533.
M. Melo, R. Bernardi, T. Rudack, M. Scheurer, C. Riplinger, J. Phillips, J. Maia, G. Rocha, J. Ribeiro, J. Stone, F. Nesse, K. Schulten, and Z. Luthey-Schulten. (2018) NAMD goes quantum: An integrative suite for QM/MM simulations. Nature Methods, 15:351-354.
C. Sun, S. Benlekbir, P. Venkatakrishnan, Y. Wang, E. Tajkhorshid, J. L. Rubinstein, and R. B. Gennis. (2018) Structure of the alternative complex III in a supercomplex with cytochrome oxidase. Nature, 557:123-126.
P. Mahinthichaichan, R. B. Gennis, and E. Tajkhorshid. (2018) Cytochrome aa3 oxygen reductase utilizes the tunnel observed in the crystal structures to deliver O2 for catalysis. Biochemistry, 57:2150-2161.
Q. Guo, C. Lehmer, A. Martínez-Sánchez, T. Rudack, F. Beck, H. Hartmann, M. Pérez-Berlanga, F. Frottin, M. S. Hipp, F. U. Hartl, D. Edbauer, W. Baumeister, and R. Fernández-Busnadiego. (2018) In situ structure of neuronal C9orf72 poly-GA aggregates reveals proteasome recruitment. Cell, 172:696-705.
T. Earnest, J. Cole, and Z. Luthey-Schulten. (2018) Simulating biological processes: Stochastic physics from whole cells to colonies. Reports on Progress in Physics, 81:052601.
M. Scheurer, P. Rodenkirch, M. Siggel, R. C. Bernardi, K. Schulten, E. Tajkhorshid, and T. Rudack. (2018) PyContact: Rapid, customizable and visual analysis of non-covalent interactions in MD simulations. Biophysical Journal, 114:577-583.
S. Barrick, J. Li, X. Kong, A. Ray, E. Tajkhorshid, and D. Leckband. (2018) Salt bridges gate α-catenin activation at intercellular junction. Molecular Biology of the Cell, 29:111-122.
T. Jiang, K. Yu, H. C. Hartzell, and E. Tajkhorshid (2017) Lipids and Ions Traverse the Membrane by the Same Physical Pathway in the nhTMEM16 Scramblase. eLife, 6: e28671.
X. Yu, G. Yang, C. Yan, J. L. Baylon, J. Jiang, H. Fan, G. Lu, K. Hasegawa, H. Okumura, T. Wang, E. Tajkhorshid, S. Li, and N. Yan (2017) Dimeric structure of the uracil:proton symporter UraA provides mechanistic insights into the SLC4/23/26 transporters. Cell Research, 27:1020-1033.
J. H. Leung, P. Mahinthichaichan, E. Tajkhorshid, A. Ishchenko, V. Cherezov, M. Soltis, B. J. Jackson, C. D. Stout, R. B. Gennis, Q. Zhang, and P. S. Padayatti (2017) Critical role of water molecules in proton translocation by the membrane-bound transhydrogenase. Structure, 25(7), 1111-1119.
B. Verhalen, R. Dastvan, S. Thangapandian, Y. Peskova, H. A. Koteiche, R. K. Nakamoto, E. Tajkhorshid, and H. S. Mchaourab (2017) Energy Transduction and Alternating Access of the mammalian ABC Transporter P-glycoprotein. Nature, 543: 738-741.
F. Zeng, Y. Chen, J. Remis, M. S. Shekhar, J. C. Phillips, E. Tajkhorshid, and H. Jin (2017) Structural Basis of Co-translational Quality Control by ArfA and RF2 Binding to Ribosome. Nature, 541, 554-557.
J. V. Vermaas and E. Tajkhorshid (2017) Differential Membrane Binding Mechanics of Synaptotagmin Isoforms Observed at Atomic Detail. Biochemistry, 56: 281-293.
D. A. Weisz, H. Liu, H. Zhang, S. Thangapandian, E. Tajkhorshid, M. L. Gross, and H. B. Pakrasi (2017) Structural analysis of Photosystem II: Mass spectrometry-based cross-linking study show that the Psb28 protein binds to cytochrome b559. Proceedings of the National Academy of Sciences USA, 114: 2224-2229.
L. G. Lippert, T. Dadosh, J. A. Hadden, B. T. Diroll, C. B. Murray, E. L.F. Holzbaur, K. Schulten, S. L. Reck-Peterson, and Y. E. Goldman (2017) Angular measurements of the dynein ring reveal a stepping mechanism dependent on a flexible stalk. Proceedings of the National Academy of Sciences USA, 114(23):E4564-E4573.
J. Seppälä, R. C. Bernardi, T. J. K. Haataja, M. Hellman, O. T. Pentikäinen, K. Schulten, P. Permi, J. Ylänne, and U. Pentikäinen (2017) Skeletal dysplasia mutations effect on human filamins' structure and mechanosensing. Scientific Reports, 7:4218.
E. Tajkhorshid and C. Chipot (2017) Tribute to Klaus Schulten. Journal of Physical Chemistry B, Klaus Schulten Memorial Issue, 121: 3203-5.
H. Qiu, A. Sarathy, K. Schulten, and J. P. Leburton (2017) Detection and mapping of DNA methylation with 2D material nanopores. npj 2D Materials and Applications, 1:3.
S. Maji, R. Shahoei, K. Schulten, and J. Frank (2017) Quantitative characterization of domain motions in molecular machines. Journal of Physical Chemistry B, 121: 3747-3756.
J. V. Vermaas, T. V. Pogorelov, and E. Tajkhorshid (2017) Extension of the Highly Mobile Membrane Mimetic to Transmembrane Systems through Customized in Silico Solvents. Journal of Physical Chemistry B, 121: 3764-3776.
A. K. S. Camara, Y. Zhou, P.-C. Wen, E. Tajkhorshid and W.-M. Kwok (2017) Mitochondrial VDAC1: A Key Gatekeeper as Potential Therapeutic Target. Frontiers in Physiology, 8: 640.
M. Wehmer, T. Rudack, F. Beck, A. Aufderheide, G. Pfeifer, J. M. Plitzko, F. Förster, K. Schulten, W. Baumeister, and E. Sakata (2017) Structural insights into the functional cycle of the ATPase module of the 26S proteasome. Proceedings of the National Academy of Sciences, USA, 114:1305-1310.
V. G. Poosarla, T. Li, B. C. Goh, K. Schulten, T. K. Wood, and C. D. Maranas (2017) Computational de novo design of antibodies binding to a peptide with high affinity. Biotechnology and Bioengineering, 114:1331-1342.
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§ 54.1-111 Unlawful acts; prosecution; proceedings in equity; . . .
1. Practicing a profession or occupation without holding a valid license as required by statute or regulation.
2. Making use of any designation provided by statute or regulation to denote a standard of professional or occupational competence without being duly certified or licensed.
3. Making use of any titles, words, letters or abbreviations which may reasonably be confused with a designation provided by statute or regulation to denote a standard of professional or occupational competence without being duly certified or licensed.
4. Performing any act or function which is restricted by statute or regulation to persons holding a professional or occupational license or certification, without being duly certified or licensed.
5. Failing to register as a practitioner of a profession or occupation as required by statute or regulation.
6. Materially misrepresenting facts in an application for licensure, certification or registration.
7. Willfully refusing to furnish a regulatory board information or records required or requested pursuant to statute or regulation.
8. Violating any statute or regulation governing the practice of any profession or occupation regulated pursuant to this title.
9. Refusing to process a request, tendered in accordance with the regulations of the relevant health regulatory board or applicable statutory law, for patient records or prescription dispensing records after the closing of a business or professional practice or the transfer of ownership of a business or professional practice.Any person who willfully engages in any unlawful act enumerated in this section shall be guilty of a Class 1 misdemeanor. The third or any subsequent conviction for violating this section during a 36-month period shall constitute a Class 6 felony. In addition, any person convicted of any unlawful act enumerated in subdivision 1 through 8 of this subsection, for conduct that is within the purview of any regulatory board within the Department of Professional and Occupational Regulation, may be ordered by the court to pay restitution in accordance with §§ 19.2-305 through 19.2-305.4.
B. In addition to the criminal penalties provided for in subsection A, the Department of Professional and Occupational Regulation or the Department of Health Professions, without compliance with the Administrative Process Act (§ 2.2-4000 et seq.), shall have the authority to enforce the provisions of subsection A and may institute proceedings in equity to enjoin any person, partnership, corporation or any other entity from engaging in any unlawful act enumerated in this section and to recover a civil penalty of at least $ 200 but not more than $ 5,000 per violation, with each unlawful act constituting a separate violation; but in no event shall the civil penalties against any one person, partnership, corporation or other entity exceed $ 25,000 per year. Such proceedings shall be brought in the name of the Commonwealth by the appropriate Department in the circuit court or general district court of the city or county in which the unlawful act occurred or in which the defendant resides.
C. This section shall not be construed to prohibit or prevent the owner of patient records from (i) retaining copies of his patient records or prescription dispensing records after the closing of a business or professional practice or the transfer of ownership of a business or professional practice or (ii) charging a reasonable fee, in accordance with subsections A and B of § 8.01-413 or subsection J of § 32.1-127.1:03, for copies of patient records, as applicable under the circumstances.
D. Nothing in this section, nor §§ 13.1-543, 13.1-1102, 54.1-2902, and 54.1-2929, shall be construed to prohibit or prevent any entity of a type listed in § 13.1-542.1 or 13.1-1101.1, which employs or contracts with an individual licensed by a health regulatory board, from (i) practicing or engaging in the practice of a profession or occupation for which such individual is licensed, (ii) providing or rendering professional services related thereto through the licensed individual, or (iii) having a legitimate interest in enforcing the terms of employment or its contract with the licensed individual.
E. This section shall apply, mutatis mutandis, to all persons holding a multistate licensure privilege to practice nursing in the Commonwealth of Virginia.
1979, c. 408, § 54-1.20; 1988, c. 765; 1993, cc. 129, 499; 1998, c. 470; 2001, c. 544; 2003, cc. 753, 762; 2004, c. 49; 2005, cc. 398, 642, 697; 2008, c. 358.
If you’re reading this for anything important, you should double-check its accuracy—read § 54.1-111 on the official Code of Virginia website.
. . . decision. The Department concedes that Code § 54.1-111 "constitutes the Department's sole . . .
. . . under Code § 54-1.20(A)(4) (Repl.Vol.1982) (now § 54.1-111(A)(4)). Yet, LSR claims compensation . . .
. . . issued by the Board of Medicine." Code § 54.1-111(A) also states: . . .
. . . without a state license under Virginia Code § 54.1-111. . . .
. . . license in violation of Virginia Code Section 54.1-111." The record contains the certified orders . . .
. . . to criminal penalties. See id. § 54.1-111 (making a violation a . . .