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All the stages Israel's march to Canaan are distinctly noticed, but no particular journal is kept of Jacob's expedition further than Beth-el; no, he had no more such happy nights as he had at Beth-el, no more such visions of the Almighty. That was intended for a feast; he must not expect it to be his daily bread. But, 1. We are here told how cheerfully he proceeded in his journey after the sweet communion he had with God at Beth-el: Then Jacob lifted up his feet; so the margin reads it, v. 1. Then he went on with cheerfulness and alacrity, not burdened with his cares, nor cramped with his fears, being assured of God's gracious presence with him. Note, After the visions we have had of God, and the vows we have made to him in solemn ordinances, we should run the way of his commandments with enlarged hearts, Heb. 12:1. 2. How happily he arrived at his journey's end. Providence brought him to the very field where his uncle's flocks were to be watered, and there he met with Rachel, who was to be his wife. Observe, (1.) The divine Providence is to be acknowledged in all the little circumstances which concur to make a journey, or other undertaking, comfortable and successful. If, when we are at a loss, we meet seasonably with those that can direct us梚f we meet with a disaster, and those are at hand that will help us梬e must not say that it was by chance, nor that fortune therein favoured us, but that it was by Providence, and that God therein favoured us. Our ways are ways of pleasantness, if we continually acknowledge God in them. (2.) Those that have flocks must look well to them, and be diligent to know their state, Prov. 27:23. What is here said of the constant care of the shepherds concerning their sheep (v. 2, 3, 7, 8) may serve to illustrate the tender concern which our Lord Jesus, the great Shepherd of the sheep, has for his flock, the church; for he is the good Shepherd, that knows his sheep, and is known of them, Jn. 10:14. The stone at the well's mouth, which is so often mentioned here, was either to secure their property in it (for water was scarce, it was not there usus communis aquarum梖or every one's use), or it was to save the well from receiving damage from the heat of the sun, or from any spiteful hand, or to prevent the lambs of the flock from being drowned in it. (3.) Separate interests should not take us from joint and mutual help; when all the shepherds came together with their flocks, then, like loving neighbours, at watering-time, they watered their flocks together. (4.) It becomes us to speak civilly and respectfully to strangers. Though Jacob was no courtier, but a plain man, dwelling in tents, and a stranger to compliment, yet he addresses himself very obligingly to the people he met with, and calls them his brethren, v. 4. The law of kindness in the tongue has a commanding power, Prov. 31:26. Some think he calls them brethren because they were of the same trade, shepherds like him. Though he was now upon his preferment, he was not ashamed of his occupation. (5.) Those that show respect have usually respect shown to them. As Jacob was civil to these strangers, so he found them civil to him. When he undertook to teach them how to despatch their business (v. 7), they did not bid him meddle with his own concerns and let them alone; but, though he was a stranger, they gave him the reason of their delay, v. 8. Those that are neighbourly and friendly shall have neighbourly and friendly usage.
Here we see, 1. Rachel's humility and industry: She kept her father's sheep (v. 9), that is, she took the care of them, having servants under her that were employed about them. Rachel's name signifies a sheep. Note, Honest useful labour is that which nobody needs be ashamed of, nor ought it to be a hindrance to any one's preferment. 2. Jacob's tenderness and affection. When he understood that this was his kinswoman (probably he had heard of her name before), knowing what his errand was into that country, we may suppose it struck his mind immediately that his must be his wife. Being already smitten with her ingenuous comely face (though it was probably sun-burnt, and she was in the homely dress of a shepherdess), he is wonderfully officious, and anxious to serve her (v. 10), and addresses himself to her with tears of joy and kisses of love, v. 11. She runs with all haste to tell her father; for she will by no means entertain her kinsman's address without her father's knowledge and approbation, v. 12. These mutual respects, at their first interview, were good presages of their being a happy couple. 3. Providence made that which seemed contingent and fortuitous to give speedy satisfaction to Jacob's mind, as soon as ever he came to the place which he was bound for. Abraham's servant, when he came upon a similar errand, met with similar encouragement. Thus God guides his people with his eye, Ps. 32:8. It is a groundless conceit which some of the Jewish writers have, that Jacob, when he kissed Rachel, wept because he had been set upon in his journey by Eliphaz the eldest son of Esau, at the command of his father, and robbed of all his money and jewels, which his mother had given him when she sent him away. It was plain that it was his passion for Rachel, and the surprise of this happy meeting, that drew these tears from his eyes. 4. Laban, though none of the best-humoured men, bade him welcome, was satisfied in the account he gave of himself, and of the reason of his coming in such poor circumstances. While we avoid the extreme, on the one hand, of being foolishly credulous, we must take heed of falling into the other extreme, of being uncharitably jealous and suspicious. Laban owned him for his kinsman: Thou art my bone and my flesh, v. 14. Note, Those are hard-hearted indeed that are unkind to their relations, and that hide themselves from their own flesh, Isa. 58:7.
Here is, I. The fair contract made between Laban and Jacob, during the month that Jacob spent there as a guest, v. 14. It seems he was not idle, nor did he spend his time in sport and pastime; but like a man of business, though he had no stock of his own, he applied himself to serve his uncle, as he had begun (v. 10) when he watered his flock. Note, Wherever we are, it is good to be employing ourselves in some useful business, which will turn to a good account to ourselves or others. Laban, it seems, was so taken with Jacob's ingenuity and industry about his flocks that he was desirous he should continue with him, and very fairly reasons thus: "Because thou art my brother, shouldst thou therefore serve me for nought? v. 15. No, what reason for that?'' If Jacob be so respectful to his uncle as to give him his service without demanding any consideration for it, yet Laban will not be so unjust to his nephew as to take advantage either of his necessity or of his good-nature. Note, Inferior relations must not be imposed upon; if it be their duty to serve us, it is our duty to reward them. Now Jacob had a fair opportunity to make known to Laban the affection he had for his daughter Rachel; and, having no worldly goods in his hand with which to endow her, he promises him seven years' service, upon condition that, at the end of the seven years, he would bestow her upon him for his wife. It appears by computation that Jacob was now seventy-seven years old when he bound himself apprentice for a wife, and for a wife he kept sheep, Hos. 12:12. His posterity are there reminded of it long afterwards, as an instance of the meanness of their origin: probably Rachel was young, and scarcely marriageable, when Jacob first came, which made him the more willing to stay for her till his seven years' service had expired.
II. Jacob's honest performance of his part of the bargain, v. 20. He served seven years for Rachel. If Rachel still continued to keep her father's sheep (as she did, v. 9), his innocent and religious conversation with her, while they kept the flocks, could not but increase their mutual acquaintance and affection (Solomon's song of love is a pastoral); if she now left it off, his easing her of that care was very obliging. Jacob honestly served out his seven years, and did not forfeit his indentures, though he was old; nay, he served them cheerfully: They seemed to him but a few days, for the love he had to her, as if it were more his desire to earn her than to have her. Note, Love makes long and hard services short and easy; hence we read of the labour of love, Heb. 6:10. If we know how to value the happiness of heaven, the sufferings of this present time will be as nothing to us in comparison of it. An age of work will be but as a few days to those that love God and long for Christ's appearing.
III. The base cheat which Laban put upon him when he was out of his time: he put Leah into his arms instead of Rachel, v. 23. This was Laban's sin; he wronged both Jacob and Rachel, whose affections, doubtless, were engaged to each other, and, if (as some say) Leah was herein no better than an adulteress, it was no small wrong to her too. But it was Jacob's affliction, a damp to the mirth of the marriage-feast, when in the morning behold it was Leah, v. 25. It is easy to observe here how Jacob was paid in his own coin. He had cheated his own father when he pretended to be Esau, and now his father-in-law cheated him. Herein, how unrighteous soever Laban was, the Lord was righteous; as Judges 1:7. Even the righteous, if they take a false step, are sometimes thus recompensed on the earth. Many that are not, like Jacob, disappointed in the person, soon find themselves, as much to their grief, disappointed in the character. The choice of that relation therefore, on both sides, ought to be made with good advice and consideration, that, if there should be a disappointment, it may not be aggravated by a consciousness of mismanagement.
IV. The excuse and atonement Laban made for the cheat. 1. The excuse was frivolous: It must not be so done in our country, v. 26. We have reason to think there was no such custom of his country as he pretends; only he banters Jacob with it, and laughs at his mistake. Note, Those that can do wickedly and then think to turn it off with a jest, though they may deceive themselves and others, will find at last that God is not mocked. But if there had been such a custom, and he had resolved to observe it, he should have told Jacob so when he undertook to serve him for his younger daughter. Note, As saith the proverb of the ancients, Wickedness proceeds from the wicked, 1 Sa. 24:13. Those that deal with treacherous men must expect to be dealt treacherously with 2. His compounding the matter did but make bad worse: We will give thee this also, v. 27. Hereby he drew Jacob into the sin, and snare, and disquiet, of multiplying wives, which remains a blot in his escutcheon, and will be so to the end of the world. Honest Jacob did not design it, but to have kept as true to Rachel as his father had done to Rebekah. He that had lived without a wife to the eighty-fourth year of his age could then have been very well content with one; but Laban, to dispose of his two daughters without portions, and to get seven years' service more out of Jacob, thus imposes upon him, and draws him into such a strait by his fraud, that (the matter not being yet settled, as it was afterwards by the divine law, Lev. 18:18, and more fully since by our Saviour, Mt. 19:5) he had some colourable reasons for marrying them both. He could not refuse Rachel, for he had espoused her; still less could he refuse Leah, for he had married her; and therefore Jacob must be content, and take two talents, 2 Kings v. 23. Note, One sin is commonly the inlet of another. Those that go in by one door of wickedness seldom find their way out but by another. The polygamy of the patriarchs was, in some measure, excusable in them, because, though there was a reason against it as ancient as Adam's marriage (Mal. 2:15), yet there was no express command against it; it was in them a sin of ignorance. It was not he product of any sinful lust, but for the building up of the church, which was the good that Providence brought out of it; but it will by no means justify the like practice now, when God's will is plainly made known, that one man and one woman only must be joined together, 1 Co. 7:2. The having of many wives suits well enough with the carnal sensual spirit of the Mahomedan imposture, which allows it; but we have not so learned Christ. Dr. Lightfoot makes Leah and Rachel to be figures of the two churches, the Jews under the law and the Gentiles under the gospel: the younger the more beautiful, and more in the thoughts of Christ when he came in the form of a servant; but he other, like Leah, first embraced: yet in this the allegory does not hold, that the Gentiles, the younger, were more fruitful, Gal. 4:27.
We have here the birth of four of Jacob's sons, all by Leah. Observe, 1. That Leah, who was less beloved, was blessed with children, when Rachel was denied that blessing, v. 31. See how Providence, in dispensing its gifts, observes a proportion, to keep the balance even, setting crosses and comforts one over-against another, that none may be either too much elevated or too much depressed. Rachel wants children, but she is blessed with her husband's love; Leah wants that, but she is fruitful. Thus it was between Elkana's two wives (1 Sa. 1:5); for the Lord is wise and righteous. When the Lord saw that Leah was hated, that is, loved less than Rachel, in which sense it is required that we hate father and mother, in comparison with Christ (Lu. 14:26), then the Lord granted her a child, which was a rebuke to Jacob, for making so great a difference between those that he was equally related to,梐 check to Rachel, who perhaps insulted over her sister upon that account,梐nd a comfort to Leah, that she might not be overwhelmed with the contempt put upon her: thus God giveth abundant honour to that which lacked, 1 Co. 12:24. 2. The names she gave her children were expressive of her respectful regards both to God and to her husband. (1.) She appears very ambitious of her husband's love: she reckoned the want of it her affliction (v. 32); not upbraiding him with it as his fault, nor reproaching him for it, and so making herself uneasy to him, but laying it to heart as her grief, which yet she had reason to bear with the more patience because she herself was consenting to the fraud by which she became his wife; and we may well bear that trouble with patience which we bring upon ourselves by our own sin and folly. She promised herself that the children she bore him would gain her the interest she desired in his affections. She called her first-born Reuben (see a son), with this pleasant thought, Now will my husband love me; and her third son Levi (joined), with this expectation, Now will my husband by joined unto me, v. 34. Mutual affection is both the duty and comfort of that relation; and yoke-fellows should study to recommend themselves to each other, 1 Co. 7:33, 34. (2.) She thankfully acknowledges the kind providence of God in it: The Lord hath looked upon my affliction, v. 32. "The Lord hath heard, that is, taken notice of it, that I was hated (for our afflictions, as they are before God's eyes, so they have a cry in his ears), he has therefore given me this son.'' Note, Whatever we have that contributes either to our support and comfort under our afflictions or to our deliverance from them, God must be owned in it, especially his pity and tender mercy. Her fourth she called Judah (praise), saying, Now will I praise the Lord, v. 35. And this was he of whom, as concerning the flesh, Christ came. Note, [1.] Whatever is the matter of our rejoicing ought to be the matter of our thanksgiving. Fresh favours should quicken us to praise God for former favours. Now will I praise the Lord more and better than I have done. [2.] All our praises must centre in Christ, both as the matter of them and as the Mediator of them. He descended from him whose name was praise, for he is our praise. Is Christ formed in my heart? Now will I praise the Lord.

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Redfield, James. The Song of Celestine. Boston. Little, Brown Co. 1998. 4to. Hard cover. First edition. Illustrated in black, white and color by Dean Morrisey. Fine copy in fine dust jacket (in mylar).
Reed, Lynn Rowe. Thelonius Turkey Lives! (On Felicia Ferguson's Farm). Photo available. New York. Alfred A. Knopf. 2005. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Rehnman, Mats. The Clay Flute. Stockholm. R&S. 1989. Octavo. Hardcover. First edition. Illustrated in color and black & white. Fine copy (owner name on copyright page) in fine dust jacket (in mylar).
Reinl, Edda. The 3 Little Pigs. Salzburg. Neugebauer. 1983. Octavo. Hardcover. First edition. Illustrated in color and black & white. Fine copy in near fine (closed tear, front panel) dust jacket (in mylar).
Reinl, Edda. The 3 Little Pigs. Salzburg. Neugebauer. 1983. Octavo. Hardcover. First edition. Illustrated in color and black & white. Fine copy in fine dust jacket (in mylar).
Reinstedt, Randall. Stagecoach Santa. Carmel. Ghost Town Pub. 1986. Octavo. Decorated hard cover. First edition. Illustrated by Judith L. Macdonald. Fine copy.
Resnick, Jane. Puss in Boots & Rumpelstiltskin. New York. Derrydale. 1990. 4to. Hardcover. First edition thus. Illustrated in color and black & white by Anastassija Archipowa. Fine copy.
Revi, Albert Christian. Spinning Wheel's Complete Book of Dolls. American, English, French, German, Rare & Unusual, Pincushion Dolls, Early & Contemporary, Dolls' Houses & Furnishings, Paper Dolls, Puppets, Patents & Trademarks. Photo available. New York. Galahad. 1975. 4to. Hard cover. First edition. Illustrated. Fine copy in edge chipped dust jacket (in mylar).
Rey, Margret and H.A. A Treasury of Curious George. Photo available. Boston. Houghton Mifflin. 2004. 4to. Decorated hard cover. Reprint. Illustrated in black, white and color. Fine copy.
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Rey, Margret. Spotty. Photo available. Boston. Houghton Mifflin. 1973. Octavo. Hard cover. Reprint. Illustrated in black, white and color by H.A. Ray. Fine copy in fine dust jacket (in mylar).
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This chapter relates wholly to the kingdom of Israel, and the revolutions of that kingdom梞any in a little time. The utter ruin of Jeroboam's family, after it had been twenty-four years a royal family, we read of in the foregoing chapter. In this chapter we have, I. The ruin of Baasha's family, after it had been but twenty-six years a royal family, foretold by a prophet (v. 1-7), and executed by Zimri, one of his captains (v. 8�). II. The seven days' reign of Zimri, and his sudden fall (v. 15�). III. The struggle between Omri and Tibni, and Omri's prevalency, and his reign (v. 21�). IV. The beginning of the reign of Ahab, of whom we shall afterwards read much (v. 29�). V. The rebuilding of Jericho (v. 34). All this while, in Judah, things went well.
Here is, I. The ruin of the family of Baasha foretold. He was a man likely enough to have raised and established his family梐ctive, politic, and daring; but he was an idolater, and this brought destruction upon his family.
2. The warning was sent by Jehu the son of Hanani. The father was a seer, or prophet, at the same time (2 Chr. 16:7), and was sent to Asa king of Judah; but the son, who was young and more active, was sent on this longer and more dangerous expedition to Baasha king of Israel. Juniores ad labores桾oil and adventure are for the young. This Jehu was a prophet and the son of a prophet. Prophecy, thus happily entailed, was worthy of so much the more honour. This Jehu continued long in his usefulness, for we find him reproving Jehoshaphat (2 Chr. 19:2) above forty years after, and writing the annals of that prince, 2 Chr. 20:34. The message which this prophet brought to Baasha is much the same with that which Ahijah sent to Jeroboam by his wife.
(1.) He reminds Baasha of the great things God had done for him (v. 2): I exalted thee out of the dust to the throne of glory, a great instance of the divine sovereignty and power, 1 Sa. 2:8. Baasha seemed to have raised himself by his own treachery and cruelty, yet there was a hand of Providence in it, to bring about God's counsel, concerning Jeroboam's house; and God's owning his advancement as his act and deed does by no means amount to the patronising of his ambition and treachery. It is God that puts power into bad men's hands, which he makes to serve his good purposes, notwithstanding the bad use they make of it. I made thee prince over my people. God calls Israel his people still, though wretchedly corrupted, because they retained the covenant of circumcision, and there were many good people among them; it was not till long after that they were called Loammi, not a people, Hos. 1:9.
(3.) He foretels the same destruction to come upon his family which he himself had been employed to bring upon the family of Jeroboam, v. 3, 4. Note, Those who resemble others in their sins may expect to resemble them in their plagues, especially those who seem zealous against such sins in others as they allow themselves in; the house of Jehu was reckoned with for the blood of the house of Ahab, Hos. 1:4.
II. A reprieve granted for some time, so long that Baasha himself dies in peace, and is buried with honour in his own royal city (v. 6), so far is he from being a prey either to the dogs or to the fowls, which yet was threatened to his house, v. 4. He lives not either to see or feel the punishment threatened, yet he was himself the greatest delinquent. Certainly there must be a future state, in which impenitent sinners will suffer in their own persons, and not escape, as often they do in this world. Baasha died under no visible stroke of divine vengeance for aught that appears, but God laid up his iniquity for his children, as Job speaks, ch. 21:19. Thus he often visits sin. Observe, Baasha is punished by the destruction of his children after his death, and his children are punished by the abuse of their bodies after their death; that is the only thing which the threatening specifies (v. 4), that the dogs and the fowls of the air should eat them, as if herein were designed a tacit intimation that there are punishments after death, when death has done its worst, which will be the sorest punishments and are most to be dreaded; these judgments on the body and posterity signified judgments on the soul when separated from the body, by him who, after he has killed, has power to cast into hell.
1. As then, so now, the king himself was first slain, but Elah fell more ingloriously than Nadab. Nadab was slain in the field of action and honour, he and his army then besieging Gibbethon (ch. 15:27); but the siege being then raised upon that disaster, and the city remaining still in the Philistines' hands, the army of Israel was now renewing the attempt (v. 15) and Elah should have been with them to command in chief, but he loved his own ease and safety better than his honour or duty, or the public good, and therefore staid behind to take his pleasure; and, when he was drinking himself drunk in his servant's house, Zimri killed him, v. 9, 10. Let it be a warning to drunkards, especially to those who designedly drink themselves drunk, that they know not but death may surprise them in that condition. (1.) Death comes easily upon men when they are drunk. Besides the chronic diseases which men frequently bring themselves into by hard drinking, and which cut them off in the midst of their days, men in that condition are more easily overcome by an enemy, as Amnon by Absalom, and are liable to more bad accidents, being unable to help themselves, (2.) Death comes terribly upon men in that condition. Finding them in the act of sin, and incapacitated for any act of devotion, that day comes upon them unawares (Lu. 21:34), like a thief.
2. As then, so now, the whole family was cut off, and rooted out. The traitor was the successor, to whom the unthinking people tamely submitted, as if it were all one to them what kind they had, so that they had one. The first thing Zimri did was to slay all the house of Baasha; thus he held by cruelty what he got by treason. His cruelty seems to have extended further than Baasha's did against the house of Jeroboam, for he left to Elah none of his kinsfolks or friends (v. 11), none of his avengers (so the word is), none that were likely to avenge his death; yet divine justice soon avenged it so remarkably that it was used as a proverb long after, Had Zimri peace who slew his master? 2 Ki. 9:31. In this, (1.) The word of God was fulfilled, v. 12. (2.) The sins of Baasha and Elah were reckoned for, with which they provoked God by their vanities, v. 13. Their idols are called their vanities, for they cannot profit nor help. Miserable are those whose deities are vanities.
Solomon observes (Prov. 28:2) that for the transgression of a land many were the princes thereof (so it was here in Israel), but by a man of understanding the state thereof shall be prolonged梥o it was with Judah at the same time under Asa. When men forsake God they are out of the way of rest and establishment. Zimri, and Tibni, and Omri, are here striving for the crown. Proud aspiring men ruin one another, and involve others in the ruin. These confusions end in the settlement of Omri; we must therefore take him along with us through this part of the story.
IV. How he reigned when he was at length settled on the throne. 1. He made himself famous by building Samaria, which, ever after, was the royal city of the kings of Israel (the palace at Tirzah being burnt), and in process of time grew so considerable that it gave name to the middle part of Canaan (which lay between Galilee on the north and Judea on the south) and to the inhabitants of that country, who were called Samaritans. He bought the ground for two talents of silver, somewhat more than 700l. of our money, for a talent was 353l. 11s. 10 1/2d. Perhaps Shemer, who sold him the ground, let him have it considerably the cheaper upon condition that the city should be called after his name, for otherwise it would have borne the name of the purchaser; it was called Samaria, or Shemeren (as it is in the Hebrew), from Shemer, the former owner, v. 24. The kings of Israel changed their royal seats, Shechem first, then Tirzah, now Samaria; but the kings of Judah were constant to Jerusalem, the city of God. Those that cleave to the Lord fix, but those that leave him ever wander. 2. He made himself infamous by his wickedness; for he did worse than all that were before him, v. 25. Though he was brought to the throne with much difficulty, and Providence had remarkably favoured him in his advancement, yet he was more profane, or more superstitious, and a greater persecutor, than either of the houses of Jeroboam or Baasha. He went further than they had done in establishing iniquity by a law, and forcing his subjects to comply with him in it; for we read of the statutes of Omri, the keeping of which made Israel a desolation, Mic. 6:16. Jeroboam caused Israel to sin by temptation, example, and allurement; but Omri did it by compulsion.
II. He married a wicked woman, who he knew would bring in the worship of Baal, and seemed to marry her with that design. As if it had been a light thing to walk in the sins of Jeroboam, he took to wife Jezebel (v. 31), a zealous idolater, extremely imperious and malicious in her natural temper, addicted to witchcrafts and whoredoms (2 Ki. 9:22), and every way vicious. The false prophetess spoken of Rev. 2:20 is there called Jezebel, for a wicked woman could not be called by a worse name than hers; what mischiefs she did, and what mischief at last befel her (2 Ki. 9:33), we shall find in the following story; this one strange wife debauched Israel more than all the strange wives of Solomon.
III. He set up the worship of Baal, forsook the God of Israel and served the god of the Sidonians, Jupiter instead of Jehovah, the sun (so some think), a deified hero of the Phoenicians (so others): he was weary of the golden calves, and thought they had been worshipped long enough; such vanities were they that those who had been fondest of them at length grew sick of them, and, like adulterers, much have variety. In honour of this mock deity, whom they called Baal條ord, and for the convenience of his worship, 1. Ahab built a temple in Samaria, the royal city, because the temple of God was in Jerusalem, the royal city of the other kingdom. He would have Baal's temple near him, that he might the better frequent it, protect it, and put honour upon it. 2. He reared an altar in that temple, on which to offer sacrifice to Baal, by which they acknowledged their dependence upon him and sought his favour. O the stupidity of idolaters, who are at a great expense to make one their friend whom they might have chosen whether they would make a god of or no! 3. He made a grove about his temple, either a natural one, by planting shady trees there, or, if those would be too long in growing, an artificial one in imitation of it; for it is not said he planted, but he made a grove, something that answered the intention, which was to conceal and so countenance the abominable impurities that were committed in the filthy worship of Baal. Lucus, � lucendo, quia non lucet�I>He that doeth evil hateth the light.
IV. One of his subjects, in imitation of his presumption, ventured to build Jericho, in defiance of the curse Joshua had long since pronounced on him that should attempt it, v. 34. It comes in as an instance of the height of impiety to which men had arrived, especially at Bethel, where one of the calves was, for of that city this daring sinner was. Observe, 1. How ill he did. Like Achan he meddled with the accursed thing, turned that to his own use which was devoted to God's honour. He began to build, in defiance of the curse well known in Israel, jesting with it perhaps as a bugbear, or fancying its force worn out by length of time, for it was above 500 years since it was pronounced, Jos. 6:26. He went on to build, in defiance of the execution of the curse in part; for, though his eldest son died when he began, yet he would proceed in contempt of God and his wrath revealed from heaven against his ungodliness. 2. How ill he sped. He built for his children, but God wrote him childless; his eldest son died when he began, the youngest when he finished, and all the rest (it is supposed) between. Note, Those whom God curses are cursed indeed; none ever hardened his heart against God and prospered. God keep us back from presumptuous sins, those great transgressions!

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Smietanka, Buckleitner, Steffes & Gezon (by Anne Buckleitner), Grandville, and Jones Day (by June K. Ghezzi, Brian J. Murray, and Erin Shencopp) for Hank Asher. Burdick & Engeln, P.C. (by Carl R. Burdick), Saint Joseph, and Hughes, Socol, Piers, Resnick & Dym, Ltd. (by José J. Behar, Juliet Berger–White, and Matthew J. Piers), for Irwin C. Zalcberg.
Before: OWENS, P.J., and MARKEY and METER, JJ.
Counterdefendant Hank Asher appeals by leave granted the trial court's order denying his motion for summary dispositionunder MCR 2.116(C)(1). He asserts that the trial court erred by ruling it that had limited jurisdiction over him under Michigan's long-arm statute, MCL 600.705(2), on the basis that defendant/counterplaintiff Irwin C. Zalcberg (Zalcberg) made a prima facie showing that Asher conspired with plaintiff, Wally Yoost, to commit the tort of abuse of process in Michigan. We reverse and remand for entry of an order granting Asher summary disposition.
Wally Yoost and Hank Asher are both citizens and residents of Florida. Zalcberg and defendants Patricia Caspari and Ellen Frankle are all residents of Michigan. Zalcberg is the sole shareholder and officer of Zalcberg Holdings, Inc., an Illinois corporation; he is in the business of trading equities and options from his home. Zalcberg employed Yoost from the fall of 1999 until early 2005. Yoost contends he worked as a trader and also provided estate management services for Zalcberg's wife, Sari. Zalcberg describes Yoost's employment as that of personal trainer, intern, and personal assistant. During Yoost's employment, Yoost met Patricia Caspari. They became romantically involved and began living together in 2001, in Michigan Shores, Indiana. Caspari often visited Yoost at Zalcberg's residence and became acquainted with Zalcberg. Yoost became acquainted with Lawrence Frankle, Zalcberg's personal friend, business partner, and legal counsel. Yoost claims that he often sought legal advice from Frankle.
In 2002, Zalcberg and Sari loaned Yoost $67,000, secured by a note and mortgage executed October 29, 2002, to purchase a house on Fogarty Street in Michigan City, Indiana. Also on October 29, 2002, Caspari quitclaimed any interest in the Fogarty property to Yoost. Yoost asserts that Frankle drafted the quitclaim deed as a means of protecting Yoost's interest in the property while he cohabitated with Caspari. Yoost and Caspari subsequently resided in the house on Fogarty Street and began making improvements.
Yoost alleges that in 2003 he informed Zalcberg that he was dissatisfied with his employment. Yoost asserts that Zalcberg enticed his continued employment by releasing him from any further obligations on the Fogarty property note and mortgage. Yoost continued working for Zalcberg and stopped making payments on the note and mortgage.
In 2004, Yoost and Caspari moved to Galien, Michigan, where they lived together. They rented out the Fogarty property. Yoost worked for Zalcberg until March 2005. Zalcberg filed for a divorce from Sari, who was suffering from terminal cancer, in March 2005; the divorce was final on March 28, 2006. Zalcberg contends that Asher, his former brother-in-law, harbored ill will against him since he filed for the divorce from Sari. Yoost and Caspari's relationship also ended in December 2005. Yoost subsequently moved to Florida and worked for Asher. In August 2006, Zalcberg began foreclosure proceedings on the Fogarty property in Indiana. Yoost defended the foreclosure action by asserting his claim that Zalcberg had forgiven the debt. Yoost also asserted other defenses, including that Zalcberg had failed to fulfill his oral promise to share certain trading profits with Yoost. See Yoost v. Zalcberg, 925 N.E.2d 763 (Ind.App., 2010). Yoost also attempted to assert a claim for trading profits in a suit for an accounting filed in Illinois against Zalcberg Holdings. That case was dismissed shortly after the instant case was initiated on the basis of forum non conveniensbecause the claim for profits concerned conduct that had occurred in Michigan and Indiana and could be joined to the already pending litigation in Indiana to which Zalcberg, the sole shareholder of Zalcberg Holdings, was a party.
Yoost filed the instant lawsuit against Caspari on April 8, 2008, alleging that she had attempted to extort a 50 percent interest in the Fogarty property by threatening to report Yoost to the IRS for not paying taxes on his income while working for Zalcberg. The complaint also alleged intentional infliction of emotional distress. After the discovery of numerous e-mails between Caspari and Zalcberg that suggested that Zalcberg and Frankle had encouraged Caspari's actions, Yoost was permitted to file an amended complaint adding Zalcberg and Frankle as defendants. By stipulation of the parties, Yoost filed a second amended complaint that substituted Ellen Frankle as the personal representative of the estate of Lawrence Frankle.
On January 28, 2009, Zalcberg filed a counterclaim in this case against Yoost and Asher alleging abuse of process and conspiracy to commit abuse of process. Zalcberg's counterclaim alleged, in part, that “Yoost and Asher agreed to join together in the concerted actions of Asher paying for and, on information and belief, directing a series of false and fraudulent legal claims filed in Yoost's name and against Zalcberg in the Indiana litigation for ulterior purposes ... including punishing, humiliating and embarrassing Zalcberg, extorting from him large sums of business profits,” and interfering with “a proper mortgage foreclosure action.” Zalcberg also alleged that Asher and Yoost had filed other lawsuits in Yoost's name in Illinois and Michigan for similar purposes and to intimidate witnesses favorable to Zalcberg and obtain discovery unavailable in Indiana. In this case, Zalcberg alleges that “Asher and Yoost, in Yoost's name,” assert “false and fabricated claims and seek [ ] grossly overreaching and irrelevant discovery.” With respect to discovery in the instant case, Zalcberg alleges that the trial court “denied [Yoost's] request to hold Zalcberg in contempt and entered a protective order denying the request for production of Zalcberg's trading and other business records.” Zalcberg alleged that the abuse of process caused him “financial losses, loss of business opportunities, and the expense of defending against fraudulent claims and abusive discovery.” Last, the counterclaim alleges that the actions of Asher and Yoost amounted to a civil conspiracy, resulting in the damages just described.
On May 29, 2009, Asher moved for summary disposition of Zalcberg's counterclaim pursuant to MCR 2.116(C)(1), asserting that the trial court lacked personal jurisdiction over him because he was a resident of Florida and had neither engaged in any business in Michigan nor had any qualifying contacts with the state. Asher further argued that the trial court could not exercise limited personal jurisdiction over him under Michigan's long-arm statute, MCL 600.705 and that Michigan's exercising jurisdiction over him would violate due process.
[I]f the allegations in the complaint are true, there is no doubt that Asher caused an act to be done and consequences to occur in Michigan resulting in an action in tort, if those allegations are true that he is using this law suit for ulterior motives.
Here there is some documentary evidence ... to support the position of Zalcberg that the motion should not be granted. And that's the deposition testimony of Yoost regarding Asher's payment of legal fees under what I might describe as curious circumstances and ... Yoost's lack of recall as to whether he even read the complaint that was filed in this case. And I believe that ... this testimony, as well as the testimony of Yoost, that he did discuss the details of the Indiana case with Asher could support an inference that Yoost in this case is the puppet and Asher is the puppeteer.
Moreover, with regard to the affidavit that Asher filed, and while I'm finding that even in the face of that affidavit there would be sufficient evidence in this case to deny the motion based on what I had previously said, I also find that the affidavit is defective.... [MCR] 2.119(B) governs the form of the affidavit. And it must affirmatively show that if sworn as a witness ... the affiant can competently testify to the facts set forth, and it also ... has to be made on personal knowledge. And it does not aver that and it does not aver that he can confidently [sic] testify to the facts set forth therein. So I think technically it's deficient. But even if it weren't I would deny the motion on the basis of what I have previously said.
As far as the due process ... is concerned, the allegation and the factual support inferences drawn there from are sufficient to invoke the Michigan long arm statute as I have previously ruled for limited personal jurisdiction and also it would overcome any due process arguments.
On November 6, 2009, this Court granted Asher's application for leave to appeal, limited to the issues raised in the application, which were whether the trial court had erred in ruling it had limited personal jurisdiction over Asher under Michigan's long-arm statute and, if so, whether the requirements of due process were satisfied. This Court also granted Asher's motion for a stay of discovery pending resolution of this appeal.
This Court reviews de novo a trial judge's decision on a motion for summary disposition. Dalley v. Dykema Gossett PLLC, 287 Mich.App. 296, 304, 788 N.W.2d 679 (2010). The legal question of whether a court possesses personal jurisdiction over a party is also reviewed de novo. W.H. Froh, Inc. v. Domanski, 252 Mich.App. 220, 225, 651 N.W.2d 470 (2002). This case also presents the legal question of whether the exercise of personal jurisdiction over a nonresident such as Asher is consistent with the notions of fair play and substantial justice required by the Due Process Clause of the Fourteenth Amendment, which we likewise review de novo. Jeffrey v. Rapid American Corp., 448 Mich. 178, 184–186, 529 N.W.2d 644 (1995).
The parties disagree regarding the standard of review applicable to Asher's renewed motion for summary disposition. Zalcberg notes that the trial court properly treated the renewed motion as one for reconsideration, which is reviewed for an abuse of discretion. Woods v. SLB Property Mgt., LLC, 277 Mich.App. 622, 629, 750 N.W.2d 228 (2008). “An abuse of discretion occurs when the decision results in an outcome falling outside the principled range of outcomes.” Woodard v. Custer, 476 Mich. 545, 557, 719 N.W.2d 842 (2006). But Asher argues that because the court's jurisdiction is at issue, we must review the renewed motion de novo. Jeffrey, 448 Mich. at 184, 529 N.W.2d 644. We agree that our review of the trial court's ultimate determination that it possessed limited personal jurisdiction over Asher is de novo.
Ordinarily, a trial court has discretion on a motion for reconsideration to decline to consider new legal theories or evidence that could have been presented when the motion was initially decided. MCR 2.119(F)(3); Woods, 277 Mich.App. at 629–630, 750 N.W.2d 228. But the trial court also has the discretion to give a litigant a “second chance” even if the motion for reconsideration presents nothing new. Hill v. City of Warren, 276 Mich.App. 299, 306–307, 740 N.W.2d 706 (2007); In re Moukalled Estate, 269 Mich.App. 708, 714, 714 N.W.2d 400 (2006). In this case, the trial court initially found that Asher's affidavit was defective, but indicated that even if it were not, the court would still rule that it had limited personal jurisdiction. At the hearing on the renewed motion, the trial court again ruled that Asher's corrected affidavit was insufficient because Asher “merely rehashes what I ruled on before.” Likewise, the trial court considered but rejected Yoost's affidavit, not only because it was untimely, but also because the court determined that its substance merely attempted to contradict Yoost's deposition testimony. Because the trial court considered the affidavits in making its ruling, we include them in our review de novo of the trial court's ultimate determination that it possessed limited personal jurisdiction over Asher.
Moreover, the question presented is jurisdictional and of constitutional magnitude. “[A] court is continuallyobliged to question sua sponte its own jurisdiction over a person, the subject matter of an action, or the limits of the relief it may afford....” Yee v. Shiawassee Co. Bd. of Comm'rs, 251 Mich.App. 379, 399, 651 N.W.2d 756 (2002). “Before a court may obligate a party to comply with its orders, the court must have in personam jurisdiction over the party.” Oberlies v. Searchmont Resort, Inc., 246 Mich.App. 424, 427, 633 N.W.2d 408 (2001). In light of the importance of the issue, to the extent that the trial court failed to consider the affidavits of Asher and Yoost in rendering its jurisdictional ruling, MCR 2.116(G)(5)—even though they were filed with a motion for reconsideration—we conclude that the trial court abused its discretion.
Williams and Mozdy are both cited by our Supreme Court in Jeffrey, 448 Mich. at 184, 529 N.W.2d 644, when discussing the appropriate standard of review of jurisdictional issues.
When examining whether a Michigan court may exercise limited personal jurisdiction over a defendant, this Court employs a two-step analysis. Jeffrey, 448 Mich. at 184–185, 529 N.W.2d 644;Domanski, 252 Mich.App. at 226, 651 N.W.2d 470. “First, this Court ascertains whether jurisdiction is authorized by Michigan's long-arm statute. Second, this Court determines if the exercise of jurisdiction is consistent with the requirements of the Due Process Clause of the Fourteenth Amendment.” Electrolines, Inc. v. Prudential Assurance Co., Ltd., 260 Mich.App. 144, 167, 677 N.W.2d 874 (2003) (citations omitted). Both prongs of this analysis must be satisfied for a Michigan court to properly exercise limited personal jurisdiction over a nonresident. See Green v. Wilson, 455 Mich. 342, 350–351, 565 N.W.2d 813 (1997) (Kelly, J.); id. at 361, 565 N.W.2d 813 (Mallett, C.J.). “Long-arm statutes establish the nature, character, and types of contacts that must exist for purposes of exercising personal jurisdiction. Due process,on the other hand, restricts permissible long-arm jurisdiction by defining the quality of contacts necessary to justify personal jurisdiction under the constitution.” Id. at 348, 565 N.W.2d 813.
First, the defendant must have purposefully availed itself of the privilege of conducting activities in Michigan, thus invoking the benefits and protections of this state's laws. Second, the cause of action must arise from the defendant's activities in the state. Third, the defendant's activities must be substantially connected with Michigan to make the exercise of jurisdiction over the defendant reasonable.
In the present case, we need not consider whether the exercise of limited personal jurisdiction over Asher comports with due process because we conclude that Zalcberg failed to establish a prima facie case against Asher that satisfied MCL 600.705. Consequently, the trial court erred by not granting Asher's motion for summary disposition under MCR 2.116(C)(1).
(2) The doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort.
The trial court's ruling that Zalcberg's counterclaim satisfied MCL 600.705(2) was based on two premises: (1) Zalcberg's counterclaim alleged a prima facie case that Yoost committed the tort of abuse of process in Michigan and (2) there was evidence to support an inference that Asher controlled this litigation through Yoost, i.e., in the trial court's words, that “Yoost in this case is the puppet and Asher is the puppeteer.” Our review de novo of the pleadings and evidence submitted by the parties convinces us that Zalcberg failed to establish a prima facie case that Asher committed the tort of abuse of process in Michigan. Moreover, Zalcberg failed to present evidence to establish a prima facie case that Asher directed, controlled, or conspired with Yoost regarding this litigation or its conduct.
Zalcberg failed to establish a prima facie case that Asher conspired with Yoost to do an act, or otherwise caused “an act to be done, or consequences to occur,” in Michigan resulting in an action for tort. MCL 600.705(2).
We note there is no civil action for conspiracy alone; there must be an underlying actionable tort. Earp v. Detroit, 16 Mich.App. 271, 275, 167 N.W.2d 841 (1969).
Under the “conspiracy theory” of jurisdiction, a conspirator not within the forum state may nevertheless be subject to the jurisdiction of the forum state on the basis of the acts a coconspirator committed there. Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1236–1237 (C.A.6, 1981). The rationale for this rule is that when one member of a conspiracy “inflicts an actionable wrong in one jurisdiction, the other member should not be allowed to escape being sued there by hiding in another jurisdiction.” Stauffacher v. Bennett, 969 F.2d 455, 459 (C.A.7, 1992). But mere allegations that a conspiracy exists between the defendant and another over whom the court has jurisdiction are insufficient. Id. at 460;Chrysler Corp., 643 F.2d at 1236–1237. Rather, evidence or facts must support the allegations of conspiracy. Chrysler Corp., 643 F.2d at 1236–1237;Ecclesiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 116 (C.A.6, 1988); Coronet Dev. Co. v. F.S.W., Inc., 3 Mich.App. 364, 369, 142 N.W.2d 499 (1966).
In this case, Asher in his affidavits denied Zalcberg's allegations of conspiring with Yoost and also denied directing this litigation. Yoost also averred that he “voluntarily brought the causes of action against Zalcberg and Caspari” and that “Asher did not tell me to start this lawsuit, and did not tell me to add Zalcberg as a defendant.” Because Zalcberg's allegations that Asher conspired by Yoost or directed this lawsuit were contradicted by evidence, Zalcberg was required to produce evidence to establish a prima facie case that Asher, in fact, conspired with Yoost or otherwise directed this litigation in order to meet his burden of establishing limited personal jurisdiction under MCL 600.705(2). Jeffrey, 448 Mich. at 184, 529 N.W.2d 644;Mozdy, 197 Mich.App. at 361, 494 N.W.2d 866.
Even if one paragraph of Yoost's affidavit attempted to contradict his deposition testimony, the remaining parts of the affidavit are not thereby invalidated. Further, remembering a fact at a later time does not contradict earlier lack of recall. It may, however, affect credibility.
A “prima facie case” is defined in Black's Law Dictionary (5th ed.) as “ ‘one that will entitle [a] party to recover if no evidence to contrary is offered by [the] opposite party.’ ” Dep't of Environmental Quality v. Worth Twp., 289 Mich.App. 414, 419, 808 N.W.2d 260 (2010). Similarly, our Supreme Court has defined a prima facie case as “ ‘[a] case made out by proper and sufficient testimony; one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side.’ ” People v. Licavoli, 264 Mich. 643, 653, 250 N.W. 520 (1933) (citations omitted). “Prima facie evidence” is defined as “ ‘[e]vidence good and sufficient on its face ... to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient.’ ” Worth Twp., 289 Mich.App. at 419, 808 N.W.2d 260, quoting Black's Law Dictionary (5th ed.).
While Asher and Yoost submitted affidavits contradicting Zalcberg's claims regarding Asher's directing this litigation, factual disputes must be resolved in Zalcberg's favor on Asher's motion for summary disposition under MCR 2.116(C)(1). Jeffrey, 448 Mich. at 184, 529 N.W.2d 644. Zalcberg need only present evidence sufficient to establish prima facie his jurisdictional claims “ ‘notwithstanding the contrary presentation by the moving party.’ ” Williams, 927 F.2d at 1131, quoting Behagen, 744 F.2d at 733. A party may establish a case with circumstantial evidence. Karbel v. Comerica Bank, 247 Mich.App. 90, 97, 635 N.W.2d 69 (2001). And a prima facie case may be established using reasonable inferences provided sufficient evidence is introduced to take the inferences out of the realm of conjecture. Berryman v. K Mart Corp., 193 Mich.App. 88, 92, 483 N.W.2d 642 (1992).
Here, multiple explanations exist for the facts the trial court relied on to assert jurisdiction. Evidence is simply lacking to establish “a logical sequence of cause and effect” to reach the conclusion that Asher controlled this litigation through Yoost to the extent that “Yoost in this case is the puppet and Asher is the puppeteer.” Rather, this conclusion is reached only through speculation and conjecture, which are insufficient to establish a prima facie case for limited personal jurisdiction over Asher. Jeffrey, 448 Mich. at 184, 529 N.W.2d 644; see Berryman, 193 Mich.App. at 92, 483 N.W.2d 642.
In the trial court, Zalcberg asserted that the exercise of limited personal jurisdiction over Asher was also proper under MCL 600.705(1) for actions “arising out of” the “transaction of any business within the state.” The trial court rejected this basis for asserting jurisdiction because “payment of the legal fees, which may ultimately go to lawyers in Michigan who represent Yoost, is not a sufficient tie to Michigan to cause the defendant Asher to submit himself to the jurisdiction of this state.” Zalcberg did not file a cross-appeal regarding the trial court's rejection of this basis for long-arm jurisdiction. When leave to appeal is granted, unless the Court directs otherwise, the appeal is limited to the issues raised in the application. MCR 7.205(D)(4); Detroit Free Press, Inc. v. Southfield, 269 Mich.App. 275, 290, 713 N.W.2d 28 (2005). Zalcberg, however, asserts that MCL 600.705(1) provides an alternative basis for affirming the trial court. See Middlebrooks v. Wayne Co., 446 Mich. 151, 166 n. 41, 521 N.W.2d 774 (1994). We conclude that the trial court correctly ruled that MCL 600.705(1) does not provide a basis for limited personal jurisdiction over Asher.
The word “any” within the statute has been interpreted to “include[ ] ‘each’ and ‘every.’ It comprehends ‘the slightest.’ ” Sifers v. Horen, 385 Mich. 195, 199 n. 2, 188 N.W.2d 623 (1971) (citations omitted). In Sifers, the Michigan plaintiff negotiated for the services of a Kentucky attorney, while the attorney was in Michigan, to bring a lawsuit in Kentucky. The plaintiff later sued the Kentucky attorney in Michigan for malpractice. The Sifers Court held that the negotiations in Michigan resulting in the defendant's retainer were within the meaning of the transaction of any business. Id. at 199, 188 N.W.2d 623.
In Alan B. McPheron, Inc. v. Koning, 125 Mich.App. 325, 336 N.W.2d 474 (1983), the defendant Michigan resident sent his agent to Oklahoma to sell an airplane. When the sales negotiations broke down, the agent tried to take the plane back to Michigan but was arrested. The defendant then hired the plaintiff, an Oklahoma attorney, to represent the defendant's agent. When the defendant failed to pay for all the legal services provided, the plaintiff obtained a default judgment against him in Oklahoma and sought to enforce the judgment in Michigan. Id., at 327–328, 336 N.W.2d 474. This Court held that because the defendant sought and contracted for the plaintiff's services to be performed in Oklahoma, “it is reasonable to conclude that he ought to have been prepared to travel to Oklahoma to challenge these services if he felt they were rendered improperly.” Id. at 331, 336 N.W.2d 474. This Court opined that the Oklahoma court had properly exercised jurisdiction over the defendant under its long-arm statute, which was similar to MCL 600.705(1), and that due process was also satisfied. Id. at 331–334, 336 N.W.2d 474.
Sifers and McPheron are the main cases on which Zalcberg relies for his alternative argument that the trial court's jurisdictional ruling should be affirmed under MCL 600.705(1). We find each case clearly distinguishable from the facts as established by the evidence submitted on Asher's motion for summary disposition. In each case, a resident of one state contracted with an attorney in another state for legal services. In each case, the subsequent legal action arose out of the contract for legal services and was by or against the attorney who had performed the legal services. In this case, there is no evidence that Asher contracted for the services of any attorney to represent Yoost in Michigan. Although Asher admits making payments on Yoost's legal fees outside Michigan, Asher avers that he did not contract for the services and did not control the litigation. Additionally, Zalcberg's counterclaim is not an action between the parties to the legal services contract as in Sifers and McPheron. Finally, for the reasons stated in part III(A) of this opinion, even if this litigationconstitutes the “transaction of any business within the state,” there was no prima facie evidence that Asher controlled or directed the litigation to permit the trial court to exercise limited personal jurisdiction over Asher under MCL 600.705(1). Consequently, we conclude the trial court correctly ruled that this subsection did not authorize it to exercise limited personal jurisdiction over Asher.
For these reasons, we conclude that the trial court erred by that ruling it could exercise limited personal jurisdiction over Asher under MCL 600.705(2). We also conclude that MCL 600.705(1) does not provide an alternative basis to affirm the trial court's jurisdictional ruling. Because Zalcberg did not establish a prima facie case for the exercise of limited personal jurisdiction over Asher under MCL 600.705, the trial court erred by not granting his motion for summary disposition under MCR 2.116(C)(1). Also, because Michigan's long-arm statute has not been satisfied, we need not consider whether the exercise of limited personal jurisdiction over Asher comports with the requirements of due process. See Jeffrey, 448 Mich. at 184–185, 529 N.W.2d 644;Oberlies, 246 Mich.App. at 427–428, 432, 633 N.W.2d 408. We therefore reverse and remand this matter for entry of an order granting Asher summary disposition. We do not retain jurisdiction. As the prevailing party, Asher may tax costs pursuant to MCR 7.219.
OWENS, P.J., and MARKEY and METER, JJ., concurred.

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2016-04-01 Assigned to SEARETE LLC reassignment SEARETE LLC ASSIGNMENT OF ASSIGNORS INTEREST (SEE DOCUMENT FOR DETAILS). Assignors: ISHIKAWA, MURIEL Y., TEGREENE, CLARENCE T., WOOD, LOWELL L., JR., HILLIS, W. DANIEL, MYHRVOLD, NATHAN P., JUNG, EDWARD K. Y., HYDE, RODERICK A.
For purposes of the USPTO extra-statutory requirements, the present application constitutes a continuation of U.S. patent application Ser. No. 13/385,889, entitled VISION MODIFICATION WITH REFLECTED IMAGE, naming W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L. Wood, Jr. as inventors, filed 12 Mar. 2012, which is currently co-pending or is an application of which a currently co-pending application is entitled to the benefit of the filing date, which is a continuation-in-part of U.S. patent application Ser. No. 12/590,439, entitled VISION MODIFICATION WITH REFLECTED IMAGE, naming W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L. Wood, Jr. as inventors, filed 6 Nov. 2009, now U.S. Pat. No. 8,282,212, which is a divisional of U.S. patent application Ser. No. 11/495,165, entitled VISION MODIFICATION WITH REFLECTED IMAGE, naming W. Daniel Hills, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L. Wood, Jr. as inventors, filed 27 Jul. 2006, now U.S. Pat. No. 8,104,892, which is a continuation-in-part of U.S. patent application Ser. No. 11/004,473, entitled VISION MODIFICATION WITH REFLECTED IMAGE, naming W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L. Wood, Jr. as inventors, filed 3 Dec. 2004, now U.S. Pat. No. 7,350,919, which is a continuation-in-part of U.S. patent application Ser. No. 11/004,713, entitled TEMPORAL VISION MODIFICATION, naming W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L. Wood, Jr. as inventors, filed 3 Dec. 2004, now U.S. Pat. No. 7,334,894, which is a continuation-in-part of U.S. patent application Ser. No. 11/004,533, entitled METHOD AND SYSTEM FOR VISION ENHANCEMENT, naming Eleanor V. Goodall, W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, and Lowell L. Wood, Jr. as inventors, filed 3 Dec. 2004, now U.S. Pat. No. 7,334,892, which is a continuation-in-part of U.S. patent application Ser. No. 11/004,731, entitled METHOD AND SYSTEM FOR ADAPTIVE VISION MODIFICATION, naming Eleanor V. Goodall, W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, and Lowell L. Wood, Jr. as inventors, filed 3 Dec. 2004, now U.S. Pat. No. 7,486,988, which is a continuation-in-part of U.S. patent application Ser. No. 11/004,551, entitled ADJUSTABLE LENS SYSTEM WITH NEURAL-BASED CONTROL, naming Eleanor V. Goodall, W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, and Lowell L. Wood, Jr. as inventors, filed 3 Dec. 2004, now U.S. Pat. No. 7,344,244; a continuation-in-part of U.S. patent application Ser. No. 11/495,167, entitled VISION MODIFICATION WITH REFLECTED IMAGE, naming W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L Wood, Jr. as inventors, filed 27 Jul. 2006, now U.S. Pat. No. 7,656,569, which is a continuation-in-part of U.S. patent application Ser. No. 11/004,473, entitled VISION MODIFICATION WITH REFLECTED IMAGE, naming W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. V. Jung, Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L. Wood, Jr. as inventors, filed 3 Dec. 2004, now U.S. Pat. No. 7,350,919; a continuation-in-part of U.S. patent application Ser. No. 12/321,560, entitled VISION MODIFICATION WITH REFLECTED IMAGE, naming W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L. Wood, Jr. as inventors, filed 21 Jan. 2009, now U.S. Pat. No. 7,931,373, which is a divisional of U.S. patent application Ser. No. 11/495,167, entitled VISION MODIFICATION WITH REFLECTED IMAGE, naming W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L. Wood, Jr. as inventors, filed 27 Jul. 2006, now U.S. Pat. 7,656,569, which is a continuation-in-part of U.S. patent application Ser. No. 11/004,473, entitled VISION MODIFICATION WITH REFLECTED IMAGE, naming W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L. Wood, Jr. as inventors, filed 3 Dec. 2004, now U.S. Pat. No. 7,350,919; a continuation-in-part of U.S. patent application Ser. No. 11/523,172, entitled METHOD AND SYSTEM FOR ADAPTIVE VISION MODIFICATION, naming Eleanor V. Goodall, W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa., Edward K. Y. Jung, Nathan P. Myhrvold, and Lowell L. Wood, Jr. as inventors, filed 18 Sep. 2006, now U.S. Pat. No. 8,244,342, which is a divisional of U.S. patent application Ser. No. 11/004,731, entitled METHOD AND SYSTEM FOR ADAPTIVE VISION MODIFICATION, naming Eleanor V. Goodall, W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, and Lowell L. Wood, Jr. as inventors, filed 3 Dec. 2004, now U.S. Pat. No. 7,486,988; a continuation-in-part of U.S. patent application Ser. No. 12/072,883, entitled METHOD AND SYSTEM FOR ADAPTIVE VISION MODIFICATION, naming Eleanor V. Goodall, W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa., Edward K. Y. Jung, Nathan P. Myhrvold, and Lowell L. Wood, Jr. as inventors, filed 27 Feb. 2008, now U.S. Pat. No. 8,562,540, which is a divisional of U.S. patent application Ser. No. 11/004,731, entitled METHOD AND SYSTEM FOR ADAPTIVE VISION MODIFICATION, naming Eleanor V. Goodall, W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung, Nathan P. Myhrvold, and Lowell L. Wood, Jr. as inventors, filed 3 Dec. 2004, now U.S. Pat. No. 7,486,988; and a continuation-in-part of U.S. patent application Ser. No. 12/590,402 entitled VISION MODIFICATION WITH REFLECTED IMAGE, naming W. Daniel Hillis, Roderick A. Hyde, Muriel Y. Ishikawa, Edward K. Y. Jung Nathan P. Myhrvold, Clarence T. Tegreene, and Lowell L. Wood, Jr. as inventors, filed 6 Nov. 2009, now U.S. Pat. No. 8,109,632.
In embodiments of the inventive system in which only the output (reflected)) image is detected, image quality is determined self referentially; since the visual input is not known, it is assumed that certain features of the visual input (e.g. lines, edges) have predictable characteristics. Deviations from the expected characteristics in the reflected image may indicate an out-of-focus retinal image, and the need for adjustment of the adjustable lens system to compensate for aberrations in the eye optics. In embodiments in which both input (incident) and output (reflected) images are detected, the difference between the input and output image provides further information regarding the characteristics of the eye optics and need for adjustable lens system adjustment. The reflected image can be compared to a reference image other than the input image. It is sufficient that the reflected image and reference image be detected at different locations in the visual train, such that the difference in the two images is caused by the eye lens (and/or other components of the eye optical system for which correction is sought). Determination of the difference between the reflected image and the reference image may be determined by calculating a difference signal and then computing one or more image quality attributes for the difference signal, or by determining one or more image quality attributes for each of the reflected and reference image, and comparing the image quality attributes for the two images.
It is thought that lens system adjustment update rates of at least about once every three seconds (1/3 Hz) may improve usefulness in general applications, and that update rates of about 1 Hz will be preferable for general applications. In higher-performance applications, update rates of about 3 Hz may be desirable. Update rates higher than 10 Hz may not provide additional benefit in some applications, due to the speed limitations inherent in other parts of the human visual system, though in some applications, this may not be the case. Thus, it is thought that update rates in the range of about 1/3 to about 10 Hz will be useful in practice, and that update rates in the range of about 1 to about 10 Hz will be more preferred, and that rates in the range of about 1 to about 3 Hz will be most preferred.
Those skilled in the art will recognize that it is common within the art to describe devices for image detection and analysis, optical system control, and/or processes in the fashion set forth herein, and thereafter use standard engineering practices to integrate such described devices and/or processes into vision enhancement systems as exemplified herein. That is, at least a portion of the devices and/or processes described herein can be integrated into a vision enhancement system via a reasonable amount of experimentation. Those having skill in the art will recognize that such systems generally include one or more of a memory such as volatile and non-volatile memory, processors such as microprocessors and digital signal processors, computational-supporting or—associated entities such as operating systems, user interfaces, drivers, sensors, actuators, applications programs, one or more interaction devices, such as data ports, control systems including feedback loops and control implementing actuators (e.g., devices for sensing position and/or velocity and/or acceleration or time-rate-of-change thereof; control motors for moving and/or adjusting components and/or quantities). A typical vision enhancement system may be implemented utilizing any suitable available components, such as those typically found in appropriate computing/communication systems, combined with standard engineering practices.
a receiver for receiving at least one of a data signal and a control signal from at least one of the adjustable intraocular lens and the at least one sensor.
2. The adaptive vision modification system of claim 1, wherein at least a portion of the adaptive vision modification system is implemented as a computing system including at least one of a volatile semiconductor-based memory, a nonvolatile semiconductor-based memory, a user interface and a data port.
3. The adaptive vision modification system of claim 1, wherein at least a portion of the adaptive vision modification system is implemented utilizing components of a communication system.
4. The adaptive vision modification system of claim 1, wherein at least a portion of the adaptive vision modification system is implemented utilizing components of a computing system.
5. The adaptive vision modification system of claim 1, including a power supply.
6. The adaptive vision modification system of claim 5, wherein the power supply is a battery.
7. The adaptive vision modification system of claim 5, including a transmitter for transmitting power from the power supply to at least one of the adjustable intraocular lens and the at least one sensor via power beaming.
8. The adaptive vision modification system of claim 5, including an inductive coil for delivering power from the power supply to at least one of the adjustable intraocular lens and the at least one sensor via inductive coupling.
9. The adaptive vision modification system of claim 1, wherein the adjustable optical component includes an electroactive component.
10. The adaptive vision modification system of claim 1, wherein the adjustable optical component includes a liquid crystal component.
11. The adaptive vision modification system of claim 1, wherein the adjustable optical component includes a polymeric component.
12. The adaptive vision modification system of claim 1, wherein the transmitter is adapted to transmit the at least one of a data signal and a control signal to the at least one of the adjustable intraocular lens and the at least one sensor as a radio frequency signal.
13. The adaptive vision modification system of claim 1, wherein the transmitter is adapted to transmit the at least one of a data signal and a control signal to the at least one of the adjustable intraocular lens and the at least one sensor via an inductive coupling.
14. The adaptive vision modification system of claim 1, wherein the receiver is adapted to receive the at least one of a data signal and a control signal from the at least one of the adjustable intraocular lens and the at least one sensor as a radio frequency signal.
15. The adaptive vision modification system of claim 1, wherein the receiver is adapted to receive the at least one of a data signal and a control signal from the at least one of the adjustable intraocular lens and the at least one sensor via an inductive coupling.
16. The adaptive vision modification system of claim 1, wherein the at least one sensor includes an electrode.
17. The adaptive vision modification system of claim 1, wherein the at least one sensor includes an optoelectronic sensor.
18. The adaptive vision modification system of claim 1, wherein the at least one sensor is adapted to detect an electromagnetic signal.
19. The adaptive vision modification system of claim 1, wherein the at least one sensor includes an electromyographic signal.
20. The adaptive vision modification system of claim 1, wherein the lens system controller is configured to provide closed loop control of the adjustable intraocular lens on an ongoing basis.
21. The adaptive vision modification system of claim 1, wherein the lens system controller is configured to generate the control signal based upon a pre-determined relationship between the at least one quality parameter and the visual input.
22. The adaptive vision modification system of claim 1, wherein the lens system controller is configured to accept a magnification factor input.
23. The adaptive vision modification system of claim 22, wherein said lens system controller is adapted to adjust the adjustable intraocular lens in response to the magnification factor and the quality parameter.
a transmitter for transmitting the control signal to the adjustable intraocular lens system.
25. The adaptive vision modification system of claim 24, wherein the transmitter is adapted to transmit a radio frequency signal.
26. The adaptive vision modification system of claim 24, wherein the transmitter is adapted to transmit the control signal via an inductive coupling.
27. The adaptive vision modification system of claim 24, wherein the receiver is adapted to receive the visual focal condition signal as a radio frequency signal.
28. The adaptive vision modification system of claim 24, wherein the receiver is adapted to receive the visual focal condition signal via an inductive coupling.
a transmitter for transmitting power from the power supply to at least one of the adjustable intraocular lens and the at least one sensor via power beaming.
an inductive coil for delivering power from the power supply to at least one of the adjustable intraocular lens and the at least one sensor via inductive coupling.
31. The intraocular lens controller of claim 24, wherein at least a portion of the intraocular lens controller is implemented utilizing components of a communication system.
32. The intraocular lens controller of claim 24, wherein at least a portion of the intraocular lens controller is implemented utilizing components of a computing system.
33. The intraocular lens controller of claim 24, wherein the lens system controller is configured to provide closed loop control of the adjustable intraocular lens on an ongoing basis.
34. The intraocular lens controller of claim 24, wherein the lens system controller is configured to generate the control signal based upon a pre-determined relationship between the at least one quality parameter and the visual input.
35. The intraocular lens controller of claim 24, wherein the lens system controller is configured to accept a magnification factor input.
36. The intraocular lens controller of claim 35, wherein said lens system controller is adapted to generate the control signal in response to the magnification factor and the quality parameter.
transmitting the control signal from the processor to the adjustable intraocular lens with the transmitter.
38. The method of claim 37, including receiving the neuromuscular signal at the signal input via an RF coupling.
39. The method of claim 37, including receiving the neuromuscular signal at the signal input via an inductive coupling.
40. The method of claim 37, including receiving the neuromuscular signal at the signal input via by transponder-type sensor.
generating the control signal with the lens system controller in response to the magnification factor and the at least one quality parameter.
42. The method of claim 37, including transmitting power, from a power supply operatively connected to the processor, to the adjustable intraocular lens via power beaming.
43. The method of claim 37, including transmitting power, from a power supply operatively connected to the processor, to the adjustable intraocular lens via inductive coupling.
Center for Adaptive Opitcs: "How Does an Adaptive Optics System Work?"; bearing a date of 2002; pp. 1-2., located at : http://www.cfao.ucolick.org/ao/how.php , printed on Jul. 14, 2004.

matches: V. V. V. V. V. V. V. V.


BANKRUPTCY FLINT, BAY CITY, OWOSSO, LAPEER (810) 235-1970.Question cost of bankruptcy ? Call out Sam for chapter seven bankruptcy protection. Plea to Lee for Free consultation about bankruptcy evaluation. Stop repossession, stop foreclosure, stop garnishment because its www.nojokebeingbroke.com.
The BANKRUPTCY plaintiff in this adversary proceeding is the Chapter 7 trustee. The BANKRUPTCY trustee filed this adversary proceeding seeking a declaratory judgment that the defendant insurance company is required to provide coverage for certain claims asserted against the Chapter 7 debtor. The defendant filed a motion for summary judgment based upon its contention that the insurance policy at issue does not provide coverage for the claims identified by the trustee. For the reasons explained in this opinion, the Court grants the defendant’s motion for summary judgment.
jurisdiction under 28 U.S.C. §§ 1334(b) and 157(c)(1). The parties consent to have the Bankruptcy Court enter orders and judgment under 28 U.S.C. § 157(c)(2) and Local District Rule 83.50(a)(3)(A) (E.D. Mich.).
The following facts are not in dispute. Romeo Montessori School Association, Inc.
(“Debtor”) is a corporation that operated a preschool through elementary private educational facility.
tuition or for other educational services for the 2009-2010 school year. Although other proofs of claims have also been filed by other creditors in this bankruptcy case, a review of the claims register in the Debtor’s case indicates a total of 48 proofs of claims filed by Parents who prepaid tuition or other payments for the 2009-2010 school year in an aggregate amount of $178,458.69.
After his appointment, the Trustee discovered in the Debtor’s books and records various insurance policies issued by the defendant, Consolidated Insurance Company (“Consolidated”). One of the policies issued by Consolidated provided “school leaders errors and omissions liability and employee benefits liability coverage” for the period beginning October 1, 2008 and ending October 1, 2009 (“School Leaders Policy”).
TRUSTEE DEMANDS THE INSURANCE COMPANY TO PAY UP.
After reviewing the Parents’ proofs of claims and the terms of the School Leaders Policy, the Trustee demanded in writing that Consolidated provide coverage under the School Leaders Policy for the claims filed by the Parents. On November 30, 2009, Consolidated wrote to the Trustee to inform him that it did not believe that the School Leaders Policy provided coverage for the claims identified by the Trustee based upon the proofs of claims filed by the Parents in the Debtor’s bankruptcy case.
also stated that by identifying specific reasons why there was no coverage, Consolidated was not waiving its right to raise other insurance policy language or other issues in determining coverage, and expressly reserved for Consolidated the right to raise additional policy language and issues.
BANKRUPTCY TRUSTEE SUES THE INSURANCE COMPANY.
On March 15, 2010, the Trustee filed this adversary proceeding against Consolidated.
In addition to the reasons set forth in its November 30, 2009 letter denying coverage, Consolidated set forth in its affirmative defenses a number of other reasons why it does not believe that the Parents’ claims are entitled to coverage under the School Leaders Policy.
On December 28, 2010, Consolidated moved for summary judgment (docket entry no. 20).
The motion is based on one specific defense. The motion alleges that the Parents’ claims are in substance breach of contract claims and, therefore, are within an exclusion to coverage set forth in section I, C.7. of the School Leaders Policy. That provision of the School Leaders Policy excludes from coverage “any ‘claim’ alleging breach of contract.” The Trustee makes two arguments in response.
First, the Trustee argues that Consolidated has either waived, or is estopped from relying on, the contractual liability exclusion in the School Leaders Policy because Consolidated failed to raise that exclusion in its November 30, 2009 letter that denied the Trustee’s demand for coverage.
Second, the Trustee argues that even if Consolidated has not waived and is not estopped from relying on the contractual liability exclusion, Consolidated is still not entitled to summary judgment because the Parents’ proofs of claims do not expressly allege breach of contract but may be based upon theories of liability other than breach of contract. Therefore, the Trustee argues, the contractual liability exclusion contained in the School Leaders Policy does not apply.
On April 4, 2011, the Court heard Consolidated’s motion for summary judgment and, at the conclusion of the hearing, took the motion under advisement.
Standard for Summary Judgment Under Rule 56(c) Fed. R. Civ. P. 56 for summary judgment is incorporated into Fed. R. Bankr. P. 7056.
is such that a reasonable jury could return a verdict for the nonmoving party.’” Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998) (quoting Anderson, 477 U.S. at 248).
“The initial burden is on the moving party to demonstrate that an essential element of the non-moving party’s case is lacking.” Kalamazoo River Study Group v. Rockwell International Corp., 171 F.3d 1065, 1068 (6th Cir. 1999) (citation omitted). “The burden then shifts to the non- moving party to come forward with specific facts, supported by evidence in the record, upon which a reasonable jury could return a verdict for the non-moving party.” Id. (citing Anderson, 477 U.S.
at 248). “The non-moving party, however, must provide more than mere allegations or denials . . . without giving any significant probative evidence to support” its position. Berryman v. Rieger, 150 F.3d at 566 (citing Anderson, 477 U.S. at 256).
Insurance contracts are interpreted by reference to state substantive law. Policy provisions often identify the state from which governing law derives. The School Leaders Policy contains no such provision. Nevertheless, Consolidated points out that Michigan law should govern, and the Trustee apparently agrees by relying upon the state’s case law and statutes to argue his case.
Therefore, the School Leaders Policy shall be interpreted in accordance with Michigan law. See Irons Home Builders, Inc. v. Auto-Owners Ins. Co., 839 F. Supp. 1260, 1264 (E.D. Mich. 1993) (“In cases involving the construction of an insurance contract, Michigan law requires the court to apply the law of the state where the insurance policy was issued.”).
the Contractual Liability Exclusion in the School Leaders Policy?
reason for the declination.”). However, application of the doctrines of waiver and estoppel is limited in Michigan, and ordinarily “the doctrines will not be applied to broaden the coverage of a policy to protect an insured against risks that were not included in the policy or that were expressly excluded from the policy.” Kirschner v. Process Design, 592 N.W.2d at 709-10 (citations omitted).
to pay a loss for which it charged no premium.
complaint if coverage is not otherwise provided by the School Leaders Policy. In short, under Michigan law, Consolidated’s failure to identify the contractual liability exclusion in the November 30, 2009 letter is not fatal to Consolidated’s defense to the Trustee’s complaint, and Consolidated has neither waived nor is it now estopped from raising the contractual exclusion defense.
to raise additional policy language and issues.
Although it may have been preferable for Consolidated to identify each and every defense to the Trustee’s demand in its November 30, 2009 letter, it is clear that Consolidated expressly reserved the right to raise additional defenses not specifically identified in the letter. That express reservation independently compels the Court to reject the Trustee’s arguments for application of the doctrines of waiver and estoppel.
Finally, Consolidated did expressly raise the contractual liability exclusion as a defense in its answer and affirmative defenses that it filed in this adversary proceeding on April 29, 2010.
November 30, 2009 letter. In sum, the Court rejects the Trustee’s arguments that Consolidated has either waived or is now estopped from asserting the contractual liability exclusion contained in the school Leaders Policy.
Contractual Liability Exclusion of the School Leaders Policy?
breach of contract.” Consolidated asserts that this exclusion applies to any loss that the Debtor may suffer in having to pay the Parents’ proofs of claim.
everyday meaning of the term “contract.” Because the Parents’ claims filed in the bankruptcy case are all based upon the Parents prepaying tuition or other payments to the Debtor, Consolidated concludes that the claims of the Parents are necessarily claims for breach of contract, arising as a result of the Debtor’s failure to provide the agreed upon educational services when it closed its business and filed bankruptcy on July 28, 2009.
possible, albeit unarticulated, alternate theories of recovery may exist in favor of the Parents, even though they have not been explicitly stated by the Parents, the Trustee asserts that the Parents’ claims are not within the contractual liability exclusion in the School Leaders Policy. To support his two arguments, the Trustee relies upon the Parents’ proofs of claims and upon his own affidavit.
are based on the fact that the Parents paid the Debtor tuition or for other educational services for the 2009-2010 school year that the Debtor failed to provide to the Parents’ children once the Debtor closed the school.
the cause of the Parents’ loss. Instead, the Trustee argues that there may be other legal theories of recovery, in addition to breach of contract, that the Parents might be able to assert against the Debtor that are based upon the same acts and events that give rise to the breach of contract: the advance payments for tuition and for other educational services that the Debtor failed to deliver.
of contract claim was excluded from the insurance policy at issue in that case. Instead, because the underlying complaint also alleged multiple tort claims such as conversion, embezzlement, and breach of fiduciary duty, the court examined each of those theories to determine whether coverage extended to the insured. The Trustee argues that summary judgment is premature in this case because similar theories of recovery may possibly be alleged by the Parents in this case.
There are two problems with the Trustee’s position. First, the Northland Insurance case is easily distinguishable. It addressed the extent of coverage for purposes of considering the insurer’s duty to defend. 327 F.3d at 455-58. The duty to defend is independent of and much broader than the duty to indemnify. Dochod v. Central Mutual Ins. Co., 264 N.W.2d 122, 123 (Mich. Ct. App. 1978) (citing City Poultry & Egg Co. v. Hawkeye Casualty Co., 298 N.W. 114 (Mich. 1941)).
(citing Zurich Ins. Co. v. Rombough, 180 N.W.3d 775 (Mich. 1979)).
“That an insurer may ultimately be found not liable, therefore, is a matter separate and apart from its obligation to defend the insured.” Id.
cknowledges that the Debtor is liable to the Parents for the pre-paid tuition. So not only is there no request to defend, but there is no question as to the liability of the insured. Accordingly, this Court need not undertake the close examination conducted by the court in Northland Insurance, in combing through the underlying complaint, in this case the Parents’ proofs of claims, for any facts on which any possible theory of recovery might be based.
for summary judgment, the Trustee provided only his own affidavit.
on to state that “on information and belief . . . the Debtor utilized [the funds] for purposes other than providing educational services . . . and therefore those funds are not available for refunding to the Parents.” Most of the Trustee’s affidavit simply parrots allegations from the complaint.
put up or shut up.” Cox v. Kentucky Dept. of Transp., 53 F.3d at 149. The Trustee cannot oppose Consolidated’s motion for summary judgment with bare allegations and speculation about other factual possibilities. In sum, the Trustee has not come forward with any probative evidence to support the Trustee’s assertion that the Parents may hold claims other than or in addition to their breach of contract claims.
is correct that one exclusion from the obligation to pay for a loss under the policy ends the inquiry.
insured’s particular claim.” Auto-Owners Ins. Co. v. Churchman, 489 N.W.2d 431, 434 (Mich.
1992) (citation omitted); see also Hayley v. Allstate Ins. Co., 686 N.W.2d 273, 275 (Mich. Ct. App.
policy expressly excludes coverage for a claim alleging a breach of contract.
complaint for declaratory relief against Consolidated do allege breach of contract by the Debtor.
section I.C.7. exclusion is dispositive. Auto-Owners Insurance v. Churchman, 489 N.W.2d at 434.
to summary judgment as a matter of law. The Court will enter an order consistent with this opinion.
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