Douglas DYER, et al. Defendants-Appellees.
Judges: Hon. William B. Hoffman, P.J Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.
Plaintiff-appellant Jennifer Hopkins appeals five separate Judgment Entries of the Tuscarawas County Court of Common Pleas, each entered on August 1, 2001, which overruled her motions for summary judgment against defendants-appellees Douglas Dyer, Lumberman's Mutual Casualty Company (hereinafter "Lumberman's"), Nationwide Mutual Insurance Company (hereinafter "Nationwide"), Personal Service Insurance Company (hereinafter "Personal Service"), and Motorists Mutual Insurance Company (hereinafter "Motorists"). Appellant also appeals the trial court's grant of each of these appellees' cross motions for summary judgment against her. Appellant also appeals the September 18, 2000 Judgment Entry of the Tuscarawas County Court of Common Pleas which overruled her motion to dismiss and for default judgment against appellee Douglas Dyer, and which granted Dyer's motion for leave to file an answer instanter.
On July 6, 1988, appellant was seriously injured when a car driven by Dyer struck the bicycle appellant was riding. The accident occurred as a result of Dyer's operation of his motor vehicle while under the influence of alcohol, operating his vehicle recklessly, and failing to maintain an assured clear distance. At the time of the accident, Dyer was insured under an automobile insurance policy issued by Allstate Insurance Company (hereinafter "Allstate"). Allstate's policy provided liability insurance to Dyer in the amount of $15,000. Appellant's injuries were serious, and appellant incurred medical bills in an amount exceeding $35,000 on the night of the accident alone. Neither appellant nor her mother, Nancy Hopkins, had homeowners or automobile insurance coverage. Nancy Hopkins, with whom appellant lived, was not employed on the date of the accident. Nancy Hopkins asserted a claim on behalf of her daughter against Dyer and Allstate. Allstate offered its policy limit of $15,000. On September 18, 1989, Nancy, as the mother and guardian of appellant, accepted the policy limits from Allstate, and executed a release of all claims against Dyer. The settlement was never approved by the probate court. At the time of the accident, appellant was an employee of a McDonald's Restaurant owned and operated by Dana J. Lewis. Mr. Lewis was the named insured under a comprehensive general liability policy and a comprehensive catastrophic coverage policy issued by Lumberman's. McDonald's Corporation was an "additional named insured" under the same policies. Appellant was also employed by the Tuscarawas County Clerk of Courts Office at the time of the accident. The Tuscarawas County Commissioners were covered by a policy of insurance issued by Personal Service. The named insured was designated as "Other: Municipality." Appellant obtained her job with the Tuscarawas County Clerk of Courts through the Job Training Partnership (hereinafter "JTP"). At that time, JTP was covered by a policy of insurance issued by Nationwide. Further, while working for the Tuscarawas County Clerk of Courts, appellant was supervised by members of HARCATUS Tri-County CAO, Inc. , (hereinafter "HARCATUS"), the summer job coordinator for JTP. At the time of the accident, HARCATUS was insured by a policy issued by Motorists. In 1999, the Ohio Supreme Court decided the case Scott-Pontzer v. Liberty Mut. Fire Ins. Co. In late 1999, appellant notified Lumberman's of her claim for uninsured/underinsured motorist coverage. After investigation of appellant's claim, Lumberman's filed a declaratory judgment action in the Tuscarawas County Court of Common Pleas, seeking a declaration of the rights and obligations under its policy regarding appellant's claims. On May 10, 2000, appellant filed an answer and counterclaim for declaratory judgment against Lumberman's, and a third-party complaint against the Kemper Insurance Co., the Kemper Insurance Group, and the Kemper Package (hereinafter "Kemper Defendants"). On May 19, 2000, appellant filed a new answer and counterclaim for declaratory judgment against Lumberman's and an amended third-party complaint against the Kemper Defendants, Douglas Dyer, and Nationwide, among others. On May 22, 2000, a summons on the third-party complaint was issued to Dyer. Dyer received the complaint on May 24, 2000. On June 12, 2000, appellant filed a new answer and counterclaim for declaratory judgment against Lumberman's and a second amended third-party complaint against the Kemper defendants, Dyer, and Nationwide, among others. On June 22, 2000, appellant filed a motion to amend her counterclaim and third-party complaint. In a Judgment Entry dated July 11, 2000, the trial court overruled appellant's motion to amend. On July 28, 2000, appellant filed a motion for default judgment against Dyer. On August 3, 2000, Dyer filed a Motion to Dismiss appellant's Motion for Default Judgment, and a Motion for Leave to File an Answer Instanter. In a September 18, 2000 Judgment Entry, the trial court denied appellant's motion for default judgment and granted Dyer leave to file an answer. Thereafter, the parties filed motions for summary judgment and appellant filed cross-motions for summary judgment relating to each defendant. In separate Judgment Entries, each filed August 1, 2001, the trial court granted summary judgment in favor of Motorists, Lumbermans, Personal Service, Nationwide, and Dyer. In the same entries, the trial court overruled appellant's motion for summary judgment against each defendant. It is from these judgment entries appellant prosecutes her appeal, assigning the following errors for our review.
I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT DOUGLAS DYER'S MOTION FOR LEAVE TO PLEAD AND OVERRULED PLAINTIFF JENNIFER HOPKINS' MOTION FOR DEFAULT JUDGMENT.
II. THE TRIAL COURT'S JUDGMENT WHICH GRANTED DEFENDANT DOUGLAS DYER SUMMARY JUDGMENT ON UNPLEAD [SIC] AND THEREFORE WAIVED AFFIRMATIVE DEFENSES IS CONTRARY TO LAW AND MUST BE REVERSED.
III. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT DOUGLAS DYER'S MOTION FOR SUMMARY JUDGMENT AND OVERRULED PLAINTIFF JENNIFER HOPKINS' MOTION FOR SUMMARY JUDGMENT.
III. A. PARENTS DO NOT POSSESS AUTHORITY TO RELEASE A MINOR'S CLAIM ONCE IT HAS ARISEN. A MINOR'S CLAIM FOR INJURIES IS THE MINOR'S PROPERTY RIGHT AND IT CANNOT BE RELEASED BY ANYONE ELSE WITHOUT COURT APPROVAL.
III. B. THE GENERAL ASSEMBLY HAS CARVED OUT AN EXCEPTION THAT PERMITS A PARENT TO SETTLE A CHILD'S CLAIM WITH PROBATE COURT APPROVAL. (O.R.C. §2111.18 AND SUP. RULE 36.) A CONTRACT WHICH VIOLATES THIS STATUTE IS VOID, A NULLITY AND INCAPABLE OF CONFIRMATION OR RATIFICATION.
III. C. ALLSTATE INSURANCE CO., THE ISSUER OF THE PARENT'S RELEASE AND INDEMNITY AGREEMENT (EX. 7A, DOCKET #99 AND EX. B TO DEFENDANT DOUGLAS DYER'S MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT) AND THE DRAFT TO NANCY HOPKINS (EX. C TO DEFENDANT DOUGLAS DYER'S MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT) KNEW THAT THIS RELEASE AND CHECK ISSUED TO A PARENT OF A MINOR CHILD DID NOT RELEASE A MINOR'S CLAIM.
III. D. THOUGH APPELLANT JENNIFER HOPKINS HAS DEMONSTRTED [SIC] THAT THE PARENT'S RELEASE AND INDEMNITY AGREEMENT SIGNED BY NANCY HOPKINS IS VOID, THE SETTLEMENT OF ONE PARTY'S CLAIM DOES NOT SETTLE THE NON-SETTLING PARTY'S CLAIM.
III. E. THOUGH JENNIFER HOPKINS DENIES NANCY HOPKINS RELEASED OR SETTLED HER CLAIM, THE SETTLEMENT OF THIS CLAIM BY NANCY HOPKINS DOES NOT EXTINGUISH A CLAIM FOR UNINSURED MOTORIST COVERAGE OF THE INSURED JENNIFER HOPKINS.
IV. THE TRIAL COURT'S FINDING THAT JENNIFER HOPKINS IS NOT ENTITLED TO A SECOND RECOVERY OF $15,000.00 FROM ALLSTATE INSURANCE CO., THE INSURANCE CARRIER OF DEFENDANT DOUGLAS DYER, AND THAT SHE IS FORECLOSED FROM MAINTAINING THIS LITIGATION AGAINST ALLSTATE IS CONTRARY TO LAW. ALLSTATE IS NOT A PARTY. THE TRIAL COURT AT THIS TIME DOESN'T HAVE PERSONAL OR SUBJECT MATTER JURISDICTION OVER THE QUESTION OF ANY PAYMENT FROM ALLSTATE PURSUANT TO O.R.C. §3929.06 AND CIVIL RULE 12(B).
V. JENNIFER HOPKINS IS ENTITLED TO UNINSURED/ UNDERINSURED MOTORIST COVERAGE UNDER BOTH THE LMCC COMPREHENSIVE GENERAL LIABILITY POLICY AND THE LMCC COMPREHENSIVE CATASTROPHE POLICY ISSUED TO JENNIFER HOPKINS' EMPLOYER. JENNIFER HOPKINS, AS AN EMPLOYEE, IS AN INSURED UNDER BOTH POLICIES. THE COURT ERRED WHEN ORDERED [SIC] TO THE CONTRARY.
V. A. AS AN EMPLOYEE OF DANA LEWIS dba McDONALD'S, JENNIFER HOPKINS IS AN INSURED UNDER THE LMCC POLICY.
V. B. UNINSURED/UNDERINSURED MOTORIST COVERAGE IS PROVIDED IN THESE POLICIES BY OPERATION OF LAW. THE FAILURE TO OFFER UNINSURED/UNDERINSURED MOTORIST COVERAGE PRIOR TO THE POLICY YEAR OR THE RECEIPT OF A REJECTION BEFORE THE POLICY YEAR MEANS THAT UNINSURED/UNDERINSURED COVERAGE IS IMPOSED AS A MATTER OF LAW. GYORI v. JOHNSTON COCA-COLA B0TTLING CO. (1996) 76 OHIO ST. 3D 565.
V. C. IF A POLICY OF INSURANCE PROVIDES COVERAGE FOR NON-OWNED OR HIRED AUTOS, AND NO OFFER OF UNINSURED/UNDERINSURED MOTORIST COVERAGE IS MADE BY THE INSURANCE COMPANY, UNINSURED/UNDERINSURED MOTORIST COVERAGE IS IMPOSED ON THAT POLICY. SELANDER v. ERIE INS. GROUP (1999) 85 OHIO ST. 3D 541.
V. D. THE UNINSURED/UNDERINSURED MOTORIST COVERAGE IMPOSED ON THESE POLICIES IN FAVOR OF EMPLOYEE JENNIFER HOPKINS MAY NOT BE LIMITED TO TIMES WHEN THE EMPLOYEE IS IN THE SCOPE OR COURSE OF HIS EMPLOYMENT WITH THE EMPLOYER. NO OTHER EXCEPTION, LIMITATION, QUALIFICATION OR EXEMPTION MAY BE IMPOSED UPON JENNIFER HOPKINS' RIGHT TO UNINSURED/UNDERINSURED MOTORIST COVERAGE UNDER THE LMCC, KEMPER PACKAGE, COMBINATION COMPREHENSIVE GENERAL LIABILITY OR COMPREHENSIVE CATASTROPHE LIABILITY COVERAGES. THESE SAME PRINCIPLES APPLY TO THE PERSONAL SERVICES INS. CO. POLICY AND ITS IMPOSED UNINSURED/UNDERINSURED MOTORIST COVERAGE.
V. E. JENNIFER HOPKINS MAY STACK ALL THE LIABILITY AND UNINSURED/UNDERINSURED MOTORIST COVERAGES UNDER THESE POLICIES UP TO THE FULL AMOUNT OF DAMAGES AND LOSSES THAT SHE SUFFERED.
V. F. THE DEFENDANT LMCC DID NOT PLEAD THE AFFIRMATIVE JE DEFENSES OF DISAFFIRMANCE, SET OFF, OFF-SET, PRORATA OR EXCESS AND THE CONSTITUTIONAL DEFENSES RAISED IN ITS MOTION FOR SUMMARY JUDGMENT.
V. G. SINCE THE UNINSURED/UNDERINSURED MOTORIST COVERAGES IN THE LMCC POLICIES ARE MANDATED BY LAW, NO OTHER EXCEPTIONS, QUALIFICATIONS OR LIMITATIONS WILL BE READ INTO THIS POLICY INCLUDING ANY NOTICE, CONSENT, SUBROGATION, LATE NOTICE OR ANY OTHER CONDITION. THIS ASSIGNMENT OF ERROR ALSO APPLIES TO THE PERSONAL SERVICES INS. CO. UNINSURED/ UNDERINSURED MOTORIST COVERAGE MANDATED BY LAW.
VI. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO THE DEFENDANT NATIONWIDE MUTUAL INSURANCE COMPANY AND FAILED TO GRANT SUMMARY JUDGMENT TO APPELLANT. JENNIFER HOPKINS WAS ENTITLED TO UNINSURED/UNDERINSURED MOTORIST COVERAGE UNDER THE NATIONWIDE MUTUAL INSURANCE COMPANY POLICY. AS AN EMPLOYEE OF JTP JENNIFER HOPKINS IS AN INSURED UNDER THE NATIONWIDE UNINSURED/UNDERINSURED MOTORIST ENDORSEMENT.
VI. A. JENNIFER HOPKINS WAS AN EMPLOYEE OF JTP ON 7-6-88. AS AN EMPLOYEE OF JTP, JENNIFER HOPKINS IS AN INSURED UNDER THE NATIONWIDE UNINSURED/UNDERINSURED MOTORIST ENDORSEMENT. THE NAMED INSURED IS JTP, AN UNINCORPORATED ASSOCIATION.
VI. B. THE NAMED INSURED IN THIS POLICY IS JTP, AN UNINCORPORATED ASSOCIATION. INSUREDS ARE DEFINED IN THE POLICY AND INCLUDE EMPLOYEES. THE NAMED INSUREDS ARE NOT INDIVIDUAL ADMINISTRATORS AND OTHER INDIVIDUALS WHO MAKE UP THE UNINCORPORATED ASSOCIATION.
VI. C. THE COURT ERRED WHEN IT CONSIDERED THE AFFIDAVIT OF SHARON PARRY. SHARON PARRY'S AFFIDAVIT IS DEFECTIVE UNDER CIVIL RULE 56 IN MANY PARTICULARS AND EXTENDS OPINIONS BOTH LEGAL AND OTHERWISE WHICH ARE INADMISSIBLE.
VII. THE TRIAL COURT ERRED WHEN IT GRANTED PERSONAL SERVICES INS. CO.'S MOTION FOR SUMMARY JUDGMENT AND DENIED APPELLANT JENNIFER HOPKINS' MOTION FOR SUMMARY JUDGMENT. THE COURT'S CONCLUSIONS THAT JENNIFER HOPKINS IS NOT AN INSURED AND THAT SHE IS PRECLUDED FROM ACCESSING THIS POLICY AND IS NOT ENTITLED TO COVERAGE UNDER THIS POLICY IS CONTRARY TO LAW.
VII. A. THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT THE PERSONAL SERVICES INSURANCE CO. POLICY "NAMED INSUREDS" ARE THREE INDIVIDUALS.
VII. B. THE TRIAL COURT'S CONCLUSION THAT SCOTT--PONTZER, SUPRA, APPLIES ONLY TO CORPORATE POLICIES IS CONTRARY TO LAW.
VII. C. JENNIFER HOPKINS, EITHER AS AN EMPLOYEE OR AS AN AGENT OR REPRESENTATIVE OF TUSCARAWAS COUNTY IS AN INSRUED [SIC] UNDER THE PERSONAL SERVICES INSURANCE CO. POLICY ISSUED TO THE TUSCARAWAS COUNTY COMMISSIONERS.
VII. D. PERSONAL SERVICES INSURANCE CO. DID NOT OFFER UNINSURED/UNDERINSURED MOTORIST COVERAGE PRIOR TO THE INCEPTION DATE OF THIS POLICY. NO REJECTION WAS RECEIVED BY PERSONAL SERVICES INSURANCE CO. BEFORE THE INCEPTION DATE OF THIS POLICY. THOUGH A LIMITED UNINSURED/UNDERINSURED MOTORIST ENDORSEMENT WAS ISSUED BY PERSONAL SERVICES INSURANCE CO. ON 9-28-87, UNINSURED/UNDERINSURED MOTORIST COVERAGE IS IMPOSED IN THIS POLICY FOR ALL INSUREDS UNDER THE POLICY UP TO THE FULL EXTENT OF O.R.C. §3937.18.
VII. E. SINCE NO UNINSURED/UNDERINSURED ENDORSEMENT APPLIES TO THE PERSONAL SERVICES INS. CO. POLICY, AND SINCE UNINSURED/UNDERINSURED MOTORIST COVERAGE IS INSERTED BY OPERATION OF LAW, NO CONDITION, LIMITATION, QUALIFICATION, EXCEPTION OR EXCLUSION MAY BE INSERTED INTO THIS POLICY, INCLUDING NOTICE, LATE NOTICE, SUBROGATION, CONSENT, OR SETTLEMENT AND RELEASE OF THE TORTFEASOR.
VIII. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT MOTORISTS MUTUAL INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT AND DENIED PLAINTIFF JENNIFER HOPKINS' MOTION FOR SUMMARY JUDGMENT.
VIII. A. JENNIFER HOPKINS AS AN EMPLOYEE PLACED WITH THE TUSCARAWAS COUNTY CLERK OF COURT'S OFFICE BY HARCATUS AND TRAINED AND IN PART SUPERVISED AND MONITORED BY THE JOB SEARCH COUNSELOR, MARTIN CHUMNEY, IS ENTITLED TO INSURANCE COVERAGE FROM MOTORIST MUTUAL INSURANCE CO. MOTORIST MUTUAL INSURANCE CO. PROVIDED BUSINESS AUTO COVERAGE TO HARCATUS TRI-COUNTY CAO, INC. ON 7-6-88.
IX. IT IS UNLAWFUL TO ATTEMPT TO LIMIT AN UNINSURED/UNDERINSURED MOTORIST CLAIM WHICH ARISES AS A RESULT OF A CHANGE OF THE INTERPRETATION OF THE LAW.
X. NOTICE, LATE NOTICE, CONSENT TO SETTLE AND OTHER SIMILAR CLAUSES AND/OR PROVISIONS OF THE LAW ARE UNENFORCEABLE.
XI. THE APPELLANT HAS CLEARLY, BY THE PRESENTATION OF EVIDENCE, SHOWN THAT THERE HAS BEEN ABSOLUTELY NO PREJUDICE TO THESE INSURANCE CARRIERS. WITHOUT PREJUDICE DUE TO AN ALLEGED DELAY IN NOTIFICATION OR EVIDENCE OF OTHER PREJUDICE THE PLAINTIFF IS ENTITLED TO JUDGMENT AS A MATTER OF LAW.
Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Civ.R. 56(C) states, in pertinent part: Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law....A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.
Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. It is based upon this standard we review appellant's summary judgment claims.
In her first assignment of error, appellant maintains the trial court erred in granting Dyer's motion for leave to plead, and overruling her motion for default judgment. We agree. The filing of amended and supplemental pleadings is governed by Civ. R. 15. The rule provides, in relevant part: (A) * * * A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within fourteen days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.
Civ.R. 13(A) and Civ. R. 12(A)(1) expressly required Dyer to answer or otherwise plead within twenty-eight days after service of the summons and complaint upon him. Mr. Dyer failed to timely file his answer or responsive pleading within the time allowed. Default judgment may be awarded when a defendant fails to make an appearance by filing an answer or otherwise defending an action. Civ.R. 55(A). Civ.R. 6(B)(2) allows for an extension of time to file a late pleading within the trial court's discretion "upon motion made after the expiration of the specified period * * * where the failure to act was the result of excusable neglect." A ruling by the trial court on such a motion will be upheld absent an abuse of discretion. In Miller v. Lint , the Supreme Court analyzed a trial court's decision to grant a defendant leave to plead after the plaintiff had filed a motion for default judgment: While this court is in general agreement with the universal practice of allowing trial courts broad discretion in settling procedural matters, such discretion, as evidenced by Civ.R. 6(B), is not unlimited, and under the circumstances * * * , some showing of "excusable neglect" was a necessary prelude to the filing of the answer.
However hurried a court may be in its efforts to reach the merits of a controversy, the integrity of procedural rules is dependent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment.
It was within the trial court's discretion to grant Dyer's motion for leave to plead and to overrule appellant's motion for default judgment upon a showing of excusable neglect. In determining whether neglect is excusable or inexcusable, all the surrounding facts and circumstances must be taken into consideration. Neglect under Civ.R. 6(B)(2) has been described as conduct that falls substantially below what is reasonable under the circumstances. Because appellant set forth no facts to demonstrate excusable neglect for his failure to file an answer, we find the trial court erred in granting Dyer leave to file an answer, and in denying appellant's motion for default judgment against Dyer. Appellant's first assignment of error is sustained.
In appellant's second and third assignments of error, she argues the trial court erred in granting Dyer's motion for summary judgment. In light of our disposition of appellant's first assignment of error, we sustain appellant's second and third assignments of error.
In appellant's fourth assignment of error, she maintains the trial court erred in finding she was not entitled to a second recovery of $15,000 from Allstate. Appellant further maintains the trial court erred in foreclosing any legal action by appellant against Allstate. Appellant argues Allstate was not a party to the action and therefore, the trial court was without subject matter jurisdiction over any question of payment to Allstate. We agree. In its August 1, 2001 Judgment Entry granting summary judgment in favor of Dyer, the trial court found, as a matter of law, appellant was "not entitled to a second recovery of fifteen thousand dollars ($15,000.00) from Allstate Insurance Company, the insurance carrier for defendant Douglas Dyer." We agree with appellant, Allstate is not a party to this action. Therefore, any order purporting to adjudicate liability, or any other issue between Allstate and appellant is void. Appellant's fourth assignment of error is sustained.
"Persons Insured" is defined in plaintiff's Exhibit 20 to include: E. any employee * * * of the named insured arising out of or in the course of his employment * * *.
In the comprehensive catastrophe liability coverage policy, contained in Exhibit 23, Section 7 provides employees are "additional insureds." We find both policies included employees as insureds. We acknowledge this coverage applies only when an employee is acting within the scope of employment. However, this fact does not end our analysis. Both policies provided hired/non-owned automobile coverage. Therefore, Lumberman's was required to offer uninsured/underinsured motorist coverage. Lumberman's failure to offer such coverage, created uninsured/underinsured motorist coverage by operation of law pursuant to R.C. 3937.18. Any language in the policies restricting insurance coverage was intended to apply only to the policies as issued; such restrictions could not have been intended to cover uninsured/underinsured coverage created by operation of law. This is so because the parties did not contemplate any such coverage before judicial intervention. Accordingly, we find appellant was an insured for uninsured/underinsured motorist coverage purposes under both the general liability and comprehensive catastrophe liability coverages. Given its finding no coverage existed, the trial court was not called upon to decide the remaining issues of stacking, prorata, exposure, and potential affirmative defenses, etc. We find it premature to rule on these issues and remand said issues to the trial court for consideration. Appellant's fifth assignment of error is sustained.
In appellant's sixth assignment of error, she maintains the trial court erred in granting summary judgment in favor of Nationwide, the insurance carrier for JTP. In the first and second subsections of appellant's sixth assignment of error, she contends she was an employee of JTP on the date of the accident. Because the policy provides coverage for employees, appellant argues she in an insured under the policy. In the third subsection to appellant's sixth assignment of error, she maintains the trial court erred in considering the affidavit of Sharon Parry. In her eighth assignment of error, appellant claims she is an insured under Motorists policy covering HARCATUS. As with the Nationwide policy, appellant claims she in an insured under this policy for purposes of underinsured motorist coverage pursuant to Scott-Pontzer. We address appellant's contentions in turn. In Scott-Pontzer, the Ohio Supreme Court reviewed a commercial auto liability policy which defined an insured as "you." Because the name insured was an corporation, the Ohio Supreme Court held "it was ambiguous whether a corporation's employees were insureds entitled to underinsured motorist (UIM) coverage under a commercial automobile liability policy which had designated the corporation as the named insured and which defined "insured" to include "you" and "[i]f you are an individual, any family member" since it would be meaningless limit protection solely to a corporate entity, which cannot occupy or operate an automobile or suffer bodily injury or death; thus, the policy had to be construed as extending insured status to employees. Because a corporation acts through its employees, the Scott-Pontzer court concluded the "you" as used in the policy must also include the named insured's employees. Accordingly, the Ohio Supreme Court found Mr. Pontzer was an insured under the policy because he was an employee of the named insured at the time of his accident. Accordingly, we turn our attention to whether appellant was an employee of either organization at the time of the accident. At the time of the accident, appellant was employed part-time as a clerical assistant in the Tuscarawas County Clerk of Courts. Appellant was placed in this position through HARCATUS and JTP. JTP is an unincorporated association made of individuals, businesses, and local government entities administering programs funded by the federal government under the Job Training Partnership Act, for the purpose of providing underprivileged youths and adults job opportunities and employment skills. Because appellant was qualified to participate in the JTP, administered in conjunction with HARCATUS, JTP placed appellant with the clerk of courts. JTP paid appellant's wages with funds provided by the federal government. However, neither JTP nor HARCATUS, trained, supervised, or directed appellant in any of the actual duties appellant worked for the clerk of courts. Appellant never worked directly for JTP. JTP hired HARCATUS to administer the JTP 1988 summer program in Tuscarawas County, Ohio. HARCATUS is a community action organization founded in 1965 to provide residents of Harrison, Carroll, and Tuscarawas Counties with educational, career and self improvement programs. JTP provided all of the guidelines and parameters for the summer youth program in Tuscarawas County in 1988. JTP set the income criteria for applicants, determined eligibility, selected participants, tested and interviewed applicants, and set intake procedures. Pursuant to its contract with JTP, HARCATUS assisted in the recruitment and placement of participants during the 1988 summer program, in compliance with the guidelines set forth by JTP. After a participant had been recruited and placed at a work cite, HARCATUS periodically monitored participants at the work cites on behalf of JTP. HARCATUS also provided remedial math and reading intervention. HARCATUS did not control the work assigned to the participant by the employer. HARCATUS would collect attendance records for the participants in the JTP program and ship the records to the JTP office in Canton, Ohio. JTP issued checks and withheld payroll taxes for appellant. The Tuscarawas County Clerk of Courts provided the direct supervision of appellant at the work cite. In that regard, appellant received her training from the clerk's office, and worked at the direction of her supervisors at the clerk's office. Her daily work was supervised and assigned by the clerk of courts. Further, the clerk of courts set her work schedule and hours. JTP was insured by Nationwide under a commercial liability policy providing business auto and UM/UIM coverage. HARCATUS was an insured under a similar policy issued by Motorists. Appellant asserts she is an employee of JTP and HARCATUS. As an employee, and pursuant to Scott-Pontzer v. Liberty Mut. Fire Ins. Co., she was entitled to UM/UIM coverage under each of their respective insurance policies. We disagree. Ohio Courts have adopted the "right to control" test to determine whether or not a person is an employee. In Bostic v. Connor the Ohio Supreme Court reviewed the issue of whether a person was an employee or an independent contractor. In making this determination, the Ohio Supreme Court found the key determination was who had the right to control the manner or means of doing the work. Further, the Bostic articulated the following test to determine whether a person is an employee, following Gillum v. Indust. Comm.: "the principal test applied to determine the character of the arrangement is that if that the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is reasonable to the employer only for the result, an independent contractor relationship is thereby created . . the factors to be considered include, but are certainly not limited to, such indicia as who controls the details and quality of the work, who controls the hours worked, who selects the materials, tools and personal used; who selects the routes traveled; the length of employment; the type of business; the method of payment; and any pertinent agreements or contracts.
Where the evidence is not in conflict, the trial court may determine the questions of whether a person is an employee as a matter of law. We find appellant was not an employee of either JTP or Harcatus. The undisputed facts establish neither JTP nor Harcatus controlled the detail and quality of appellant's work, the hours appellant worked, the materials with which or personnel with whom appellant worked, or the type of business. Because we find the Tuscarawas County Clerk of Courts had the right to control the manner and means of appellant's work, we find appellant was not an employee of either JTP of HARCATUS. We also note in Vandriest v. Midlem the Ohio Supreme Court ruled a participant in a federally-funded work program is actually an employee of the employer where he or she was working as a matter of law. As in Vandriest, appellant was also participant in a federally-funded work program. The fact JTP and HARCATUS exercised limited recruitment and oversight functions did not constitute sufficient control, as a matter of law, to establish an employer/employee relationship. Accordingly, the first subsection of appellant's sixth assignment of error is overruled. In light our disposition herein, the second and third subsections of appellant's sixth assignment of error are also overruled. For the same reason, the first subsection of appellant's eighth assignment of error is also overruled. In the remaining subsection, appellant asks this Court to extend the holding in Scott-Pontzer to "clients" of an insured. We decline to extend Scott-Pontzer to cover clients of named insureds in addition to their employees. Accordingly, the second subsection of appellant's eighth assignment of error is also overruled.
In appellant's seventh assignment of error, she maintains the trial court erred in granting summary judgment in favor of Personal Service. We agree. At the time of the accident, the Tuscarawas County Commissioners were covered by a policy of insurance issued by Personal Service which included automobile liability coverage as well as UM/UIM coverage. The declaration page of the policy indicates the named insured is "Tuscarawas County Commissioners." Item 2 of the declaration provides a space to indicate whether the named insured is an individual, partnership, corporation, joint venture, or other. In this instance, "other" was marked with an X and the word "Municipality" has been written in. Accordingly, we find the named insured was not limited to the group of individuals commissioners. In an August 1, 2001 Judgment Entry, the trial court made the following conclusions of law: Jennifer Hopkins is not an "insured" under the Personal Service Insurance Company policy of insurance issued to Tuscarawas County, Ohio, Commissioners and is not entitled to coverage under said policy.
The law of the case Scott-Pontzer v. Liberty Mutual Fire Insurance Company (1999), 85 Ohio St.3d 660, is inapplicable to the facts of this case and is distinguished. The insurance policy in the Scott-Pontzer case, supra, was a business auto policy and an umbrella policy in which the sole "named insured" was a corporation. The "named insured" in the Personal Service Insurance Company policy of insurance are three (3) individuals, the Tuscarawas County, Ohio, Commissioners.
Jennifer Hopkins is precluded from accessing uninsured motorist/under-insured motorist coverage relating to the Personal Service Insurance Company policy of insurance issued to the Tuscarawas County, Ohio, Commissioners in effect on 7/6/88.
It is clear the trial court found the named insured in the Personal Services policy to have been three individuals. We disagree with the trial court's assessment. Because the policy named the Tuscarawas County Commissioners as the insured, and noted that the named insured was a municipality, we find the insurance policy covered more than the three individual county commissioners. This conclusion is bolstered by the fact the general liability automobile policy covered a fleet of vehicles under owned automobiles and noted the premiums included non-owned automobiles "if any." The listed automobiles included several passenger buses, dump trucks, semi-trailers, semi-tractors, tar distributors, and a sledge sprayer. Pursuant to Scott-Pontzer , we find the employees of Tuscarawas County were also included under the Personal Services' contract. We now turn our attention to whether any UM/UIM coverage existed under the policy. On September 23, 1987, the Tuscarawas County Commissioners executed a rejection of underinsured motorist coverage for its general automobile policy. This rejection was issued twenty three days after the inception of the policy. Pursuant to this Court's opinion in Leisure v. State Farm Mut. Auto. Ins. Co. , we find the rejection in the matter sub judice was ineffective on the date of the accident. Accordingly, uninsured motorist coverage for the general liability policy arose by operation of law. Because the UM/UIM coverage arises by operation of law, Tuscarawas County employees benefit from such coverage. Further, any exclusions or conditions contained within the general policy do not transfer to the uninsured/underinsured motorist coverage in this instance for the same reasons set forth in our analysis of appellant's fifth assignment of error. Accordingly, we find coverage was available to appellant under the uninsured/underinsured motorist coverage created by operation of law. Appellant's seventh assignment of error is sustained. The August 1, 2001 Judgment Entry of the trial court with regard to Personal Service is reversed. The remaining issues are remanded to the trial court for further proceedings consistent with law and this opinion.
In her ninth assignment of error, appellant maintains the trial court unlawfully attempted to limit UM/UIM coverage arising by operation of law. Appellant's ninth assignment of error is sustained for the same reasons set forth in our analysis of appellant's fifth and seventh assignments of error.
In appellant's tenth assignment of error, she maintains the trial court can not enforce provisions regarding notice, late notice, consent to settle and similar clauses in an UM/UIM policy arising by operation of law. In appellant' eleventh assignment of error, appellant maintains she has demonstrated the appellee insurance carriers were not prejudiced due to the delay in notification or unavailability of evidence. Accordingly, appellant argues she should not be barred from coverage based upon such prejudice. Because the trial court did not rule on these issues given its findings no coverage existed, we find it premature for this Court to rule on them at this juncture. Upon remand, the trial court may find this court's holdings in Myers v. Safeco Ins. Co. of Amer., instructive. Appellant's tenth and eleventh assignments of error are overruled as premature.
Wise, J. concur Farmer, J. concurs in part; dissents in part.
I respectfully dissent from the majority's decision in Assignment of Error V that the UM/UIM coverage that arises out of operation of law does not carry forward the restrictions of the original policies. I believe the facts and policies sub judice are clearly distinguishable from Scott-Pontzer for the following reason. Appellant is an insured under the comprehensive catastrophic liability coverage. As an insured, the restrictions of the underlying policy by contract naturally follow through to the UM/UIM coverage. I would find that although appellant was an insured under Lumberman's policy, she was not working within the scope of her employment and is therefore barred from coverage under the UM/UMI operation of law policy. I would dismiss as to Lumberman's and deny the fifth and ninth assignments of error as it relates to Lumberman's. I concur with the majority on the remaining assignments of error.


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Contents: Preface Preface Preface Chapter I. The Establishment of the New Political Organ. I. II. The Jacobins. - III. IV. Preface I. II. III. IV. V. Preface Preface Chapter I. I. II. III. IV. Turmoil of the Elections of 1790. — Elections in 1791. — Effect of the King’s Flight.— Domiciliary Visits. — Montagne During the Electoral Period. V. Preface I. II. III. IV. V. VI. Preface I. II. III. IV. V. Preface I. II. The Expedition to Aix. III. IV. V. Preface I. II. III. IV. Preface I. II. III. IV. V. VI. VII. VIII. Preface Preface I. II. III. Terror Is Their Salvation. IV. V. Abasement and Stupor. VI. Jacobin Massacre. Preface Chapter II. I. II. III. IV. V. VI. Preface I. II. III. IV. V. The Jacobins Forming Alone the Sovereign People. VI. VII. The Jacobin Chieftains. Preface Chapter IV. I. II. III. Physical Fear and Moral Cowardice. IV. Jacobin Victory Over Girondin Majority. V. Jacobin Violence Against the People. VI. Jacobin Tactics. VII. The Central Jacobin Committee in Power. VIII. Right or Wrong, My Country.
The Jacobins of Avignon.— How they obtain recruits. - -Their robberies in the Comtat. — The Avignon municipality in flight or in prison. — Murder of Lécuyer and the Glacière massacre. — Entry of the murderers, supported by their Marseilles allies. — Jacobin dictatorship in Vaucluse and the Buches-du-Rhône.
Nowhere else in France was there another nest of brigands like it: not that a great misery might have produced a more savage uprising; on the contrary, the Comtat, before the Revolution, was a land of plenty. There was no taxation by the Pope; the taxes were very light, and were expended on the spot. "For one or two pennies, one here could have meat, bread, and wine." But, under the mild and corrupt administration of the Italian legates, the country had become "the safe asylum of all the rogues in France, Italy, and Genoa, who by means of a trifling sum paid to the Pope’s agents, obtained protection and immunity." Smugglers and receivers of stolen goods abounded here in order to break through the lines of the French customs. "Bands of robbers and assassins were formed, which the vigorous measures of the parliaments of Aix and Grenoble could not wholly extirpate. Idlers, libertines, professional gamblers," kept-cicisbeos, schemers, parasites, and adventurers, mingle with men with branded shoulders, the veterans "of vice and crime, "the scapegraces of the Toulon and Marseilles galleys." Ferocity here is hidden in debauchery, like a serpent hidden in its own slime, here all that is required is some chance event and this bad place will be transformed into a death trap.
The Jacobin leaders, Tournal, Rovère, the two Duprats, the two Mainvielles, and Lécuyer, readily obtain recruits in this sink. - They begin, aided by the rabble of the town and of its suburbs, peasants enemies of the octroi, vagabonds opposed to order of any kind, porters and watermen armed with scythes, turnspits and clubs, by exciting seven or eight riots. Then they drive off the legate, force the Councils to resign, hang the chiefs of the National Guard and of the conservative party, and take possession of the municipal offices. —After this their band increases to the dimensions of an army, which, with license for its countersign and pillage for its pay, is the same as that of Tilly and Wallenstein, "a veritable roving Sodom, at which the ancient city would have stood aghast." Out of 3,000 men, only 200 belong in Avignon; the rest are composed of French deserters, smugglers, fugitives from justice, vagrant foreigners, marauders and criminals, who, scenting a prey, come from afar, and even from Paris; along with them march the women belonging to them, still more base and bloodthirsty. In order to make it perfectly plain that with them murder and robbery are the order of the day, they massacred their first general, Patrix, guilty of having released a prisoner, and elected in his place an old highway tramp named Jourdan, condemned to death by the court at Valence, but who had escaped on the eve of his execution, and who bore the nickname of Coupe-tête, because he is said to have cut off the heads at Versailles of two of the King’s guards. — Under such a commander the troop increases until it forms a body of five or six thousand men, which stops people in the streets and forcibly enrolls them; they are called Mandrins, which is severe for Mandrin, because their war is not merely on public persons and property, as his was, but on the possessions, the proprieties, and the lives of private individuals. One detachment alone, at one time, extorts in Cavaillon 25,000 francs, in Baume 12,000, in Aubignon 15,000, in Pioline 4,800, while Caumont is taxed 2,000 francs a week. At Sarrians, where the mayor gives them the keys, they pillage houses from top to bottom, carry off their plunder in carts, set fire, violate and slay with all the refinements of torture of so many Hurons. An old lady of eighty, and a paralytic, is shot at arms length, and left weltering in her blood in the midst of the flames. A child five years of age is cut in two, its mother decapitated, and its sister mutilated; they cut off the ears of the curé, set them on his brow like a cockade, and then cut his throat, along with that of a pig, and tear out the two hearts and dance around them. After this, for fifty days around Carpentras, to which they lay siege in vain, the unprovoked, cruel instincts of the chauffeurs manifested at a later date, the ancient cannibalistic desires which sometimes reappear in convicts, and the perverted and over-strained sensuality found in maniacs, have full play.
On beholding the monster it has nourished, Avignon, in alarm, utters cries of distress. But the brute, which feels its strength, turns against its former abettors, shows its teeth, and exacts its daily food. Ruined or not, Avignon must furnish its quota. "In the electoral assembly, Mainvielle the younger, elected elector, although he is only twenty-two, draws two pistols from his belt and struts around with a threatening air." Duprat, the president, the better to master his colleagues, proposes to them to leave Avignon and go to Sorgues, which they refuse to do; upon this he orders cannon to be brought, promises to pay those who will accompany him, drags along the timid, and denounces the rest before an upper national court, of which he himself has designated the members. Twenty of the electors thus denounced are condemned and proscribed; Duprat threatens to enter by force and have them executed on the spot, and, under his leadership, the army of Mandrins advances against Avignon. — Its progress is arrested, and, for two months, restrained by the two mediating commissioners for France; they reduce its numbers, and it is on the point of being disbanded, when the brute again boldly seizes its prey, about to make its escape. On the 21st of August, Jourdan, with his herd of miscreants, obtains possession of the palace. The municipal body is driven out, the mayor escapes in disguise, Tissot, the secretary, is cut down, four municipal officers and forty other persons are thrown into prison, while a number of houses belonging to the fugitives and to priests are pillaged, and thus supply the bandits with their first financial returns. — Then begins the great fiscal operation which is going to fill their pockets. Five front men, chosen by Duprat and his associates, compose, with Lécuyer as secretary, a provisional municipal body, which, taxing the town 300,000 francs and suppressing the convents, offers the spoils of the churches for sale. The bells are taken down, and the hammers of the workmen engaged in breaking them to pieces are heard all day long. A strong-box full of plate, diamonds, and gold crosses, left with the director of the Mont-de-Piété, on deposit, is taken and carried off to the commune; a report is spread that the valuables pawned by the poor had been stolen by the municipality, and that those "robbers had already sent away eighteen trunks full of them." Upon this the women, exasperated at the bare walls of the churches, together with the laborers in want of work or bread, all the common class, become furious, assemble of their own accord in the church of the Cordeliers, summon Lécuyer to appear before them, drag him from the pulpit and massacre him.
This time there seems to be an end of the brigand party, for the entire town, the populace and the better class, are against them, while the peasants in the country shoot them down wherever they come across them. — Terror, however, supplies the place of numbers, and, with the 350 hired killers bravos still left to them, the extreme Jacobins undertake to overcome a city of 30,000 souls. Mainvielle the elder, dragging along two cannon, arrives with a patrol, fires at random into the already semi-abandoned church, and kills two men. Duprat assembles about thirty of the towns-people, imprisoned by him on the 31st of August, and, in addition to these, about forty artisans belonging to the Catholic brotherhoods, porters, bakers, coopers, and day-laborers, two peasants, a beggar, a few women seized haphazard and on vague denunciations, one of them, "because she spoke ill of Madame Mainvielle." Jourdan supplies the executioners; the apothecary Mende, brother-in-law of Duprat, plies them with liquor, while a clerk of Tournal, the newsman, bids them "kill all, so that there shall be no witnesses left." Whereupon, at the reiterated orders of Mainvielle, Tournal, Duprat, and Jourdan, with a complications of hilarious lewdness, the massacre develops itself on the 16th of October and following days, during sixty-six hours, the victims being a couple of priests, three children, an old man of eighty, thirteen women, two of whom are pregnant, in all, sixty-one persons, with their throats slit or knocked out and then cast one on top of each other into the Glacière hole, a mother on the body of her infant, a son on the body of his father, all finished off with rocks, the hole being filled up with stones and covered over with quicklime on account of the smell. In the meantime about a hundred more, killed in the streets, are pitched into the Sorgues canal; five hundred families make their escape. The ousted bandits return in a body, while the assassins who are at the head of them, enthroned by murder, organize for the benefit of their new band a legal system of brigandage, against which nobody defends himself.
These are the friends of the Jacobins of Arles and Marseilles, the respectable men whom M. d’Antonelle has come to address in the cathedral at Avignon. These are the pure patriots, who, with their hands in the till and their feet in gore, caught in the act by a French army, the mask torn off through a scrupulous investigation, universally condemned by the emancipated electors, also by the deliberate verdict of the new mediating commissioners, are included in the amnesty proclaimed by the Legislative Assembly a month before their last crime. - But the sovereigns of the Bouches-du-Rhône do not regard the release of their friends and allies as a pardon: something more than pardon and forgetfulness must be awarded to the murderers of the Glacière. On the 29th of April, 1792, Rebecqui and Bertin, the vanquishers of Arles, enter Avignon along with a cortége, at the head of which are from thirty to forty of the principal murderers whom the Legislative Assembly itself had ordered to be recommitted to prison, Duprat, Mainvielle, Toumal, Mende, then Jourdan in the uniform of a commanding general crowned with laurel and seated on a white horse, and, lastly, the dames Duprat, Mainvielle and Tournal, in dashing style, standing on a sort of triumphal chariot; during the procession the cry is heard, "The Glacière will be full this time! " — On their approach the public functionaries fly; twelve hundred persons abandon the town. Forthwith each terrorist, under the protection of the Marseilles bayonets, resumes his office, like a man at the head of his household. Raphel, the former judge, along with his clerk, both with warrants of arrest against them, publicly officiate, while the relatives of the poor victims slain on the 16th of October, and the witnesses that appeared on the trial, are threatened in the streets; one of them is killed, and Jourdan, king of the department for an entire year, begins over again on a grand scale, at the head of the National Guard, and afterwards of the police body, the same performance which, on a small scale, he pursued under the ancient régime, when, with a dozen "armed and mounted" brigands, he traversed the highways, forced open lonely houses at night, and, in one château alone, stole 24,000 francs.
Chicago: Hippolyte Adolphe Taine, "IV.," The French Revolution— Volume 2, ed. Braybrooke, Richard Griffin, Baron, 1783-1853 and trans. Ingram, J. H. (James Henry) in The French Revolution—Volume 2 (New York: Doubleday, Page, 1909), Original Sources, accessed April 20, 2019, http://www.originalsources.com/Document.aspx?DocID=CR1EA83RN7YKSBL.
MLA: Taine, Hippolyte Adolphe. "IV." The French Revolution— Volume 2, edited by Braybrooke, Richard Griffin, Baron, 1783-1853, and translated by Ingram, J. H. (James Henry), in The French Revolution—Volume 2, Vol. 36, New York, Doubleday, Page, 1909, Original Sources. 20 Apr. 2019. www.originalsources.com/Document.aspx?DocID=CR1EA83RN7YKSBL.
Harvard: Taine, HA, 'IV.' in The French Revolution— Volume 2, ed. and trans. . cited in 1909, The French Revolution—Volume 2, Doubleday, Page, New York. Original Sources, retrieved 20 April 2019, from http://www.originalsources.com/Document.aspx?DocID=CR1EA83RN7YKSBL.

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


—and which said entry, so far as aforesaid made in said book, then and there purported to show, and did, in substance and effect, indicate and declare, that the sum of $5,365.88 was then and there received by said association on account of interest then and there due and payable to said association by one Richard L. Dickson.
The 34 counts next following, numbered from 2 to 35, inclusive, charged, in the same language, the making of similar false entries in the same book with the same intent.
'That the said James H. Britton, late of said district, on the second day of April, in the year of our Lord one thousand eight hundred and seventy-seven, at said district, being then and there president of a certain national banking association then and there known and designated as the 'National Bank of the State of Missouri, in St. Louis,' which said association had been theretofore created and organized under and by virtue of an act of congress entitled 'An act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,' approved June third, in the year of our Lord one thousand eight hundred and sixty-four, and which said association was then and there acting and carrying on a banking business in the city of St. Louis, in said district, under the said act of congress and the acts amendatory thereof, did pay to a certain person, to the jurors aforesaid unknown, a large sum of money, to-wit, twenty-four hundred dollars, out of the moneys and funds then and there belonging to and the property of said association, in the purchase by him, the said James H. Britton, from said unknown person, of a large number, to-wit, forty certain shares of the capital stock of said association, which said shares of stock were then and there represented upon the books of said association to be the property of one Francis Fisher.
The next following 19 counts, numbered from 38 to 56, inclusive, are similar to count 37, and need not be set out.
The next succeeding counts, numbered from 57 to 76, inclusive, but excepting the seventy-fourth, are similar to count 37, except that they omit the averment that the misapplication was made with intent 'to injure and defraud the said association and certain persons to the jurors aforesaid unknown.' These counts aver no intent whatever. The seventy-fourth count is similar to the thirty-seventh.
The next 20 counts, numbered from 97 to 116, are all similar to count 96, except that they omit the averment that the misapplication of the funds of the association was with the intent 'to injure and defraud the said association and certain persons to the jurors aforesaid unknown.' These counts charge no intent.
The count numbered 117 was similar to count 36, and count numbered 118 was similar to count 1.
As no division of opinion respecting count numbered 119 is certified, it is unnecessary to notice that count.
(1) Whether it was necessary, in the counts of said indictment charging a fraudulent purchase by the defendant of certain shares of the capital stock of said association, to state for whose use the purchase was made, and whether, where it is charged in the indictment that the purchase of stock was made for the use of the bank, such averment vitiates the indictment.
(2) Whether it was necessary in the said counts to allege that the purchase of stock was not made in order to prevent loss on some previously-contracted debt.
(3) Whether it was necessary in the said counts to set forth the means by which the defendant, as president of said bank, possessed himself of the moneys of the bank, which he employed in purchasing said stock.
(4) Whether it was necessary to charge in the said counts that the defendant, as president of the bank, was in possession of funds of the bank, in addition to charging misapplication of said funds.
(5) Whether the counts of said indictment charging the fraudulent purchase by the defendant, as president of said banking association, of certain shares of stock 'in trust, for the use of said association, and which said shares of stock were not purchased as aforesaid in order to prevent loss upon any debts theretofore contracted with said association in good faith,' alleged with sufficient certainty an offense under said section 5209 of the Revised Statutes of the United States.
(6) Whether count numbered 116 of the said indictment charges with sufficient certainty an offense under said section 5209 of the Revised Statutes of the United States.
(7) Whether it is necessary in an indictment under section 5209 of the Revised Statutes, charging willful misapplication of the funds of a banking association, to allege that such misapplication was with intent to defraud.
(8) Whether the purchase of stock in violation of section 5201 of the Revised Statutes of the United States, if made with intent to defraud, and by one or more of the officers of the bank named in said section 5209 of the Revised Statutes, is a crime punishable under the latter section.
(9) Whether those counts which cover alleged false entries sufficiently state an offense under section 5209.
These questions, together with the pleadings upon which they arose, were, on motion of counsel for the United States, certified by the judges of the circuit court to this court for its opinion thereon.
Asst. Atty. Gen. Maury, for the United States.
J. B. Henderson, Geo. H. Shields, and Chester H. Krum, for Britton.
In passing upon the questions certified to us by the circuit court, it will be convenient to follow the order in which they have been argued by counsel, rather than that in which the questions are presented by the certificate of division.
Applying the rules thus laid down to the counts of the indictment, we are to consider whether they sufficiently state an offense under section 5209 of the Revised Statutes.
(1) That the accused was the president or other officer of a national banking association, which was carrying on a banking business.
(2) That being such president or other officer, he made in a book, report, or statement of the association, describing it, a false entry, describing it.
(3) That such false entry was made with intent to injure or defraud the association, or to deceive any agent, describing him, appointed to examine the affairs of the association.
(4) Averments of time and place.
An examination of the counts under consideration shows that they contain all these averments pleaded with clearness and reasonable certainty. They must, therefore, be held sufficient, unless some of the objections made to them by counsel for defendant are well taken.
It is urged that these counts are defective because they do not contain an averment that the false entry was made 'in an account of, and in the due course of, business of the bank.' Neither of these averments is required by the statute. It is alleged that the false entry was made in a book belonging to and in use by the association in transacting its banking business, and known and designated as 'Profit and Loss, No. 6.' To hold this insufficient would carry refinement in criminal pleading to an impracticable extent. The counts point out to the defendant and the court, with certainty and precision, the book used by the association in which the false entry was made, and this is all that is necessary under the statute.
It is next objected that the false entries as set out in the counts do not of themselves have any significance, and are unintelligible without explanation. This is mere assumption. Conceding that the entries may be unintelligible to persons not skilled as accountants, it does not follow that they are so to the agent appointed by the comptroller, who, it is alleged, was the person whom the entries were intended to deceive. But, if the entries needed explanation, it was perfectly competent for the pleader to explain them by innuendo. Rex v. Gripe, 1 Ld. Raym. 256; Rex v. Aylett, 1 Term R. 63; Rex v. Taylor, 1 Camp. 404; Reg. v. Virrier, 12 Adol. & E. 317; Mix v. Woodward, 12 Conn. 262; Van Vechten v. Hopkins, 5 Johns. 211. This he has done by averring what the entries purported to show, and did in substance indicate and declare. Having explained the entries, he avers them to be false. To hold this insufficient would be to decide that the making of false entries in the books of a banking association, in the usual method of book-keeping, and which were intelligible to all accountants, could not be punished under the statute because not intelligible to persons generally, or to persons not skilled in book-keeping.
It is next objected that the counts under consideration are argumentative and repugnant, because they do not allege that interest was due to the association from the individuals named in the alleged false entries. This objection is not well founded. Whether interest was due or not is quite immaterial. The charge is that a false entry was made on the books of the association which purported that a certain sum was, on a day named, received from a person named, on account of interest then and there due from him to the association; that the said sum was not then and there received on account of interest due, and was not received on any account from any sources whatever. The falsity of the entry does not consist in the fact that there was no interest due from the person named, but in the fact that money, which the entries declared had been received from him on account of interest due, had not been received from him on that or any other account. It was, therefore, entirely unnecessary to aver that no such interest was due, and the want of such averment does not render the counts argumentative or repugnant.
It is further objected to these counts that a false entry to the credit of profit and loss alone could not deceive a bank examiner, and therefore that the counts are repugnant. This is also mere assumption. But if the false entry is calculated to deceive, the making of it in the books of the association, with intent to deceive, is all that is necessary to bring the act within the meaning of the statute. It is perfectly apparent that any false entry in any account book of a bank used in transacting its banking business is calculated to deceive. The fact that its falsity may be exposed by an examination of other books of account, does not render it any the less a false entry made with intent to deceive. The circumstance that the attempt to deceive by making a false entry was not an adroit and skillful one, does not relieve the act of its criminal character.
It is further contended that the counts under consideration are insufficient, because it is not alleged that at the time the false entries were made an agent had been appointed to examine the affairs of the association. This objection is based on the theory that the statute was designed to punish only those officers of a banking association who made false entries in its books with intent to deceive examiners appointed before the false entries were made. We do not think the statute will bear this construction.
'The comptroller of the currency, with the approval of the secretary of the treasury, shall, as often as shall be deemed necessary or proper, appoint a suitable person or persons to make an examination of the affairs of every banking association, who shall have power to make a thorough examination into all the affairs of the association.' It appears from this section that the appointment of these agents is not permanent, but occasional and temporary, and that the appointments are made as often as shall be deemed necessary and proper. It is, therefore, apparent that the statute which punishes false entries, made with intent to deceive such agents, refers to any entries made with that intent, whether before or after the appointment of the agent.
There is nothing impossible in the averment that false entries have been made with intent to deceive an agent to be appointed after they are made. The agents are often purposely appointed without notice to the association. The fact that the comptroller of the currency has information that the officers of an association are making false entries in its books may be the occasion for appointing an agent to examine its affairs. To hold that the officers of the association would only be punishable for false entries made after an agent had been appointed, would rob the law of a large part of its salutary effect. Its purpose is clear to punish all false entries in the books of the bank, no matter when made, if made with intent to defraud the association or deceive the examiner. We think that in respect to the point under consideration the indictment is sufficient.
We are of opinion that none of the objections raised to the first 35 counts are well taken. They are refined and unsubstantial, and not sustained by the rules of criminal pleading in cases of misdemeanor, or by the fair construction of the statute on which the indictment is based. These counts embody the language of the statute; they charge every element of the offense created by the statute with sufficient certainty, and give the defendant clear notice of the charge he is called on to defend. They are, therefore, sufficient. U. S. v. Cook, 17 Wall. 168, and cases already cited.
The thirty-sixth count differs from the first 35 in charging the intent with which the offense was committed. The intent is charged to be 'to injure and defraud the said association, and certain persons to the grand jurors unknown.' This follows the language of the statute.
Clearly it is possible to injure and defraud the association or its stockholders or other persons by false entries in its account of profit and loss. The charge is not repugnant or impossible. We are of opinion, therefore, that the first 36 counts of the indictment, being those which charge false entries in the books of the association, sufficiently state an offense under section 5209. It follows that count 117, which is in all respects similar to count 1, and count 118, which is in all respects similar to count 36, are good and sufficient.
We shall next consider count numbered 77 and the similar counts. That portion of the section on which they are based makes it an offense for the president or other officer of a banking association to embezzle, abstract, or willfully misapply the moneys of the association with intent to injure or defraud the association, or any company or person.
The seventy-seventh count of the indictment charged that the defendant being president of the association, paid to a certain person unknown the sum of $2,400 of the moneys of the association in the purchase of 40 shares of its capital stock, which stock, so purchased, was held by the defendant in trust for the use of the association, and the same was not purchased to prevent loss on any debt theretofore contracted with the association in good faith, and that so the defendant did willfully misapply the moneys of the association with intent to injure and defraud the association and certain persons to the grand jurors unknown. The question is propounded to us whether this count sufficiently describes an offense under section 5209 of the Revised Statutes. The purchase of its own stock by the association, except to secure a debt due it, is forbidden by law. Is a purchase for the use of a banking association of its own stock by its president, when not necessary to secure a debt due the association, a willful misapplication of its funds, punishable by section 5209? We think the willful misapplication made an offense by this statute means a misapplication for the use, benefit, or gain of the party charged, or of some company or person other than the association. Therefore, to constitute the offense of willful misapplication, there must be a conversion to his own use or the use of some one else of the moneys and funds of the association by the party charged. This essential element of the offense is not averred in the counts under consideration, but is negatived by the averment that the shares purchased by the defendant was held by him in trust for the use of the association, and there is no averment of a conversion by the defendant to his own use or the use of any other person of the funds used in the purchase of the shares. The counts, therefore, charge maladministration of the affairs of the bank, rather than criminal misapplication of its funds.
If we hold these counts to be good, then every official act of any officer, clerk, or agent of a banking association, by which its funds are applied in a way not authorized by law, would be punishable under section 5209.
For instance, section 5200 of the Revised Statutes declares that 'the total liabilities to any association of any person, * * * for money borrowed, * * * shall at no time exceed one-tenth part of the capital stock of the association actually paid in.' Section 5201 provides that no association shall make any loan or discount on the security of the shares of its own capital stock, unless such security shall be necessary to prevent loss on a previously-contracted debt. If the counts under consideration are sustained, then every president, director, cashier, teller, clerk, or agent of a banking association, who has any part in lending the money of the association contrary to the provisions of these sections, is guilty of a criminal misapplication of its funds. So, by section 5137 of the Revised Statutes, the purposes for which a banking association may purchase and hold real estate are limited, and specifically pointed out. If the directors of a banking association should authorize the purchase of a piece of real estate for its use, but not for purposes authorized by the statute, even though with intent to injure some corporate body or natural person, it could hardly be claimed that the directors who made the order, and the other officers or agents of the association who, with a like intent, had any hand in making the purchase or in paying out the money of the bank therefor, would be liable to indictment and imprisonment under section 5209.
We are, therefore, of opinion that the willful misapplication of the moneys and funds of the banking association, which is made an offense by section 5209, means something different from the acts of official maladministration referred to in section 5239, and it must be a willful misapplication for the use or benefit of the party charged, or of some person or company other than the association, with intent to injure and defraud the association or some other body corporate, or some natural person.
As the counts under consideration, namely, count 77, and the similar counts down to and including count 96, do not show that the willful misapplication therein alleged was made by the defendant for his own use, benefit, or advantage, but for the use of the association, we are of opinion that they do not allege an offense under section 5209, and are, therefore, insufficient and bad. The counts are, in our opinion, bad also for repugnancy. They aver that the defendant purchased the shares of the association and held them in trust for the association. This charge, without further averments, is clearly repugnant. It is true that it is possible for an officer of a banking association, with intent to defraud it, to misappropriate its funds in the purchase for its use of its own stock. But the count which avers such an act should also make other averments to show that the application was not merely a use of the money for the benefit of the association forbidden by law, but a criminal misapplication, by which it was possible that the association could be defrauded.
For the reasons assigned, the counts next following, numbered from 97 to 116, inclusive, which are similar to count 77, except that they severally fail to aver that the act therein charged was done with intent to injure and defraud, must be held to be insufficient. The counts last mentioned, as well as the counts numbered from 56 to 76, inclusive, are bad for the further reason that they fail to aver any intent to injure and defraud mentioned in section 5209. The intent to injure and defraud is an essential ingredient to every offense specified in the section, and the failure to aver the intent is a fatal defect in the counts in which it occurs.
We shall next consider court numbered 37 and the counts which are similar to it. These counts simply charge that the defendant, being president of the association, willfully misapplied its moneys and funds by buying therewith certain shares of its stock, with intent to injure and defraud the association and certain persons to the grand jurors unknown.
The words 'willfully misapplied' are, so far as we know, new in statutes creating offenses, and they are not used in describing any offense at common law. They have no settled technical meaning like the word 'embezzle,' as used in the statutes, or the words 'steal, take, and carry away,' as used at common law. They do not, therefore, of themselves fully and clearly set forth every element of the offense charged. It would not be sufficient simply to aver that the defendant 'willfully misapplied' the funds of the association. This is well settled by the authorities we have already cited. There must be averments to show how the application was made and that it was an unlawful one. These averments the pleader has in these counts attempted to make by charging that the defendant paid out the funds of the association in the purchase of its own stock. But this is not necessarily an unlawful use of the funds of the association. It is not every purchase of its own shares by an association that is forbidden. The very section (5201) and sentence of the statute which declares that no banking association shall be a purchaser of its own shares, contains the exception 'unless such purchase shall be necessary to prevent loss upon a debt previously contracted in good faith.' This exception should have been negatived in these counts. The rule of pleading, as laid down by Mr. Chitty, is that 'when a statute contains provisos and exceptions in distinct clauses it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains. On the contrary, if the exceptions themselves are stated in the enacting clause it will be necessary to negative them in order that the description of the crime may in all respects correspond with the statute.' 1 Chit. Crim. Law, 283, 284.
Thus, where a statute declared that if one on the Sabbath day 'shall exercise any secular labor, business, or employment, except such only as works of necessity and charity, he shall be punished,' etc., a negative of the exception was held indispensable. State v. Barker, 18 Vt. 195. See, also, Com. v. Maxwell, 2 Pick. 139; 1 East, 167; Spieres v. Parker, 1 Term R. 141; Gill v. Scrivens, 7 Term R. 27; 1 Bish. Crim. Proc. § 636.
The failure of the counts under consideration to aver that the purchase of the shares of the association was not necessary to prevent loss upon a debt previously contracted in good faith is a fatal defect. These counts merely charge that the defendant willfully misapplied the funds of the association, and then aver a use of the funds, which, from all that appears to the contrary, was a perfectly-lawful application of them. The result is that no offense is described in the counts numbered fron 37 to 56, inclusive, and that they are, therefore, insufficient and bad. It also follows that counts numbered fron 57 to 76, inclusive, which are similar to the series just mentioned, except that they contain no charge of intent to injure and defraud, are also bad.
What we have said disposes of all the questions propounded to us which it is necessary that we should answer. We answer the first, second, seventh, and ninth questions in the affirmative, and the fifth, sixth, and eighth questions in the negative. From these answers it appears that all the counts from the thirty-seventh to the one hundred and eighteenth, inclusive, are insufficient and bad. We therefore decline to answer the third and fourth questions, which relate to the same counts. U.S. v. Buzzo, 18 Wall. 125.


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The Complainant in this administrative proceeding is Microsoft Corporation, of One Microsoft Way, Redmond, Washington, United States of America.
The Complainant is represented in this proceeding by the attorneys Suzanne V. Wilson, Esq. and James S. Blackburn, Esq. of Arnold & Porter, Los Angeles, United States of America.
The Respondent (the holder of the domain name registration) is Andrey Tumakov, microesoft.com, Volzhskaya Naberezhnaya N. Novgorod, Russia, of the Russian Federation.
The disputed domain name is <microesoft.com> ("the Domain Name").
The Domain Name Registrar is Tucows Inc.(" Tucows").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 8, 2002. On November 8, 2002, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On November 11, 2002, Tucows transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact.
On November 14, 2002, the Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 15, 2002. In accordance with paragraph 5(a) of the Rules, the due date for Response was December 5, 2002.
The Respondent did not submit any response. Accordingly, the Center notified the Respondent�s default on December 9, 2002.
The Center appointed Ron Klagsbald [the undersigned] as the sole panelist in this matter on December 12, 2002. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules.
"7. Microsoft is a well-known, worldwide provider of computer software and related products and services, including products and services designed for use through the Internet. Since its inception in 1975, Microsoft has created software and Internet services for use in the workplace, home, and education.
8. Microsoft�s products and services include computer operating systems, client/server applications, business and consumer productivity applications, software programming tools, interactive media programs, Internet platform and development tools, computer input devices, online information and entertainment services, electronic commerce services, and computer publications.
9. Microsoft�s many products and services include various "photo-imaging" products. Microsoft Picture-It!® is among Microsoft�s many photo-imaging products. Microsoft Picture-It!® provides a complete set of photo editing tools that allow computer users to edit, matte and frame photos, add clip art to their images, and share photos with other computer users. Microsoft also offers Microsoft Design Gallery Live, available as part of Microsoft Office Home Edition, which provides clip art and letter templates for computer users. In addition, Microsoft offers digital photography services as part of Windows® XP Home Edition, which allow users of that software to, among other things, create their own photo albums and photo slideshows, and to share photos with other persons by electronic mail and over the Internet. Furthermore, Microsoft TV Photo Viewer allows users to create digital photo albums that can then be displayed on a regular television.
10. Microsoft offers these goods and services to the public under the federally registered trademark "MICROSOFT" (the "MICROSOFT Mark"). The United States Patent and Trademark Office has granted federal trademark registrations for the MICROSOFT Mark in numerous classes of goods and services, including, without limitation: computer programs, computer hardware, information services in the fields of entertainment, movies and sports, interactive electronic retailing and on-line ordering and information systems, restaurant and travel information and reservations, electronic mail services, and books and reference materials. True and correct copies of certain of Microsoft�s trademark registrations for the MICROSOFT Mark are attached [to the Complaint] collectively as Exhibit D.
11. Microsoft has spent substantial time, effort and money advertising and promoting the MICROSOFT Mark throughout the world. As a result, the MICROSOFT Mark has become distinctive and well-known, and Microsoft has developed an enormous amount of goodwill in the mark. Indeed, previous World Intellectual Property Organization ("WIPO") administrative panels have determined on many occasions that the MICROSOFT Mark is famous [the Complainant lists previous relevant WIPO decisions].
12. In connection with the MICROSOFT Mark, Microsoft has established Internet websites located at domain names comprised of the MICROSOFT Mark, including <microsoft.com> and <microsoft.net> (collectively, the "Microsoft Websites"). The Microsoft Websites allow computer users throughout the world to access information regarding Microsoft and its products and services and to use and enjoy the Internet services provided by Microsoft. In addition, the "microsoft.com" home page includes links to websites where Microsoft products, including Microsoft�s photo-imaging products, can be purchased. A true and correct copy of a printout of the "microsoft.com" home page dated October 18, 2002, is attached [to the Complaint] as Exhibit E. A true and correct copy of a printout of the Microsoft webpage listing Microsoft�s photo-imaging products, dated October 18, 2002, is attached [to the Complaint] as Exhibit F.
13. Microsoft recently discovered that Respondent had registered the <microesoft.com> domain name and established a commercial website at the <microesoft.com> domain name that appeared to offer software products and services under the company name "Microesoft Corporation." A true and correct copy of a printout of the home page for "microesoft.com" dated June 28, 2002, is attached [to the Complaint] as Exhibit G. "Microesoft Gallery Maker," a product which, according to the description on the "microesoft.com" website, allowed users to "create, view, and edit photo albums, Internets, thumbnails, virtual picture galleries, catalogues, presentations, and slideshows" was one of the software products and services offered at the <microesoft.com> domain name. The product description on Respondent�s "microesoft.com" website also claimed that the "Microesoft Gallery Maker" allowed users to "edit . . . digital photos with a host of tools, . . . organize (the user�s) album, and share albums on the web." In addition, "Microesoft Gallery Maker" purportedly allowed users to add free clip art to their photo projects. A true and correct copy of the printout of the product description for "Microesoft Gallery Maker" dated June 28, 2002, is attached [to the Complaint] as Exhibit H.
14. Following its discovery of Respondent�s wrongful conduct, Microsoft�s counsel sent a cease and desist letter to Respondent via both electronic mail and Federal Express, explaining that Respondent�s use of the "Microesoft" name infringes and dilutes Microsoft�s trademark rights in the MICROSOFT Mark. The letter further demanded that Respondent ceases his illegal conduct by, among other things, changing the name of his company, products, and services to avoid any confusion with the MICROSOFT Mark. In addition, Microsoft counsel demanded that Respondent transfer the registration for the <microesoft.com> domain name to Microsoft. A true and correct copy of the letter sent by Microsoft�s counsel to Respondent, dated July 8, 2002, is attached [to the Complaint] as Exhibit I.
15. Respondent answered Microsoft�s demands by changing the publicly accessible portion of his website to display only a webpage stating that the site was "for construction." However, although Respondent closed the "microesoft.com" website "for construction," he did not disable background download functionality from the "microesoft.com" site. Thus, "Microesoft Gallery Maker" remained available for download from numerous Internet companies with links to Microesoft.com. "downlinx.com" was among the many sites offering "Microesoft Gallery Maker" for download in this manner. True and correct copies of screen shots taken on October 17, 2002, showing the link from "downlinx.com" to "microesoft.com" for purposes of downloading "Microesoft Gallery Maker" are attached [to the Complaint] as exhibit J.
16. Upon discovering that "Microesoft Gallery Maker" remained available for download despite the fact that Respondent's website was "under construction," Microsoft contacted many of the companies offering Respondent�s "Microesoft Gallery Maker" for download by letter and requested that the hosting websites cease offering the "Microesoft Gallery Maker" product for download. [Microsoft�s counsel has contacted numerous Internet websites with links to "microesoft.com" which allowed users to download Respondent�s "Microesoft Gallery Maker" program. Most of these sites have removed the links to Respondent�s "microesoft.com" home page. Accordingly, the number of sites offering Respondent�s "Microesoft Gallery Maker" program for download has decreased significantly.] Despite these efforts, "Microesoft Gallery Maker" remained readily available for download. A simple Internet search for "Microesoft" yields 240 matches. A true and correct copy of the Google search dated November 4, 2002, displaying the list of websites from which "Microesoft Gallery Maker" remains available is attached [to the Complaint] as Exhibit K. A true and correct copy of a sample letter sent to the websites offering Respondent�s "Microesoft Gallery Maker" program for download is attached [to the Complaint] as Exhibit L. True and correct copies of a selection of webpages where users may download Respondent�s "Microesoft Gallery Maker" program is attached [to the Complaint] as Exhibit M.
17. Although Respondent changed the "micreosoft.com" website to state that it was "for construction," Respondent took no further action in response to Microsoft�s cease and desist letter. As stated above, despite Respondent's alteration of the visible portion of the "microesoft.com" website to state that it was "for construction," the "Microesoft Gallery Maker" software product remained available for download by link to the "microesoft.com" website. Accordingly, on October 15, 2002, Microsoft�s counsel contacted SBBSNet, the apparent web host for Respondent�s "microesoft.com" website. Microsoft�s counsel requested that SBBSNet deactivate the website based on Respondent�s violation of Microsoft�s trademark rights. A true and correct copy of Microsoft's counsel's October 15, 2002, letter to SBBSNet is attached [to the Complaint] as Exhibit N. SBBSNet responded by stating that it was not the direct host for the "microesoft.com" website, having leased the IP address associated with the <microesoft.com> domain name to another hosting company, Mastek. SBBSNet nonetheless offered to work with Microsoft to resolve the issue. In furtherance of this offer, SBBSNet contacted Mastek and advised Mastek that it had three days to ensure that Respondent disabled the "microesoft.com" website before SBBSNet took steps to deactivate the site. On or about October 19, 2002, the "microesoft.com" website was deactivated and can no longer be reached by typing "microesoft.com" into a user's Internet browser."
Complainant, Microsoft Corporation, contends the following arguments. The factual elements of these contentions are accepted as true, in view of Respondent�s default to file a response.
1. Respondent�s <microesoft.com> domain name is almost identical, and therefore confusingly similar, to the famous MICROSOFT Mark. The two domain names are largely indistinguishable, both phonetically and visually. The only difference between the domain names is the extra "e" in Respondent�s domain name (paragraph 18 of the Complaint).
2. Courts have recognized that consumers expect to find a company on the Internet at a domain name address comprised of the company�s name, trademark or product.
It is clear that Respondent has attempted to take advantage, for its own commercial advantage, of this type of Internet user behavior pattern. While some Internet users will correctly locate the Microsoft Website at <microsoft.com>, other users undoubtedly will inadvertently type <microesoft.com> in their browsers and will mistakenly arrive at Respondent�s website and be either frustrated at not reaching the official Microsoft website or actually be confused as to the connection between Respondent�s website and its services and Microsoft (paragraphs 19 and 20 of the Complaint).
3. Respondent has no connection or affiliation with Microsoft and has not received any license or consent, express or implied, to use the MICROSOFT Mark in a domain name or in any other manner. Respondent is not an authorized dealer or reseller of Microsoft products or services. Furthermore, Respondent has not used the Domain Name in connection with a bona fide offering of goods or services. Respondent has used the domain name <microesoft.com> to divert Internet users who misspell or make a typographical error when attempting to reach an official Microsoft website to his own Internet website where he offers for sale software products and services that compete with those offered by Microsoft (paragraph 21 of the Complaint).
4. When Respondent registered the Domain Name, in August 2001, The MICROSOFT Mark was already internationally famous. Therefore, it is inconceivable that Respondent was not aware of the MICROSOFT Mark when he registered the Domain Name (paragraph 22 of the Complaint).
5. Even if Respondent had denied knowledge of The MICROSOFT Mark, it would have been irrelevant. Respondent is deemed to have constructive notice of Microsoft�s trademark rights in the MICROSOFT Mark by virtue of Microsoft�s federal trademark registrations for the mark (paragraph 23 of the Complaint).
6. In the unlikely event that Respondent genuinely did not know about Microsoft�s rights in the MICROSOFT mark and the Microsoft Website when Respondent registered the domain name <microesoft.com>, Respondent�s failure to correct the situation immediately after Microsoft first advised him of Microsoft�s rights satisfies the bad faith registration requirement (paragraph 24 of the Complaint).
7. Respondent�s actions fall within paragraph 4(b)(iv) of the Dispute Policy in that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Microsoft�s mark as to the source, sponsorship, affiliation, or endorsement of its website or location of a product or service on its website (paragraph 25 of the Complaint).
8. Respondent used the domain name <microesoft.com> to divert Internet traffic away from Microsoft to his own website at <www.microesoft.com>. Respondent undoubtedly engaged in this activity in order to benefit from the enormous level of Internet traffic from Internet users seeking the official Microsoft website, <microsoft.com>. Such conduct alone creates a prima facie inference of bad faith (paragraph 26 of the Complaint).
9. The level of consumer confusion created by Respondent�s use of the infringing mark is especially high because of the similarity between the goods and services legitimately offered on Complainant�s website <microsoft.com>" and those available on Respondent�s website (paragraph 27 of the Complaint).
10. Alternatively, even if Internet users eventually realize that they have not arrived at an official Microsoft site, to the extent they were seeking products and services available through Respondent�s website, they may decide to patronize Respondent�s website instead of continuing their search for an official Microsoft website. Even if consumer confusion is dispelled prior to purchase of services and/or products offered through Respondent�s website, Microsoft is harmed by the initial interest confusion created by Respondent (paragraph 28 of the Complaint).
The Respondent did not file a response and did not reply to the Complainant�s contentions.
Consequently, all Complainant�s contentions and arguments, as stated above, are uncontested, indisputable and, therefore, accepted as true.
(i) Complainant has rights in the MICROSOFT Mark. This mark is federally registered in the USA in the US Patent and Trademark Office covering numerous classes of different products and services. The Complainant is the owner of these trademark registrations [Exhibit D of the Complaint].
(ii) The MICROSOFT Mark is a well-known mark. Complainant has spent substantial time, effort and money advertising and promoting the MICROSOFT Mark throughout the world. As a result, the MICROSOFT Mark has become distinctive and well-known, and Microsoft has developed an enormous amount of goodwill in the mark. Previous WIPO administrative panels have asserted that MICROSOFT is a well-known mark [see, for example: WIPO Case No. D2001-1454 Microsoft Corp. v. Momm Amed Ia; WIPO Case No. D2000-1500 Microsoft Corporation v. StepWeb].
(iii) Respondent�s Domain Name <microesoft.com>, is almost identical � visually as well as phonetically- to Complainant�s well-known mark MICROSOFT. In fact, the Domain Name is phonetically identical to Complainant�s mark. The only difference between the Domain Name and Complainant�s mark is the addition of the letter e between the letters O and S in Complainant�s mark. As previously held by other WIPO panels, a mere addition of a minor misspelling or typographical error of a mark, does not create a new or different mark in which Respondent has legitimate rights. This is the case, in particular, where Complainant�s mark is well-known and famous, like in this case [see: WIPO Case No. D2000-1495 America Online Inc. v. John Zuccarini; WIPO Case No. D2001-0362 Microsoft Corporation v. Charlie Brown].
(i) Respondent has no connection or affiliation with Complainant and has not received any license or consent, express or implied, to use the MICROSOFT Mark in a domain name or in any other manner. Respondent is not an authorized dealer or reseller of Microsoft products or services. Moreover, Respondent has used the Domain Name to divert Internet users who misspell or make a typographical error when attempting to reach an official Microsoft website to his own Internet website where he offers for sale software products and services that compete with those offered by Complainant. Such behavior by Respondent does not constitute a bona fide offering of goods or services under the Domain Name (see WIPO Case No. D2001-0357 Pier 1 Imports, Inc. and Pier 1 Licensing, Inc. v. Raymond E. Farr, Jr.).
(i) In August 2001, when Respondent registered the domain name <microesoft.com>, the MICROSOFT Mark was already internationally famous. As stated in the Complaint [paragraph 11], "Microsoft has spent substantial time, effort and money advertising and promoting the MICROSOFT Mark throughout the world. As a result, the MICROSOFT Mark has become distinctive and well-known, and Microsoft has developed an enormous amount of goodwill in the mark" (See also: WIPO Case No. D2000-1500 Microsoft Corporation v. StepWeb).
This Panel finds that it is extremely unreasonable that Respondent was not aware of the MICROSOFT Mark when he registered the Domain Name. The striking resemblance (almost identity) of the Domain Name to the MICROSOFT Mark only strengthens this conclusion. Respondent�s choice of the Domain Name (being almost identical to the MICROSOFT Mark) cannot be considered as mere coincidence or chance.
Moreover, Respondent�s use of the <microesoft.com> domain to offer for sale software products and services that are similar to those offered by Complainant strongly suggests knowledge of the MICROSOFT Mark and its fame in connection with, inter alia, software products and services.
(ii) The Panel accepts Complainant�s contention that Respondent is deemed to have constructive notice of Microsoft�s trademark rights in the MICROSOFT Mark by virtue of its federal trademark registrations for this mark. Trademark "registrations constitute constructive notice to all other parties of the Complainant�s ownership of the mark". Therefore, even if Respondent had denied (but, he does not) knowledge of the trademark, it would have been irrelevant (see for example, WIPO Case No. D2000-1344 Microsoft Corporation v. Cupcake Patrol).
(iii) This Panel also accepts Complainant�s additional contention that even in the case that Respondent genuinely did not know about Microsoft�s rights in the MICROSOFT Mark and the Microsoft Website when he registered the domain name <microesoft.com>, Respondent�s failure to correct the situation immediately after Microsoft first advised Respondent of Microsoft�s rights satisfies the bad faith registration requirement.
(iv) This Panel concludes that Respondent�s registration of the domain name <microesoft.com> despite his obvious knowledge of the famous MICROSOFT Mark amounts to registration of the Domain Name in bad faith according to paragraph 4(a)(iii) of the Policy (see: WIPO Case No. D2000-1274 Microsoft Corporation v. Stoneybrook).
(v) Respondent used the domain name <microesoft.com> to divert Internet traffic away from Microsoft to his own website at <www.microesoft.com>. It is most probable that Respondent engaged in this activity in order to benefit from the enormous level of Internet traffic from Internet users seeking the official Microsoft website, <microsoft.com>. Such "conduct alone creates a prima facie inference of bad faith." (see: WIPO Case No. D2001-0362 Microsoft Corporation v. Charlie Brown; WIPO Case No. D2001-0060 Google, Inc. v. Namerental.com and Leonard Bensonoff).
(vi) The level of consumer confusion created by Respondent�s use of the Domain Name is extremely high also because of the proximity of the goods and services legitimately offered on Complainant�s website <microsoft.com> to those available on Respondent�s website.
(vii) This Panel accepts Complainant�s alternative argument that, even if Internet users eventually realize that they have not arrived at Complainant�s site, to the extent they were seeking products and services available through Respondent�s website, they may decide to patronize Respondent�s website instead of continuing their search for an official Microsoft website. Even if consumer confusion is dispelled prior to purchase of services and/or products offered through Respondent�s website, Microsoft is harmed by the initial interest confusion created by Respondent.
(viii) Respondent�s actions as set forth hereinabove fall within paragraph 4(b)(iv) of the Policy, hence constituting evidence of use of the Domain Name in bad faith. Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with Microsoft�s mark as to the source, sponsorship, affiliation, or endorsement of his website or location of a product or service on his website.
(ix) This Panel concludes that Respondent�s use of the <microesoft.com> domain name as set forth hereinabove constitutes use of the Domain Name in bad faith according to paragraph 4(a)(iii) of the Policy.
In light of the Panel�s findings as set forth hereinabove, the Panel finds that the Complainant has proven the cumulative elements which, according to paragraph 4(a) of the Policy, justify an order for the transfer of the Domain Name as prescribed in paragraph 4(i) of the Policy: (i) the domain name <microesoft.com> is almost identical and confusingly similar to the MICROSOFT Mark in which Complainant has legitimate rights; and (ii) Respondent, who is the current registrant of the Domain Name, has no right or legitimate interest in or with respect to this domain name; and (iii) Respondent has registered and used the Domain Name in bad faith.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <microesoft.com> be transferred to the Complainant, Microsoft Corporation.

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