Prior to 1966, Edgefield County, S.C. was governed by a three-member Board of County Commissioners, consisting of the County Supervisor, who was elected at-large, and two members who were appointed by the Governor. There were no residency requirements for the Commissioners. In 1966, the state legislature enacted a statute creating a new form of government for the county and altering its election practices. A three-member County Council was established, and the county was divided into three residency districts for the purpose of electing Council members. Voters throughout the county cast votes for a candidate from each district, and the candidate in each district with the most votes occupies that district's seat on the Council. The 1966 statute was not submitted to federal officials for approval as required by § 5 of the Voting Rights Act of 1965. In 1971, the 1966 statute was amended so as to increase the number of residency districts, and thus the number of Council members, from three to five, necessarily resulting in new district boundaries. This amendment was submitted to the Attorney General for his approval pursuant to § 5 of the Voting Rights Act, and, after requesting and receiving additional information (including a copy of the 1966 statute and information concerning previous candidates, election results, and residency district boundaries), the Attorney General stated that he did not object "to the change in question." Thereafter, appellants, black voters residing in the county, brought a class action in Federal District Court against appellee county officials, challenging the county's election practices on constitutional grounds. Ultimately, after protracted litigation and after appellants had filed an amended complaint alleging that the 1966 Act had never been submitted to federal officials for approval as required by § 5 of the Voting Rights Act, the District Court held that the Attorney General's request for additional information indicated that he had considered all aspects of the electoral scheme, including the changes effected in the 1966 Act, and that, since the 1971 amendment retained such changes, the lack of objection to the 1971 submission necessarily constituted approval of those changes as well, and rendered the failure to preclear the 1966 Act moot.
Held: The Attorney General's lack of objection to the 1971 submission cannot be deemed to have the effect of ratifying the changes embodied in the 1966 Act. Pp. 465 U. S. 243-258.
(a) In light of the structure, purpose, history, and operation of § 5 of the Voting Rights Act, a State that seeks preclearance of changes in voting procedures pursuant to § 5 from the Attorney General, rather than a declaratory judgment from the United States District Court for the District of Columbia, must do so in an unambiguous and recordable manner. The Act does not contemplate that a "submission" occurs when the Attorney General merely becomes aware of the legislation in question. The Act's purposes would be subverted if the Attorney General could be deemed to have approved a voting change when the proposal was neither properly submitted nor in fact evaluated by him. Pp. 465 U. S. 243-250.
(b) Here, the submission of the 1971 amendment to the Attorney General required him to determine whether either the change in the district boundaries or the change in the number of districts had a discriminatory purpose or effect, but would not appear to have required him to pass on whether the 1966 changes represented a setback for minority voters. The additional information requested and received by the Attorney General does not suggest that he approved changes that he was not requested to approve, and did not enable him to ascertain whether a covered change was made by the 1966 Act, much less evaluate whether the 1966 changes were discriminatory in purpose or effect when compared to prior practices. In order to pass on the 1966 Act, the Attorney General would have needed information concerning the pre-1966 election law and its practical effects, and he neither requested nor received such information. Pp. 465 U. S. 250-254.
(c) When a jurisdiction adopts legislation that makes clearly defined changes in its election practices, sending that legislation to the Attorney General merely with a general request for preclearance pursuant to § 5 constitutes a submission of the changes made by the enactment, and cannot be deemed a submission of changes made by previous legislation that themselves were independently subject to § 5 preclearance. A request for preclearance of certain identified changes in election practices that fails to identify other practices as new ones cannot be considered an adequate submission of the latter practices. Here, the 1971 submission failed to inform the Attorney General that the provisions of the 1971 amendment which merely recodified various practices contained in the 1966 Act were themselves changes that might give rise to an inference of discrimination. To the extent there was any ambiguity in the scope of the preclearance request, the structure and purpose of the preclearance requirement plainly counsel against resolving such ambiguities in favor of the submitting jurisdiction in the circumstances of this case. Pp. 465 U. S. 256-257.
STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, and O'CONNOR, JJ., joined. BLACKMUN, POWELL, and REHNQUIST, JJ., concurred in the judgment.
question in this case is whether the Attorney General's approval of the 1971 submission can be deemed to have the effect of ratifying the changes embodied in the 1966 enactment. We hold that the 1966 changes have not been approved.
divided into three residency districts for purposes of electing Council members. To qualify as a candidate for a seat on the Council under the Act, an individual must be a qualified voter in one of the three districts, and is required to register as a candidate from that district. The Council members, however, are elected at-large: voters throughout the county cast votes for a candidate from each district, and the candidate in each district with the largest number of votes occupies that district's seat on the Council. Council members are elected for 2-year terms, and the members themselves annually elect a chairman.
The 1966 Act was amended in 1971 by Act No. 521, "An Act to Amend Act No. 1104 of 1966 . . . So As To Increase The Number of Districts And The Number of County Council Members." [Footnote 5] The 1971 amendment increased the number of residency districts, and thus the number of Council members, from three to five. Necessarily, the change in the number of districts resulted in new district boundaries. Otherwise, the 1971 amendment did not alter the 1966 Act.
County Council elections in Edgefield County have been conducted under the basic scheme established by the 1966 Act since the first elections held pursuant to the Act in November, 1966.
"After a preliminary examination of H2206 [the 1971 amendment], it does not appear that we have sufficient information to evaluate the change you have submitted. [Footnote 7]"
against appellees, various county officials, including the County Council members, that the county's at-large method of electing the County Council diluted the voting strength of black voters, and that the county's residency districts were malapportioned. The District Court entered judgment in favor of appellants on the malapportionment claim, but that judgment was reversed on appeal. Lytle v. Commissioners of Election, 376 F.Supp. 304 (SC), rev'd, 509 F.2d 1049, 1032 (CA4), cert. denied sub nom. McCain v. Lybrand, 419 U.S. 1032 (1974). After years of litigation and unsuccessful settlement negotiations, the District Court entered judgment in favor of appellants on their constitutional claim challenging the method of electing the Council at-large from residency districts, and enjoined further elections for the County Council until adoption of a new method of election, Record, Doc. Nos. 27, 28 (orders of Apr. 17, 1980, and Apr. 22, 1980). A few months later, the District Court vacated the judgment and ordered further proceedings in light of this Court's intervening decision in City of Mobile v. Bolden, 446 U. S. 55 (1980). Record, Doc. No. 31 (order of Aug. 8, 1980).
"indicates that Justice Department's review of [the 1971 Act] encompassed all aspects of the Act, including the effect of the at-large with residency requirement voting that had been implemented in 1966."
voting practices prior to 1966, or that it had been made aware of the fact that the 1966 Act embodied election practices different from those that had been in effect before 1966. Nevertheless, the District Court concluded that the Attorney General's approval of the 1971 Act, which both changed the 1966 Act by increasing the size of the Council and reenacted its remaining provisions, "renders moot any objection to the superseded 1966 provisions." Id. at 13a.
After obtaining the views of the Solicitor General, who urged summary reversal of the District Court's judgment, we noted probable jurisdiction, 462 U.S. 1130 (1983), and, for the reasons which follow, we now reverse.
methods of discrimination. E.g., H.R.Rep. No. 439, 89th Cong., 1st Sess., 9-11 (1965). Congress decided "to shift the advantage of time and inertia from the perpetrators of the evil to its victims," 383 U.S. at 383 U. S. 328, and enacted "stringent new remedies" designed to "banish the blight of racial discrimination in voting" once and for all, id. at 328 U. S. 308.
"resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees"
v. Katzenbach, supra, at 383 U. S. 334, 383 U. S. 335 (footnote omitted). This provision must, of course, be interpreted in light of its prophylactic purpose and the historical experience which it reflects. See, e.g., McDaniel v. Sanchez, 452 U. S. 130, 452 U. S. 151 (1981).
Section 5 of the Voting Rights Act of 1965, as originally enacted, required a covered State or political subdivision desiring to implement any election practices different from those in effect on November 1, 1964, to obtain a declaratory judgment from a three-judge panel of the United States District Court for the District of Columbia holding that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" before the new practice could be implemented. 79 Stat. 439. A proviso in § 5, however, established an alternative method of obtaining federal clearance of the measure: if the new election practice was submitted to the Attorney General of the United States and the Attorney General did not interpose an objection within 60 days of the submission, the jurisdiction was permitted to implement the change.
"provision for submission to the Attorney General merely gives the covered State a rapid method of rendering a new state election law enforceable."
Allen v. State Board of Elections, 393 U. S. 544, 393 U. S. 549 (1969); Georgia v. United States, 411 U. S. 526, 411 U. S. 538 (1973). Indeed, irrespective of which avenue of preclearance the covered jurisdiction chooses, it has the same burden of demonstrating that the changes are not motivated by a discriminatory purpose and will not have an adverse impact on minority voters, McDaniel v. Sanchez, 452 U. S. 130, 452 U. S. 137 (1981); Georgia v. United States, supra, at 411 U. S. 538, and federal officials are confronted with the same "difficult substantive issue." Allen v. State Board of Elections, supra, at 393 U. S. 558.
"was enacted in large part because of the acknowledged and anticipated inability of the Justice Department -- given limited resources -- to investigate independently all changes with respect to voting enacted by States and subdivisions covered by the Act."
submissions, [Footnote 13] when covered jurisdictions often merely sent a copy of new legislation to the Attorney General with a general statement that it was being submitted pursuant to § 5.
"[a] fair interpretation of the Act requires that the State in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act."
"While the Act does provide that inaction by the Attorney General may, under certain circumstances, constitute federal preclearance of a change, the purposes of the Act would plainly be subverted if the Attorney General could ever be deemed to have approved a voting change when the proposal was neither properly submitted nor in fact evaluated by him."
the same time leaving ample room for minimizing the "potential severity of the § 5 remedy," Morris v. Gressette, 432 U.S. at 432 U. S. 504.
of the 1971 amendment can be deemed to ratify the changes embodied in the 1966 Act, § 5 of the Voting Rights Act plainly invalidates those changes and the District Court must fashion appropriate relief.
Thus South Carolina's submission of the 1971 amendment increasing the size of the Edgefield County Council apparently required the Attorney General to determine whether either the change in the district boundaries or the change in the number of districts had a discriminatory purpose or effect, but would not appear to have required him to pass on the question whether the 1966 changes represented a setback for minority voters in Edgefield County. The jurisdiction has never submitted that question to the Attorney General, and has never attempted to shoulder its burden of demonstrating that the 1966 changes were nondiscriminatory.
The District Court held, however, that the Attorney General's request for additional information (including a copy of the 1966 statute and information concerning previous candidates, election results, and residency district boundaries) indicated that he had considered all aspects of the electoral scheme, including the changes effected in the 1966 Act. App. to Juris.Statement 12a. In the alternative, it held that, since the 1971 amendment retained the changes effected by the 1966 Act, the lack of objection to the 1971 submission necessarily constituted approval of those changes as well, and rendered the failure to preclear the 1966 Act moot. Id. at 13a.
to an identification of the changes which he had been requested to approve or to an evaluation of the purpose and effect of the changes made by the 1971 amendment which he did approve: the 1966 Act and the other information served as a benchmark allowing him to quantify the extent of the increase in the size of the Council and to compare the new district boundaries with the earlier ones. His request for and receipt of this information in no way suggest that he approved changes that he was not requested to approve.
General's "difficult and complex" decision "should be made without adequate information," Georgia v. United States, 411 U.S. at 411 U. S. 540, an argument that such a decision has been made when the record indicates adequate information was lacking carries little weight. And it would require a wild flight of imagination to suggest that the Attorney General recognized that the 1966 Act effected changes which had required preclearance and had never been precleared, and then did not ask state officials to explain the failure to preclear those changes, [Footnote 24] but instead embarked on the task of gathering the information necessary to evaluate those alterations on his own rather than requesting state officials to provide the information to him as he had just done regarding the changes made by the 1971 amendment. It is even more unlikely that he would have kept his consideration and approval of the changes made by the 1966 Act a secret from state officials in his letter preclearing the 1971 amendment.
whether a particular change was actually precleared in analogous circumstances, see United States v. Georgia, Civ. Action No. C76-1531A (ND Ga., Sept. 30, 1977), summarily aff'd, 436 U.S. 941 (1978).
changes in election practices which fails to identify other practices as new ones thus cannot be considered an adequate submission of the latter practices. In this case, the 1971 submission failed to inform the Attorney General that the provisions of the 1971 amendment which merely recodified various practices contained in the 1966 Act were themselves changes that might give rise to an inference of discrimination.
To the extent there was any ambiguity in the scope of the preclearance request, the structure and purpose of the preclearance requirement plainly counsel against resolving such ambiguities in favor of the submitting jurisdiction in the circumstances of this case. The preclearance process is, by design, a stringent one; it is predicated on the congressional finding that there is a risk that covered jurisdictions may attempt to circumvent the protections afforded by the Act; the burden of proof (the risk of nonpersuasion) is placed upon the covered jurisdiction; and submissions under the alternative preclearance method -- adopted for the convenience of the covered jurisdictions while Congress recognized the inability of the Justice Department independently to monitor and to identify changes in election practices -- should be carefully construed to protect the remedial aims of the Act. Moreover, the congressional assessment of the practical operation of the provision in the years since its adoption clearly indicates Congress' continuing intent to guard against any diminution in the potency of the provision, and an intent to continue to insist upon submission of changes which had previously not been submitted. The broad scope given to the 1971 submission by the District Court, and its conclusion that submitting the 1971 amendment rendered the failure to preclear the 1966 Act moot, are inconsistent with the foregoing governing principles.
Accordingly, we reverse the District Court's judgment and remand to the District Court for proceedings consistent with this opinion.
JUSTICE BLACKMUN, JUSTICE POWELL, and JUSTICE REHNQUIST concur in the judgment.
The Voting Rights Act of 1965 requires certain States and political subdivisions to submit all changes in election practices to a three-judge panel of the United States District Court for the District of Columbia or the Attorney General of the United States. Covered jurisdictions may not implement any new election practices until the three-judge panel enters a declaratory judgment approving the changes or the Attorney General accepts the changes by either explicitly stating he does not object to them or by failing to interpose an objection within a prescribed time period. See infra at 465 U. S. 244-249.
See ibid.; see generally Blanding v. Dubose, 509 F.Supp. 1334, 1335 (SC 1981), rev'd, 454 U. S. 393 (1982).
It was authorized to buy or sell property, to exercise the powers of eminent domain, to make appropriations and levy taxes, to provide necessary county services, to receive and disburse funds, to incur indebtedness, to issue bonds, to prescribe methods of accounting for accounting officers, and to employ county employees. The 1966 Act required the Council to employ a county administrative officer who could not be a Council member. Act No. 55 of February 23, 1967, made employment of a county administrative officer permissive, rather than mandatory.
Prior to the 1971 amendment, the 1966 Act had been amended in 1967 by Act No. 55 and, in 1968, by Act No. 1318. App. 171-177. These earlier amendments apparently did not change any election practices, and are not at issue in this case.
App. to Brief for United States as Amicus Curiae 1a-2a (letter of July 21, 1971).
Defendants' Exhibit X, p. 1.
Defendants' Exhibit Y. It is not entirely clear that the entire text of the 1966 Act was provided to the Attorney General, but, for our purposes, we shall assume that the Attorney General was aware of the full text.
The Voting Rights Act was enacted in 1965, Pub.L. 89-110, 79 Stat. 437, and was amended and extended in 1970, Pub.L. 91-285, 84 Stat. 314, in 1975, Pub.L. 94-73, 89 Stat. 400, and in 1982, Pub.L. 97-205, 96 Stat. 131.
"§ 1973c. Alteration of voting qualifications and procedures; action by state or political subdivision for declaratory judgment of no denial or abridgement of voting rights; three judge district court; appeal to Supreme Court"
"Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 and any appeal shall lie to the Supreme Court."
Proposed guidelines were first published for comment in the Federal Register, 36 Fed.Reg. 9781 (1971), then were published in final form, 36 Fed.Reg. 18186 (1971), and have been codified since 1972, 28 CFR § 51.2(c) (1982).
The Committee Report also expresses concern with respect to the failure of jurisdictions to heed objections interposed by the Attorney General. Indeed, it cites the local officials' response to the Attorney General's 1976 objection to the Edgefield County at-large election system, see n 30, infra, as an example of local defiance of § 5. H.R.Rep. No. 97-227, p. 13 (1981).
See 28 CFR pt. 55 (1982). The District Court expressly so found. See App. to Juris.Statement 6a.
The parties so stipulated. App. 131. See also App. to Juris.Statement 6a.
The only questions in an action alleging a violation of the § 5 preclearance requirement are (1) whether a change is covered by § 5, (2) if the change is covered, whether § 5's approval requirements have been satisfied, and (3) if the requirements have not been satisfied, what relief is appropriate. Lockhart v. United States, 460 U. S. 125, 460 U. S. 129, n. 3 (1983). The question whether the 1966 Act had a discriminatory purpose or effect is not an issue at this stage of the § 5 litigation: that question must be initially decided by the District Court for the District of Columbia or the Attorney General. Perkins v. Matthews, 400 U. S. 379, 400 U. S. 383-385 (1971); Allen v. State Board of Elections, 393 U. S. 544, 393 U. S. 558-559 (1969). Nor is there any question that the Act was required to be submitted for preclearance -- the parties have stipulated that submission was required. Given this stipulation, the parties understandably have made little effort to define precisely the nature of the changes in election practices made by the Act which required preclearance, but the briefing indicates that the parties agree that the at-large residency requirement voting scheme constituted such a change. While this matter may be more fully explored in future proceedings after remand, several changes are suggested: the different terms of office for Council members in comparison with the former Board, the basic reallocation of authority from the state legislative delegation to the Council, the shift from two appointed Board positions to at-large election of their Council counterparts, and the residency requirement applicable to all members of the Council.
"There is no dispute that Act No. 1104 of 1966 was subject to the preclearance provisions of § 5 of the Act, and that county officials should have, but did not, submit the Act to the Justice Department or to the District Court for the District of Columbia for preclearance."
Given the correspondence concerning the 1971 preclearance, even under appellees' view that a submission consists of an entire statute, rather than the changes in election practices effected by the enactment, there could be no contention in this case that the Attorney General actually considered and approved the 1966 Act itself in the course of preclearing the 1971 amendment. Quite simply, he was never, even by implication, asked to approve the 1966 statute, and he never, even by implication, purported to do so: state officials merely asked him to preclear the 1971 amendment, and that is what the Attorney General did. The 1966 Act was indeed sent to the Attorney General, but it manifestly was not submitted to him for preclearance of it; it was sent to him in connection with the request for preclearance of the 1971 amendment, and was a necessary part of the submission of the 1971 amendment because the changes made by that amendment could not be identified without it.
"After a preliminary examination of H2206, it does not appear that we have sufficient information to evaluate the changes you have submitted."
Defendants' Exhibit X (emphasis supplied).
In construing the correspondence in an attempt to ascertain the significance ascribed to the preclearance by the parties involved, it is significant that the correspondents were a South Carolina Assistant Attorney General and a United States Assistant Attorney General in the Civil Rights Division. These officials surely knew that the preclearance procedure concerns only changes in election practices, and can be presumed to have chosen their language carefully to identify the scope of the preclearance. In this regard, appellees' contention that the the phrase "change in question" in the preclearance letter was form language is not only unavailing, but counterproductive. Form language is presumably more carefully chosen to reflect departmental policy, practice, and intentions. Moreover, to the extent that state officials had received previous preclearance letters containing such language, they were on notice that a preclearance is limited to the changes which a covered jurisdiction has identified by its submission.
Particularly in view of the legislature's practice of repealing the existing electoral statute and then reenacting some existing features along with new ones, as it did in 1971, the fact that the 1966 statute on its face was a post-1964 enactment did not necessarily imply that it had effected changes which required § 5 preclearance.
Obviously, in 1971, the Attorney General either did not recognize that the 1966 Act required preclearance or assumed that it had been precleared. In the context of the submission, that was understandable. First, of course, he was not being asked to preclear the provisions of the 1966 Act. Second, the State was requested to provide the Attorney General with a copy of the statute "now in force," and, by sending the 1966 Act to the Justice Department in response to this request, the South Carolina Assistant Attorney General was implicitly representing that the 1966 Act either had been precleared or had not required preclearance, for otherwise the pertinent provisions would have had no force as law. Supra at 465 U. S. 241. Moreover, though the political subdivisions of South Carolina had notably failed to submit changes on their own initiative, appellees correctly point out that the State of South Carolina was the only jurisdiction to comply rigorously with the preclearance requirement in the early years of the Act. Perkins v. Matthews, 400 U.S. at 400 U. S. 392, n. 11 (citing table prepared by Justice Department). The Attorney General was obviously aware of that fact, and it is reasonable to infer that the State's compliance during this time period may have buttressed his apparent assumption that the 1966 Act either did not require submission or had been precleared.
If the Attorney General was aware that the Act required preclearance and had never been precleared, his failure to request either an explanation or at least some additional information would be difficult to comprehend. He had testified before Congress that, in the Department's experience, compliance with § 5 was largely limited to legitimate statutes, and that jurisdictions often failed to submit laws which were discriminatory. Supra at 465 U. S. 248. Given this testimony, it seems quite unrealistic to suppose that he would consciously allow the failure to submit the 1966 Act for preclearance to pass without comment.
"any other changes in law or administration relating to the subject matter of the submitted change affecting voting which have been put into effect since the time when coverage under section 4 of the Voting Rights Act began and the reasons for such prior changes. If such changes have already been submitted the submitting authority may refer to the date of prior submission and identify the previously submitted changes."
28 CFR § 51.10(b)(4) (1972).
Naturally, the Attorney General did not determine whether the differences between the 1971 amendment and the 1966 Act were nondiscriminatory in an analytical vacuum, but necessarily evaluated the purpose and effect of those changes in the context of the entire electoral scheme. See Lockhart v. United States, 460 U.S. at 460 U. S. 131-132.
"The congressional intent is plain: the extraordinary remedy of postponing the implementation of validly enacted state legislation was to come to an end when the Attorney General failed to interpose a timely objection based on a complete submission."
In this case, state officials had independent submission burdens respecting both the 1966 changes and the 1971 changes, but only met their burden respecting the latter changes.
United State v. United States Gypsum Co., 333 U. S. 364, 333 U. S. 396 (1948).
In view of our holding, it is unnecessary for us to address the second question presented by appellants: whether, under the circumstances Edgefield County's adoption of a council-administrator form of government in June, 1976 -- objected to by the Attorney General -- was subject to § 5 preclearance.


text:
Judicial District Court, Dallas County, entered summary judgment in favor of insured. Appeal and cross-appeal were taken.
(4) second-layer excess liability policy did not require exhaustion of underlying policy limits only by payment of actual damages without any claim expenses.
Before Justices FITZGERALD, RICHTER, and LANG-MIERS.
This is an insurance coverage dispute. TIG Insurance Company, an excess insurer, appeals the denial of its motion for summary judgment and the granting of summary judgment in favor of its insured, North American Van Lines, Inc. and North American Van Lines of Texas, Inc. (collectively, NAVL). The issue on appeal is whether the limits of the underlying insurance policies were exhausted, triggering indemnification by the TIG policy, and, if so, the amount of that indemnification. We modify the trial court’s judgment and remand for recalculation of prejudgment interest.
NAVL became a defendant in a personal injury lawsuit entitled Emmons v. North American Van Lines. That suit resulted in a judgment against NAVL in the amount of $8,947,273.60 in actual damages plus prejudgment and postjudgment interest for a total judgment of $15,174,289. NAVL had three layers of insurance coverage which it argues provided coverage for the Emmons judgment.
NAVL contracted with United States Fidelity and Guaranty Specialty Insurance Company (USF & G) to provide a primary Texas trucker’s liability policy with a $5,000,000 limit of liability. The policy contained an “Automobile Self-Funded Retention” endorsement (SFR), pursuant to which NAVL was responsible for funding the $5,000,000 liability limit. The policy also contained a provision whereby USF & G would indemnify a portion of “claim expenses,” defined to include defense costs, prejudgment and postjudgment interest, attorney’s fees, and court costs, when NAVL’s legal liability for an accident exceeded the $5,000,000 policy limit.
Under its SFR in the USF & G policy, NAVL paid $5,000,000 of the actual damages awarded in the Emmons judgment, and Royal tendered its $5,000,000 policy limits, leaving over $5,000,000 of the total judgment unpaid by insurance. NAVL sought indemnification from its TIG policy for the remainder of the judgment amount.
TIG filed this lawsuit seeking a declaration that it has no duty to indemnify NAVL under its excess policy for any portion of the Emmons judgment. TIG argued its definition of “ultimate net loss” meant that the underlying insurance had to be exhausted by the payment of actual damages and not “claim expenses” before its coverage was triggered. And because the actual damages in the Emmons judgment were under $10,000,000, the combined limits of the USF & G and Royal policies, TIG argued its coverage was not triggered. TIG also argued its coverage was not triggered because all “claim expenses” should have been paid by NAVL and none should have been apportioned to the Royal policy. Had this occurred, the Royal policy limits would have covered the remainder of the actual damages and the TIG coverage would not have been triggered.
NAVL filed a counterclaim against TIG alleging breach of contract, contending the underlying policy limits had been exhausted, that these limits were insufficient to satisfy the Emmons judgment, and that TIG owed the remainder of the judgment.
TIG objected to the trial court’s calculation of the ratio used to apportion “claim expenses.” After a supplemental hearing and briefing on whether defense costs should have been included in “claim expenses,” the trial court issued a second letter, ruling that defense costs should not be applied against the limits of the Royal policy. Based on its rulings, the trial court denied TIG’s motion for summary judgment, granted in part NAVL’s motion for summary judgment, and awarded final judgment for NAVL in the amount of $2,428,175 against TIG, plus interest and attorney’s fees.
When both parties move for summary judgment, each bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). If the trial court grants one motion and denies the other, the non-prevailing party may appeal the granting of the prevailing party’s motion as well as the denial of its own motion. Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996). We review the summary judgment evidence presented by both parties and determine all questions presented. Dallas Morning News, 22 S.W.3d at 356. We may affirm the trial court’s summary judgment or reverse and render the judgment the trial court should have rendered. Morales, 924 S.W.2d at 922; Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988).
When interpreting the terms of an insurance contract, we follow the general rules of contract construction. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). Our primary concern is to ascertain the true intent of the parties as expressed in the written contract. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995); Vincent v. Bank of Am., N.A., 109 S.W.3d 856, 866 (Tex.App.-Dallas 2003, pet. denied). If the contract can be given an exact or certain legal interpretation, it is not ambiguous, and we must interpret the insurance policy’s meaning and intent from its four corners. Houston Lighting & Power Co. v. Tenn-Tex Alloy & Chem. Corp., 400 S.W.2d 296, 300 (Tex.1966); La. Nat’l Gas Pipeline, Inc. v. Bludworth Bond Shipyard, Inc., 875 S.W.2d 458, 461 (Tex.App.-Houston [1st Dist.] 1994, writ denied); Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 716 (Tex.App.-Houston [14th Dist.] 1987, no writ).
An ambiguity does not arise merely because the parties to an agreement advance differing interpretations. Vincent, 109 S.W.3d at 867; see Lopez v. Munoz, Hockema & Reed, 22 S.W.3d 857, 861 (Tex.2000). The contract is ambiguous only if the application of established rules of construction leaves an agreement susceptible to more than one reasonable meaning. Vincent, 109 S.W.3d at 867. If a contract of insurance is susceptible to more than one reasonable meaning, we must resolve the uncertainty by adopting the construction that most favors the insured. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., Inc., 811 S.W.2d 552, 555 (Tex.1991). In particular, exceptions or limitations on liability are strictly construed against the insurer and in favor of the insured. Id. We give effect to the whole policy when construing a particular provision, using each clause to help interpret the others. Wynnewood State Bank v. Embrey, 451 S.W.2d 930, 932 (Tex.Civ.App.-Dallas 1970, writ ref’d n.r.e.); W. Indem. Ins. Co. v. Am. Physicians Ins. Exch., 950 S.W.2d 185, 188 (Tex.App.-Austin 1997, no writ).
TIG argues the trial court should have granted its motion for summary judgment because the actual damages were less than the combined limits of the USF & G and Royal policies and coverage under the TIG policy was never triggered. Alternatively, TIG argues the trial court miscalculated the amount of indemnification TIG owed NAVL. In its cross-appeal, NAVL argues the trial court should have included defense costs in its calculation of “claim expenses” and apportioned NAVL’s share of those costs to the Royal policy, resulting in greater recovery against TIG.
When the “insured’s” legal obligation to pay damages under LIABILITY COVERAGE … exceeds the self-funded retention amount shown in the above Schedule, we will indemnify you for a portion of the “claim expenses” …. in addition to the applicable Limits of Insurance.
TIG argues this provision means NAVL contracted to pay its share of the “claim expenses,” in addition to its SFR, before coverage was triggered under the Royal policy and that NAVL could not pass its obligation to pay those expenses to the Royal policy. The trial court ruled the Royal policy provided coverage for “claim expenses” and allocated a portion of the prejudgment and postjudgment interest as “claim expenses” to Royal under its policy. We agree with the trial court.
Although we can find no cases interpreting this language, the literal meaning of this provision in the USF & G policy is that USF & G’s indemnification of a portion of NAVL’s “claim expenses,” in this case prejudgment and postjudgment interest, is in addition to the policy’s limits. The clause does not say that NAVL must pay those expenses out of its own pocket. We can find nothing in this provision or in the USF & G policy as a whole that prevents NAVL from apportioning these expenses to its excess carrier when those expenses are covered by that policy. And we can find nothing in the Royal policy precluding coverage under its terms. In fact, both TIG and NAVL agree the definition of “ultimate net loss” in the Royal policy includes coverage for prejudgment and postjudgment interest. And Royal tendered its $5,000,000 limit, which indicates Royal also believed these “claim expenses” could be apportioned to its policy.
We conclude the trial court did not err in holding that NAVL may apportion its share of the “claim expenses” to the Royal policy.
When the “insured’s” legal obligation to pay damages under LIABILITY COVERAGE … exceeds the self-funded retention … we will indemnify you for a portion of the “claim expenses” in the ratio that the portion of the total loss in excess of such self-funded retention bears to the total loss payable (inclusive of the self-funded retention) under this policy….
The trial court interpreted this provision as requiring USF & G to indemnify NAVL for 44.1% of the “claim expenses,” allowing NAVL to apportion 55.9% of those expenses to the Royal policy. The trial court arrived at this ratio by dividing the total actual damages which exceeded the self-funded retention, or $3,947,274 (actual damages of $8,947,274 minus the SFR of $5,000,000) by the total actual damages including the self-funded retention, or $8,947,274.
The parties agree the trial court correctly calculated the numerator in the ratio as $3,947,274. However, the parties disagree about the court’s calculation of the denominator. We conclude the trial court erred in using the total actual damages as the denominator.
] NAVL does not argue that the language is ambiguous. Instead, it argues that calculating the ratio in this way can lead to absurd results because, in some cases, the ratio could exceed 100% and no insurer would agree to indemnify its insured for more than the amount of “claim expenses.” But to adopt NAVL’s interpretation of this provision would require us to ignore the language “payable under this policy,” and rewrite it to delete that language, which we cannot do under the rules of contract construction. See Beaston, 907 S.W.2d at 433; Vincent, 109 S.W.3d at 866; Tan It All, Inc., 111 S.W.3d at 679. Applying the correct denominator, USF & G’s share of claim expenses is 78.9% and NAVL’s share is 21.1%.
3. Should defense costs have been allocated as part of “claim expenses”?
“Ultimate Net Loss” means: the total sums actually paid or payable as damages in settlement of a claim … or in satisfaction of a judgment for which the Insured is legally liable … and also includes investigation, adjustment, appraisal, appeal and defense costs paid or incurred by the Insured with respect to damages covered hereunder.
Ultimate Net Loss means: the total sums actually paid or payable as damages in settlement of a claim … or in satisfaction of a judgment for which the Insured is legally liable…. Ultimate Net loss does not include … (d) investigation, adjustment, appraisal, appeal and defense costs paid or incurred by the Insured, with respect to damages covered hereunder, which are payable by [Royal] in addition to the applicable limit of liability of this policy.
NAVL argues that because the endorsement only amends the definition of “ultimate net loss” and does not delete and replace it, as with other endorsements to the policy, the original definition of ultimate net loss must also be given effect. NAVL also argues the amended definition applies only in “drop down” situations, where Royal has a duty to defend NAVL. Because Royal did not owe a duty to defend NAVL in the Emmons case, NAVL argues the original definition applies and defense costs are included in Royal’s definition of “ultimate net loss” and should have been allocated to its policy limits.
Conversely, TIG argues the two definitions are in conflict and irreconcilable because one definition includes defense costs within the policy’s limits and the other definition does not. The trial court agreed and held “the Royal insurance policy does not encompass paying defense costs paid or incurred by NAVL in such a way as to erode the Royal policy limits” and refused to allocate defense costs to Royal.
An insurance policy and its endorsements should be construed together unless they are so much in conflict they cannot be reconciled. Mesa Operating Co. v. Cal. Union Ins. Co., 986 S.W.2d 749, 754 (Tex.App.-Dallas 1999, pet. denied). In that case, endorsements to a policy generally supersede and control over conflicting printed terms within the main policy. Mesa Operating Co., 986 S.W.2d at 754; Mut. Life Ins. Co. v. Daddy$ Money, Inc., 646 S.W.2d 255, 259 (Tex.App.-Dallas 1982, writ ref’d n.r.e .); United States Fire Ins. Co. v. Aetna Cas. & Sur. Co., 781 S.W.2d 394, 399 (Tex.App.- Houston [1st Dist.] 1989 (no writ).
The definition of “ultimate net loss” in the main Royal policy includes defense costs; the definition of “ultimate net loss” in the endorsement excludes defense costs. The only difference is that the amended definition contains the additional language, “which are payable by [Royal] in addition to the applicable limit of liability of this policy.” NAVL argues the definition of “ultimate net loss” in the amendatory endorsement applies only in situations where Royal owes a duty to defend NAVL. But the language of the amendatory endorsement does not include such a limitation, NAVL cites no authority in support of this argument, and we decline to so hold.
We conclude the trial court did not err in refusing to apportion defense costs against Royal’s $5,000,000 policy limits.
the ULTIMATE NET LOSS (1) in excess of all UNDERLYING INSURANCE, and (2) only after all UNDERLYING INSURANCE has been exhausted by the payment of the limits of such insurance for losses arising out of occurrences insured by all of the policies designated in the Declarations as UNDERLYING INSURANCE.
[T]he principal sum, award or verdict actually paid or payable in cash in the settlement or satisfaction of claims for which the insured is liable, either by adjudication or compromise with the written consent of [TIG], after making proper deduction for all recoveries and salvages.
TIG argues its definition of “ultimate net loss” means the USF & G and Royal policy limits had to be exhausted by the payment of actual damages, not “claim expenses,” before TIG’s coverage was triggered because “principal sum” includes only actual damages. NAVL agrees that “principal sum” means actual damages only. However, NAVL argues, and we agree, that the TIG policy cannot be interpreted to say that the underlying insurance must be exhausted by the payment of actual damages only.
The TIG policy pays for actual damages in excess of the USF & G and Royal policy limits that have been exhausted by the payments of losses arising out of occurrences insured by those policies. The TIG policy does not define “losses” but, as we have seen, the Royal policy included “claim expenses” in its definition of “ultimate net loss.” TIG did not exclude “claim expenses” from its definition of “losses … insured by … underlying insurance.” And an intent to exclude or limit coverage must be expressed in clear and unambiguous terms. Hudson Energy, 811 S.W.2d at 555. We can find no such contractual provision in the TIG policy. We conclude the trial court did not err when it held that, by payment of actual damages and “claim expenses,” the USF & G and Royal policy limits were exhausted, thereby triggering coverage under the TIG policy.
We conclude the trial court did not err by denying TIG’s motion for summary judgment and granting, in part, NAVL’s motion. However, because we conclude the trial court used an incorrect ratio in allocating “claim expenses” to USF & G, we modify the trial court’s judgment to award NAVL the sum of $261,174 from TIG, and we remand to the trial court for recalculation of prejudgment interest.
FN1. We express no opinion on the possible results from such a hypothetical situation as argued by NAVL. NAVL argues, for example, when the judgment is $11,000,000, the ratio would be $6,000,000 divided by $5,000,000, or 120%. However, what would happen if USF & G is faced with those facts is not before us. We must give words their plain, ordinary and generally accepted meaning unless the policy indicates another meaning should apply. See Evergreen Nat’l Indem. v. Tan It All, Inc., 111 S.W.3d 669, 677 (Tex.App.-Austin 2003, no pet.). And we may not ignore words or create an ambiguity when there is none. See id. at 678; Lubbock County Hosp. Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 143 F.3d 239, 244-45 (5th Cir.1998).
Knispel v. Northland Insurance Co.
Liability Insurance Company and The American Insurance Company, Defendants.
Daniel Knispel was injured because of the operation of a semi tractor insured by Northland Insurance Company. Daniel and his sons, Jacob and Ryan Knispel, sued Northland and other parties. Daniel and his sons, and Acuity Mutual Insurance Company (collectively referred to as Knispel), appeal an order of the circuit court granting summary judgment in favor of Northland and dismissing Northland from the action. The circuit court granted summary judgment based on its conclusion that the Northland policy contained an endorsement that excluded coverage. The court rejected Knispel’s argument that the endorsement was contextually ambiguous under Folkman v. Quamme, 2003 WI 116, 264 Wis.2d 617, 665 N.W.2d 857, and that the endorsement had the effect of making coverage illusory. We agree with the circuit court and affirm.
The record contains two copies of the policy, one submitted by Northland Insurance and one submitted by Knispel, but they are not the same. In his appellate brief, Knispel points out some of the differences, but he does not suggest that there is a factual dispute on this topic that prevents summary judgment. Neither Knispel nor Northland argues that one policy is clearer than the other. It is not apparent from the circuit court’s decision which copy of the policy the circuit court relied on. We note that the copy of the policy contained in Knispel’s appendix is not an exact copy of either of the copies in the record. Instead, Knispel has added two introductory pages to that copy of the policy, apparently acknowledging that the copy he submitted to the circuit court was incomplete.
Because summary judgment was granted in favor of Northland, we will refer to the copy of the policy submitted by Knispel to the circuit court. We do not, as Knispel does, refer to a combination of both copies of the policy.
¶ 3 Prior to purchasing his Northland policy, Brost leased his semi tractor to a trucking company named Valley Express. At the same time, Brost was under contract with Valley Express to operate his semi tractor for Valley Express. While the semi tractor was leased to Valley Express and while Brost was operating the tractor for Valley Express, an accident occurred involving the tractor. Plaintiff Knispel was operating a forklift between a trailer attached to the tractor and a loading dock. Brost pulled away from the loading dock while Knispel was backing the forklift out of the trailer that was attached to the tractor. The forklift and Knispel fell to the ground and Knispel was severely injured. As a result of the accident, Knispel is a quadriplegic confined to a wheelchair.
¶ 4 This appeal involves only whether, with respect to Knispel’s injury, there is coverage for Brost’s semi tractor under the Northland policy.
¶ 5 The circuit court dismissed all claims against Northland Insurance on summary judgment. We perform summary judgment analysis de novo, applying the same method employed by circuit courts. Brownelli v. McCaughtry, 182 Wis.2d 367, 372, 514 N.W.2d 48 (Ct.App.1994). That method is well established and need not be repeated in its entirety. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶ ¶ 20-24, 241 Wis.2d 804, 623 N.W.2d 751. It is sufficient to say here that summary judgment is appropriate when there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law. See id., ¶ 24.
¶ 6 Knispel argues that the rental exclusion endorsement in the Northland insurance policy is contextually ambiguous and, therefore, must be construed in favor of coverage. The construction of insurance policy language is a question of law, which we review de novo. Van Erden v. Sobczak, 2004 WI App 40, ¶ 22, 271 Wis.2d 163, 677 N.W.2d 718, review denied, 2004 WI 114, 273 Wis.2d 655, 684 N.W.2d 136 (No.2002AP1595). Knispel also argues that the rental exclusion renders the policy coverage illusory. Whether coverage in an insurance policy is illusory is also a question of law. Hinrichs v. American Family Mut. Ins. Co., 2001 WI App 114, ¶ 14, 244 Wis.2d 191, 629 N.W.2d 44.
When we construe insurance policy provisions, our goal is to give effect to the intent of the parties as expressed in the language of the policy. Folkman v. Quamme, 2003 WI 116, ¶ 12, 264 Wis.2d 617, 665 N.W.2d 857. We first inquire whether the language regarding the disputed coverage issue is ambiguous, that is, susceptible to more than one reasonable interpretation. Id., ¶ 13. If there is no ambiguity, we apply the language as written, without resort to rules of construction or principles of case law. Id. On the other hand, if there is ambiguity, we construe the clause in favor of the insured. Id.
A provision that is unambiguous in itself may be ambiguous in the context of the entire policy. Id., ¶ 19. The test for determining contextual ambiguity is the same as that for determining whether a particular clause is ambiguous: is the language of the particular provision, “when read in the context of the policy’s other language, reasonably or fairly susceptible to more than one construction … measured by the objective understanding of an ordinary insured.” Id., ¶ 29 (citations omitted). In determining whether there is contextual ambiguity, we inquire whether “the organization, labeling, explanation, inconsistency, omission, and text” of other relevant provisions in the policy create an “objectively reasonable alternative meaning and, thereby, disrupt an insurer’s otherwise clear policy language.” Id., ¶ ¶ 19, 30.
Ruenger v. Soodsma, 2005 WI App 79, ¶ ¶ 9-10, — Wis.2d —-, 695 N.W.2d 840. We now apply this law to the case before us.
Thus, this exclusion means that the policy does not provide coverage for Brost’s semi tractor when the tractor is being used in the business of anyone to whom the tractor is being rented. Knispel implicitly concedes that the above exclusion language, viewed alone, unambiguously excludes coverage because Brost’s semi tractor was rented to Valley Express and was being used in the business of Valley Express when the accident occurred.
¶ 9 Instead, Knispel argues that this rental exclusion is ambiguous in the context of the entire policy under the contextual ambiguity analysis explained in Folkman and more recent decisions such as Dowhower v. Marquez, 2004 WI App 3, 268 Wis.2d 823, 674 N.W.2d 906, review denied, 2004 WI 20, 269 Wis.2d 198, 675 N.W.2d 804 (No.2001AP1347). Tracking language in these cases, Knispel asserts that ambiguity is created by organizational complexity, poor labeling, poor explanations, inconsistencies, and omissions. However, when Knispel tracks through the policy and comments on various aspects of it, it becomes clear that the thrust of his argument is that the rental exclusion clause is difficult to find. He does not show that any of the asserted problems with the organization of the policy create an “objectively reasonable alternative meaning.” See Folkman, 264 Wis.2d 617, ¶ 30. Indeed, nowhere in his arguments does Knispel provide an alternative reasonable meaning for the rental exclusion clause.
¶ 10 We agree with Knispel that the policy has some of the organizational problems identified as factors in other cases. For example, as in Badger Mutual Insurance Co. v. Schmitz, 2002 WI 98, ¶ 62, 255 Wis.2d 61, 647 N.W.2d 223, the declarations page does not make specific reference to the exclusion at issue. But drawing isolated comparisons with prior cases does not explain why the context of the policy in this case creates a reasonable alternative meaning for the rental exclusion clause.
¶ 11 Knispel makes a few arguments that seem to assert that there is ambiguity, but when we examine these arguments we find that they lack merit. For example, Knispel points to the “Automobile Insurance Identification Card” page in the policy. This page is divided in quarters by dotted lines, and each quarter-page contains an identification card. Three of the cards are stamped “Void.” The remaining card identifies Northland as the insurer, Brost as the insured, and the insured vehicle, a “1999 Freightliner Tractor” with a specified vehicle identification number. Knispel points out that this identification card states: “The coverage provided by this policy meets the minimum liability insurance requirements as prescribed by law.” He says the card contains no restrictions or limitations on the liability coverage and in particular does not contain any reference to the rental exclusion clause. Knispel argues that this card adds to the confusion regarding the meaning of the policy because it says the coverage provided meets the minimum liability requirements prescribed by law. This argument is meritless because Knispel does not demonstrate that the rental exclusion clause somehow causes the policy to fail to afford the minimum coverage prescribed by law and, therefore, does not show how the card is misleading.
This page is contained in the version of the policy submitted by Knispel, but not in the version submitted by Northland.
¶ 12 Moreover, we disagree with Knispel’s assessment that “it is [only] by sheer luck that a reasonable insured stumbles upon the one-page [rental exclusion] endorsement found in the back of the policy.” It is not difficult to figure out that there are several endorsements or where to find them.
¶ 13 The first page of the policy is a page entitled “Common Policy Declarations.” It states that the policy consists of the “following coverage parts for which a premium is indicated.” Six types of coverage are listed on this declarations page, but only one has a premium indicated. That one is “Commercial Auto/Garage Coverage Part.” Policy coverage limits are not provided on this page.
In footnote 1, we explain why we treat this page as the first page of the policy. But even if the true policy has a cover sheet and a “quick reference” page preceding the page we treat as the first page, it would not affect our conclusion.
¶ 14 The next six pages of the policy consist of “Common Policy Conditions,” such as cancellation rights and policy transfer rights, and two endorsements. These pages do not indicate policy coverage limits. Thus, as Northland points out, nothing to this point in the policy affirmatively provides coverage.
¶ 15 On the eighth page of the policy is a declarations page entitled “Commercial Auto Coverage Form Declarations.” This page is a typical declarations page. It lists Borst’s 1999 Freightliner tractor as the insured vehicle and, among other coverages and limits, provides $1,000,000 coverage for each “accident.” This declarations page states: “Forms and endorsements contained in this policy at its inception: Per Schedule of Forms and Endorsements N-2500 (4/94).” This is a reference to the next page in the policy, designated N-2500 (4/94). This next page lists twenty “forms and endorsements” using alpha/numerical designations and dates, for example, “CA 01 37 (07/01).” This page is not difficult to find. It does not provide descriptive titles for the forms and endorsements–which would be better–but it does inform a reasonable insured that there are several forms and endorsements affecting coverage. Thereafter, finding these forms and endorsements is simple because they follow just one page later, after the identification card page. It is true that one must read through the forms and endorsements to ascertain their meaning, but it is not true that they are hard to find.
¶ 16 In sum, we conclude that, although the policy is not a model of clear organization and labeling, there is no contextual ambiguity that produces a reasonable alternative meaning for the rental exclusion clause.
The parties spend time disputing the meaning of various terms in the policy, such as “non-truckman” and “non-trucking use,” and whether these terms have established meaning within the trucking community. We conclude that an understanding of these terms is unnecessary to an understanding of the rental exclusion clause and that such terms do not, either separately or in combination with other aspects of the policy, render the rental exclusion ambiguous. In addition, Knispel argues that we should not rely on a Brost affidavit submitted by Northland because it was submitted late and it contains Brost’s irrelevant subjective understanding of the policy. Like the circuit court, we conclude that we need not address this dispute because we do not rely on the disputed Brost affidavit.
1) Under the Northland policy, the rental exclusion endorsement excludes coverage when Brost’s semi tractor is used in the business of anyone to whom the tractor is rented.
2) There is no dispute that when Brost purchased his Northland policy, his semi tractor was leased by Brost to Valley Express.
5) Therefore, coverage was illusory because the interaction of the rental exclusion clause and the lease means that the rental exclusion was in effect at all times during the term of the policy.
¶ 18 In response, Northland cites several cases from other jurisdictions to support the proposition that coverage is not rendered illusory by a rental exclusion clause because coverage is provided when the insured vehicle, although leased to another, is not being operated in the other’s business, such as personal errands or traveling to and from the driver’s home. Northland, however, does not analyze any of the nine cases and does not even provide pinpoint cites. Apparently Northland believes we should read the nine cases and figure out on our own whether those cases involve comparable policy language and legal reasoning supporting Northland’s view. We decline to do so.
¶ 19 Despite Northland’s inadequate response, we reject Knispel’s argument that coverage was illusory because Knispel has failed to present a developed argument.
¶ 20 Illusory coverage is against public policy. Malik v. American Family Mut. Ins. Co., 2001 WI App 82, ¶ ¶ 17-18, 243 Wis.2d 27, 625 N.W.2d 640. In Link v. General Casualty Co. of Wisconsin, 185 Wis.2d 394, 400, 518 N.W.2d 261 (Ct.App.1994), we explained that coverage is illusory when benefits would not be paid under any reasonably expected set of circumstances.
¶ 21 There are many flaws in Knispel’s argument, but it is sufficient to identify two.
¶ 22 First, Knispel ignores the fact that he is not the insured. Our non-exhaustive research indicates that cases addressing allegations that a policy provides illusory coverage involve insureds arguing that they have purchased illusory coverage. See, e.g., Remiszewski v. American Family Ins. Co., 2004 WI App 175, ¶ ¶ 3-4, 12, 15, 276 Wis.2d 167, 687 N.W.2d 809, review denied, 2004 WI 138, 276 Wis.2d 30, 689 N.W.2d 57 (No.2003AP2653); Van Erden, 271 Wis.2d 163, ¶ ¶ 6, 33; Janssen v. State Farm Mut. Auto. Ins. Co., 2003 WI App 183, ¶ ¶ 2-3, 8-15, 266 Wis.2d 430, 668 N.W.2d 820; Link, 185 Wis.2d at 396- 401; Hoglund v. Secura Ins., 176 Wis.2d 265, 267-69, 500 N.W.2d 354 (Ct.App.1993). Knispel fails to explain why a non-insured party may compel an insurance company to provide coverage based on the argument that coverage is illusory. If Brost purchased a policy that provides him no benefit because of his lease arrangement with Valley Express, that might be a matter between Brost and the insurer, or between Brost and the agent who sold him the policy, but it is not apparent why Knispel is a person who may force Northland to provide coverage. Knispel’s argument is inadequate because he does not address the matter.
¶ 23 Second, Knispel’s argument assumes that, when courts construe a policy to determine whether some part of its coverage is illusory, the court may look outside the policy to the particular facts of the case at hand. This proposition is not self-evident. Our non-exhaustive review of cases indicates that Wisconsin courts typically assess whether coverage is illusory by looking to the policy and governing law, not to the particular circumstances of the insured. See, e.g., Link, 185 Wis.2d at 396-401 (although definition in policy prevented insured from collecting under the policy’s UIM provision, UIM coverage was not illusory because there are other circumstances in which the insured could collect under the UIM provision); Hoglund, 176 Wis.2d at 270- 71 (UIM coverage was illusory both because the policy provided UIM motorists coverage only when a tortfeasor’s policy limits are $25,000 or less and by statute an insured motorist must have $25,000 in coverage and because another policy term defined out-of-state vehicles uninsured if its policy limit is less than $25,000).
Even if we could look outside the policy to the particular facts of a case in an effort to determine whether coverage is illusory, something we doubt, Knispel does not support his assertion that “it is appropriate to assume that Northland had full knowledge of the terms of its insured’s lease regarding the ‘covered auto’ as of the inception of the policy or, at a minimum, had full opportunity to avail itself of those terms.” Knispel does not provide record cites. We decline to search the record for facts relevant to this topic, unassisted by either party.
¶ 24 As did the circuit court, we reject Knispel’s argument that the endorsement was contextually ambiguous and that the rental exclusion clause had the effect of making coverage illusory. Accordingly, we affirm the circuit court’s order granting summary judgment in favor of Northland.

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Combining Our Experience. Defending Our Clients. Delivering Results.
Barry Litt is one of foremost civil rights attorneys in the country. He specializes in civil rights class actions and complex individual civil rights cases. He has been lead or co-lead counsel in four law enforcement related class actions with settlements over $10 Million, and several others with settlements in the mid-seven figures. He has also been lead counsel in several seven figure and one eight figure individual damages case. He has been published on the topic of civil rights class actions, and acknowledged by judges as one of the preeminent civil rights practioners. He has litigated police, jail, housing, employment, disability and general constitutional violations. He has published decisions from jurisdictions around the country. He has been acknowledged by SuperLawyers for the past eleven years in the fields of civil rights and class actions. Below are some of his best known cases. His full resume is here.
McKibben v. McMahon (2018) – lawsuit challenging the San Bernardino County Sheriff’s Department’s systemic discrimination of gay, bisexual and transgender jail detainees. Class members were assigned to segregated housing and permitted significantly less time out of their cells and fewer work opportunities, educational courses, and rehabilitation programs than general population inmates. The settlement provided for extensive policy reforms including a broader range of housing options; increased time out of cell; equalized access to rehabilitation programs, drug treatment classes, and work opportunities; a committee to assess and monitor housing needs, access to programming, work opportunities; a commitment to eliminate discrimination; sexual harassment training for deputies; and, $2,050,000 in damages, costs and attorneys’ fees.
Williams v. Block (jail over detention and strip search cases, which settled for $27 Million and resulted in a complete revamp of jail procedures).
Craft v. County of San Bernardino ($25.5 Million settlement for blanket strip searches of persons ordered released from custody; total policy change).
MIWON v. City of LA (MayDay protestors at MacArthur Park attacked by police; case settled for $12,800,000 — the largest protest settlement in the country).
Bynum v. District of Columbia (jail over detentions and blanket strip searches settlement of $12,000,000 against District of Columbia).
Tipton-Whittingham v. City of LA (injunctive relief and damages case for discrimination/harassment of women officers; approximately $6.5 Million settlement).
Coley v. City of Simi Valley (2019) –represented Craig Coley, along with co-counsel, who was wrongfully convicted and imprisoned for approximately 39 years. After Mr. Coley’s DNA demonstrated that he was not present during the double murder he was accused of committing, counsel demonstrated his conviction was a result of the police planting of evidence and the manipulation of multiple witnesses to give false testimony. As a result, Mr. Coley first received the largest recovery from the California Victim’s Compensation Board under Penal Code §4900 for being an innocent man wrongful imprisoned for an amount of $1,958,740. Then, after engaging in extensive negotiation with the City of Simi Valley, Mr. Coley received a $21 million settlement for his wrongful imprisonment. The settlement is to the largest individual wrongful imprisonment pre-filing settlement in U.S. history.
Frank and Nicholas O’Connell v. County of Los Angeles, et al., Case No.: 13-01905-MWF (PJWx) (C.D. Cal.) (civil rights cases for police failure to turn over exculpatory information and eyewitness manipulation, resulting in murder conviction; plaintiff spent 27 years in prison before his habeas petition was granted, and he was not re-tried; suit on behalf of son as well for denial of relationship with father as result of conviction; defendants’ qualified immunity appeal rejected in Carrillo/O’Connell v. County of Los Angeles; $15 Million settlement).
McClure v. City of Los Angeles (2004 $22.5 Million verdict for fair housing and equal protection violations for preventing opening of Alzheimer’s homes; settled while on appeal for $20 Million).
Thomas Goldstein v. City of Long Beach et al. (wrongful conviction by failing to disclose critical evidence; total settlement of $8.85 Million including first-of-its-kind recovery from Los Angeles District Attorney’s Office).
Ware v. Brotman Medical Center (1993 $2.5 million verdict against hospital for removal of hospital privileges of black doctor; settled for $1.75 million).
Melgar v. Klee (1988 $1.5 million verdict against Los Angeles Police Department for police shooting; settled for $1.45 million).


text:
Article 25. Formation and treatment of names. A scientific name must be formed and treated in accordance with the relevant provisions of Article 11 and Articles 26 to 34 (also see Appendix B, General Recommendations).
Recommendation 25A. Abbreviations. On first mention of a scientific name in a published work all components should be printed in full. Subsequently, if an abbreviation is used for any part of a binomen or a trinomen, the abbreviation should be unambiguous and it should always be followed by a full stop (period) to avoid it being thought to be a complete word.
Example. The mosquito name Aedes aegypti should be so printed on first mention, but subsequently may be given as A. aegypti (and A. a. aegypti for Aedes aegypti aegypti) but in a case where confusion is likely (e.g. with Anopheles), Aedes aegypti might be abbreviated to Ae. aegypti (and An. maculipennis used without ambiguity for a species of Anopheles).
Recommendation 25B. Derivation. In publishing a new scientific name an author should state its derivation.
Recommendation 25C. Responsibility of authors forming new names. Authors should exercise reasonable care and consideration in forming new names to ensure that they are chosen with their subsequent users in mind and that, as far as possible, they are appropriate, compact, euphonious, memorable, and do not cause offence.
FranciscoWelterSchultes Recommendation 25A is redundant, Appendix B 11 has the same content.
My proposal is to add an Article here to regulate better the treatment of binominal names.
Art. 25.1. Citation of species-group names with genus. A name of a species or subspecies shall be cited with its genus, the genus at least in an abbreviated form. However, citing a specific name without genus is not discouraged in those cases where an author discusses the taxonomic status of a species-group taxon and combining it with a genus would disturb the arguments in the text.
This Article would be helpful for authors who are in a weak position if editors of journals intend to force them to omit the genus in names of species at various occasions.
FranciscoWelterSchultes Art. 24.3.2 could be modified.
This would make life easier. Problem of Orestias agassizii Valenciennes 1846, established in 3 variant spellings, First Reviser Garman 1895 cited only 2 and selected one. This should be acceptable, no need to be forced for more research.
FranciscoWelterSchultes CouldNotLock error also in Art. 24, so I try to deposit my comment here.
"A synonym which was not treated as a name for a taxon in the author's own classification when proposed, and which was later made available under Art. 11.6, has automatically the lowest rank of all involved names."
This question came up in Gittenberger et al. 2006 (J. of Conchology 39: 146), and is another outlet of the almost complete lack of standards for Art. 11.6. Gray 1824 established Balea fragilis and mentioned Balea lucifuga as a synonym. Bourguignat 1857 described a new species Balea lucifuga without reference to any previously published work. Gittenberger et al. argued that Bourguignat "adopted" Gray's synonym - and then it was unclear which name (fragilis or lucifuga) should have priority under Art. 24.
Fixing "bibliographical reference" as a requirement for Art. 11.6 as I proposed under 11.6 will solve this case, but not those cases where a bibliographical reference was provided. So it makes sense to amend Art. 24.1.

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