text:
Also, let me repeat that understanding this court case will require reading the court documents and taking time to reflect. I have done the best I can to make the principles involved clear and as accessible as possible, but there is only so much that can be done in a case study like this to guide readers through material that is this dense with detail. Hopefully the format of presenting facts and then (often) analysis and commentary is of help.
Note: The following sections share some of the pre-history of the lawsuit, as written by Julie Anne Smith in her BGBC Survivors blog. Additional materials may be added at a later time to address additional aspects of the period leading up to the BGBC defamation lawsuit.
This blog has been set up primarily as a safe haven for those who suffered at the hands of the pastor and/or members (perhaps unknowingly) of Beaverton Grace Bible Church. If you would like me to post your story, please send to: bgbcsurvivors@gmail.com Because of the nature of this situation, I understand that some will want to remain anonymous and I fully respect that choice.
As I have gone through this process personally and have read books, scoured the internet for understanding of what we went through, I am aware that others who may not have gone to BGBC will venture upon the site. You may read something here that sounds very similar to your church experience, just as I did on other blogs/websites. You are free to comment and respond, too. Sadly, this is not an isolated church experience and my heart goes out to you, too! You are not alone.
When you post anonymously on my Blogger blog, I am unable to see any identifiable information (ISP addresses, etc), so please know that this is a safe place to share your story or comment.
If you have ideas for discussion, please send them along to: bgbcsurvivors@gmail.com.
Somehow, the powers that be at Google have removed my legitimate reviews of Beaverton Grace Bible Church, yet have allowed Chuck O’Neal’s reviews of me on the Google review site of the church. I wasn’t aware that if you search Beaverton Grace Bible Church on Google, that my name was up for review. I thought the Google Review forum is to review the site, not reviewers. How can a man yield that much power to convince Google to remove posts and let his reviews stay when they do not even constitute as reviews? He has two reviews of me posted – both with 5 stars. Before he changes, them, I want to post them here and then will address a number of issues.
Interestingly, within 2 hours of publishing the first post on this blog, Chuck revised an earlier review and had this threat for me and “many of those involved” in a threatened defamation lawsuit. Defamation is based on false accusations. He will have a hard time in court proving that my words are defaming. I wouldn’t waste my time on defamation – what is there to gain in that? I will, however, sacrifice my time and energy in speaking the truth when there is abuse of power going on and lives are at risk.
DEFAMATION IS A CRIME: Pastor Chuck O’ Neal, his wife, his children, and Beaverton Grace Bible Church as a whole, have suffered JulieAnne’s hateful lying slander for well over three years. After seeking counsel from a pastor on staff with Grace Community Church (under Pastor John MacArthur) and reading him several excerpts from JulieAnne’s endless defamation, he recommended that we FILE A LAWSUIT in an appeal to Caesar as the Apostle Paul did when falsely accused of crimes against God and the state. The lawsuit has been filed in the Washington County courthouse. JulieAnne and many of those involved in her present and historic slander will be served within the week. Her many lies and vicious criminal accusations will not stand in the light of day in the Washington County courthouse or in the coming courtroom before God. OVER THREE YEARS AGO the reviewer known as JulieAnne or “BROWN” was Biblically put out of Beaverton Grace Bible Church for ongoing vicious slander. You can see my 2009 response to her in the reviews below .
NOTE: The following screenshot of Mr. O’Neal’s Google Review of November 18, 2009, has been added here for the BGBC Defamation Lawsuit Archive, to illustrate the above text from Julie Anne’s blog post. You can compare/contrast this version with the typed text above to see if there has been editing. Click on the image below to link to a larger version that is more readable.
The actual lawsuit events started with the filing of the original eight-page Complaint on February 22, 2012, charging defamation and asking for damages of $500,000. In addition, the Complaint also states that “Plaintiffs intend to file a motion seeking permission to allege a claim for punitive damages” (page 6).
The original Complaint that started the lawsuit process contained 17 allegations of defamation against four defendants. Here are the defendants, in the order cited in the Complaint.
Julie Anne Smith (11 allegations).
Jason Stephens – son of Kathy Stephens (two allegations).
Hannah Smith – daughter of Julie Anne Smith (one allegation).
Later changes would involve dropping two of the defendants – Jason and Kathy Stephens – and adding another defendant –Meaghan Varela.
A failure by the defendants to respond by their deadline to the O’Neal/BGBC Complaint would have meant automatic default and loss of the lawsuit for them, and thus incur liability to pay the full amount of damages asked, half a million dollars. Understandably, all four decided to seek for legal representation. They began their search.
When news of the lawsuit filtered into the broader Christian community, theological questions naturally arose about the legitimacy of filing a civil suit instead of settling it within the church, either through a process of communication, church discipline, mediation, etc., as appropriate to the situation. As claimed in Mr. O’Neal’s Google Review of February 25, 2012 (see text in above section), supposed church discipline did not settle the matter, as far as he was concerned.
Also, as best I can tell from my research, there were several points along the way when appeals were made to Mr. O’Neal for outside mediation or to otherwise resolve things without this civil suit. This included representatives from Grace Community Church (GCC; led by John MacArthur). As we will see shortly, GCC employees spoke with Mr. O’Neal when he attended their annual Shepherds’ Conference in March 2012 and offered to mediate. However, he declined and insisted on having his day in court.
In various of Mr. O’Neal’s online comments in various places in 2012-2013, he seems to have seen a civil suit as the only remaining option. This was because of Ms. Smith’s online comments and messages, her later blogging (which began on February 24, 2012, at a time when she did not even know yet about the lawsuit), and his ongoing charges that she was defaming him and BGBC. Apparently, for Mr. O’Neal, there was no letting go of the alleged offenses, of settling out of court through mediation, or of withdrawing the lawsuit.
Whether that will ever happen is anyone’s guess. I suspect the Varelas (and Julie Anne Smith, for that matter) would not be able to change sufficiently for the standards of Mr. O’Neal. But, theologically speaking, I am uncertain where the Bible mandates that we hold on to alleged offenses against us by others, not letting go of them until THEY change. Certainly that does not seem to be consistent at all with the way of Jesus, who forgave even those who brutalized Him. Despite the theological issues involved here, for now it will be the legal issues that set the framework for the rest of this narrative account – which is, as a reminder, purposely written with a bias toward the defendants’ point of view although it uses the plaintiffs’ documents as the framework for exploration and analysis.
On March 12, Julie Anne and Hannah Smith hired Linda K. Williams of Portland, Oregon, as their representative to respond to the lawsuit.
Around that same time early in March, Kathy and Jason Stephens hired Herbert G. Grey of Beaverton, Oregon, as their attorney.
They began preparing their declarations and responses for the court.
The defendants’ attorneys filed these responses and also, Ms. Williams filed an anti-SLAPP motion on all the defendants’ behalf on April 26.
SLAPP stands for Strategic Lawsuit Against Public Participation. These are civil suits whose purposes are generally designed to silence or intimidate opponents. SLAPP suits are often frivolous and insidious, used by individuals or entities with “deep pockets” – ample funds to outlast and outlawyer their opponents.
How does an anti-SLAPP work? As best I can understand and explain it in relatively non-technical language, the filing of an anti-SLAPP motion “freezes” or “suspends” the judicial process. So, the case does not go to a jury trial (as was requested in the O’Neal/BGBC lawsuit). Instead, the case goes before a judge and is given expedited treatment.
If the plaintiffs demonstrate their case clearly enough and the anti-SLAPP motion fails, the defendants could appeal. If the defendants’ appeal fails, then the lawsuit goes forward with discovery, depositions, jury trial if requested, and cross-examination. If the anti-SLAPP motion succeeds because the plaintiffs fail to give substantial enough evidence, then the lawsuit is over (unless the plaintiffs appeal).
So – since plaintiffs hold the responsibility to give “substantial evidence” that their allegations of the defendants’ statements indeed constitute “defamation,” the key implication in the Beaverton Grace Bible Church v. Smith is this: Once the anti-SLAPP motion went into effect, the plaintiffs and their legal counsels were pretty much stuck with working within what evidence they had already submitted. There are indicators from sources other than my opinion that the plaintiffs’ documents were poorly drafted, and done without consideration that an anti-SLAPP motion might be filed. (See some points from Ms. Williams’ perspective noted in the section below on “Before Going Farther #2.”) And all of this seemed to set the plaintiffs’ team off in an almost unrecoverable direction, right from the start.
Ms. Williams suggested there were other such moves by the plaintiffs that would eventually lead to their paying far higher costs in the award amounts. Those are detailed below, in the subsection on “Before Going Farther #2” (on problems with documentation and presentation), and in the Analysis/Commentary section following the entry for September 3 on Deadline to Contest Statement Details.
There are several very helpful resources for defining and interpreting the legal principles and precedents most relevant to the case of Beaverton Grace Bible Church v. Smith. I have already referred to the general assistance that the Citizen Media Law Project offers, and their links to the core six court documents.
The official court documents offer us a very important source for comprehending the many complex issues raised in this case, and for grasping its significance. Attorney Linda K. Williams in particular has done us all an immense service by using the defendants’ court Memorandum documents to educate us on relevant legal issues. She provides definitions of core concepts, and describes the history of U.S. case law for how we come by these principles. She lays out relevant U.S. and Oregon statutes, and shows how they should guide the legal reasoning as applied to the BGBC defamation lawsuit. And she writes as much of this as possible in language accessible to both laypeople and lawyers.
So, she has created a crucial resource, as these kinds of defamation lawsuits are not particularly common, especially those involving individuals and organizations dealing with religious issues. In fact, I believe anyone researching this case will find a practical framework for grasping the issues, responses, and decisions in this case by referring back to Ms. Williams’ list of seven key legal concepts. I have copied it below, leaving out the case citations.
This list is found in defendants’ Memo in Support of Special Motions to Strike – i.e., the reasoning behind the filing of an anti-SLAPP motion – on Page 26, Point G. The table of contents in that same document is also exceptionally well laid out to help us follow a logical line of reasoning.
Statements expressed on the internet, especially on publicly accessed websites and interactive platforms, enjoy free speech and free exercise of religion protections of the First Amendment and Oregon Constitution.
Only statements which are provable false are actionable as defamation.
A court must evaluate alleged “defamatory” meaning in the “full context” of remarks.
Opinions based on stated or known facts are protected (regardless of whether others would reach different opinions reviewing those same facts).
Rhetorical devices, such as irony, hyperbole and figurative language, are cues that statements are opinion.
Given the nature of the legal process, it is understandable that the plaintiffs’ first two Complaint documents contained no citations of case law precedents or relevant sections of the Oregon State Constitution. While they might have put citations into these documents, they really only had a need to do so in their response of Opposition to Motion to Strike (13 pages). In that third major document, the plaintiffs referenced four legal cases and one Oregon statute. (Two of the four legal cases were also cited by the defendants.) The plaintiffs also cited “ORCP 18A,” which had no other identifying data or explanation of the acronym and which I finally located on the internet to be an acronym for “Oregon Rules of Civil Procedure.” I was surprised at the low number of case citations by the plaintiffs – this was their best opportunity to clearly develop a reasoned presentation of their case. It seemed to me they missed out.
That very low number of cases cited to support their opposition to the anti-SLAPP motion stands in stark contrast to Ms. Williams’ rather monumental Memo in Support of Special Motions to Strike (54 pages). Her document refers to 70 cases, two Oregon statutes, and six other references – mostly legal resources. Also, she alphabetized all referenced items within their category sections and she indexed all entries to the page numbers on which they could be found. Her Memo in Support of Special Motions to Strike regarding Amended Complaint (24 pages) included 13 cases in the “Table of Authorities.” Of these, eight cases cited were also used in the original Memo to Strike and five cases were new.
When we read the Order on Motion to Dismiss from Judge Fun, it is clear that he recognized the logical and legal case presented by Ms. Williams, and that he acted in the very ways she so persuasively argued were required of the court. All throughout Judge Fun’s written reasons for his decision, he refers to principles we find in Ms. Williams’ Point G, Summary of Law. He demonstrates in his language that he accepted the premises of the anti-SLAPP law: The burden of substantial evidence was with the plaintiffs. And yet, as the next section explores, the plaintiffs’ own presentations seem to have created most of the problems they experienced in attempts to persuade the court to find in their favor.
The documents that the plaintiffs filed seemed poorly prepared and unclearly written.
They did not consider the possibility that the discovery process might be halted by an anti-SLAPP motion.
Other actions and/or attitudes ultimately ended up bringing the plaintiffs a higher final bill in tallying court costs and attorneys’ fees for the prevailing parties – the defendants.
This section looks at some aspects of those problems. This exploration should help set the stage for how the court dates and decision-making played out.
I thought about the best way to approach this. I decided it would be to let Ms. Williams speak to the general point through quotes from her Motion and Memorandum in Support of Awards of Stated Costs, Disbursements and Attorney Fees of Filed by Julie Anne Smith, Hannah Smith and Meaghan Varela (filed August 20, 2012). Then, I give some specific examples that I’ve drawn from the plaintiffs Opposition to Motion to Strike.
Here are examples drawn from all three defendants represented by Ms. Williams. These quotations from her “Motion and Memorandum in Support of Awards …” document mostly represent a combination of the three problems in documentation and presentation listed at the top of this section.
[…] All of the 17 claims against Julie Anne Smith and the 4 against Meaghan Varela were based on isolated words and phrases, and all lacked any context or explanation through properly plead innuendo, thus failed to conform to Oregon pleading rules [ORCP 18], indicating a lack of careful consideration prior to filing suit for $500,000.
The single claim against Hannah Smith was not well-taken. It is very unlikely many Oregon attorneys would have thought it reasonable to include this young woman in a suit for $500,000 in damages for her single online comment that the Plaintiffs’ were “no-way Biblical.” It is even more unlikely anyone would repeat the same allegation in the Amended Complaint after its weakness should have become evident from the discussion in the Smiths’ motions filed on April 27, 2012. Time attributable to ascertaining facts and drafting argument relating only to the claim against Hannah Smith is specifically shown as 5.1 hours (drafting the arguments on the term “bully” and hyperbole and sarcasm specific to the claim against her and arranging for her waiver of service), but in general, a modest portion of the effort on every memoranda and the oral arguments is both necessary and attributable to defending this frivolous claim against Hannah.
As in most defamation cases, context matters a great deal and requires explication for the court to perform its role of evaluation speech in full context. … Plaintiffs offered no meaningful context for the allegedly defamatory snippets offered. In this case the necessary context provided and discussed by Defendants included the timeline of the church-related disputes (going back about 18 years in the case of Defendant Varela), the broader context of shunning practices in very traditional Calvinist denominations, the theological context for use of certain Scriptural phrases, and full and complete renderings of the complained-of blog and internet statements in their complete context. Context also included case law evaluating online statements and how such statements are perceived by that audience.
Plaintiffs claimed $500,000 in damages. Even if only a few of the claims remained, the potential liability (and continued litigation costs) would have been financially ruinous for Defendants. It was incumbent upon Defense Counsel to mount a full and complete defense against every allegation of defamation. Plaintiffs are the parties who chose to plead the large number of claims for defamation.
Here is my own statement of the essential point: The plaintiffs were fully responsible for filing the lawsuit, and the entire way in which it was structured, reasoned, written, and presented. It does not appear to have in any way anticipated the possibility of an anti-SLAPP motion, or else it would have been composed quite differently. But, once the anti-SLAPP measure was in force, they were basically “stuck” with what consequences of the choices they’d already made.
The two-pronged test for defamation.
Actionable and non-actionable types of speech for defamation.
The case of Beaverton Grace Bible Church v. Smith was assigned to Judge Jim L. Fun, of the Twentieth Judicial District, Circuit Court of Oregon. His considerations included court appearances by the parties and their legal representatives on May 21 and July 13, 2012. They also involved the following documents, totaling 109 pages, plus many other motions and written declarations.
The plaintiffs’ original complaint (8 pages) and amended complaint (10 pages).
The defendants’ anti-SLAPP/motion to strike (54 pages) and memo regarding amended complaint (24 pages).
The hearing was moved later than scheduled and lasted about 2 hours. Our attorneys were very well prepared and were simply amazing. The plaintiffs’ attorney told the court they were dismissing one of the defendants from the lawsuit and also some of my phrases (we still need to see the court documents). These developments are positive.
The judge asked the attorneys to write up a “summary”, no longer than 5 pages each due by a specific date and then the next (and hopefully final) hearing will be July 13.
My attorney just sent me an e-mail: this blog has over 100,000 hits. Yup, I guess this blog is of public interest. Thank you all for your support!
It is understandable that Mr. Syverson was hired in this case for his expertise on internet defamation issues. It makes sense, given that all 27 allegations deal with internet issues – messages posted online with Google Reviews and DexKnows, or with blog articles and comments on Julie Anne Smith’s BGBC Survivors BlogSpot/Blogger site.
After the trial was over and the plaintiffs case was dismissed, Mr. O’Neal set up what Ms. Smith calls an “impostor blog,” using a domain name that is an explicit spinoff from her blog’s title of “BGBC Survivors.” (More details on the “impostor blog” can be found on Archive page 02B Narrative Account and Analysis: “Sidebar Issues.”) Doesn’t that fit within the essence of “cybersquatting”?
Read Mr. O’Neal’s blog articles and internet comments and press releases. It may not take much imagination to see the potential for role reversal, where Mr. Syverson could be putting together a case against Mr. O’Neal, instead of working for him. As it was, in his role as a counsel for the plaintiffs, he had to work with the situation given to him – one of an apparently poorly constructed case that was effectively frozen in place by the anti-SLAPP motion.
Judge Fun issued his decision in Order on Motion to Dismiss on July 23. Defendants began receiving the news from their lawyers on July 26.
A ruling in favor of the defendants’ Motions to Strike (i.e., anti-SLAPP motions). This also involved the dismissal of all 27 defamation claims against the defendants.
Here are a few details and excerpts that demonstrate the Judge’s own legal reasoning behind his decisions in the first issue, plus expand on the legal process for the second issue of court-mandated payments.
1. A ruling in favor of the defendants’ Motions to Strike (i.e., anti-SLAPP motions). This also involved the dismissal of all 27 defamation claims against the defendants.
These quotes show that Judge Fun basically agreed with what Ms. Williams had outlined in her court documents as the relevant case law governing such a defamation lawsuit as this, especially one with religious issues that further bring it into the realm of freedom of speech and First Amendment Rights issues. In referring to the guiding precepts that were already in U.S. and Oregon law, Judge Fun made it very clear that the core of his ruling was that the plaintiffs failed to make their case.
The court costs and attorney’s fees for Jason and Kathy Stephens had already been submitted. These totaled $16,750. These defendants declined the option of reducing their fees.
The judge invited the remaining three defendants – Julie Anne Smith, Hannah Smith, and Meaghan Varela – to submit statements for their court costs and attorney fees, which the plaintiffs were also ordered to pay.
Judge Fun’s decision reveals some significant legal opinion on why the defendants’ reasoning won and the plaintiffs’ reasoning failed. Yet, in the aftermath of this case, people are trying to nuance how they present the results. Their terminology depends on whether they are pro-plaintiff or pro-defendants.
Regardless of such attempts by people who want to make the dismissal sound the way they want, the above words of Judge Jim L. Fun himself speak for themselves. My summary is this: The plaintiffs failed to provide the required substantial evidence of provable facts for defamatory statements. The court authority responsible to preside over this case and to write the legal decision on the matter makes this point abundantly clear – regardless of how people want to wrangle over the exact wording to use in summarizing the truth of what happened.
As the old saying goes, “It ain’t over til it’s over.” Just because Judge Fun ruled in July to grant the defendants’ anti-SLAPP motion and dismiss the plaintiffs’ case, that did not bring closure to the lawsuit. The legal process includes a number of additional post-ruling elements and events. Several deal with payment of the prevailing parties’ court costs and attorneys’ fees. Some deal with the judge’s signing of the “final decree” and deadlines. Some of the last details stretched into six full months after the final court date. This section addresses those aftermath actions and issues.
Statements of court costs and attorneys’ fees for the remaining three defendants – Julie Anne Smith, Hannah Smith, and Meaghan Varela – were submitted to Judge Fun by their attorney, Linda Williams.
Such statements typically include various supporting documentation and information, such as the attorneys’ detailed time records, resumes, fees awarded in other cases, etc. The “Motion and Memorandum in Support of Awards of Stated Costs, Disbursements and Attorney Fees of Filed by Julie Anne Smith, Hannah Smith and Meaghan Varela” was 26 pages long. There were separate additional statements detailing hours and costs for the Smiths (4 pages) and Ms. Varela (4 pages).
The amount totaled nearly $44,375 ($2,768.52 in court costs and $41,604 in attorneys’ fees). If these amounts were not contested and stood at that level, that would have brought the payments for all five defendants’ fees to over $60,000 ($16,750 for the Stephens + $44,375 for the Smiths and Varela).
Other costs, the attorney’s hours spent, and/or the attorney’s hourly rate, could be contested. If the losing parties had decided to contest any part of the statement, then the normal procedure would include two steps. First, the prevailing parties would reply to the details of what has been contested, and second, once they had, then the court would set a hearing on the amounts. The judge would determine what he/she deems “reasonable” from these hearings, and put those amounts into the final decree.
In Beaverton Grace Bible Church v. Smith, however, the plaintiffs declined the opportunity to contest any aspects of the statements submitted. They did not file any objections, including to the individual prevailing party fee request. So that part of the aftermath was completed.
Typically, the losing parties in such cases contest some aspect of the amount submitted for payment as attorneys’ fees. They can challenge whether the per-hour rate is “reasonable,” and whether the number of hours spent on a specific activity is “reasonable.” So, the lawyers who submit the statements need to lay out why they charge the rate they do, given their expertise, years of experience, the complexity of the case, and/or unusual circumstances. They must also justify the amount of time spent on specific activities.
Julie Anne Smith had the most allegations to refute – 17 of them – and each one had to be addressed. Leaving any out could still have made her liable for the full lawsuit amount, if the anti-SLAPP motion failed.
Hannah Smith had only one allegation, based on one brief statement she’d made, and yet the general details of her case required as much response as the other two defendants being represented.
Meaghan Varela was added to the Amended Complaint (filed April 26, 2012) as a defendant, and was only served with legal papers shortly after that. Preparation of her case required more urgency to complete, as Judge Fun was due to be rotated into another area of the Oregon Circuit Court starting August 1. So, if the case were not presented by then, it could cause additional concerns.
On December 4, Judge Jim L. Fun signed and “officially entered” the final judgment Decree to (1) grant the anti-SLAPP motion and dismiss the lawsuit, and (2) award court costs and attorneys’ fees for the remaining three defendants. The plaintiffs had 30 days from this decree date (i.e., on or before January 3, 2013) to file an appeal on the final amount awarded for court costs and attorneys’ fees.
Appeal the judge’s final decree regarding the award to pay the final three prevailing parties for their court costs and legal fees. If they appealed, Judge Fun’s judgment on the award was still enforceable after this deadline date. So, if the plaintiffs chose to appeal the decree, they would be required to post a bond guaranteeing payment with interest if they were to lose their appeal.
Not appeal the decree. If this was their choice, they would be required to pay the judgment award. Failure to pay would mean facing debt collection actions – including accrued interest from the date of the judge’s final decree (December 4, 2012).
No appeal or payment was received by the defendants’ attorney for nearly a week after the January 3, 2013, deadline. So, on January 9, Ms. Williams issued “10-Day Notice and Demand” letters requiring payment. They were sent by mail with return receipt. These were sent to Charles O’Neal as an individual judgment debtor in the case; and to Barbara Gilgan and Dale Weaver, two individuals listed as officers for Beaverton Grace Bible Church on their Corporation Division website as an Oregon non-profit debtor.
Because Mr. O’Neal and BGBC filed as co-plaintiffs in the lawsuit, and they lost their case, both were liable for the entire judgment award. This meant that if one was not able to pay anything, the other was responsible to pay the whole amount. Therefore, it was necessary to ensure that all debtor parties received notice that the award payment was overdue. So, On January 17, 2013, Ms. Williams sent a process server to deliver the letter in person to Mr. O’Neal.
However, on January 19, she received checks from Beaverton Grace Bible Church covering the full amounts due for court costs and attorneys’ fees for the final three defendants – Julie Anne Smith, Hannah Smith, and Meaghan Varela. Each check also included 46 days of interest, accrued from the date of the judgment (December 4, 2012). Since the judgment award was now paid in full, serving the notice on Mr. O’Neal was no longer necessary, and the process server was withdrawn.
As the court-mandated payments were received on the 10th day and final day after the “10-Day Notice and Demand” letters were sent, this ended the dealings with the aftermath of Judge Fun’s decision on Beaverton Grace Bible Church v. Smith.
Bloggers in the “spiritual abuse survivors community” tended to post articles periodically throughout the entire period of the trial, but mostly from May through August, often with analysis pieces. There were two clear “spikes” in news media interest about Beaverton Grace Bible Church v. Smith.
The first was May 14-21, when a news report on the then-forthcoming first court date broken and went viral and global within two days.
The second was July 13-26, from the time of the second court date and the judge’s deliberations until immediately after new of the decision for dismissal began circulating.

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


EDWARD AMADOR; WAYNE WILKE, Plaintiffs - Appellants, v. BOILERMAKER-BLACKSMITH NATIONAL PENSION TRUST, Defendant - Appellee.
Plaintiffs Edward Amador and Wayne Wilke, proceeding pro se, appeal the district court's grant of summary judgment in favor of Boilermaker-Blacksmith National Pension Trust. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
When plaintiffs retired, they began receiving monthly benefits from the Trust, a pension plan in which they participate. However, after the Trust received notices of levy for each of them from the Internal Revenue Service (“IRS”), it informed them by letter that their benefits would be withheld if they did not complete and return the forms provided. Neither plaintiff did so. The Trust honored the notices of levy and began sending plaintiffs' benefits to the IRS.
Plaintiffs first sued the Trust in state court. That case was removed to federal court and then dismissed. The court concluded plaintiffs had failed to state a claim for a number of reasons, including their failure to exhaust available administrative remedies. Plaintiffs' appeal to this Court was dismissed for lack of prosecution.
All appeals must be made in writing and must state the grounds on which the claimant believes he or she is entitled to relief. The written notice of appeal must be sent to the Trustees within 60 days after notification of the denial of the application for benefits (or claim). Failure to file a written notice of appeal within the time period described will operate as a complete waiver of and bar to the right to appeal, and preclude judicial review.
This Plan is intended to comply with [ERISA] and with the requirements for tax qualification under the [IRS] Code and all regulations thereunder, and is to be interpreted and applied consistent with that intent.
Id. at 121 & 123.
After their administrative appeals were denied, plaintiffs sued the Trust again. The district court granted the Trust's motion for summary judgment, concluding that it did not act arbitrarily or capriciously by denying the appeals.
We review de novo the district court's grant of summary judgment. Bryson v. City of Oklahoma City, 627 F.3d 784, 787 (10th Cir. 2010). But where, as here, an ERISA provider explicitly retains the authority to interpret its governing provisions, “we employ a deferential standard of review, ․ asking only whether the denial of benefits was arbitrary and capricious.” Weber v. GE Group Life Assur. Co., 541 F.3d 1002, 1010 (10th Cir. 2008) (citation and internal quotation marks omitted). Applying this standard, we ask “only whether the interpretation of the plan was reasonable and made in good faith.” Id. (internal quotation marks omitted). We look to the governing provisions of the Trust as a whole and consider the common and ordinary meaning of the language used. Id. at 1011.
We construe liberally plaintiffs' pro se pleadings. See Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013). However, pro se parties must follow the same rules of procedure as other litigants. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). We will not supply additional factual allegations or construct a legal theory on their behalf. See Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009).
Plaintiffs concede that they did not meet the sixty-day deadline set forth in the Trust's appeals procedure. They argue that the deadline applies only to decisions on eligibility for benefits. See Aplt. Opening Br. at 2. Their appeals were not subject to the deadline, they argue, because the Trust, having already determined that they were eligible to receive benefits, subsequently began sending those benefits to the IRS.
The common meaning of the governing provision quoted above does not compel such a conclusion. Rather, the appeals procedure applies to “[a]ny claimant ․ who believes he or she did not receive the full amount of benefits to which he or she is entitled, or who is otherwise subject to an adverse benefit determination.” R., Vol. 1 at 120 & 122. The provision further states that “[a]ll appeals must be made in writing” and that “[t]he written notice of appeal must be sent to the Trustees within 60 days after notification of the denial of the application for benefits (or claim).” Id.
Nothing in these provisions suggests that plaintiffs were not subject to an adverse benefit determination or that any exception to the sixty-day deadline applies under these circumstances. Indeed, the use of “[a]ny,” “otherwise,” and “[a]ll” in the above provisions points in the opposite direction, suggesting that the Trust was acting reasonably when it denied the appeals by invoking the sixty-day deadline. We therefore conclude plaintiffs have not shown that the Trust's application of the sixty-day deadline to their appeals was arbitrary or capricious.
Plaintiffs also argue that the Trust's decision to honor the notices of levy was arbitrary and capricious. But this argument finds no support in the governing provisions of the Trust. To the contrary, the governing provisions as a whole are to be interpreted and applied “to comply with [ERISA] and with the requirements for tax qualification under the [IRS] Code.” Id. at 121 & 123. Federal law permits the IRS to collect ERISA benefits to satisfy outstanding tax liabilities. See 26 U.S.C. § 6331(a) (authorizing the IRS to collect unpaid taxes “by levy upon all property and rights to property” of persons liable). Subject to exceptions not relevant here, “any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the [IRS], surrender such property or rights (or discharge such obligation) to the [IRS].” Id. § 6332(a). In light of these statutes and the governing provisions of the Trust, Plaintiffs have not shown that the Trust acted unreasonably or in bad faith when it honored the notices of levy from the IRS.
Based on the administrative record before it, the Trust articulated two valid reasons for denying plaintiffs' appeals. We conclude that it did not act arbitrarily or capriciously in doing so; therefore, we need not reach the remainder of plaintiffs' arguments. The judgment in favor of the Trust is affirmed.


A.W. CHESTERTON COMPANY vs. MASSACHUSETTS INSURERS INSOLVENCY FUND.
Massachusetts Insurers Insolvency Fund. Laches. Asbestos. Insurance, Insolvency of insurer, Misrepresentation, Coverage, Construction of policy, Insurer's obligation to defend. Indemnity. Words, "Occurrence," "Bodily injury."
In an action in Superior Court concerning the liability of the Massachusetts Insurers Insolvency Fund (fund) on excess indemnity policies issued by an insurer covering certain asbestos-related liability claims made against an insured, the judge's clear subsidiary findings were justified by the evidence and amply supported his conclusions that the insured had made no false statements or misrepresentations in connection with three of its applications for the policies [512-515]; that the insured had made material misrepresentations in its application for coverage for a fourth policy [515-517]; and that the doctrine of laches did not bar the fund from raising the issue of the alleged misrepresentations made by the insured in its applications for the policies [517-518].
In an action in Superior Court concerning the liability of the Massachusetts Insurers Insolvency Fund (fund) on excess indemnity policies issued by an insurer covering certain asbestos-related liability claims made against an insured, the judge properly concluded that the fund had no obligation to indemnify the insured for covered claims until the limits of all solvent excess coverage providing for indemnification had been exhausted [523-526], and that the insured was not required to exhaust all "ultimate net loss" coverages from other solvent insurers before the fund was obligated to defend the insured [526-527].
CIVIL ACTION commenced in the Superior Court Department on August 14, 1996.
Motions for partial summary judgment were heard by David A. McLaughlin, J., the case was tried before him, and a motion to amend the judgment was also heard by him.
Martin F. Gaynor, III (Nicholas D. Stellakis with him) for the plaintiff.
Joseph C. Tanski & Gregory P. Deschenes (Gregg A. Rubenstein & Christine Vargas Suthoff with them) for the defendant.
Laura A. Foggan & Alicia C. Ritter, of the District of Columbia, & Michael R. Coppock for Complex Insurance Claims Litigation Association.
David L. Elkind, Elizabeth A. Sherwin, & John A. Gibbons, of New York, Martin C. Pentz, Karen L. Crocker, Michael P. Angelini, & Vincent F. O'Rourke, Jr., for Massachusetts Electric Company & another.
(5) applicable law does not require that Chesterton exhaust all "ultimate net loss" coverages before the Fund is obligated to defend Chesterton.
We agree with the judge on the misrepresentation and laches issues. We also agree with the judge's conclusions with respect to the extent of the Fund's obligations to defend or indemnify Chesterton on Midland's covered claims. In our view, however, plain language contained in two of the valid Midland policies requires that coverage under those policies be triggered by asbestos exposure or inhalation, and not by bodily injury, during the policy period. We modify that part of the judgment to read accordingly.
1. We first summarize the general background of the case. Chesterton, a company with headquarters in Stoneham, manufactures and distributes products that for many decades contained asbestos. During the years relevant to this appeal, Chesterton maintained primary comprehensive general liability insurance policies and multiple layers of excess indemnity policies with coverage for asbestos-related liabilities. In January, 1980, the first claim alleging bodily injury caused by the inhalation of asbestos was asserted against Chesterton. By the time of trial, over 300,000 such claims had been asserted against Chesterton, alleging bodily injury, or death, due to exposure to asbestos fibers. Chesterton initially sought to have the claims defended and, if necessary, indemnity paid by its primary general liability insurers. When Chesterton perceived that the indemnity limits of its primary coverages had been exhausted, it demanded that insurers that had issued it excess insurance coverage provide indemnity and defense in accordance with the terms of those excess policies. A significant number of those insurers declined to provide Chesterton with a defense to, or indemnification for, remaining underlying claims against it. In August, 1996, Chesterton filed a complaint in the Superior Court alleging breach of contract and seeking a declaration of the scope of the obligations of certain of its excess carriers with respect to their duties to defend and to indemnify the company on the underlying claims against it.
by G. L. c. 175D, § 3, to pay covered claims [Note 1] against an insolvent insurer (up to $300,000 per claim, see note 4, infra). [Note 2] See Clark Equip. Co. v. Massachusetts Insurers Insolvency Fund, 423 Mass. 165, 166-167 (1996). It was named in Chesterton's complaint because four of the excess indemnity policies, covering the time span between February 1, 1980, and February 1, 1984, had been issued by Midland, an insurer that has become insolvent. Pursuant to G. L. c. 175D, § 5 (1), the Fund is liable to the extent of Midland's obligation on the covered claims against Chesterton. See Norfolk & Dedham Mut. Fire Ins. Co. v. Quane, 442 Mass. 704, 704-705 n.2 (2004).
"The parties hereby stipulate that with respect to each Underlying Claim at issue, bodily injury will be considered to have taken place continuously from the time that each Underlying Claimant was first exposed to asbestos until the date of diagnosis, death or the filing of the Underlying Claim, whichever occurs earliest."
ruling determined that the indemnity payments to the underlying claimants were to be allocated to all relevant primary policies in effect between (1) the time of a claimant's first exposure and (2) the date of diagnosis, death, or claim against Chesterton, whichever happened first. Neither Chesterton nor the Fund challenged this ruling and, therefore, the "all sums" method of allocation of liability has become the law of this case. [Note 3] See King v. Driscoll, 424 Mass. 1, 7-8 (1996). Based on the testimony of two expert witnesses, and documentary evidence, the judge concluded that Chesterton had met its burden in demonstrating that the limits of all relevant primary policies had been exhausted.
policy); February 1, 1982, to February 1, 1983 (third policy); and February 1, 1983, to February 1, 1984 (fourth policy). At trial, the Fund claimed that the absence of any reference, in Chesterton's applications for coverage during the four policy years, to either asbestos-containing products or to lawsuits claiming damages related to asbestos, were factual misrepresentations. These misrepresentations, argued the Fund, were made with actual intent to deceive or, alternatively, the misrepresentations increased Midland's risk of loss and, thus, under G. L. c. 175, § 186, were material and rendered the policies void. Chesterton argued that the doctrine of laches [Note 5] prevented the Fund from asserting the affirmative defense of misrepresentation in order to avoid its obligations under the policies.
The judge's findings, which are not disputed in any material respect, may be summarized as follows. During the period of time relevant to this appeal, Chesterton had retained the services of a retail insurance agency, Fred S. James (James), to obtain insurance policies that would provide Chesterton with indemnity coverage for personal liability claims, including claims based on asbestos-related bodily injury, in excess of that provided by its primary comprehensive general liability policies. James submitted applications for the four policy years in question to Capacity Managers International, Inc. (CMI), a corporate entity authorized to underwrite risks and execute policies and other insurance documents on behalf of Midland. Each application was prepared using the same standard excess liability insurance form.
States, Canada and about [eighty] countries overseas." Question 17 stated "Past Losses: Enumerate below all losses paid or now reserved in excess of $10,000 as respects accidents occurring during the past five years." Chesterton's response was "NONE." Question 25 was a declaration stating: "We know of no other relevant facts which might affect the company's judgment when considering this application." Chesterton did not place any information in that block. Below Question 25 was a line for the applicant's signature. In at least one of the years, the application form submitted to CMI was signed by Chesterton and, in the remaining years, the line below Question 25 was left blank.
The application for the first policy was dated December 10, 1979, and sent to CMI on December 18. CMI followed its customary practices with respect to the issuance of any insurance policy. CMI would rely on the application and an applicant's loss experiences, brochures, and annual reports, and, after a review of those materials, would make contact with the broker and discuss the limits, pricing, and the risk involved. After receiving Chesterton's initial application, and before the issuance of the first policy, CMI and James did in fact communicate regarding Chesterton products. Midland issued the first policy.
On January 2, 1980, Chesterton was served as one of twenty-three defendants in an action commenced in Ohio by four plaintiffs claiming to have been injured by "asbestos and asbestos insulation materials" purchased by their employer, the Clark Asbestos Company. Chesterton responded by notifying its primary insurer at that time, Liberty Mutual Insurance Company (Liberty Mutual), and by initiating its own investigation into the claims. Chesterton took the position that none of its products was involved in those claims. Despite its sincere conviction that the claims against it were meritless, Chesterton hired outside counsel to provide advice with respect to the Ohio claims.
In early 1980, Chesterton was served as a defendant in two Illinois lawsuits, in which three claimants alleged that they had sustained injuries when a pump containing a seal manufactured by Chesterton exploded. Asbestos was not involved in any of these claims.
for the second policy year to CMI. The application appeared to be a copy of the initial application, except that one or more of the exhibit pages are missing, and the application was unsigned. Subsequent correspondence reveals James asking CMI to review the application and to contact James to discuss it. A CMI worksheet dated January 29, 1981, covering many subjects ranging from exclusion endorsements to the reinsurance schedule, contained the entry that "brochures" were "not needed." Midland issued the second policy.
In early January, 1982, CMI advised James that the prior policy was about to expire and solicited a renewal of the policy. CMI subsequently requested a completed application and a five-year loss history containing aggregate and excess losses over $25,000. James responded by sending CMI a renewal application for the third policy. This application is missing from the record, but correspondence between James and CMI substantiates its contents. CMI and Midland both possessed at that time product brochures containing explicit references to Chesterton products containing asbestos. Midland issued the third policy.
During the year in which the third policy was in effect, Chesterton was named in at least three additional lawsuits in which plaintiffs alleged that bodily injuries resulted from the inhalation of asbestos fibers. As was the case with the earlier lawsuits, however, Chesterton was convinced that the alleged injuries were not attributable to any of Chesterton's products. Chesterton's outside counsel advised that one case would probably settle for as little as $2,000, should that amount be offered.
In January, 1982, Liberty Mutual adopted new industry-wide standards regarding coverage for manufacturers of products containing asbestos that, among other matters, involved a retrospective rating adjustment. At some point near this time, the reserves on the Illinois cases against Chesterton involving the exploding pump (which did not involve asbestos) were set by Liberty Mutual at $25,000 a claimant. Although Liberty Mutual previously had assured Chesterton that its underlying primary coverage would be renewed for the coming year, the company would agree only to renew Chesterton's policy for ninety days. As a consequence, Chesterton was forced to seek primary coverage from another carrier.
In January, 1983, CMI advised James that Chesterton's third policy with Midland would be expiring in February and requested "full underwriting information." James sent CMI an application, with supporting documentation, that was substantially similar to that provided in the prior three years. The CMI underwriting worksheet prepared with respect to Chesterton's application that year, significantly, contained less information than on any of the worksheets prepared for the prior three years. Midland issued the fourth policy.
In January, 1984, James filed an application for excess indemnity coverage for the policy year beginning on February 1, 1984. Accompanying that application was a letter disclosing the existence of a total of thirteen claims that had been asserted against Chesterton up until that time, alleging injuries from asbestos. James characterized these claims as "nuisance claims" and noted that Liberty Mutual had placed a "very, very small reserve" on the claims. Documents attached to the application reported that (a) one claim had been dismissed without any payment; (b) the four Ohio claims served on Chesterton in January, 1980, had been dismissed with payments totaling $7,463; (c) three were reserved for $5,000 each; (d) two were reserved for $10,000 each; (e) no reserves were set for five of the claims. Midland rejected Chesterton's application for that year.
Based on these facts, the judge reached the following conclusions of law. There were no misrepresentations associated with the Midland policies issued for the first, second, and third years. The judge reasoned that, even assuming that misrepresentations did exist, the Fund had not met its burden with respect to showing that any misrepresentations were intentional or that they increased the risk of loss to Midland. The judge concluded, however, that the fourth policy was obtained based on misrepresentations by Chesterton that increased the risk of loss, and therefore, that policy was void. The judge also concluded that Chesterton may not rely on the doctrine of laches to bar that result. Judgment entered declaring the judge's conclusions, and the rights of the parties in accordance with the judge's rulings of law on the Fund's motions for partial summary judgment, as follows.
for all claims in which it is alleged that bodily injury occurred during the policy periods. The Fund's duty to indemnify or to defend under the policies, therefore, is not limited to those underlying claims against Chesterton in which it is alleged that inhalation of asbestos fibers occurred during the policy periods. The Fund has no obligations to make indemnity payments because of bodily injury claims against Chesterton until the limits of all indemnity coverages provided by solvent excess carriers applicable to such claims have been exhausted. Once it is established that duty to defend coverages on all other applicable excess policies issued by solvent carriers have been exhausted, the Fund is obligated to defend Chesterton, up to the limits of indemnity coverage, as to claims alleging bodily injury that occurred during the policy periods. Chesterton does not, however, have to establish that the "ultimate net loss" limits of other applicable policies have been exhausted in order for the Fund to have a duty to defend. The monetary limits of the Fund's obligations are (a) $299,999 for each asbestos-related bodily injury claim; and (b) $299,999 for legal fees and costs incurred in the defense of each claim.
Chesterton thereafter sought to amend the judgment to provide that reasonable settlements made in good faith between Chesterton and a solvent excess insurer sufficed to satisfy the exhaustion requirement, and that actual exhaustion of the monetary limits of all excess indemnity policies need not be shown before the Fund's obligations to indemnify and defend on the valid Midland policies. This motion was denied. Chesterton's appeal claims error in the judge's denial of its motion to amend, as well as in the judge's rulings with respect to misrepresentations concerning the fourth policy and the doctrine of laches. The Fund has cross-appealed, raising claims of error in the judge's rulings with respect to misrepresentations concerning the first three policies in the first three years, the proper trigger of coverage of the second and third policies, and the judge's ruling that Chesterton need not exhaust the "ultimate net loss" coverage of its excess policies before the Fund has any obligation to defend on the underlying claims against Chesterton.
the Fund on the laches and misrepresentation claims, examining them under the familiar principles that a reviewing court will not set aside a trial judge's findings of fact unless they are "clearly erroneous" but will independently review the judge's legal conclusions. See Jancey v. School Comm. of Everett, 427 Mass. 603, 605-606 (1998), citing Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992). Under G. L. c. 175, § 186, a misrepresentation in an application for insurance is material, and, thus, will enable the insurer to avoid the policy, if it is made with actual intent or if it increases the risk of loss. A material fact, measured by an objective standard, is one which would "naturally influence the judgment of [an] underwriter in making the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of the premium." Employers' Liab. Assur. Corp. v. Vella, 366 Mass. 651, 655 (1975), quoting Daniels v. Hudson River Fire Ins. Co., 12 Cush. 416, 425 (1853). See Northwestern Mut. Life Ins. Co. v. Iannacchino, 950 F. Supp. 28, 31 (D. Mass. 1997) (facts are material where disclosure of truth would have influenced judgment of underwriter). The Fund has the burden of proof on this issue. See Pahigian v. Manufacturers' Life Ins. Co., 349 Mass. 78, 85 (1965). We have reviewed the lengthy record with care and conclude that the judge's clear subsidiary findings concerning a complicated situation were justified by the evidence and amply support his conclusions that (a) no false statements or misrepresentations on the part of Chesterton were made in connection with its application to Midland for excess indemnity coverage for the first, second, and third policies; (b) misrepresentations were made in its application for coverage for the fourth policy; and (c) the doctrine of laches does not operate to bar the Fund from relief.
a. The Fund asserts that Chesterton made misrepresentations with respect to the first, second, and third policies, when it failed to disclose to Midland that it had been named in a number of asbestos-related lawsuits seeking millions of dollars in damages as a result of exposure to Chesterton's asbestos-containing products. According to the Fund, these misrepresentations were made with actual intent to deceive or, alternatively, that the misrepresentations increased Midland's risk of loss and, thus, were material. We do not agree.
b. No one factor led to the judge's determination that misrepresentations had been made with respect to the fourth policy. The judge was persuaded, however, by the "totality of the circumstances" that "an objective applicant for excess coverage [would] have provided the information regarding the increase in the number of asbestos related lawsuits to an insurer in an application."
By the time that Chesterton applied for the fourth policy (1) Liberty Mutual's primary coverage had been withdrawn due to that company's decision not to write policies for manufacturers of products containing asbestos; (2) Chesterton had been named in two lawsuits brought by three claimants alleging injuries that occurred when a Chesterton pump exploded; (3) Chesterton had been served as a defendant in nine additional asbestos-related lawsuits; and (4) Chesterton was concerned that it would have difficulty in obtaining insurance coverage at all levels due to its asbestos exposure.
enumeration of "all losses paid or now reserved in excess of $10,000 as respects accidents occurring during the past five years." In making this finding, the judge relied, in part, on a letter dated September 22, 1982, in which an insurance advisor communicated with Chesterton regarding the reserves of the above mentioned lawsuits. We reject Chesterton's claim that this letter constituted inadmissible hearsay. The letter was admitted in evidence at trial for the limited purpose of proving knowledge and notice, specifically, to demonstrate that Chesterton was, in fact, actively reviewing its reserves at that time and knew what reserves had been assigned the exploding pump claims. This is precisely the purpose for which the letter was used. See P.J. Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence § 8.2.2., at 466-467 (7th ed. 1999).
The judge's findings with respect to Question 25 are equally unassailable. In circumstances such as Chesterton found itself, any commonsense interpretation of that statement would appear to require, at the very least, a disclosure that it had been named as a defendant in lawsuits seeking millions of dollars in damages for personal injury due to exposure to asbestos. Chesterton's response to the same inquiry in its application for coverage for the following year, beginning February 1, 1984, indicates that it did, in fact, clearly understand the import of Question 25. We agree with the judge that the fourth application was inaccurate on its face.
inform Midland of the existence of the asbestos lawsuits in its application for a policy for the next year, Midland refused to renew Chesterton's coverage.
Elm Farm Foods Co. v. Cifrino, 328 Mass. 549, 557 (1952) ("It is well established in the Commonwealth that laches does not operate to bar a claim simply because the events which established rights in the plaintiff occurred long ago"). While the memories of witnesses may have faded by the time the misrepresentation issues were litigated at trial, a substantial portion of the judge's evidentiary determinations were based on documents in the record. While Midland's liquidation, understandably, may have resulted in missing files, Chesterton's own documentation of its insurance coverage for that year should have been intact. Moreover, it is arguable that the missing application for the fourth policy year harmed the Fund as much as Chesterton. It was, after all, the Fund that bore the burden of proof on the issue of misrepresentation.
4. We next take up the trigger of coverage issue. " 'Trigger of coverage' is a term of art whereby the court describes what must occur during the policy period for potential coverage to commence under the specific terms of an insurance policy." Rubenstein v. Royal Ins. Co., 44 Mass. App. Ct. 842, 850 n.6 (1998), S.C., 429 Mass. 355 (1999). The interpretation of policy language is a question of law for the judge and for a reviewing court. We look to the policy as written; we neither "revise it or change the order of the words." Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 147 (1984). See Somerset Sav. Bank v. Chicago Title Ins. Co., 420 Mass. 422, 427-428 (1995). If in doubt, we "consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered." Trustees of Tufts Univ. v. Commercial Union Ins. Co., 415 Mass. 844, 849 (1993), quoting Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700 (1990).
Under the terms of the first policy, Midland promised to indemnify Chesterton "against such ultimate net loss in excess of [Chesterton's primary limit] as [Chesterton] sustains by reason of liability . . . for damages because of personal injury . . . caused by an occurrence anywhere in the world."
"[T]o pay on behalf [of Chesterton] such ultimate net loss in excess of [Chesterton's primary limit] as [Chesterton] sustains by reason of liability . . . for damages because of personal injury, property damage or advertising liability to which this policy applies, caused by an occurrence anywhere during the policy period" (emphasis added).
"[A]n accident, happening or event, including continuous or repeated exposure to conditions, which results in personal injury, property damage or advertising liability neither expected nor intended from the standpoint of the insured. All such exposure arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence."
Under the terms of all three policies, coverage includes "bodily injury, including death at any time resulting therefrom," and, as explained above, the parties have stipulated that the bodily injury alleged in each underlying claim is deemed to begin at the time each claimant was first exposed to asbestos and to continue up until the time of diagnosis, death, or the filing of the underlying claim.
in favor of an interpretation beneficial to the insured. See Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 281 (1997), quoting Trustees of Tufts Univ. v. Commercial Union Ins. Co., supra. We discern no such ambiguity.
In Matter of the Liquidation of Midland Ins. Co., 164 Misc. 2d 363 (N.Y. Sup. Ct. 1994), a judge in the Supreme Court of New York County construed language in an excess umbrella liability policy, issued in 1975 by Midland, that provided coverage for asbestos-related injuries resulting from "accidents or occurrences happening between the effective and expiration dates" of the policy. See id. at 365. This policy language is effectively the same as that we interpret today. The judge stated, "No reading of the [policy] language can lead to the conclusion that coverage is to be triggered by 'bodily injury during the policy period,' as in the numerous [commercial general liability] policy cases cited by [the claimant]. . . . No ambiguity exists . . . as to the need for the 'event', i.e., the 'exposure' to 'happen' during the policy period." Id. at 370. See In re Liquidation of Midland Ins. Co., 269 A.D. 50, 71 (N.Y. 2000) (affirming lower court's declaration that trigger of policy coverage is first, or subsequent, exposure to asbestos). The judge reasoned that a trigger of exposure to, and inhalation of, asbestos during the policy period (even though in that case, as here, tantamount to bodily injury), differs significantly from a trigger of bodily injury occurring during the policy period. We think the judge's reasoning is sound. In the final analysis, it is the policy language that controls, and the language in this case is clear. We may not invent ambiguity where none exists. See Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998); Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995). We conclude that the trigger event under the second and third Midland policies is the exposure, or inhalation, to asbestos, which results in the injury, and not the injury itself.
distinguishable. In Stonewall, the insurer itself had interpreted its policy language, "personal injury . . . caused by or arising out of an occurrence which takes place during the policy period anywhere in the world," to require only that injury need occur during the policy period. Id. The question of construction we face here, therefore, was never at issue in that case.
recovery pursuant to a good faith settlement. We conclude that where a policyholder chooses to enter into a settlement agreement with a solvent carrier for less than the policy's stated limits, that settlement, even though made in good faith, does not exhaust the policy for purposes of G. L. c. 175D. This conclusion is consistent with the Legislative purpose behind the Fund, its clear statutory design, and with case law interpreting G. L. c. 175D.
The Fund was created to benefit the public by ensuring that all holders of policies covered by the Fund will be paid for losses incurred. See Massachusetts Motor Vehicle Reinsurance Facility v. Commissioner of Ins., 379 Mass. 527, 534-535 (1980). It was intended to be a source of last resort, to avoid financial loss to claimants and to policyholders in the event of the insolvency of an insurer. See Vokey v. Massachusetts Insurers Insolvency Fund, 381 Mass. 386, 390 (1980) (interpreting requirement in G. L. c. 175D, § 9, of exhaustion of insolvency provisions of other policies before claim made to Fund). We have stated that the statute clearly does not preclude recovery from the Fund where other solvent insurers exist, see Norfolk & Dedham Mut. Fire Ins. Co. v. Quane, 442 Mass. 704, 709-711 (2004), but, just as clearly, the statute does not contemplate that the Fund's liability is coextensive with the obligations of those solvent insurers.
The statutory scheme discloses a primary legislative intent that the Fund serve only claimants of insolvent insurers who have no other source of recovery beyond the Fund. The Fund's principal obligation is to pay the "covered claims" of insolvent insurers. See G. L. c. 175D, § 5 (1). Section 1 (2) defines a "covered claim" as an "unpaid claim," subject to certain limitations, made pursuant to a policy issued by an insurer that has become insolvent, and excluding claims asserted by "a reinsurer, insurer, insurance pool or underwriting association." G. L. c. 175D, § 1 (2). See Norfolk & Dedham Mut. Fire Ins. Co. v. Quane, supra at 704-705 n.2. To the extent that compensation remains available from another source, such as other excess indemnity policies whose limits have not yet been reached, a claim is not "unpaid."
limits, Chesterton has, in effect, absolved those insurers of amounts they otherwise would owe and now seeks to impose such amounts on the Fund. Because member insurance companies pay into the Fund, and then recoup payments in the rates and premiums charged for insurance policies, it is the public that ultimately will bear financial responsibility for such settlements. A company that settles with its solvent excess insurers for less than the policy limits should, in fairness, bear the risk of settling too conservatively. We conclude that where a company fails to exhaust the limits of its solvent excess coverage before turning to the Fund, the Fund will be entitled to a credit, against any liability of the Fund to indemnity or defend, in an amount equal to the full limit of the solvent excess policies.
not exhaustion within meaning of Washington's guaranty statute).
We need not address whether the limits of a particular excess coverage have, in this case, been exhausted. Resolution of that factual issue must wait until such time as Chesterton contends to the Fund that the limits of all its excess carriers have been exhausted. The legal framework applicable to that issue, including statutory requirement, has been thoroughly addressed herein.
"If no other insurer has the right and duty to do so, [Midland] shall have the right and duty to defend any suit against [Chesterton] seeking damages on account of . . . personal injury . . . but [Midland] shall not be obligated to defend any suit after [its] liability has been exhausted . . . ."
Chesterton and the Fund agree that, if any solvent insurer has a duty to defend, then that defense obligation must be exhausted before reference is made to the Fund. Their positions differ, however, on whether Chesterton must also exhaust the indemnity limits of all solvent insurance coverage -- including payments for defense costs up to the "ultimate net loss" -- before the Fund is obligated to defend. The Fund argues that there is, essentially, no distinction between another insurer's duty to defend and its obligation to indemnify for defense costs up to the "ultimate net loss" limit of its policy. [Note 15] The Fund may not be called to defend Chesterton, therefore, until other solvent excess insurers have paid for Chesterton's defense costs up to the "ultimate net loss" limit of their respective policies. Nothing in G. L. c. 175D requires that result.
Insurers Insolvency Fund, supra; Massachusetts Motor Vehicle Reinsurance Facility v. Commissioner of Ins., supra. It is consistent with the plain language of G. L. c. 175D, § 5 (1), and with the Fund's broad purpose, as discussed above, that it be obligated to provide a defense to any claim brought against Chesterton to the same extent as Midland, had that company not become insolvent. The Fund's obligation to defend Chesterton is set forth in the Midland policy language and arises if "no other insurer has the right and duty to do so."
It is settled that an insurer's duty to defend is independent from, and broader than, its duty to indemnify. See Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 394 (2003); Bagley v. Monticello Ins. Co., 430 Mass. 454, 458-459 (1999); Boston Symphony Orch., Inc. v. Commercial Union Ins. Co., 406 Mass. 7, 10-11 (1989). The Fund's obligation to defend, therefore, cannot be treated as secondary to other insurers' obligations to make payments for indemnity obligations, and costs of defense, as part of its "ultimate net loss" coverage. Were the Fund to prevail on the position it urges, Chesterton would bear the loss, as payments by other insurers for defense costs would reduce the amount of "ultimate net loss" coverage otherwise available to indemnify Chesterton for its liability on the underlying claims asserted against it. We conclude that the Fund's duty to defend claims against Chesterton is not set in motion unless Chesterton establishes that no solvent insurer has a duty to defend under other available policies, but that Chesterton is not required, as a precondition to the Fund's duty to defend, to demonstrate exhaustion of any or all "ultimate net loss" coverages within those policies.
coverage, subject to the terms and conditions of those policies and the provisions of G. L. c. 175D, for all claims in which there was exposure to asbestos during one or both of those policy periods. With this modification, the judgment is affirmed.
[Note 1] Section 1 (2) of G. L. c. 175D defines a "[c]overed claim" as an "unpaid claim . . . which arises out of and is within the coverage of an insurance policy . . . issued by an insurer, if such insurer becomes an insolvent insurer and . . . the claimant or insured is a resident of the commonwealth."
[Note 2] The Fund's obligations and expenses are assessed, with certain exceptions, to insurers that write direct insurance to which G. L. c. 175D applies, see §§ 1 (5), 5 (1) (c), and that recoup amounts paid into the Fund primarily by increasing their rates and premiums. See G. L. c. 175D, § 13. "The cost of paying claims against insolvent insurers 'is thus ultimately passed on to the insurance-buying public.' " Clark Equip. Co. v. Massachusetts Insurers Insolvency Fund, 423 Mass. 165, 167 (1996), quoting Massachusetts Motor Vehicle Reinsurance Facility v. Commissioner of Ins., 379 Mass. 527, 530 (1980).
[Note 3] Other insurers in the case had argued for a "pro rata" method of allocation, in which liability for claims involving a continuous injury, or an extended period of time between the initial exposure to injury and the date a claim is presented, such as the underlying claims in this case, is spread over the entire period of injury and shared by the insurers according to their "time on the risk." The proper allocation of so-called "long tail" claims has twice been addressed by the Appeals Court and twice resolved in favor of the "all sums" method. See Chicago Bridge & Iron Co. v. Certain Underwriters at Lloyd's, London, 59 Mass. App. Ct. 646, 653-655 (2003); Rubenstein v. Royal Ins. Co., 44 Mass. App. Ct. 842 (1998), S.C., 429 Mass. 355 (1999). We have not had occasion to address the merits of an "all sums" versus a "pro rata" method of allocation. Because neither party argues the latter, analysis of the issue should wait for another day.
[Note 4] Section 5 (1) (a) provides that the Fund's obligations under each covered claim, with certain exceptions, "shall include only that amount . . . less than three hundred thousand dollars." This court has stated that a "claimant" under G. L. c. 175D "refers to the person now asserting the claim, either the underlying tort claimant or the insured may be a [G. L.] c. 175D claimant." Clark Equip. Co. v. Massachusetts Insurers Insolvency Fund, 423 Mass. 165, 168 (1996). The judge reasoned that if an insured is a claimant within the meaning of G. L. c. 175D, then an insured's demand for defense costs provided by the policy can be characterized as a covered claim. Thus, the statutory limit of $299,999 applies independently to fees and costs incurred in the defense of any one bodily injury claim.
[Note 5] Chesterton also presented arguments at trial that the related doctrines of estoppel or waiver barred the Fund's attempts to avoid its liability under Midland's policies. On appeal, Chesterton relies solely on the doctrine of laches.
[Note 6] The application asked: "Are Radioactive Materials used or handled?"; "Does Applicant Operate an Industrial Railroad?"; "Does Applicant have any Storage of Explosives or Inflammables?"; and "Does Applicant operate a Hospital or First-aid facility?" but made no mention of asbestos.
[Note 7] One point bearing on the question of intent, however, warrants mention. The record contains two memoranda, dated March 5, 1980, and October 22, 1982, from Richard Hoyle, who, at that time, handled all asbestos-related claims made against Chesterton, to Chesterton's insurance manager, Frank Boccelli. The memoranda were admitted in evidence at trial but not mentioned in the judge's findings. The first informs Boccelli that outside counsel had suggested that Chesterton put its insurance carriers, including its excess carriers, on notice of the Ohio lawsuits. The second reminds Boccelli of his responsibility to notify excess carriers of any future lawsuits against Chesterton "if there is any chance of exceeding the primary coverage." The Fund suggests that these letters demonstrate that, at least before the second and third policies issued, Chesterton knew that Midland should be informed of the lawsuits against it at that time and intentionally ignored its obligation to do so. We disagree. A fair reading of the memoranda permits at most an inference that Chesterton was closely monitoring the lawsuits against it and was taking steps to ensure that the company's primary and excess insurance coverage was sufficient to cover its future liability. The record supports a determination that Chesterton was a cautious company that would not have risked losing coverage of its excess indemnity policies by a purposeful failure to disclose material information. The record also fully supports the judge's determination that Chesterton sincerely believed that its products were safe and that it had been misnamed in the asbestos-related claims against it.
[Note 8] Contrary to the Fund's assertion, the judge did not base his conclusion with respect to risk of loss on Chesterton's subjective belief that it had been wrongfully sued. The judge's findings on this point (set forth in the event an appellate court might disagree with his analysis of the law) are clear. A former agent for CMI testified that Midland, at some point in time, began placing endorsements on certain policies excluding coverage for asbestos-related claims and, later, declined to write coverage for manufacturers of products containing asbestos. The agent was, however, unable to provide dates with any specificity. Based on his testimony that "whether we would have . . . excluded the asbestos or declined the risk would have depended on exactly what time and what other information we had," the judge found that Midland did not have a practice, in the relevant time period, of refusing to issue policies to companies that manufactured, or sold, products containing asbestos. CMI or Midland were in possession of brochures that described Chesterton's manufactured products containing asbestos, and could have sought further information on the subject. Instead, the judge noted, Midland continued to issue policies to Chesterton "at the same or higher limits for the same, or lower, premium charged before it had possession of the brochures."
[Note 9] The above facts set this case distinctly apart from a case decided by a judge in the Court of Common Pleas of Ohio, Owens-Corning Fiberglas Corp. v. American Centennial Ins. Co., 74 Ohio Misc. 2d 183 (1995), relied on by Chesterton. In that case, a judge concluded that the Ohio statute of limitations barred a claim seeking rescission or reformation, and that the doctrine of laches barred the affirmative defense of misrepresentation, asserted by an excess insurer against its insured, like Chesterton, a manufacturer of asbestos products. Id. at 200. In the Ohio case, the insured's underwriter testified that he knew of the alleged fraud during the policy period in 1979, but did nothing about it (except "keep the premiums which were paid and keep quiet") until over one decade had passed. Id. at 201.
[Note 10] Courts construing "occurrence" language similar to that contained in the first policy (covering bodily injury caused by "an occurrence anywhere in the world") consistently (and properly) have held that potential coverage is determined not by the time the wrongful act was committed, but the time when the claimant was actually damaged. See Lumbermens Mut. Cas. Co. v. Belleville Indus., Inc., 407 Mass. 675, 686-687 n.9 (1990); Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 152 (1984). See also Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682 F.2d 12, 17, 23-25 (1st Cir. 1982), cert. denied, 460 U.S. 1028 (1983) (interpreting Massachusetts law in asbestos exposure situation, holding that "each occurrence is made up of two components, the exposure and the resulting bodily injury; and it is the resulting bodily injury, not the exposure, which must take place 'during the policy period' ").
[Note 11] Because the injurious effects of asbestos may not be apparent, or capable of medical diagnosis, for many years after initial exposure, the questions "what is bodily injury" and "when does it occur" often assume primary importance in insurance coverage disputes involving asbestos. See generally 1 B.R. Ostrager & T.R. Newman, Insurance Coverage Disputes § 9.03[a] & [b] (12th ed. 2004), and cases cited. See also Note, The Calculus of Insurer Liability in Asbestos-Related Disease Litigation: Manifestation + Injurious Exposure = Continuous Trigger, 23 B.C. L. Rev. 1141, 1148 (1982); Comment, Liability Insurance for Insidious Disease: Who Picks Up the Tab?, 48 Fordham L. Rev. 657, 660 (1980). The parties' stipulation as to bodily injury resolves those questions for purposes of this case. Under the stipulation, a claimant who demonstrates exposure to asbestos during the policy period has, by necessity, demonstrated bodily injury occurring at the same time.
[Note 12] We reject Chesterton's so-called "exposure-in-residence" theory, which postulates that the presence of asbestos fibers in the lungs equates to continued and repeated exposure to asbestos under the Midland policy language. It is undoubtedly true that asbestos fibers, once inhaled, remain in the lungs and cause a slowly progressing disease that may not be capable of diagnosis for years. The leading case for that proposition is Keene Corp. v. Insurance Co. of N. Am., 667 F.2d 1034, 1042 (D.C. Cir. 1981), cert. denied, 455 U.S. 1007 (1982). All four insurers in the Keene case had provided coverage at various points in time when inhalation actually occurred, but the insurers disagreed as to whether coverage should be triggered by exposure to asbestos or by the manifestation of the asbestos-related disease. In order to protect policyholders from future claims arising out of past exposure, the Keene court held that coverage would be triggered by manifestation of the disease, as well as by exposure. See id. at 1045-1046. The court's "continuous trigger" approach, which defines bodily injury as occurring continually during "any part of the single injurious process that asbestos-related diseases entail," id. at 1047, mirrors that stipulated to by the parties in this case. Because the continuing progression of the disease is not enough to trigger the second or third Midland policies, however, claimants who were not exposed to asbestos during their effective dates will not be covered under those policies.
[Note 13] The court solicited amicus briefs on this question, and we now acknowledge briefs submitted by the Complex Insurance Claims Litigation Association and by the Boston Gas Company and the Massachusetts Electric Company. It came to this court's attention that an amicus brief submitted by Certain Underwriters at Lloyd's, London, and Certain London Market Insurance Companies was authored, at least in part, by certain London insurers who had been parties to this litigation, and still may be in settlement discussions with Chesterton on other policy issues. Their brief presents arguments concerning the merits of a "pro rata" method of allocation, arguments that the London insurers have already presented to the judges in connection with this case. We do not consider their brief.
[Note 14] We reject Chesterton's argument that slight differences in the language of the Post-Assessment Property and Liability Insurance Guaranty Model Act (Model Act), from which G. L. c. 175D derives, see Vokey v. Massachusetts Insurers Insolvency Fund, 381 Mass. 386, 390 (1980), and § 9 of our statute, compel a different result.
[Note 15] Excess insurance policies generally provide indemnification coverage for "ultimate net loss." The Midland policies define "ultimate net loss" as "the total sum which the Insured, or any company as his insurer, or both, become obligated to pay as damages . . . because of personal injury or property damage."


Defeating an “aggravated felony” charge can open new avenues for deportation relief.
One type of aggravated felony is a crime involving fraud or deceit in which the loss to the victim was over $10,000.
In a plea deal, a defendant may stipulate to a loss that covers both convicted and unconvicted conduct.
To find an aggravated felony, the $10,000 loss can only include loss from convicted conduct.
Consider arguing that your client did not committed an aggravated felony.
Remember, it is DHS’s burden to show, by clear and convincing evidence, that the loss to the victim was over $10,000!
In many criminal cases in which defendants plead guilty, however, they stipulate to losses from all of their alleged fraudulent conduct, including conduct cited in counts of the indictment that are dismissed as part of the plea agreement. And district courts often issue restitution orders based on those stipulations. When the amount of restitution is based on a plea agreement between the government and defendant, it need not be limited to the actual loss alleged in the specific counts to which the defendant is pleading guilty. This can create a disparity between the amount of loss stipulated by the defendant for purposes of his criminal case and the amount of loss that is relevant for purposes of his immigration case.
Counsel representing respondents charged with an aggravated felony involving fraud or deceit need to be wary of this possible disparity. Do not take restitution orders of more than $10,000 at face value. Do not assume that the loss for purposes of removal proceedings is greater than $10,000 even if the respondent has stipulated to losses greater than that amount. The Department of Homeland Security must still prove, by clear and convincing evidence, that the actual losses stemming from the specific counts to which respondent pled guilty exceeded $10,000.
In 2017, we successfully litigated this issue in Immigration Court in Arlington, Virginia. When we were retained in August, our client had just been found removable by an Immigration Judge for committing an aggravated felony. In 2016, he pled guilty to two counts of aiding and assisting in the preparation of false tax returns in violation of 26 U.S.C. § 7206(2). The other six counts of his indictment, alleging additional instances of the same crime, were dismissed. In his plea agreement, our client stipulated that the tax loss to the U.S. Treasury from his actions was at least $64,240. The district court accepted his plea, sentenced him to six months in jail, and ordered restitution of $64,240. DHS subsequently charged him with an aggravated felony. The Immigration Judge found that the tax loss exceeded $10,000 based solely on the district court’s restitution order.
A close review of his file, however, showed that the $64,240 restitution amount could not have been based just on the two counts to which he had pled guilty. Those two counts charged him with unlawfully claiming $35,465 in deductions for certain clients of his tax preparation business. It is difficult to imagine how $35,465 in improper deductions could result in a tax loss of $64,240. Additional inconsistencies between his indictment, the plea agreement, and the stipulated loss amount led us to conclude that the restitution order was based on all eight counts of his indictment, not just the two to which he had pled guilty.
We filed a motion to amend our client’s pleadings, DHS filed a brief setting forth its position why the restitution order should control, and we filed a reply. Both sides agreed that the issue was whether unconvicted fraudulent conduct, used in the calculation of restitution and specifically admitted to in the plea agreement, can be used in the calculation of loss amounts for removal proceedings. Both sides also agreed that the Fourth Circuit had not yet addressed this issue.
counts covered by the conviction.” Nijhawan, 557 U.S. at 42 (internal quotation mark omitted).
Although we conceded that the Court in that case ultimately upheld the immigration judge’s reliance on the defendant’s stipulation and the restitution order in that case, it did so because there was an “absence of any conflicting evidence[.]” Id. at 43. In our case, there was conflicting evidence based on the specific deductions alleged in the indictment.
Chang v. INS, 307 F.3d 1185, 1187-88, 1190 (9th Cir. 2002) (Where loss from single count of conviction was $605.30 and restitution amount was $32,628.67, there was no aggravated felony; “[t]o adopt the government's approach would divorce the $10,000 loss requirement from the conviction requirement[.]”).
DHS relied principally on two other cases. The first, Iecho v. Attorney General, 317 Fed. App’x. 222 (3d Cir. 2009), was an unpublished Third Circuit opinion decided three months before Nijhawan. In that case, the alien was charged with three counts of trafficking in unauthorized access devices (specifically, stolen credit card numbers). 317 Fed. App’x. at 223. He pled guilty to one count, and the other two counts were dismissed. Id. He admitted in his plea agreement that “the appropriate loss amount for each of the 557 stolen credit cards involved was $100 for a total of $55,700,” and the Third Circuit relied on that number to find he had been convicted of an aggravated felony. Id. In our case, DHS argued that Iecho supported its position because the $55,700 number was the total loss for all three counts, not the loss for the single count of conviction. But there is no support in the Third Circuit’s opinion for that assumption. It does not specify whether the $55,700 was the loss for just the one count to which the alien pled guilty or for all of the counts. More than likely, it was limited to just the single count of conviction because the Third Circuit reaffirmed its earlier holding in Alaka that any “loss tied to the dismissed charges” could not be included in the calculation. 317 Fed. App’x. at 223.
The second case DHS relied on was Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002), decided seven years before Nijhawan. DHS used this case to argue that even if the tax loss from the two counts of conviction was less than $10,000, the losses from the other six dismissed counts should still be counted because our client was convicted of a “single scheme” of tax fraud. In Khalayleh, the alien was indicted on four counts of bank fraud. He pled guilty only to Count Two, which “alleged a scheme to defraud that encompassed a number of checks,” and listed one check as an example. 287 F.3d at 980. The sample check identified in that count was in an amount of $9,308. The sentencing court ordered restitution of $24,324.03. The Tenth Circuit rejected the alien’s argument that the loss for the one count of conviction was limited to $9,308 because there was “no ambiguity regarding the scope of the offense to which [he had] pleaded,” which reached beyond the sample check. Id. For that reason, the “offense of conviction was the entire scheme charged in Count Two of the indictment.” Id. In our case, we argued that this case did not support DHS’s argument. The Tenth Circuit did not conclude that the losses from all four counts of the indictment should be counted; instead, it held that the losses just from the single count to which the alien had pled guilty (which encompassed more checks than just the one $9,308 check) should be included. We also cited two cases questioning the Tenth Circuit’s “single scheme” approach.
After briefing and oral argument, the Immigration Judge dismissed the aggravated felony charge. The IJ acknowledged the conflicting record evidence on the amount of loss and concluded that the $64,240 restitution amount was very likely inclusive of unconvicted conduct. Because Nijhawan therefore precluded reliance on the restitution amount alone, and DHS had not offered any other evidence of the loss amount, the IJ found that DHS had not carried its burden on proving loss. It also stated that it was not bound by the Third Circuit’s opinion in Iecho and declined to follow the Tenth Circuit’s reasoning in Khalayleh because that opinion was issued prior to the Supreme Court’s guidance in Nijhawan.
After that charge was dismissed, DHS recharged our client with being removable for committing two or more crimes involving moral turpitude not arising out of a single scheme. 8 U.S.C. § 1227(a)(2)(A)(ii). But because he no longer was deemed to have committed an aggravated felony, he was eligible to apply for cancellation of removal under INA 240A(1)(a). 8 U.S.C. § 1229b(a). He was a particularly suitable candidate for cancellation, having lived in the United States for 35 years and having come to this country when he was only 10 years old. In January 2018, he was granted cancellation and was able to find a place to live and a job so he could begin to pay off his restitution obligation.
 Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227 (a)(2)(A)(iii).
 8 U.S.C. § 1229b(a)(3) (aliens convicted of any aggravated felony not eligible for cancellation of removal).
 8 U.S.C.§ 1158(b)(2)(A)(ii)(alien not eligible for asylum if convicted of a “particularly serious crime”), § 1158 (b)(2)(B)(i)(conviction of aggravated felony is considered to be conviction of particularly serious crime).
 Id. (citing Alaka v. Attorney General, 456 F.3d 88, 107 (3d Cir. 2006)); see also Knutsen v. Gonzales, 429 F.3d 733, 739-740 (7th Cir. 2005).
 18 U.S.C. § 3663(a)(3)(A “court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement”); United States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995) (Where “parties agreed to an amount of restitution in a plea agreement[,] such agreements may authorize restitution in an amount greater than the loss attributable to the offense of conviction.”).
 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(M)(i) (emphasis added).
 We also offered an affidavit from our client’s criminal defense lawyer, who had access to the materials that the IRS used to calculate tax loss for each count of the indictment. She determined that the loss from the two counts of conviction was less than $4,000. Because Nijhawan’s circumstance-specific approach allows courts to look beyond the records of conviction from the district court, the Immigration Judge acknowledged the affidavit and relied on it, among other things, to conclude that DHS had not met its burden of proving tax loss exceeding $10,000.
 In Knutsen, the Seventh Circuit distinguished the facts of its case but did so only after noting that “[e]ven if we agreed with the Tenth Circuit's analysis that the calculation of a total loss amount could include losses from unconvicted counts that are encompassed by an overall fraudulent scheme, the IJ’s decision could not stand . . . .” 429 F.3d at 738 (emphasis added). And in Doe v. Attorney General, 659 F.3d 266 (3d Cir. 2011), the Third Circuit observed that the “case does not require us to consider whether Khalayleh’s approach is the law of this circuit.” Id. at 276.