text:
Blake P. Loebs is a Principal with Meyers Nave and a member of the Trial and Litigation Practice Group. He joined the firm in 2015 after serving 22 years as a Deputy City Attorney for the City and County of San Francisco. Blake leads the firm’s statewide Peace Officer Defense/Civil Rights Practice.
Blake has an extensive record of successful jury trials, dismissals and favorable settlements of cases that involved allegations of police misconduct, deaths-in-custody, officer-involved shootings, claims of wrongful arrest, vehicle accidents causing death and serious injury, and claims under the Americans with Disabilities Act. Blake is undefeated in over 25 jury trials. In the nine years that he supervised the Civil Rights division, his colleagues at the City Attorney’s Office lost only one peace officer civil rights trial out of dozens of cases tried.
Blake has taken and defended over 1,000 depositions, and argued more than 500 motions in federal and state court. He has also argued numerous cases before the Ninth Circuit and California Courts of Appeal. One of Blake’s cases is the first published decision approving the use of “suicide-by-cop” expert testimony at trial. Another one of Blake’s officer-involved-shooting cases was recently argued before the United States Supreme Court and serves as a new benchmark for the application of qualified immunity throughout the country.
While serving as Deputy City Attorney, Blake gained extensive experience assisting in drafting General Orders for the San Francisco Police Department, shaping policies on matters including officer-involved shootings and vehicle pursuits. Blake also provided training at the San Francisco Police Academy regarding officer-involved shootings. Working extensively with numerous experts, Blake has developed reports and testimony in the field of police practices, suicide-by-cop, blood spatter analysis, ballistics, wound ballistics, photogrammetry, trajectory analysis, crime scene reconstruction, computer animation, hostage negotiation, toxicology, psychology, crisis management, fiber analysis, DNA analysis, rap lyrics, accident reconstruction, fingerprint analysis, economics, orthopedic medicine, internal medicine, vocational rehabilitation and neurology.
In 2013, the San Francisco Police Officers Association honored Blake as the “Citizen of the Year” and awarded him the Medal of Honor, the two highest honors that can be bestowed on civilians, reflecting his special expertise defending officer-involved shooting cases.
Blake’s experience handling high-publicity litigation includes representing the City of Modesto and eight Modesto police and fire department personnel who were involved in the 1997 capital murder investigation and trial of George Souliotes. Mr. Souliotes was convicted of intentionally starting a fire that killed a mother and her two young children and was sentenced to life in prison without the possibility of parole. After prevailing on a habeas corpus petition handled by the Innocence Project, Mr. Souliotes was released from prison in 2013 and filed a civil rights lawsuit against Modesto and the eight individual defendants claiming that he was framed. In June 2016, the U.S. District Court granted Meyers Nave’s motion to dismiss the entire case against all defendants. The case is currently on appeal before the Ninth Circuit.
While at Meyers Nave, Blake has worked on numerous police defense cases for Modesto and many other municipalities, as well as a public housing agency. The cases have involved officer-involved shootings, excessive force and wrongful arrest claims, and two cases that are pending before the Ninth Circuit.
In another recent high-profile matter, Blake served as lead attorney assisting the San Francisco Police Officers Association (POA) in developing and drafting proposed changes to the San Francisco Police Department’s use-of-force and use-of-deadly-force General Orders. The new policy, unanimously approved by the San Francisco Police Commission on June 22, 2016, reflects many of the changes that the POA submitted for consideration as part of the policy review, modification and negotiation process. Media coverage has described the new General Orders as the most significant policy shift by the San Francisco Police Department in more than 20 years.
Souliotes v. City of Modesto – allegations against police and fire department personnel re: malicious prosecution, fabrication of evidence, unconstitutionally suggestive identification, nondisclosure of material evidence (Brady), supervisory liability, conspiracy, and Monell (city liability) regarding plaintiff’s triple first degree murder conviction in 2000, 16-year incarceration and release based on ineffective assistance of counsel; Ninth Circuit affirmed the District Court’s dismissal of the case prior to any discovery.
Abuslin v. City of Richmond – allegations of inappropriate sexual contact between seven police officers and plaintiff; case dismissed with prejudice for a waiver of costs immediately in advance of defendants filing a motion to dismiss.
Pontillo v. City of Modesto – allegations that police officers maliciously assisted in the prosecution of a bail bondsman; motion to dismiss all claims against Modesto granted with prejudice.
Holcomb v. City of Modesto – allegations that two officers assaulted and falsely arrested a man after a traffic related incident; defense verdict after a two-week federal jury trial.
Fletcher v. City of Modesto – allegations that two officers shot and killed a man who was not a threat; plaintiffs dismissed for waiver of costs pre-discovery.
August v. City of Modesto – allegations that an officer shot and killed an unarmed man; plaintiff dismissed for waiver of costs pre-discovery.
Pickett v. City of Richmond – allegations of false arrest, illegal search of vehicle, and excessive force; plaintiff dismissed all claims for a waiver of costs two months before trial and apologized in person to the officers.
Miller v. Santa Clara County – allegations of prisoner abuse against County and 44 defendants involving 10 separate incidents; defense counsel maneuvered plaintiff into dismissing all claims with prejudice for a waiver of costs prior to extensive discovery or dispositive motions being heard.

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


text:
Adding to this site’s archived cases of UFC pay per view event piracy prosecutions, reasons for judgement were released this month assessing damages at $4,800 for the commercial piracy of UFC 169.
In the recent case (Joe Hand Promotions, Inc v. Lawhon) the Defendant displayed UFC 169 at a bar without paying the commercial sub licencing fee. The Plaintiff sued and obtained default judgement.
Mr. Aguilar’s three head counts of ten, fifteen, and seven “people” in the establishment at each particular time are also problematic because they may include the two bartenders who would not be patrons, as well as himself. Taking that into account, the Court calculates statutory damages based on twelve patrons (fifteen “people” minus the two bartenders and Mr. Aguilar) at a rate of $100, which is appropriate in this case considering the range of rates used in other cases, for damages in the amount of $1,200. See Brutti’s, LLC, 2014 WL 7363823, at *7, *7 n. 4 (noting that the accepted per person rate in the Eastern District of Virginia is $100 and citing J & J Sports Prods., Inc. v. El Tropicabana, No. 3:12CV800, 2013 WL 3270563, at *3 (E.D. Va. June 26, 2013) as providing the range of rates elsewhere).
Because “signals do not descramble spontaneously, nor do television sets connect themselves to cable distribution systems,” Joe Hand is also entitled to enhanced statutory damages because of Defendant’s willful violation of the law. Tropicabana, 2013 WL 3270563, at *3 (finding that the defendant acted willfully and citing Time Warner Cable v. Googies Luncheonette, 77 F. Supp. 2d 485, 490 (S.D.N.Y. 1999)); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 127, 105 S. Ct. 613, 624 (1985) (recognizing willfulness in a civil case as “a disregard for the governing statute and an indifference to its requirements”); [Joe Hand, Jr. Aff. ¶ 9, Doc. #13-1]. Other than Defendant’s willful conduct, Joe Hand has neither alleged nor provided evidence of any other aggravating factor. See J & J Sports Prods., Inc. v. Centro Celvesera La Zaona, LLC, No. 5:11-CV-00069-BR, 2011 WL 5191576, at *2 (E.D.N.C. Nov. 1, 2011) (providing factors for determining enhanced damages). In accordance, to deter Lawhon from future violations, Joe Hand is awarded $3,600 in enhanced damages, an amount that is treble the awarded statutory damages. See, e.g., Joe Hand Promotions, Inc. v. Upstate Recreation, No. 6:13-2467-TMC, 2015 WL 685461, at *9 (D.S.C. Feb. 18, 2015) (awarding as enhanced damages 2.5 times the statutory damages and citing cases awarding three times and two times the statutory awards); J & J Sports Prods., Inc. v. Romenski, 845 F. Supp. 2d 703, 708 (W.D.N.C. 2012) (awarding total damages equal to treble the sublicense fee).

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


§ 475.015 Relationship of guardianship provisions to uniform veterans’ guardianship ..
§ 475.050 Appointment of guardian or conservator of disabled or incapacitated persons ..
§ 475.081 Persons having disappeared, absent from country, or forcibly detained, to ..
§ 475.097 Conservator or guardian ad litem — conflicts of interest, removal.
§ 475.105 Letters of guardianship or conservatorship — form.
§ 475.115 Appointment of successor guardian or conservator — transfer of case, procedure.
§ 475.123 Medical and surgical procedures — consent — emergency.
§ 475.190 Investment of liquid assets of estate of protectee — reports.
§ 475.200 Purposes for which property may be sold — petition, examination, order.
§ 475.205 Claims against estate — procedure.
§ 475.210 Filing of notice of pendency of action in other court against conservator, ..
§ 475.230 Sales of real estate, how made — notice required.
§ 475.270 Annual settlements required, when, exception — information required.
§ 475.280 Settlement and report dockets — notice to conservators and guardians.
§ 475.290 Final settlement required, when — notice.
§ 475.295 Death of conservator, personal representative to make settlement — waived when.
§ 475.310 Estate delivered by resident conservator to foreign guardian or ..
§ 475.320 Death of protectee, distribution of estate — administration, when.
§ 475.405 Proof of necessity for appointment — minority.
§ 475.410 Proof of necessity for appointment — incompetency.
§ 475.425 Filing of accounts — notice of hearing.
§ 475.480 Application of provisions relating to surety bonds and administration of ..
§ 475.521 Definitions — significant connection factors.


limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
4.1 What constitutes a digital public performance?
The Copyright Act protects “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. These works include literary works (which encompass software), musical works, dramatic works, pictorial works, sculptural works, graphical works, motion pictures, sound recordings and architectural works. These terms are defined in 17 U.S.C. § 101.
Copyright law protects only creative works, not facts. See, e.g., Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349 (1991). Only expression, but not ideas, are copyrightable. See 17 U.S.C. § 102(b); Eldred v. Ashcroft, U.S. 537, 219 (2003); Baker v. Selden, 101 U.S. 99, 103-104 (1880) (holding ideas within copyrighted works unprotectable).
Use of a copyright notice is not required under U.S. law, although copies of works published before March 1, 1989, must bear the notice or risk loss of copyright protection. The notice has several benefits. It informs the public that the work is protected, identifies the owner and shows the year of first publication. In addition, in the event a work is infringed, a proper notice precludes a defense for mitigation of damages based on innocent infringement.
Proper notice consists of symbol, year of first publication, and name of copyright owner (e.g., © 2003 Copyright Holder).
Copyright protection exists from the time the work is fixed in a tangible medium of expression. Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author. For published works, copyright protection is available if: (1) on the date of publication, the author is a national or domiciliary of the United States or a country that is a party to a copyright treaty; (2) the work is first published in the Unites States or a country that is a party to the Universal Copyright Convention; (3) the work is first published on or after March 1, 1989, in a country that is a party to the Berne Convention; or (4) the work is a foreign work restored from the public domain under the General Agreement on Tariffs and Trade (GATT).
Copyright protection lasts for the author’s life plus 70 years after the author’s death, the shorter of 95 years from publication or 120 years from creation in the case of corporate authorship, and 95 years (provided it is renewed) for works first published before January 1, 1978, pursuant to the Sonny Bono Copyright Term Extension Act of 1998. See generally Eldred v. Ashcroft, 123 U.S. 769 (2003) (rejecting constitutional challenge to term extension); see also Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 31 (2003) (affirming right to distribute public domain works as supportive of the Copyright Act’s purpose). A handy flow chart for determining what is in the public domain: http://www.bromsun.com/practices/copyright-portfolio-development/flowchart.htm.
A “publication” of a work means the distribution of copies or phonorecords (copies of sound recordings) of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. 17 U.S.C. 101. A website, including the underlying source code, is deemed published when the site becomes live on the Internet. See Getaped.com, Inc. v. Cangemi, 188 F. Supp. 2d 398, 402 (S.D.N.Y. 2002). Publication requires depositing a copy of the work with the Library of Congress. U.S. Copyright Office, “Copyright Basics,” Office Circular No. 1, p. 4 (2002).
For works transmitted online, the copyrightable work may consist of text, artwork, music, audiovisual materials (including any sounds), sound recordings and other works of authorship. U.S. Copyright Office, “Copyright Registration for Online Works,” Office Circular No. 66, p. 1 (2000).
Materials not eligible for copyright include works not fixed in a tangible form of expresion (i.e., performed but not written or recorded), titles, names, short phrases, slogans, familiar symbols or designs, mere variations of typographic lettering, ideas, procedures, methods, systems, processes, concepts, principles, discoveries, devices, or works consisting entirely of information that is common property (public domain) and containing no original authorship. See, e.g., Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 907 (1st Cir. 1995) (holding that menu command hierarchies are not copyrightable subject matter); Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (finding that telephone white pages are not protected by copyright).
In addition, certain authors of works of visual art have the moral rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. The copyright owner can license some or all of these rights to a third party.
These rights are not unlimited. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights.
What constitutes a digital public performance?
The question of what constitutes a "public performance" in the digital world is a complex one and that has largely been left unanswered by the courts. Performance licensing organizations such as ASCAP, BMI, and SESAC insist that both streaming a digital music file and downloading it are each separate and distinct public performances of the underlying musical work.
However, in U.S. v. ASCAP (S.D.N.Y. 2007), a New York District Court ruled that since the Copyright Act defines "performing" a work as "reciting", "rendering", or "playing" it, a public performance requires that the work be "transmitted in a manner designed for contemporaneous perception." Since downloads were not transmitted in such a manner, they were not considered public performances by the court. Specifically, the court said that while the term "performance" has historically been interpretted broadly, "we can concieve of no construction that extends it to the copying of a digital file from one computer to another in the absense of any perceptible rendition." Instead, the court found that such activities were more appropriately classified as "reproductions" under Section 106.
Right of Attribution: The right to be known as the author of a work and to prevent others from claiming authorship, and the right not to have authorship falsely attributed to oneself.
Right of Publication: The right to decide whether and when to publish a work and the right to withdraw the work from the public after it is published.
Right of Integrity: The right to prevent others from distorting, dismembering, mutilating or misrepresenting a work in a way that may prejudice the honor or reputation of the author.
Moral rights are not easily waived. Many countries’ laws require a specific written agreement by the author for waiver.
Visual Artists Rights Act. 17 U.S.C. § 106A. The Berne Convention requires member countries (which include the United States) to protect the right of attribution and the right of integrity. In 1990, Congress enacted the Visual Artists Rights Act amending the Copyright Act to conform to the Convention. The Act affords protection against false attribution, intentional distortion or mutilation, and destruction of a work of recognized stature.
Scope. Section 106A only applies to works of “visual art.” The term includes paintings, drawings, prints, sculpture or still photographic images produced for exhibition purposes only and existing in a single copy or limited edition of 200 copies or fewer, if signed by the artist and consecutively numbered.
Limits. “Visual art” does not include many types of authorship, such as posters, applied art, audiovisual works, magazines, databases, electronic information services or publications. Merchandising items, advertising, promotional materials and “works for hire” also are excluded. Moral rights are also limited by the fair use defense.
The creator of a work originally owns the copyright in the work. Only the author, whether a person or company, can rightfully obtain a copyright. Joint authors share the copyright unless there is an agreement to the contrary. 17 U.S.C. § 101. Copyright ownership may be shown by proof of originality and copyrightability in the work as a whole and compliance with the statutory formalities of the Copyright Act. Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340 (5th Cir. 1994). See main article on Rights Acquisition.
Anyone who violates any of the copyright owner’s exclusive rights is an infringer of the copyright. 17 U.S.C. § 501(a). In any suit for copyright infringement, a plaintiff must show: (1) ownership of a valid copyright, and (2) violation of one or more of the exclusive rights accorded to the copyright owner. Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991). To be liable for direct infringement, one must “actively engage in” and “directly cause” the copying. See Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F.Supp. 1361 (N.D. Cal. 1995).
See main article on Infringement Issues.
Registration is not a requirement to secure copyright protection.
A Certificate of Registration, if timely obtained, constitutes prima facie evidence of the validity of a copyright. 17 U.S.C. § 410(c); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085-86 (9th Cir. 1989). See Denenberg v. Berman, 2002 U.S. Dist. LEXIS 20490 (D. Neb. 2002) (holding that the mere filing of an application for copyright registration does not satisfy the registration requirement of the federal copyright statute and that “registration … means that the Copyright Office has issued an actual certificate of registration”). But see Goebel v. Manis, 39 F. Supp. 2d 1318 (D. Kan. 1999) (holding that registration occurs once the applicant initiates the registration process by mailing to the Copyright Office the application, the applicable fee and the work to be copyrighted).
There are other advantages of registration: (1) registration establishes a public record of a copyright claim; (2) registration is a prerequisite to any infringement action for works of U.S. origin; (3) statutory damages and attorneys’ fees are available if infringement occurs after registration (damages are not always available where infringement occurs before registration); and (4) registration allows the copyright owner to record the registration with the U.S. Customs Service to prevent importation of infringing copies. See generally 17 U.S.C. §§ 408-12.
Injunctive relief is authorized by the Copyright Act. 17 U.S.C. § 502.
Actual damages are available under the Copyright Act, including lost profits and profits gained by the infringer to the extent not counted in the copyright owner’s lost profits. 17 U.S.C. § 504(b). See Fournier v. McCann Erickson, 242 F. Supp. 2d 318 (S.D.N.Y. 2003) (holding that a plaintiff seeking damages in a copyright infringement action must provide proof of the defendant’s “gross revenue reasonably related to the infringement,” and the defendant, in turn, must provide evidence of deductible expenses and those profits attributable to factors other than the alleged infringement); see also Los Angeles News Serv. v. Reuters TV Int’l, 340 F.3d 926 (9th Cir. 2003) (finding that the general rule against extraterritorial application of the Copyright Act allows only a narrow exception for recovery of actual damages based on copyright infringement occurring outside the U.S.).
If the work is registered, statutory damages of up to $30,000, or up to $150,000 if the infringement is willful, are available. 17 U.S.C. § 504(c).
Attorney’s fees are available if a copyright in the work was registered before the act of infringement. 17 U.S.C. § 505; see also 17 U.S.C. §§ 411, 412.
This page was last modified on 26 April 2007, at 08:45.
This page has been accessed 56,065 times.


Ricky A. Dolly, Plaintiff Below, Respondent.
1. "Statutory provisions mandated by the Uninsured Motorist Law, W.Va. Code § 33-6-31  may not be altered by insurance policy exclusions." Syl. Pt. 1, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989).
2. "Insurers may incorporate such terms, conditions and exclusions in an automobile insurance policy . . . so long as any such exclusions do not conflict with the spirit and intent of the uninsured . . . motorists statutes." Syl. Pt. 3, in part, Deel v. Sweeney, 181 W.Va. 460, 383 S.E.2d 92 (1989).
3. "An 'owned but not insured' exclusion to uninsured motorist coverage is valid and enforceable above the mandatory limits of uninsured motorist coverage required by W.Va. Code §§ 17D-4-2 (1979) (Repl.Vol. 1996) and 33-6-31(b) (1988) (Supp. 1991). To the extent that an 'owned but not insured' exclusion attempts to preclude recovery of statutorily mandated minimum limits of uninsured motorist coverage, such exclusion is void and ineffective consistent with this Court's prior holding in Syllabus Point 2 of Bell v. State Farm Mutual Automobile Insurance Company, 157 W.Va. 623, 207 S.E.2d 147 (1974)." Syl. Pt. 4, Imgrund v. Yarborough, 199 W.Va. 187, 483 S.E.2d 533 (1997).
4. Syllabus point eight of Boniey v. Kuchinski, 223 W.Va. 486, 677 S.E.2d 922 (2009), is hereby modified to provide that a provision in a motor vehicle liability insurance policy excluding an off-road all-terrain vehicle or ATV from being an uninsured motor vehicle does not violate the intent and purpose of the uninsured motorist statute at West Virginia Code § 33-6-31(b) (1998).
5. "'Where neither party to an appeal raises, briefs, or argues a jurisdictional question presented, this Court has the inherent power and duty to determine unilaterally its authority to hear a particular case. Parties cannot confer jurisdiction on this Court directly or indirectly where it is otherwise lacking.' Syllabus point 2, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995)." Syl. Pt. 1, C & O Motors, Inc. v. West Virginia Paving, Inc., 223 W.Va. 469, 677 S.E.2d 905 (2009).
6. "'Under W.Va. Code, 58-5-1 , appeals only may be taken from final decisions of a circuit court. A case is final only when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.' Syllabus point 3, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995)." Syl. Pt. 2, C & O Motors, Inc. v. West Virginia Paving, Inc., 223 W.Va. 469, 677 S.E.2d 905 (2009).
7. "The key to determining if an order is final is not whether the language from Rule 54(b) of the West Virginia Rules of Civil Procedure is included in the order, but is whether the order approximates a final order in its nature and effect. We extend application of this rule to a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure." Syl. Pt. 1, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
Erie Insurance Property and Casualty Company ("Erie") appeals two orders of the Circuit Court of Hampshire County entered in a civil action instituted by Ricky A. Dolly, Erie's insured. First, Erie appeals the November 10, 2016, Order Granting Plaintiff's Petition for Declaratory Judgment, wherein the circuit court held that Erie was required to provide Mr. Dolly with the statutory minimum amount of uninsured motorist coverage for a trailer and all-terrain vehicle ("ATV") that Mr. Dolly was towing when he was struck by an at-fault, uninsured motorist. Second, Erie appeals the July 11, 2016, order through which the circuit court denied Erie's motion to dismiss Mr. Dolly's separate claims for common law bad faith and violation of the Unfair Trade Practices Act ("UTPA") (collectively referred to herein as "the bad faith claims"). Upon a review of this matter, we conclude that the circuit court correctly granted declaratory judgment in favor of Mr. Dolly on the coverage issue. We also determine that Erie's challenge to the order denying its motion to dismiss the bad faith claims is an interlocutory matter not subject to appeal at this time. Accordingly, we affirm the declaratory judgment ruling and remand the case to the circuit court for further proceedings.
On September 13, 2013, Mr. Dolly was driving his pick-up truck along a highway in Hampshire County. The truck was towing a trailer that carried an ATV, both of which were owned by Mr. Dolly. Emily M. Cole, while operating a sports utility vehicle owned by her father, negligently struck the side of Mr. Dolly's vehicle. Mr. Dolly was not injured but he suffered the total loss of his truck, trailer, and ATV as the result of this collision.
The Coles failed to maintain any liability insurance on their sports utility vehicle, and Mr. Dolly filed a claim with his own automobile insurance carrier, Erie. His Erie automobile policy provided $10, 000 in uninsured motorist coverage for property damage. Soon after the collision, Erie paid Mr. Dolly for the loss of his truck. However, relying on policy exclusions,  Erie denied coverage and refused to pay for the trailer and ATV.
Mr. Dolly filed suit against the Coles in May 2014. In December 2014, the complaint was amended to name Erie as a notice party, but no claims were asserted against Erie. In or about September 2015, Mr. Dolly and Ms. Cole entered into a settlement agreement whereby Ms. Cole admitted liability, confirmed that she was an uninsured motorist, and conceded that Mr. Dolly's uncompensated property damages were $19, 420.72. Erie did not object to the settlement agreement; therefore, by order entered November 2, 2015, the circuit court adopted the settlement terms and entered judgment in favor of Mr. Dolly for $19, 420.72 plus interest.
On March 9, 2016, Mr. Dolly moved the circuit court for leave to amend his complaint to add claims against Erie; this motion was granted on March 17, 2016. In this amended complaint, Mr. Dolly sought a declaratory ruling that Erie was responsible for paying for the trailer and the ATV pursuant to his uninsured motorist coverage. In separate counts, he also alleged and sought damages for common law bad faith and violation of the UTPA. Erie filed a motion to dismiss this amended complaint as time-barred, which the circuit court denied by order of July 11, 2016. Thereafter, Erie filed a counterclaim for declaratory relief arguing that there was no uninsured motorist coverage for the trailer and the ATV because of the policy exclusions. In cross motions, Mr. Dolly and Erie each argued in support of their respective petitions for declaratory judgment on the coverage issue.
After considering the parties' arguments, the circuit court entered its declaratory judgment order on November 10, 2016. The court concluded that despite the exclusionary language in the policy, Mr. Dolly was entitled to recover up to the statutorily-mandated uninsured motorist coverage minimum limit for the loss of his trailer and for the ATV that was being hauled on the trailer. See W.Va. Code § 33-6-31(b) (1998) (requiring uninsured motorist coverage in minimum amount specified by W.Va. Code § 17D-4-2 (1979)). At the time of this collision and the effective dates of Mr. Dolly's policy, the mandatory minimum for property damage coverage was $10, 000. See id. However, the circuit court also determined that Erie was not required by law to provide uninsured motorist coverage for amounts in excess of the statutorily-mandated minimum. Accordingly, the circuit court entered judgment against Erie in the amount of $10, 000. By separate order, the circuit court stayed its consideration of the common law bad faith and UTPA claims pending Erie's appeal of the declaratory judgment order.
The coverage issue that Erie brings before this Court presents a question of law arising from a declaratory judgment order. "A circuit court's entry of a declaratory judgment is reviewed de novo." Syl. Pt. 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995). Moreover, it is well-settled that "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With this plenary standard in mind, we consider Erie's petition for appeal.


PROVIDED NOTICE THAT THE BOARD ISSUED ITS FINAL RULE TO IMPLEMENT THE ANNUAL INFLATIONARY ADJUSTMENT TO ITS CIVIL MONETARY PENALTIES, PURSUANT TO THE FEDERAL CIVIL PENALTIES INFLATION ADJUSTMENT ACT IMPROVEMENTS ACT OF 2015., PROVIDED NOTICE THAT THE BOARD ISSUED A FINAL RULE TO IMPLEMENT THE ANNUAL INFLATIONARY ADJUSTMENT TO ITS CIVIL MONETARY PENALTIES, PURSUANT TO THE FEDERAL CIVIL PENALTIES INFLATION ADJUSTMENT ACT IMPROVEMENTS ACT OF 2015., PROVIDED NOTICE THAT THE BOARD ISSUED A FINAL RULE TO IMPLEMENT THE ANNUAL INFLATIONARY ADJUSTMENT TO ITS CIVIL MONETARY PENALTIES, PURSUANT TO THE FEDERAL CIVIL PENALTIES INFLATION ADJUSTMENT ACT IMPROVEMENTS ACT OF 2015.
SUMMARY: The Surface Transportation Board (Board) is issuing a final rule to implement the annual inflationary adjustment to its civil monetary penalties, pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.
DATES: This final rule is effective on publication in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Jonathon Binet: (202) 245-0368. Federal Information Relay Service (FIRS) for the hearing impaired: (800) 877-8339.
The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), enacted as part of the Bipartisan Budget Act of 2015, Pub. L. No. 114-74, § 701, 129 Stat. 584, 599-601, requires agencies to adjust their civil penalties for inflation annually, beginning on July 1, 2016, and no later than January 15 of every year thereafter. In accordance with the 2015 Act, annual inflation adjustments are to be based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for October of the previous year and the October CPI-U of the year before that. Penalty level adjustments should be rounded to the nearest dollar.
The statutory definition of civil monetary penalty covers various civil penalty provisions under the Rail (Part A); Motor Carriers, Water Carriers, Brokers, and Freight Forwarders (Part B); and Pipeline Carriers (Part C) provisions of the Interstate Commerce Act, as amended. The Board’s civil (and criminal) penalty authority related to rail transportation appears at 49 U.S.C. §§ 11901-11908. The Board’s penalty authority related to motor carriers, water carriers, brokers, and freight forwarders appears at 49 U.S.C. §§ 14901‑14916. The Board’s penalty authority related to pipeline carriers appears at 49 U.S.C. §§ 16101‑16106. The Board has regulations at 49 C.F.R. pt. 1022 that codify the method set forth in the 2015 Act for annually adjusting for inflation the civil monetary penalties within the Board’s jurisdiction.
As set forth in this final rule, the Board is amending 49 C.F.R. pt. 1022 to make an annual inflation adjustment to the civil monetary penalties in conformance with the requirements of the 2015 Act. The adjusted penalties set forth in the rule will apply only to violations that occur after the effective date of this regulation.
In accordance with the 2015 Act, the annual adjustment adopted here is calculated by multiplying each current penalty by the cost-of-living adjustment factor of 1.02522, which reflects the percentage change between the October 2018 CPI-U (252.885) and the October 2017 CPI-U (246.663). The table at the end of this decision shows the statutory citation for each civil penalty, a description of the provision, the adjusted statutory civil penalty level for 2018, and the adjusted statutory civil penalty level for 2019.
The final rule set forth at the end of this decision is being issued without notice and comment pursuant to the rulemaking provision of the Administrative Procedure Act (APA), 5 U.S.C. § 553(b)(B), which does not require that process “when the agency for good cause finds” that public notice and comment are “unnecessary.” Here, Congress has mandated that the agency make an annual inflation adjustment to its civil monetary penalties. The Board has no discretion to set alternative levels of adjusted civil monetary penalties, because the amount of the inflation adjustment must be calculated in accordance with the statutory formula. Given the absence of discretion, the Board has determined that there is good cause to promulgate this rule without soliciting public comment and to make this regulation effective immediately upon publication.
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. §§ 601-612, generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because the Board has determined that notice and comment are not required under the APA for this rulemaking, the requirements of the RFA do not apply.
This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995, 44 U.S.C. §§ 3501-3521.
Administrative practice and procedures, Brokers, Civil penalties, Freight forwarders, Motor carriers, Pipeline carriers, Rail carriers, Water carriers.
1. The Board amends its rules as set forth in this decision. Notice of the final rule will be published in the Federal Register.
2. This decision is effective on its date of publication in the Federal Register.
By the Board, Board Members Begeman and Miller.
Authority: 5 U.S.C. 551-557; 28 U.S.C. 2461 note; 49 U.S.C. 11901, 14901, 14903, 14904, 14905, 14906, 14907, 14908, 14910, 14915, 14916, 16101, 16103.
§ 1022.4 Cost-of-living adjustments of civil monetary penalties.
Unless otherwise specified, maximum penalty for each knowing violation under this part, and for each day.
For each violation under § 11124(a)(2) or (b).
For each day violation continues.
Maximum penalty for each knowing violation under §§ 10901-10906.
For each violation under §§ 11123 or 11124(a)(1).
For each violation under §§ 11141-11145, for each day.
For each violation under § 11144(b)(1), for each day.
For each violation of reporting requirements, for each day.
Minimum penalty for each violation and for each day.
For each violation under §§ 13901 or 13902(c).
For each violation related to transportation of passengers.
For each violation of the hazardous waste rules under § 3001 of the Solid Waste Disposal Act.
Minimum penalty for each violation of household good regulations, and for each day.
Minimum penalty for each instance of transportation of household goods if broker provides estimate without carrier agreement.
Minimum penalty for each instance of transportation of household goods without being registered.
Minimum penalty for each violation of a transportation rule.
Minimum penalty for each additional violation.
Maximum penalty for undercharge or overcharge of tariff rate, for each violation.
For first violation, rebates at less than the rate in effect.
Maximum penalty for first violation for undercharges by freight forwarders.
Maximum penalty for subsequent violations.
Maximum penalty for other first violations under § 13702.
Maximum penalty for each knowing violation of § 14103(a), and knowingly authorizing, consenting to, or permitting a violation of § 14103(a) or (b).
Minimum penalty for first attempt to evade regulation.
Minimum amount for each subsequent attempt to evade regulation.
Maximum penalty for recordkeeping/reporting violations.
Maximum penalty for violation of § 14908(a)(1).
When another civil penalty is not specified under this part, for each violation, for each day.
Minimum penalty for holding a household goods shipment hostage, for each day.
Maximum penalty for each violation under § 14916(a) by knowingly authorizing, consenting to, or permitting unlawful brokerage activities.
Maximum penalty for violation of this part, for each day.
For each recordkeeping violation under § 15722, each day.
For each inspection violation liable under § 15722, each day.
For each reporting violation under § 15723, each day.
Maximum penalty for improper disclosure of information.
 The Board also has various criminal penalty authority, enforceable in a federal criminal court. Congress has not, however, authorized federal agencies to adjust statutorily prescribed criminal penalty provisions for inflation, and this rule does not address those provisions.


text: objective of জল: জল [ jala ] n water; aqua: rain (জল হচ্ছে); a stream ('যেতেছে জলের মত'); (fig.) a light repast, refreshment, snack, tiffin (জলখাবার). ☐ a. cooled, comforted, refreshed (প্রাণ জল হওয়া); liquefied (গলে জল); rendered watery, thinned (রক্ত জল); mixed or adulterated with water (জল দুধ); wasted (টাকা জল হওয়া); exhausted, ruined (দেহ বা রক্ত জল হওয়া); very easy (জল অঙ্ক). খর জল hard water. চোখের জল tears. নারকেলের জল milk of coconut. বৃষ্টির জল rain-water. ভারী জল (phys.) heavy water. মিঠে জল fresh water. মৃদু জল soft water. জল করা v. to waste (টাকা জল করা); to ruin, to exhaust (দেহ বা রক্ত জল করা); to cool or comfort (প্রাণ জল করা). জল খাওয়া . v. to drink water; to take light repast, to take tiffin, (coll.) to refresh; to take or require water (ইঞ্জিনটা খুব জল খায়). জল ঝরা . v. to drip. জল দেওয়া v. to give water; to give a dying person water to drink; to offer drinking water to the manes; to water (গাছে জল দেওয়া). জল পড়া . v. to rain; to leak water (কলসিটা থেকে জল পড়ে); to stream with tears. জল মরা v. to dry up. জল নেওয়া v. to take water; (of an engine etc.) to water. জল সওয়া v. to fetch water from a river or pond on the eve of a festival. জল সরা v. to pass out water; to use the water of a pond esp. for purposes other than drinking; (of a pregnant woman) pass fluid (esp. immediately before childbirth). জল হওয়া v. to rain; to become liquid, to liquefy, to melt (গলে জল হওয়া); to cool or be comforted (প্রাণ জল হওয়া); to cool or calm down (রাগ জল হওয়া); to become cold (চা জল হওয়া). জলে দেওয়া . v. (fig.) to give to an undeserving person; (fig.) to waste. জলে পড়া v. (fig.) to arrive at a bad place; (fig.) to fall in a danger; (fig.) to fall to an undeserving person; (fig.) to be wasted. জলে ফেলা same as জলে দেওয়া । জলে যাওয়া v. to go to a river or pond; (fig.) to be wasted (টাকাটা জলে গেল). জলের কল . a. water tap. কলের জল tap-water. জলের গাড়ি a water-cart. জলের দামে (fig.) at a throw away price. জলের স্রোত a stream of water. ~কণা n. a little or small drop of water. ~কন্যা n. a water-nymph, a naiad, a mermaid. ~কপাট n. a watergate, a sluicegate, a sluice. ~কর n. a tax imposed on ponds, water reservoirs etc.; a water toll; a tax on fishery. ~কল্লোল n. noise (usu. loud) made by a running stream or wave; a noisy wave; a roaring wave. ~কষ্ট n. scarcity of water. ~কাচা a. (of textile goods) washed in water only (that is, without using soap or other washing materials). ~কাদা n. rain-water and mud; slush. ~কুক্কুট n. the water-fowl; the gull. ~কুণ্ড n. a water-font; a water-reservoir. ~কূট n. (phys.) a water-trap. ~ক্রিয়া n. drink-offering to the deceased, water libation, offering drinking water to the manes. ~ক্রীড়া, ~কেলি n. aquatic sports, watersports; bathing in rivers or ponds for amusement. ~খাবার n. a light re past, refreshment, tiffin, snack. ~গাহ n. waterbath. জলগ্রহণ না করা v. not to drink water; not to take even the slightest food, refuse to take any food. ~গ্রাহী a. (bot.) hygroscopic. ~চক্র n. (phys.) a water-mill. ~চর a. living or growing in water, aquatic. ☐ n. an aquatic animal. ~চল a. belonging to a caste whose touch does not pollute water to be used by high-caste people. ~চাষ বিদ্যা hydroponics, art of growing plants in water impregnated with nutrients. ~চিকিৎসক n. a hydropathist. ~চিকিৎসা n. hydropathy. ~চিহ্ন n. manufacturer's design on some kinds of paper-seen when the paper is held against light, watermark. ~চুড়ি n. a watermark in the shape of a thin streak. ~চৌকি n. a low and small wooden stool. ~ছত্র coll. corrup. of ~সত্র, । ~ছবি n. a transfer picture. ~ছাপ n. a watermark. ~জ a. born in or of water, ponds, rivers, seas etc.; aquatic. ☐ n. the water-lily, the lotus. ~জন্তু n. an aquatic animal. ~জীয়ন্ত, ~জিয়ন্ত, (coll.) ~জ্যন্ত a. perfectly alive (just like a fish in water); (fig.) quite obvious, downright (জলজ্যান্ত মিথ্যা). ~ঝড় n. rain and storm. ~টুঙি n. a raised hut built in the midst of a pond, marsh, river etc. ~ঢোঁড়া n. a species of non-venomous water-snake. ~তরঙ্গ n. a wave; a ripple; a kind of musical instrument consisting of seven bowls which are filled with water and are struck with one or more sticks in order to produce musical sounds. ~দস্যু n. a pirate; a buccaneer. ~দস্যুতা n. piracy. ~তা করা v. to act as a pirate; to buccaneer. ~দেবতা n. a watergod; Neptune; Varuna (বরুণ). ~দোষ n. morbid collection of water in the abdomen, dropsy. ~দ্রোণী n. a water-cask, a water-barrel; a water-bucket; a trough. ~ধর a. containing water; full of water. ☐ n. the cloud; the sea. ~ধারা n. a stream of water. ~নকুল n. the otter. ~নালী n. a water-passage; an aqueduct; a drain. ~নিকাশ n. draining out water, drainage. ~নিকাশের পথ a drain, an outlet for water. ~নিধি n. an ocean; a sea. ~নিরোধক a. waterproof. ~নির্গম n. passage of water, drainage. ~নির্গমপথ n. an outlet for water; a drain. ~নির্গম প্রণালী n. drain age system; an outlet for water, a conduit; a drain. ~পটি n. a strip of cloth soaked in water and placed on a wounded limb or on the forehead. ~পড়া n. water into which curative or supernatural power is believed to have been infused by means of mysterious words uttered by a sorcerer or magician. ~পথ n. a waterway; an outlet for water. ~পথে adv. by water. ~পরাগী a. hydrophilous. ~পরি n. a water-nymph; a water fairy, mermaid. ~পাত্র n. a water-vessel, a water-pot; a drinking cup or glass. ~পান n. a light repast, snacks; act of drinking water. জলপান করা v. to take a light repast; to drink water. ~পানি n. a scholarship, a studentship, student's stipend; pocket-money (আশুতোষ তাঁর বাবার কাছ থেকে নিত্য এক টাকা করে জলপানি পেতেন). ~পিপাসা n. thirst. ~পিপি n. a small species of wading bird, the jacana, Metopidius indicus. ~পিঁড়ি n. a low wooden pedestal on which pitchers are placed. ~পুলিশ a. water police; marine police. ~পৃষ্ঠ n. water level, surface of water. ~প্রণালী n. an outlet for water; a drain; a water course; a strait. ~প্রপাত n. a waterfall, a cataract, a cascade, a fall. ~প্লাবন n. a flood; a deluge. ~প্লাবিত a. overflooded; flooded with water. ~বৎ a. (fig.) clear as water, perspicuous, very easy to understand. ~বসন্ত n. chicken-pox. ~বাতাস, ~বায়ু n. climate. ~বাহক n. a water-carrier. ~বাহিত a. (of goods or diseases) water-borne. ~বিছুটি n. nettle drenched in water (which, when rubbed on any part of the body, causes a terrible irritation). ~বিজ্ঞান n. hydrostatics. ~বিদ্যুৎ n. hydro-electricity, hydro-electric power. ~বিন্দু n. a drop of water. ~বিম্ব n. a bubble. ~বিভাজিকা n. water shed. ~বিযুক্ত করা v. to dehydrate. ~বিয়োজন n. dehydration. ~বিষুব n. the autumnal equinox. ~বিশ্লেষণ n. hydrolyzation. জলবিশ্লেষণ করা v. to hydrolize. ~বিহার same as ~ক্রীড়া । ~বোমা n. a depth charge, a bomb used against a submarine for explosion under water. জল ভাঙা v. to proceed or walk through water with difficulty. ~ভ্রমি n. a whirlpool. ~মগ্ন a. immersed or sunk in water; drowned; flooded or submerged. জলমগ্ন হওয়া v. to sink; to drown; to be submerged. ~ময় a. full of water; watery; flooded with water; full of ponds, rivers etc. (জলময় দেশ). ~মার্জার n. the otter. ~মুক n. the cloud. ~যন্ত্র n. a machine or pulley for hauling up water; a water-clock, a clepsydra; a spraying instrument, a spray. ~যাত্রা n. a sea voyage. ~যাত্রী n. a voyager. ☐ a. voyaging. ~যান n. a ship or a boat, a vessel. ~যুদ্ধ n. a fight on water, a naval fight; a naval war; naval warfare. ~যোদ্ধা n. a naval soldier, a navy-man. ~যোগ n. tiffin or a light repast. জলযোগ করা v. to take tiffin or a light repast. ~রং n. water colour. ~রাশি n. a mass of water. ~রেখা n. a water-line. ~রোধী a. water proof; watertight. ~শক্তি n. hydro-electricity, power obtained from flowing or falling water capable of generating electric current etc., waterpower. ~শূন্য a. waterless; dry. ~শৌচ n. act of washing the posteriors (and also other parts of the body) with water after purging. ~সত্র n. a place for charitable distribution of drinking water to the public. ~সম a. level with water. ~সমতল n. water-level. ~সিক্ত a. soaked in or drenched with water, wet; moist. ~সিঞ্চন, ~সেচন n. act of sprinkling water; act of watering (trees etc.) জলসিঞ্চন করা, জলসেচন করা v. to sprinkle water (upon); to water. ~সেক n. act of sprinkling water; act of sprinkling; act of fomenting with a piece of cloth dipped in hot water. ~স্তম্ভ n. a waterspout. ~স্ফীতি n. spate. ~স্রোত n. a stream of water. ~হস্তী n. the hippopotamus. ~হাওয়া n. climate.

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


Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) are the most abundant perfluoronated chemicals (PFCs) in the United States. Together PFOS and PFOA are sometimes referred to as PFCs, or C8 compounds. These substances are not naturally occurring. Humans and our manufacturing processes create them. They are as widespread as polychlorinated biphenyls (PCBs), and, some experts believe, an equally as serious environmental issue.
From the 1960s until 2002, PFOS was primarily used in firefighting foam. Since the 1940s, PFOA was used in the manufacture of fluoropolymers, which are substances that repel water and have “non-stick” properties. Common uses of PFOA included waterproofing textiles, non-stick cookware, firefighting foam, metal plating, photography, photolithography, semi-conductors, paper, packaging, coating additives, cleaning products, pesticides, and to provide friction reduction in the aerospace, automotive, construction, and electronics industries.
Despite these beneficial uses, PFOS and PFOA are persistent, toxic, and bio-accumulative. They appear in soil, air, and groundwater at many locations in the United States, particularly areas around chemical plants and military bases.
The Environmental Protection Agency (EPA) has determined, based on its Guidelines for Carcinogen Risk Assessment, that there is “Suggestive Evidence of Carcinogenic Potential” of PFOA and PFOS in humans. EPA Office of Water, Health & Ecological Criteria Div., EPA 822-R-16-005, Drinking Water Health Advisory for Perfluorooctanoic Acid 47 (2016). EPA also points to potential effects such as low birth weight, accelerated puberty, and skeletal variations in children as a result of exposure during pregnancy or breastfeeding. See Lifetime Health Advisories and Health Effects Support Documents for Perfluorooctanoic Acid and Perfluorooctane Sulfonate, 81 Fed. Reg. 33,250, 33,250.May 25, 2016). Exposure to PFOA and PFOS may also cause testicular or kidney cancer, tissue damage to the liver, immune system effects and cholesterol changes.
In the late 1990s, EPA became aware of the persistence, bioaccumulation, and toxicity of PFOA and PFOS. Based on health and environmental concerns, EPA and 3M, the manufacturer of PFOS, agreed to a voluntary phase-out of the chemical in the early 2000s. Shortly thereafter, to fill gaps in its knowledge, EPA entered into enforceable consent agreements, memoranda of understanding, and voluntary commitments, with parties who had information about the chemicals (such as 3M and DuPont). In 2006, EPA invited several entities to engage in a global stewardship program with the goals of achieving a 95% reduction in PFOA by 2010 and total elimination of PFOA from emissions and products by 2015. All participants met the program goals by 2015.
EPA has also promulgated several Significant New Use Rules (SNURs) under the Toxic Substances Control Act (TSCA) § 5(a)(2) relating to these chemicals. SNURs allow EPA to determine that a use of a chemical substance is a significant new use, thereby prohibiting the manufacture or processing of such substance without prior notice to the EPA.
In addition to its TSCA authority, EPA may regulate PFOA and PFOS pursuant to the Safe Drinking Water Act (SDWA). EPA listed PFOA and PFOS on the Contaminant Candidate List (CCL) 3 in 2009 and CCL 4 in 2016. The CCL prioritizes unregulated contaminants for regulatory decision-making under SDWA.
Although PFOA and PFOS have not yet been subject to a regulatory determination, they have been subject to unregulated contaminant monitoring pursuant to SWDA § 1445(a)(2), and have been short-listed for a regulatory determination. Additionally, in 2014, pursuant to SDWA § 1412(b)(1)(F), EPA established non-regulatory, Lifetime Health Advisory levels in 2016 for both PFOA and PFOS. Lifetime Health Advisories and Health Effects Support Documents for Perfluorooctanoic Acid and Perfulorooctane Sulfonate, 81 Fed. Reg. 33,250, 33,251 (May 25, 2016). EPA recommends that if water sampling results indicate that the chemicals are present at or above 0.07 ppb, the applicable drinking water safety agency and consumers should be notified. As of this writing, most public water systems do not monitor for PFOA/PFOS and are not generally required to do so.
Additionally, EPA has authority under the Clean Air Act (CAA) to regulate PFOA and PFOS. In 2012, EPA finalized a rule applicable to several source categories under CAA § 112(d)(6), the National Emission Standards for Hazardous Air Pollutants (NESHAP) program. National Emission Standards for Hazardous Air Pollutant Emissions: Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks; and Steel Pickling–HCl Process Facilities and Hydrochloric Acid Regeneration Plants, 77 Fed. Reg. 58,220, 58,223 (Sept. 19, 2012).
Several states have taken the lead in monitoring and regulating PFOA and PFOS levels in the environment. The Maine Center for Disease Control and Prevention has set maximum exposure guidelines for drinking water that correspond to EPA’s lifetime health advisory. Minnesota’s health risk limit, set in 2008, remains at 0.3 ppb for both PFOA and PFOS and is currently under review based on EPA’s health advisory. New Jersey’s preliminary health-based guidance for PFOA is currently set at 0.04 ppb.
Private party actions are developing more rapidly than regulatory action. A cluster of private actions against the DuPont chemical company illustrate this trend. DuPont’s Washington Works plant in West Virginia on the Ohio River began use of PFOA at this facility in the 1950s, and became aware of possible negative health effects in 1981. In violation of TSCA § 8(e) and a corrective action permit issued by EPA under the Resource Conservation and Recovery Act (RCRA), DuPont failed to report that some of its exposed female employees had passed PFOA to the bloodstream of their unborn children. EPA did not learn about this finding until approximately 20 years later.
In 2002, EPA issued an emergency administrative order under the SDWA to provide drinking water treatment for public and private water users near the Washington Works facility based on a PFOA screening level of 150 ppb. Four years later, EPA issued a second administrative order to reduce the screening level to 0.5 ppb. EPA reduced this level yet again in 2009 to 0.4 ppb. EPA amended the 2009 order on January 5, 2017 adding DuPont’s newly-formed Chemours Company (a spin-off of Dupont’s Performance Chemicals segment) as a party subject to the order, requiring additional actions corresponding with the lifetime health advisory level of 0.07 ppb for PFOA, and expanding the geographic area to which the administrative order applies.
EPA additionally filed administrative complaints against DuPont under TSCA and RCRA in 2004. In 2005, EPA and DuPont reached a settlement regarding these violations in which DuPont agreed to pay $10.25 million in civil penalties and conduct supplemental environmental projects worth $6.25 million.
Throughout this process, DuPont has been subject to several private party actions. In 2001, residents of Ohio and West Virginia living near the Washington Works facility filed a class action suit against DuPont in a state court in West Virginia. The case, Leach v. E.I. Du Pont de Nemours & Co., No. 01-C-698 (Wood County W. Va. Cir. Ct.), involved common law tort claims. Three years after class certification, the case was settled in February 2005. Under the settlement, DuPont agreed to pay up to $235 million for health monitoring of class members and $70 million for health and education programs. DuPont also agreed to convene a scientific panel to analyze the effects of PFOA exposure. The panel found a probable link between the chemical and six illnesses: kidney cancer, testicular cancer, ulcerative colitis, high cholesterol, thyroid disease, pregnancy-induced hypertension, and preeclampsia. This panel studied 69,000 members of the Leach class to make the “probable link” determination. Pursuant to the settlement, individual class members who suffered from one of the six identified diseases were permitted to pursue personal injury and wrongful death claims against DuPont, who, in turn, would not contest general causation. However, DuPont remained free to contest specific causation and assert any defense not barred by the agreement.
Plaintiffs from the original Leach class action subsequently filed individual claims along with other exposed individuals. In 2013, the cases were consolidated in the Federal District Court in the Southern District of Ohio. DuPont faced over 3,500 individual claims in multidistrict litigation (MDL) over health issues relating to exposure to PFOA from the Washington Works plant. Erica Teichert, US Jury Orders DuPont to Pay $10.5 Million over Leaked Chemical, 34 No. 24 Westlaw Journal Toxic Torts 13, Jan. 13, 2017. Although the majority of claims involved injuries such as high cholesterol or thyroid disease, several alleged that exposure to DuPont’s PFOA caused cancer.
During litigation, DuPont and one of its spin-off companies, the Chemours Company, disputed which company would be ultimately liable for damages. In February 2017, however, DuPont and Chemours settled the MDL for $671 million, each entity agreeing to pay $335.35 million. Chemours has also agreed to pay up to $25 million annually for the next five years toward costs not covered by the MDL settlement. DuPont will pay an additional $25 million, if necessary. Neither company admitted fault, but the MDL settlement also resolved the dispute regarding liability between the companies.
In another separate action against DuPont, the Little Hocking Water Association filed suit in 2009 after discovering contamination in its aquifer. Little Hocking, a nonprofit supplying water to two counties in Ohio, drew water from aquifers contaminated by DuPont’s Washington Works plant. Little Hocking’s claims included imminent and substantial endangerment under RCRA, public and private nuisance, negligence, trespass, abnormally dangerous or ultra-hazardous activity, conversion, unjust enrichment, and declaratory judgment for indemnity. Little Hocking v. E.I. Du Pont Nemours & Co., 91 F. Supp. 3d 940, 947 (S.D. Ohio 2015). On cross-motions for summary judgment, DuPont did not contest the release of PFOA into the environment. This article will discuss the RCRA citizen suit claim exclusively.
To prevail on a citizen suit under RCRA § 6972(a)(1)(B), Little Hocking needed to show that (1) DuPont is a person, who (2) contributed to or is currently contributing to disposal of solid waste (3) that may present an imminent and substantial endangerment to health or the environment. DuPont contested elements two and three of Little Hocking’s claim. Prior to any substantive argument about Little Hocking’s establishment of a RCRA citizen suit claim, however, DuPont argued that Little Hocking did not have standing due to lack of injury. DuPont also argued that the Southern District of Ohio did not have subject matter jurisdiction over any claim seeking remediation due to federal preemption.
With respect to standing, Little Hocking’s alleged injury under RCRA was harm to the environment on its property. As a remedy, the water company sought injunctive relief under RCRA § 6972(a)(1)(B) requiring DuPont to clean up its wellfield and investigate additional contamination pathways. DuPont argued that Little Hocking did not have standing due to lack of injury – the PFOA contamination was being removed from the water at DuPont’s expense, so there was no imminent and substantial endangerment present. The court found that a party can establish standing in a RCRA citizen suit by alleging presence of contamination on its property as an injury-in-fact that is traceable to the defendant and may cause imminent and substantial harm to human health or the environment. Little Hocking, 91 F. Supp. 3d at 954. The court emphasized the Supreme Court’s admonition that “the relevant showing for purposes of Article III standing… is not injury to the environment but injury to the plaintiff.” Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envt’l Services, 528 U.S. 167, 169 (2000)).
Additionally, DuPont argued that the court did not have subject matter jurisdiction over any remediation on Little Hocking’s well-field due to the ongoing remediation agreement with EPA. Case law cited by DuPont stood for the proposition that a consent decree in federal court prevents a plaintiff from pursuing state law claims for additional remediation due to federal preemption. However, DuPont had entered administrative consent orders, not judicially approved consent decrees and Little Hocking was seeking relief under federal law. Therefore, the court found it had jurisdiction over Little Hocking’s claim. Id. at 956–57.
In determining the merits of Little Hocking’s claim to relief under RCRA § 6972(a)(1)(B), the court focused on the injury to Little Hocking, as opposed to the community served by Little Hocking. Therefore, any disposal of PFOA on the well-field was relevant. Two major ongoing pathways existed from the DuPont Washington Works Plant to Little Hocking’s well-field: an air deposition pathway and a water pathway via the Ohio River. DuPont argued that the water pathway was not a disposal of solid waste within the meaning of RCRA because the Washington Works Plant discharged to the Ohio River under a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit.
Under RCRA § 6903(27), “solid waste” excludes “solid or dissolved materials in […] industrial discharges which are point sources subject to permits under…” the CWA’s NPDES program. EPA’s regulations also support exclusion of industrial point source discharges. The court found that this exclusion applied to DuPont’s point source discharge, regardless of the fact that the NPDES permit did not contemplate PFOA discharges. Ultimately, the court found it did not matter if an NPDES permit was in place – the relevant question was whether the discharge is subject to the CWA’s NPDES permit scheme.
Little Hocking then pointed to several other water pathways, including contaminated soils in landfills, digestion ponds, and soil on the Washington Works property itself. Little Hocking alleged that contamination from these sources reached its wellfield via seeps, groundwater, and storm water runoff. Again, DuPont claimed that these sources were covered by its NPDES permit. The court held that because it was not clear whether all storm water runoff from the contaminated Washington Works property was channeled to DuPont’s permitted outfalls, or if some reached the wellfield via an alternate pathway, there remained a genuine issue of material fact as to whether an alternate storm water pathway constituted disposal of solid waste under RCRA. The court also held that because RCRA’s NPDES exception does not cover “industrial wastewaters while they are being collected, stored, or treated before discharge, nor does it exclude sludges that are generated by industrial wastewater treatment,” there remained an issue of genuine material fact regarding these pathways to Little Hocking’s wellfield. 40 C.F.R. § 261.4(a)(2); Little Hocking, 91 F. Supp. 3d at 961. After a review of applicable case law, the court held that any PFOA that reached Little Hocking’s wellfield via seepage into the Ohio River is not covered by the solid waste exclusion, and that Little Hocking need not quantify the amount of seepage to establish disposal.
Regarding air emissions that contaminated Little Hocking’s wellfield via deposition, DuPont argued that such emissions did not fit within RCRA’s definition of solid waste, which covers “discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial […] operations.” 42 U.S.C. § 6903(27); Little Hocking, 91 F. Supp. 3d at 963. DuPont asserted that because the gaseous PFOA deposited on the wellfield was not “contained” pursuant to the RCRA definition, it was not a solid waste. Little Hocking urged the court to follow its own precedent in Citizens Against Pollution v. Ohio Power Co., No. C2–04–CV–371 holding that flue gas touching down on nearby land was “solid waste” within the meaning of RCRA. 2006 WL 6870564, at *3–5 (S.D. Ohio July 13, 2006). DuPont argued that the Ninth Circuit’s reasoning in Center for Community Action & Environmental Justice v. BNSF Railway Co., 764 F.3d 1019, 1026–29 (9th Cir. 2014) correctly ruled that RCRA governs only land disposal, and the CAA governs all air pollution. Siding with Little Hocking, the court declined to follow the Ninth Circuit and held that emissions of PFOA particulate matter deposited on the wellfield contaminating the groundwater constituted disposal of solid waste under RCRA.
DuPont also argued that the PFOA on Little Hocking’s wellfield did not present an imminent and substantial endangerment to health or the environment, a necessary showing to establish a RCRA citizen suit. Ongoing treatment of the water supply to remove PFOA abated any endangerment to human health, DuPont argued, and Little Hocking failed to show evidence of environmental endangerment. The court agreed with DuPont regarding the human health threat – such a threat would only exist if DuPont ceased operation of its filtration equipment, and Little Hocking had not shown that a cessation might occur. Because the only pathway from Little Hocking’s wellfield to human exposure was subject to treatment, no threat existed. DuPont claimed that no environmental endangerment existed at the wellfield, relying on the fact that there were no outward signs of environmental stress and that the mere presence of PFOA is not enough to establish imminent and substantial endangerment. The court found, however, that the imminent and substantial endangerment element may be established as to the environment by showing a reasonable science-based concern for harm to the environment. Because the court found that there was reasonable cause for concern that plants and animals in the wellfield may be exposed to PFOA, there was a genuine issue of material fact regarding the imminence and substantiality of the environmental endangerment.
In sum, the Southern District Court of Ohio found genuine issues of material fact concerning each element of a RCRA citizen suit. Therefore, DuPont’s motion for summary judgment was denied. In late 2015, DuPont and Little Hocking entered into a settlement agreement for an undisclosed amount.
In yet another action against DuPont, in December of 2016, the New Jersey town of Carneys Point sued the company for violation of New Jersey’s Industrial Site Recovery Act. The Industrial Site Recovery Act mandates that businesses remediate property upon transfer to another entity. N.J. Stat. Ann. § 13:1k–9b (West 2017). If cleanup prior to transfer isn’t feasible, the Act requires the business to provide funding for future remediation by state and local authorities. N.J. Stat. Ann. § 13:1k-9e (West 2017). DuPont allegedly triggered this Act when it transferred its Chambers Works facility to Chemours prior to merging with Dow Chemical Company. Carneys Point claims that cleanup at the Chambers Works facility would cost $1 billion.
Another example of private party action to establish PFOA and PFOS liability involves a lawsuit against the company 3M. In an Alabama federal district court, 3M is facing a RCRA citizen suit brought by Tennessee Riverkeeper alleging that ongoing releases of PFOA and PFOS have infiltrated and contaminated surface water and groundwater. Allegedly, groundwater underneath 3M’s facility on the south bank of the Tennessee River contains up to 4,980 ppb of PFOA and 3,890 ppb of PFOS, with lower concentrations found near landfills where the chemicals were allegedly disposed. In February of 2017, 3M’s motion to dismiss Tennessee Riverkeeper’s RCRA claim was denied. Tenn. Riverkeeper, Inc. v. 3M Co., No. 5:16-CV-01029-AKK, 2017 WL 784991 at *9 (Feb. 10, 2017). The district court found that 3M’s ongoing remedial action agreement with EPA-approved Alabama Department of Environmental Management did not moot Riverkeeper’s claims.
A private party action alleging PFOS/PFOA contamination of a community drinking water source was filed by the Water Works and Sewer Board of the Town of Centre v. 3M et al, 13-CV-2017-900049, (Circuit Court of Cherokee County, Alabama (filed May 15, 2017)). The complaint alleges PFC contamination, including but not limited to PFOA and PFOS, resulting from the manufacture of carpets with waterproofing compounds which resist treatment by traditional wastewater treatment works and have allegedly contaminated the water supply upstream of the City of Centre, Alabama’s water intake location.
With areas of PFOA and PFOS contamination being discovered on a nearly monthly basis, it is important for practitioners to be aware of the issues and acquaint themselves with emerging case law. It is also worth noting that the liability judgments in the DuPont Washington Works MDL, including punitive damage awards were based on a company’s failure to act after having information related to PFOA/PFOS contamination, and may be useful to consider when working with clients involved in this issue.
Pennsylvania communities are currently experiencing fallout from the recent discovery that PFOA and PFOS contaminated the drinking water of over 70,000 residents. The contamination originates from two area naval bases. In February of 2017, residents filed a mass tort suit for personal injury claims in Pennsylvania state court against manufacturers and distributors of PFOA and PFOS-containing firefighting foams. Defendants include 3M, Tyco Fire Products, Buckeye Fire Protection Co., Chemguard, National Foam, and successors to the Ansul Company. In March of 2017, plaintiffs filed a class action lawsuit in the U.S. District Court for the Eastern District of Pennsylvania seeking over $5 million from manufacturers and distributors for blood testing, medical monitoring, a water testing program, awards for financial hardships, and punitive damages. Kyle Bagenstose & Jenny Wagner, Firms Combine PFC Suits, Seek Money, Tests for Residents of Bucks, Montgomery Counties, Bucks County Courier Times, Mar. 24, 2017, (May 22,2017, 5:15pm), http://www.buckscountycouriertimes.com/news/horsham-pfos/firms-combine-pfc-suits-seek-money-tests-for-residents-of/article_33e003df-2d4b-5821-80b7-9a3c55359b1a.html.
In addition to the litigation, Congressman Brian Fitzpatrick of Pennsylvania has stated that he plans to introduce a bill funding a comprehensive health study for those affected by the contamination and reimbursing water suppliers. Pennsylvania State Representative, Kathy Watson, who has consumed area water for 38 years, intends to introduce a bill designating PFOA and PFOS as hazardous substances under state law to induce the military to provide funding.
In Burlington County, New Jersey, both PFOA and PFOS were found at a combined level of 1,127 ppb in a stream near a military base’s wastewater treatment plant. At the time of this writing, the military and New Jersey’s Department of Environmental Protection (NJDEP) are working together to test private water wells in surrounding townships to determine the extent of remediation necessary. A 2016 New Jersey State Senate bill, S-2468, is proposing that the NJDEP adopt drinking water standards for PFOA as recommended by the Drinking Water Quality Institute.
While federal awareness of PFOA and PFOS contamination developed in tandem with the private party actions surrounding the DuPont Washington Works Plant, the regulatory landscape has moved more slowly than private party litigation. Local water suppliers are on notice by virtue of EPA’s lifetime health advisory that these substances present a health risk and may warrant analysis. As more locations with PFOA/PFOS contamination appear across the nation, private parties will likely be on the front lines seeking damages for filtration, remediation, health screening, and personal injury. It remains to be seen how the federal government will respond on an across-the-board basis. Significantly, the question of whether to seek regulatory action under federal laws, such as SDWA, typically falls within the sole judgment of the EPA Administrator, currently Scott Pruitt. However, pressure from legislative branch members seeking to provide relief for communities in their home state, such as Congressman Fitzpatrick in Pennsylvania, and Senators Gillibrand and Schumer from New York, is building. In March of 2017, Gillibrand and Schumer sponsored a new bill requiring EPA to develop a maximum contaminant level (MCL) for PFOA and PFOS under SDWA. Until EPA acts, it is likely states will independently develop their own cleanup standards, resulting in variations across state lines and an increased need for counsel to monitor these issues as they develop in different forums. Until a uniform regulatory approach develops, it is reasonable to expect a surge in the number of private party actions filed in the face of this emerging public health issue.
Ms. Munk is the managing partner and Ms. Manahan is a law clerk with Foley & Mansfield, PLLP, in Portland, OR. They can be reached at imunk@foleymansfield.com and kmanahan@foleymansfield.com.


J.P. Tonkoff (of Tonkoff, Holst & Hopp) and John R. Lewis, for appellants.
Brethorst, Fowler, Bateman, Reed & McClure (J. Edwin Thonn, of counsel), for respondent.
Plaintiff, a minor, and several other boys, were passengers in an automobile driven by one Allan Edwards. The Edwards' automobile collided with an automobile driven by John Malone on the Steinmetz road, two miles northeast of Coulee City, Washington. Plaintiff was seriously injured.
By guardian ad litem, plaintiff commenced this action against defendant Malone for damages for personal injuries. After an extended trial, the jury returned a verdict for defendant. Plaintiff appeals from a judgment denying his motion for a new trial and dismissing his action.
 This appeal is upon a short record pursuant to Rule on Appeal 34 (3), RCW Vol. 0. Plaintiff advances five assignments of error. Two assignments of error are not included in his "... concise statement of the points on which he intends to rely on the appeal" as required by the rule; hence, we cannot consider them. Johnson Ser. Co. v. Roush, 57 Wn. (2d) 80, 94, 355 P. (2d) 815 (1960); Palmer v. Waterman Steamship Corp., 52 Wn. (2d) 604, 608, 328 P. (2d) 169 (1958); Cominos v. Kalkanes, 37 Wn. (2d) 843, 849, 226 P. (2d) 863 (1951).
Plaintiff's three remaining assignments of error are directed to alleged misconduct of the jury. Later in this *838 opinion, we will discuss each in particular, after first setting the screen upon which to project them.
"The motion for a new trial shall state the grounds or causes for which a new trial is asked, and if made for any of the causes mentioned in RCW 4.76.020 (1), (2), (3), or (4), the facts upon which it is based may be shown by affidavit."
*839 In considering the effect of jurors' misconduct, it is important to bear in mind that there are two distinct problems: First, the type of evidence that may properly be received to establish the defect; and second, the types of irregularities or errors that may be shown.
"Affidavit of a juror that the jury, having been divided, tossed up, and that the plaintiff had won, rejected.
"Upon a motion by Law for a rule to set aside a verdict, upon an affidavit of two jurors, who swore that the jury, being divided in their opinion, tossed up, and that the plaintiff's friends won, in which was cited, Hale v. Cove, 1 Stra. 642.
"Per Lord Mansfield, Ch. J. The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor: but in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some such other means.
The rule of the Vaise case, supra, has never been the law of this jurisdiction. Rule of Pleading, Practice and Procedure 59.04W (2) and RCW 4.76.050 (and their statutory predecessors as outlined in footnotes 1 and 2) specifically provide that a verdict determined by chance or lot may be challenged by the affidavit of a juror; and that the facts upon which a motion for new trial is based may be shown by affidavit, without excluding the affidavits of jurors, as did the Lord Mansfield rule.
In 1871, the predecessor of this court recognized that the 1869 statutes (see footnotes 1 and 2) were in derogation of the common law. The court held a "quotient verdict" invalid as "a composite fraud washed with a golden name", because it had been determined by chance or lot. Invalidity *840 was established by affidavits of jurors. Goodman v. Cody, 1 Wash. Terr. 329, 34 Am. Rep. 808 (1871).
In State v. Parker, 25 Wash. 405, 65 Pac. 776 (1901), it was shown by the affidavits of two jurors that one juror stated to the jury, during consideration of the case in the jury room, that he knew defendant was guilty and that he belonged to a "gang of toughs" implicated in a homicide.
This leads to a consideration of the second problem the type of irregularities or errors that may be established by jurors' affidavits. Although affidavits may be filed in support of a motion for a new trial, they are subject to certain court-imposed limitations.
"... this rule of thumb is in itself neither strictly correct as a statement of the acknowledged law nor at all defensible upon any principle in this unqualified form. It is a mere shibboleth and has no intrinsic signification whatever...." 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2345.
*841  In spite of this criticism, we believe a workable rule has evolved from our decisions. The crux of the problem is whether that to which the juror testifies (orally or by affidavit) in support of a motion for a new trial, inheres in the verdict. If it does, it may not be considered; if it does not, it may be considered by the court as outlined in State v. Parker, supra. One test is whether the facts alleged are linked to the juror's motive, intent, or belief, or describe their effect upon him; if so, the statements cannot be considered for they inhere in the verdict and impeach it. If they do not, it then becomes a matter of law for the trial court to decide the effect the proved misconduct could have had upon the jury. Another test is whether that to which the juror testifies can be rebutted by other testimony without probing a juror's mental processes.
On the other hand, if the juror's affidavit establishes misconduct of the jury by facts or circumstances that do not inhere in the verdict, the facts must be considered. Dibley v. Peters, 200 Wash. 100, 93 P. (2d) 720 (1939) and cases cited. See State v. Rose, 43 Wn. (2d) 553, 262 P. (2d) 194 (1953).
"... Many courts make no distinctions between affidavits of jurors as to the fact of misconduct and affidavits as to the effect of that misconduct upon their deliberation, holding that both are things which inhere in the verdict and that jurors' affidavits or statements as to either the fact or its effect are inadmissible because tending to impeach the verdict. [Citing authorities] ... In this state we have applied the rule less drastically. We have, in certain cases, used language implying that affidavits of jurors should be considered in so far as they stated the facts showing misconduct, but not as showing the effect of such misconduct on the verdict, the latter being for the court to determine from the facts.
*843 "This application of the rule seems to us to meet every purpose of public policy. It prevents the jury from divulging what considerations entered into its deliberations or controlled its action, thus impeaching its own verdict; but it does not close what is often the only avenue to a showing of actual facts constituting misconduct...."
Lyberg v. Holz, 145 Wash. 316, 259 Pac. 1087 (1927), Hamilton v. Snyder, 182 Wash. 688, 48 P. (2d) 245 (1935), State v. Knapp, 194 Wash. 286, 77 P. (2d) 985 (1938) and O'Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) applied the same rule. They distinguish between testimony as to the fact of misconduct and testimony as to the effect of misconduct.
We turn to the facts of the instant case.
Numerous affidavits and sworn statements in the form of depositions were filed at the time the court considered plaintiff's motion for a new trial.
Eliminating allegations that are obviously hearsay (Aliverti v. Walla Walla, 162 Wash. 487, 298 Pac. 698 (1931) and cases cited), and allegations of facts that we believe inhere in the verdict, three situations remain which must be considered.
"Oscar McCoy, Juror No. 12, on examination of Plaintiff's counsel during voir dire, stated that he was not acquainted with nor did he know the defendant, John Malone. During the course of the jury's deliberations, he stated in the presence of all the jurors that he `had traded wheat and stock with Malone and was acquainted and knew the defendant Malone.'"
The court subpoenaed juror McCoy to appear at the hearing of plaintiff's motion for a new trial. Under oath, juror McCoy denied having made the statement attributed to him.
Inherent in the trial court's order denying the motion for a new trial is a finding that juror McCoy did not make the statement that he knew defendant Malone. We accept this finding.
"... I thought that seeing where the accident occurred would help me follow the map...."
Three other jurors admitted that they knew jurors Jensen, Hough, and Pace had visited the scene of the accident.
It is undisputed that in order to traverse the Steinmetz road, it was necessary for the three jurors to deviate from the usual route between their home and the courthouse. Thus, their visit was planned and intentional; it was neither casual nor accidental. There is evidence in the record before us that certain physical characteristics of the road at the scene of the accident had been changed by the county prior to the trial of this case.
In Brennan v. Seattle, 46 Wash. 427, 90 Pac. 434 (1907), a juror disclosed in open court that he had inadvertently passed the scene of the accident the evening before on his way home. Since the trial court instructed the jury to disregard the juror's remarks and the fact of his visit, it was not prejudicial error.
In the Woodruff case, supra, the entire jury had equal knowledge; in the instant case, only three jurors had superior knowledge as a result of their view of the scene of the accident.
"... that during the course of the deliberations, Arthur Fiess, Juror No. 9, stated: `If we give a judgment for $100,000.00 and the other boys' fathers will sue Malone, and they will take his whole wheat ranch.' Oscar C. McCoy, Juror No. 12, stated during the deliberations that he was in agreement with Juror Fiess, and stated: `You bet, that is exactly what will happen.' Albert Jeske, Juror No. 3, stated during the deliberations of the jury, `If Gardner [plaintiff] gets a judgment against Malone, these other boys will sue him, and Fiess is right, they'll take Malone's wheat ranch.' Juror No. 4, Doris E. Pace, chimed in and said `We don't want anything like that to happen.'"
"That's exactly it. There was so much sympathy put on the other side that eventually this was mentioned."
"I think that question was discussed, but I can't remember who discussed it. I think it was discussed between all the jurors, but not exactly in those words, and I don't think the amount of money was mentioned."
"That during the deliberations of the jury the topic was brought up that if a verdict was given to the Gardner boy the plaintiff it would put defendant Malone in a bad *846 financial position because the other four boys in the car would sue Malone, the defendant."
An examination of the affidavits and depositions of jurors, other than those we have identified, puts beyond peradventure the conclusion that the subject-matter, as outlined by juror Harmon, was discussed and considered by the jury during its deliberations.
 The possibility of other lawsuits against defendant Malone was not a matter to be weighed by the jury in its determination of the controversy between plaintiff and defendant.
"... a much stronger showing of an abuse of discretion is required to set aside an order granting a new trial, than one denying a new trial." (Italics ours.) Dibley v. Peters, 200 Wash. 100, 109, 93 P. (2d) 720 (1939) and cases cited.
 Lyberg v. Holz, 145 Wash. 316, 259 Pac. 1087 (1927) was an action to recover damages for wrongful death. This court reversed the trial court's denial of a new trial when it appeared the jury considered that defendant might be charged with manslaughter if found guilty of negligence, and that a settlement had been refused in order to "lay the foundation for a criminal charge" against defendant.
*847  The unauthorized view of the scene of the accident, combined with the jury's consideration of the effect of other possible lawsuits against the defendant, is sufficient misconduct to establish a "reasonable doubt" that plaintiff was denied a fair trial.
The judgment of dismissal is reversed and the case remanded with directions to grant plaintiff's motion for a new trial.
Costs shall abide the final determination of the cause. Rule on Appeal 55 (b) (1).
FINLEY, C.J., HILL, ROSELLINI, and FOSTER, JJ., concur.
March 22, 1963. Petition for rehearing denied.
[*] Reported in 376 P. (2d) 651.
 The language of 59.04W (2) first appeared in Laws of Washington Territory, 1869, Ch. XXI, § 278(2), p. 67. It was reenacted by Laws of 1873, Ch. XXI, § 276(2), p. 70, and Laws of 1877, Ch. XXI, § 280, p. 56. The statute was codified as follows: Code of 1881, Ch. XXI, § 276(2); 2 Hill's Code (1891), § 400; Ballinger's Code (1897), § 5071(2); Rem. & Bal. Code (1910), § 399(2); Rem. Code (1915), § 399(2); Rem. Comp. Stat. (1922), § 399(2); Rem. Rev. Stat. (1932), § 399(2); RCW 4.76.020(2).
 This statute originated in Laws of Washington Territory, 1869, Ch. XXI, § 280, p. 68. It provided that when a motion for new trial is made "... the facts upon which it is based shall be made to appear by affidavit...." Quaere: By whose affidavit? The statute was reenacted by Laws of 1873, Ch. XXI, § 278, p. 71, and Laws of 1877, Ch. XXI, § 282, p. 57. The Code of 1881, Ch. XXI, § 278, changed the word "shall" (italicized supra) to "may". This change appears in all subsequent codifications of the statute. 2 Hill's Code (1891), § 403; Ballinger's Code (1897), § 5074; Rem. & Bal. Code (1910) § 401; Rem. 1915 Code, § 401; Rem. Comp. Stat., § 401; Rem. Rev. Stat. (1932), § 401. See Maryland Cas. Co. v. Seattle Elec. Co., 75 Wash. 430, 134 Pac. 1097 (1913) in which the court held that a motion for a new trial based upon an occurrence not in open court must be shown by affidavit.
 For a criticism of the rule, see 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2352, et seq.
 This is subject, of course, to the statutory exception of a verdict determined by chance or lot. See cases cited, footnotes 5-11, infra.
 Ralton v. Sherwood Logging Co., 54 Wash. 254, 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court's instructions).
 O'Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made by other jurors as to their experience horseback riding excluded).
 State v. Aker, 54 Wash. 342, 103 Pac. 420 (1909) (juror's affidavit that he assented to verdict because of intimidation excluded); State v. Knapp, 194 Wash. 286, 77 P. (2d) 985 (1938) (reason for imposing death sentence excluded).
 State v. Burke, 124 Wash. 632, 215 Pac. 31 (1923).
 Henslin v. Pratt, 119 Wash. 443, 205 Pac. 867 (1922).
 Marvin v. Yates, 26 Wash. 50, 66 Pac. 131 (1901).
 Smith v. American Mail Line, Ltd., 58 Wn. (2d) 361, 363 P. (2d) 133 (1961).