text:
Christ and sin are rivals for the soul of man, and here we are told how they both make their court to it, to have the innermost and uppermost place in it. The design of this representation is to set before us life and death, good and evil; and there needs no more than a fair stating of the case to determine us which of those to choose, and surrender our hearts to. They are both brought in making entertainment for the soul, and inviting it to accept of the entertainment; concerning both we are told what the issue will be; and, the matter being thus laid before us, let us consider, take advice, and speak our minds. And we are therefore concerned to put a value upon our own souls, because we see there is such striving for them. I. Christ, under the name of Wisdom, invites us to accept of his entertainment, and so to enter into acquaintance and communion with him (v. 1-6). And having foretold the different success of his invitation (v. 7-9) he shows, in short, what he requires from us (v. 10). and what he designs for us (v. 11), and then leaves it to our choice what we will do (v. 12). II. Sin, under the character of a foolish woman, courts us to accept of her entertainment, and (v. 13–16) pretends it is very charming (v. 17). But Solomon tells us what the reckoning will be (v. 18). And now choose you, this day, whom you will close with.
I. The rich provision which Wisdom has made for the reception of all those that will be her disciples. This is represented under the similitude of a sumptuous feast, whence it is probable, our Saviour borrowed those parables in which he compared the kingdom of heaven to a great supper, Mt. 22:2; Lu. 14:16. And so it was prophesied of, Isa. 25:6. It is such a feast as Ahasuerus made to show the riches of his glorious kingdom. The grace of the gospel is thus set before us in the ordinance of the Lord's supper. To bid her guests welcome, 1. Here is a stately palace provided, v. 1. Wisdom, not finding a house capacious enough for all her guests, has built one on purpose, and, both to strengthen it and to beautify it, she has hewn out her seven pillars, which make it to be very firm, and look very great. Heaven is the house which Wisdom has built to entertain all her guests that are called to the marriage-supper of the Lamb; that is her Father's house, where there are many mansions, and whither she has gone to prepare places for us. She has hanged the earth upon nothing, there in it we have no continuing city; but heaven is a city that has foundations, has pillars. The church is Wisdom's house, to which she invites her guests, supported by the power and promise of God, as by seven pillars. Probably, Solomon refers to the temple which he himself had lately built for the service of religion, and to which he would persuade people to resort, both to worship God and to receive the instructions of Wisdom. Some reckon the schools of the prophets to be here intended. 2. Here is a splendid feast got ready (v. 2): She has killed her beasts; she has mingled her wine; plenty of meat and drink are provided, and all of the best. She has killed her sacrifice (so the word is); it is a sumptuous, but a sacred feast, a feast upon a sacrifice. Christ has offered up himself a sacrifice for us, and it is his flesh that is meat indeed and his blood that is drink indeed. The Lord's supper is a feast of reconciliation and joy upon the sacrifice of atonement. The wine is mingled with something richer than itself, to give it a more than ordinary spirit and flavour. She has completely furnished her table with all the satisfactions that a soul can desire-righteousness and grace, peace and joy, the assurances of God's love, the consolations of the Spirit, and all the pledges and earnests of eternal life. Observe, It is all Wisdom's own doing; she has killed the beasts, she has mingled the wine, which denotes both the love of Christ, who makes the provision (he does not leave it to others, but takes the doing of it into his own hands), and the excellency of the preparation. That must needs be exactly fitted to answer the end which Wisdom herself has the fitting up of.
(1.) To whom the invitation is given: Whoso is simple and wants understanding, v. 4. If we were to make an entertainment, of all people we should not care for, much less court, the company of such, but rather of philosophers and learned men, that we might hear their wisdom, and whose table-talk would be improving. "Have I need of madmen?'' But Wisdom invites such, because what she has to give is what they most need, and it is their welfare that she consults, and aims at, in the preparation and invitation. he that is simple is invited, that he may be made wise, and he that wants a heart (so the word is) let him come hither, and he shall have one. Her preparations are rather physic than food, designed for the most valuable and desirable cure, that of the mind. Whosoever he be, the invitation is general, and excludes none that do not exclude themselves; though they be ever so foolish, yet, [1.] They shall be welcome. [2.] They may be helped; they shall neither be despised nor despaired of. Our Saviour came, not to call the righteous, but sinners, not the wise in their own eyes, who say they see (Jn. 9:41), but the simple, those who are sensible of their simplicity and ashamed of it, and him that is willing to become a fool, that he may be wise, 1 Co. 3:18.
(2.) What the invitation is. [1.] We are invited to Wisdom's house: Turn in hither. I say we are, for which of us is there that must not own the character of the invited, that are simple and want understanding? Wisdom's doors stand open to such, and she is desirous to have some conversation with them, one word for their good, nor has she any other design upon them. [2.] We are invited to her table (v. 5): Come, eat of my bread, that is, taste of the true pleasures that are to be found in the knowledge and fear of God. By faith acted on the promises of the gospel, applying them to ourselves and taking the comfort of them, we feed, we feast, upon the provisions Christ has made for poor souls. What we eat and drink we make our own, we are nourished and refreshed by it, and so are our souls by the word of God; it has that in it which is meat and drink to those that have understanding.
(3.) What is required of those that may have the benefit of this invitation, v. 6. [1.] They must break off from all bad company: "Forsake the foolish, converse not with them, conform not to their ways, have no fellowship with the works of darkness, or with those that deal in such works.'' The first step towards virtue is to shun vice, and therefore to shun the vicious. Depart from me, you evil-doers. [2.] They must awake and arise from the dead; they must live, not in pleasure (for those that do so are dead while they live), but in the service of God; for those only that do so live indeed, live to some purpose. "Live not a mere animal-life, as brutes, but now, at length, live the life of men. Live and you shall live; live spiritually, and you shall live eternally,'' Eph. 5:14. [3.] They must choose the paths of Wisdom, and keep to them: "Go in the way of understanding; govern thyself henceforward by the rules of religion and right reason.'' It is not enough to forsake the foolish, but we must join ourselves with those that walk in wisdom, and walk in the same spirit and steps.
1. What their work must be, not only to tell in general what preparation is made for souls, and to give a general offer of it, but they must address themselves to particular persons, must tell them of their faults, reprove, rebuke, v. 7, 8. They must instruct them how to amend—teach, v. 9. The word of God is intended, and therefore so is the ministry of that word, for reproof, for correction, and for instruction in righteousness.
(2.) They would meet with others, who are wise, and good, and just; thanks be to God, all are not scorners. We meet with some who are so wise for themselves, to just to themselves, as to be willing and glad to be taught; and when we meet with such, [1.] If there be occasion, we must reprove them; for wise men are not so perfectly wise but there is that in them which needs a reproof; and we must not connive at any man's faults because we have a veneration for his wisdom, nor must a wise man think that his wisdom exempts him from reproof when he says or does any thing foolishly; but the more wisdom a man has the more desirous he should be to have his weaknesses shown him, because a little folly is a great blemish to him that is in reputation for wisdom and honour. [2.] With our reproofs we must give them instruction, and must teach them, v. 9. [3.] We may expect that our doing so will be taken as a kindness, Ps. 141:5. A wise man will reckon those his friends who deal faithfully with him: "Rebuke such a one, and he will love thee for thy plain dealing, will thank thee, and desire thee to do him the same good turn another time, if there be occasion.'' It is as great an instance of wisdom to take a reproof well as to give it well, [4.] Being taken well, it will do good, and answer the intention. A wise man will be made wiser by the reproofs and instructions that are given him; he will increase in learning, will grow in knowledge, and so grow in grace. None must think themselves too wise to learn, nor so good that they need not be better and therefore need not be taught. We must still press forward, and follow on to know till we come to the perfect man. Give to a wise man (so it is in the original), give him advice, give him reproof, give him comfort, and he will be yet wiser; give him occasion (so the Septuagint), occasion to show his wisdom, and he will show it, and the acts of wisdom will strengthen the habits.
1. Let them know wherein true wisdom consists, and what will be their entertainment at Wisdom's table, v. 10 (1.) The heart must be principled with the fear of God; that is the beginning of wisdom. A reverence of God's majesty, and a dread of his wrath, are that fear of him which is the beginning, the first step towards true religion, whence all other instances of it take rise. This fear may, at first, have torment, but love will, by degrees, cast out the torment of it. (2.) The head must be filled with the knowledge of the things of God. The knowledge of holy things (the word is plural) is understanding, the things pertaining to the service of God (those are called holy things), that pertain to our own sanctification; reproof is called that which is holy, Mt. 7:6. Or the knowledge which holy men have, which was taught by the holy prophets, of those things which holy men spoke as they were moved by the holy Ghost, this is understanding; it is the best and most useful understanding, will stand us in most stead and turn to the best account.
2. Let them know what will be advantages of this wisdom (v. 11): "By me thy days shall be multiplied. It will contribute to the health of thy body, and so the years of thy life on earth shall be increased, while men's folly and intemperance shorten their days. It will bring thee to heaven, and there thy days shall be multiplied in infinitum—to infinity, and the years of thy life shall be increased without end.'' There is no true wisdom but in the say of religion and no true life but in the end of that way.
I. Who is the tempter—a foolish woman, Folly herself, in opposition to Wisdom. Carnal sensual pleasure I take to be especially meant by this foolish woman (v. 13); for that is the great enemy to virtue and inlet to vice; that defiles and debauches the mind, stupefies conscience, and puts out the sparks of conviction, more than any thing else. This tempter is here described to be, 1. Very ignorant: She is simple and knows nothing, that is, she has no sufficient solid reason to offer; where she gets dominion in a soul she works out all the knowledge of holy things; they are lost and forgotten. Whoredom, and wine, and new wine, take away the heart; they besot men, and make fools of them. (2.) Very importunate. The less she has to offer that is rational the more violent and pressing she is, and carries the day often by dint of impudence. She is clamorous and noisy (v. 13), continually haunting young people with her enticements. She sits at the door of her house (v. 14), watching for a prey; not as Abraham at his tent-door, seeking an opportunity to do good. She sits on a seat (on a throne, so the word signifies) in the high places of the city, as if she had authority to give law, and we were all debtors to the flesh, to live after the flesh, and as if she had reputation, and were in honour, and thought worthy of the high places of the city; and perhaps she gains upon many more by pretending to be fashionable than by pretending to be agreeable. "Do not all persons of rank and figure in the world'' (says she) "give themselves a greater liberty than the strict laws of virtue allow; and why shouldst thou humble thyself so far as to be cramped by them?'' Thus the tempter affects to seem both kind and great.
II. Who are the tempted—young people who have been well educated; these she will triumph most in being the ruin of. Observe, 1. What their real character is; they are passengers that go right on their ways (v. 15), that have been trained up in the paths of religion and virtue and set out very hopefully and well, that seemed determined and designed for good, and are not (as that young man, ch. 7:8) going the way to her house. Such as these she has a design upon, and lays snares for, and uses all her arts, all her charms, to pervert them; if they go right on, and will not look towards her, she will call after them, so urgent are these temptations. (2.) How she represents them. She calls them simple and wanting understanding, and therefore courts them to her school, that they may be cured of the restraints and formalities of their religion. This is the method of the stage (which is too close an exposition of this paragraph), where the sober young man, that has been virtuously educated, is the fool in the play, and the plot is to make him seven times more a child of hell than his profane companions, under colour of polishing and refining him, and setting him up for a wit and a beau. What is justly charged upon sin and impiety (v. 4), that it is folly, is here very unjustly retorted upon the ways of virtue; but the day will declare who are the fools.
III. What the temptation is (v. 17): Stolen waters are sweet. It is to water and bread, whereas Wisdom invites to the beasts she has killed and the wine she has mingled; however, bread and water are acceptable enough to those that are hungry and thirsty; and this is pretended to be more sweet and pleasant than common, for it is stolen water and bread eaten in secret, with a fear of being discovered. The pleasures of prohibited lusts are boasted of as more relishing than those of prescribed love; and dishonest gain is preferred to that which is justly gotten. Now this argues, not only a bold contempt, but an impudent defiance, 1. Of God's law, in that the waters are the sweeter for being stolen and come at by breaking through the hedge of the divine command. Nitimur in vetitum—We are prone to what is forbidden. This spirit of contradiction we have from our first parents, who thought the forbidden tree of all others a tree to be desired. 2. Of God's curse. The bread is eaten in secret, for fear of discovery and punishment, and the sinner takes a pride in having so far baffled his convictions, and triumphed over them, that, notwithstanding that fear, he dares commit the sin, and can make himself believe that, being eaten in secret, it shall never be discovered or reckoned for. Sweetness and pleasantness constitute the bait; but, by the tempter's own showing, even that is so absurd, and has such allays, that it is a wonder how it can have any influence upon men that pretend to reason.
IV. An effectual antidote against the temptation, in a few words, v. 18. He that so far wants understanding as to be drawn aside by these enticements is led on, ignorantly, to his own inevitable ruin: He knows not, will not believe, does not consider, the tempter will not let him know, that the dead are there, that those who live in pleasure are dead while they live, dead in trespasses and sins. Terrors attend these pleasures like the terrors of death itself. The giants are there—Rephaim. It was this that ruined the sinners of the old world, the giants that were in the earth in those days. Her guests, that are treated with those stolen waters, are not only in the highway to hell and at the brink of it, but they are already in the depths of hell, under the power of sin, led captive by Satan at his will, and ever and anon lashed by the terrors of their own consciences, which are a hell upon earth The depths of Satan are the depths of hell. Remorseless sin is remediless ruin; it is the bottomless pit already. Thus does Solomon show the hook; those that believe him will not meddle with the bait.

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


text:
The Complainant in these Administrative Proceedings is a public limited company, Koninklijke Philips Electronics N.V. of Groenewoudseweg 1, 5621 BA Eindhoven, The Netherlands. The Complainant is incorporated in the Netherlands where it has established its principal place of business.
The Respondent is Baguley. There is no information regarding the status of the Respondent but it is assumed that the Respondent is a natural person. The postal address of the Respondent, provided as contact information for the purposes of the domain name registrations in issue in these proceedings is 105 Ledbury Road, Baldwin, NY 11578, USA. This information would appear to be incorrect.
The domain names in issue in these Administrative Proceedings are <forphilipsindia.com>, <microphilipsindia.com> and <electrophilipsindia.com>.
On July 12, 2001, the Complaint was filed by the Complainant by e-mail with the WIPO Arbitration and Mediation Center ("the Center") pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on October 24, 1999. The hard copy was received by the Center on July 16, 2001.
On July 13, 2001, the Center sent an Acknowledgement of Receipt of the Complaint to the Complainant by e-mail.
On July 13, 2001, the Center sent a Request for Registrar Verification to the Registrar. On July 17, 2001, the Registrar responded to the Center by e-mail and confirmed that the Registrar had received a copy of the Complaint, that said registrations were registered by the Registrar, that the Respondent was the current registrant of said domain names and provided details of the administrative contact, the technical contact and the billing contact in respect of each of the said registrations. Furthermore the Registrar confirmed that the Policy applied to said registrations and that said registrations were currently on hold.
The Center reviewed the Complaint and was satisfied that the Complainant complied with the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and the WIPO Supplemental Rules for Uniform Dispute Resolution Policy ("the Supplemental Rules") and that the appropriate fees had been paid by the Complainant.
On July 18, 2001, the Center sent a Notification of Complaint and Commencement of Administrative Proceeding relating to the said domain names to the Respondent (including the domain name registrant, administrative contact, technical contact, zone contact and billing contact) by courier (with enclosures) and by e-mail (Complaint without attachments). The documentation sent by courier was returned undeliverable. Additionally a fatal error occurred in the transmission of the e-mail communications sent to the Respondent at the addresses provided by the Respondent to the Registrar at the time of registration for the administrative contact and billing contact viz. <parvinder_0_0_7@yahoo.com>. Service however was successful on the Respondent�s technical contact.
On the same date a copy of said Notification was sent to the authorized representative of the Complainant by e-mail. Further copies of said Notification were sent to ICANN and to the Registrar.
Said Notification of Complaint and Commencement of Administrative Proceeding inter alia stated that the Administrative Proceedings had commenced on July 18, 2001, and that the Respondent was required to submit a Response to the Center on or before August 7, 2001.
On August 10, 2001, as no Response had been filed by the Respondent, the Center sent by e-mail, a Notification of Respondent Default to the Respondent. On this occasion, once again the e-mail sent to the Respondent at the address provided by the Respondent to the Registrar viz. <parvinder_0_0_7@yahoo.com>, was not delivered and the Center was advised that this failure was due to a "permanent fatal error". A copy of said Notification was at the same time sent to the authorized representative of the Complainant.
On August 16, 2001, having invited James Bridgeman to act as Administrative Panel in these proceedings and having received a Statement of Acceptance and Declaration of Impartiality from the said James Bridgeman, the Center proceeded to appoint this Administrative Panel consisting of a single member.
On August 16, 2001, the Center sent a Notification of Appointment of Administrative Panel and Projected Decision Date to the Parties by e-mail and advised that absent exceptional circumstances, the Administrative Panel was required to forward its decision to the Center by August 30, 2001.
On the same date, the case file was transferred to the Administrative Panel.
The Complainant submits that the trademark "PHILIPS" has been registered by the predecessors of the Complainant in the Netherlands, since 1891 and is registered in numerous jurisdictions worldwide. The Complainant has submitted a list of major countries, including India, in which the trademark is registered worldwide together with a copy of the certificate of registration of the trademark in India.
(3) said domain names were registered and are being used in bad faith.
The Complainant submits that the trademark "PHILIPS" is synonymous with a wide spectrum of products varying from consumer electronics to domestic appliances, and from security systems to semiconductors. The "Philips" brand name is the Complainant�s most important asset as it has spent substantial sums supporting this brand worldwide.
The Complainant submits that the said domain names are confusingly similar to the Complainants "PHILIPS" trademark.
The Complainant further submits that the Respondent has no rights to or legitimate interests in said domain names.
The Complainant submits that the said domain names have been registered primarily for the purpose of speculating on the profitability of the domain names. The domain names were not used by the Respondent. Furthermore the Respondent was not commonly known by the said domain names. In support of these submissions the Complainant refers to the decision of the administrative panel in ICANN case Space Imaging LLC v. Stephen J. Brownell (AF 0298a-0298d).
The Complainant further submits that the Complainant has not licensed or otherwise permitted the Respondent to register the domain name incorporating the word "PHILIPS" within the domain name and in support of this submission the Complainant refers to the decisions of the administrative panels in Nokia Corporation v. Nokiagirls.com a.k.a. IBCC (WIPO Case No. D2000-0102) and Veuve Clicquot Ponsardin v. Net-Promotion, Inc. (WIPO Case No. D2000-0347).
The Complainant further states that the Respondent has failed to provide evidence pertaining to the preparations or use of said domain names for bona fide offering of goods/services between the date of registration and commencement of these Administrative Proceedings which sufficed to show lack of legitimate interest.
The Complainant further submits that the Respondent failed to provide any evidence pertaining to preparations to use said domain names for a bona fide offering of goods or services even after receipt of a cease and desist letter from the Complainant dated February 8, 2001, and sent as an e-mail attachment on February 26, 2001. The Complainant states that said cease and desist letter was sent by the Complainant to the Respondent as an e-mail attachment, because the original letter, sent by post to the address provided by the Respondent to the Registrar, had been returned undelivered. The reason for failure to deliver was stated to be that it had been sent to an unknown address. The Complainant has submitted a copy of the said letter together with a copy of the e-mail sent to the Respondent by the Complainant to which said the cease/desist letter was attached.
The Complainant refers to the decisions of administrative panels in LG Chemical Ltd v. Changwan, OH (WIPO Case No. D2000-0889); Corinthians Licenciamentos LTDA v. David Sallen, Sallen Enterprises and J.D. Sallen Enterprises (WIPO Case No. D2000-0461) and notes that the Respondent in the present Administrative Proceedings has provided incorrect contact information.
- the Respondent registered each said domain name on or about the same day, and none of the said domain names resolves to an active www site.
The Complainant further submits that it could easily be inferred or concluded that the Respondent had the intention of transferring the domain names for valuable consideration. In this regard the Complainant refers to the decision of the administrative panel in ICANN case Space Imaging LLC v. Stephen J. Brownell (AF 0298a-0298d).
The Complainant further submits that the Respondent has not responded or leveled a challenge to the content and/or averments in the Complainant�s said cease and desist letter. In this regard the Complainant cites the circumstances in cases Telstra Corporation Limited v. Nuclear Marshmallows (WIPO Case No. D2000-0003) and Pharmacia & Upjohn AB v. Dario H. Romero (WIPO Case No. D2000-1273).
In addition, the Complainant submits that it is evident from the information on the Registrar's WHOIS database, that the Respondent provided false contact information for his or her postal address and telephone number. Therefore, the Complainant submits that this was a deliberate act by the Respondent to conceal his or her identity to ensure that no direct communication with the Complainant was possible. The Complainant refers to the decisions of the administrative panels in Telstra Corporation Limited v. Nuclear Marshmallows (WIPO Case No. D2000-0003), Morrison & Foerster, LLP v. Brian Wick and American Distribution Systems, Inc (FA0003000094301) and Suntex International, Inc. v. 24game (WIPO Case No. D2000-0408).
Finally the Complainant submits that the Respondent registered said domain names to perhaps intentionally create a likelihood of confusion as to the source, sponsorship or affiliation with the Complainant�s mark, particularly in India. In support of this submission the Complainant refers to the decision of the administrative panel in AltaVista Company v. West Coast Entertainment, Inc. (FA0007000095265).
The decision as to whether a domain name is identical or confusingly similar to a trademark is by its nature a matter of fact for an administrative panel.
The Complainant has alleged that each of the said domain names are confusingly similar to its "PHILIPS" trademark but has not given any reasons for this submission and would appear to rely on the fact that the letters "philips" are incorporated in each of these domain names.
On considering the visual and aural characteristics of each of the domain names in issue in these proceedings, this Administrative Panel has concluded that the domain names <forphilipsindia.com> and <microphilipsindia.com> are neither identical nor confusingly similar to the Complainant's "PHILIPS" trademark. In the view of this Administrative Panel however the domain name <electrophilipsindia.com> is confusingly similar to the Complainant's "PHILIPS" trade mark.
With regard to the domain name <forphilipsindia.com>, this Administrative Panel notes that no element of the domain name makes any reference to any goods or services of any sort and the letters "philips" are not prominent in the domain name. "Philips" is a common family name and "Philip" is a common personal name.
With regard to the domain name <microphilipsindia.com>, while there may be an argument that the word "micro" is sometimes used in the context of electrical goods, it is also used in other contexts. In this regard the Respondent is entitled to the benefit of the doubt.
The domain name <electrophilipsindia.com> however contains three clearly distinct elements, viz. the letters "electro", "philips" and "india". In the view of this Administrative Panel the element consisting of the letters "electro" is the dominating element and the Complainant has an established reputation in the electronics field. Taking this in combination with the fact that the word "philips" is the Respondent's trademark, and the word "india" refers to a jurisdiction in which the Complainant has a reputation and a registered trademark, said domain name is clearly confusingly similar to the Respondents trademark..
Since the Complainant has failed to establish the first element in the proofs necessary to succeed in respect of the domain names <forphilipsindia.com> and <microphilipsindia.com>, it is not necessary for this Administrative Panel to further consider the Complainant's allegations relating to the domain names <forphilipsindia.com> and <microphilipsindia.com>.
With regard to the domain name <electrophilipsindia.com>, this Administrative Panel notes that on numerous occasions administrative panels have commented that it is difficult for a complainant to prove a negative. The Complainant has alleged that the Respondent has no rights or legitimate interest in the said domain name. The Respondent has had the opportunity on a number of occasions to address this allegation. The allegation was implicit in the cease and desist letter sent by the Complainant to the Respondent dated February 8, 20001 and the allegation is expressly made in the Complaint.
In these circumstances in the view of this Administrative Panel, the Respondent should be expected to address these allegations. The Complainant has succeeded in making out a sufficient case to pass the onus over to the Respondent. As the Respondent has not taken these opportunities to address these allegations, this Administrative Panel is satisfied that the Complainant has succeeded in making out a prima facie case that Respondent has no rights or legitimate interest in the said domain name <electrophilipsindia.com>, sufficient to satisfy the second element of the test in paragraph 4(a) of the Policy.
In the view of this Administrative Panel, the Complainant has established a prima facie case that at the time of registration, the Respondent provided false contact information for his or her postal address and telephone number. Furthermore this Administrative Panel accepts that there is a prima facie case that this was a deliberate act by the Respondent to ensure that no direct communication was possible.
It is also clear that given the reputation of the Respondent's trademark in the field of electrical goods, the Respondent must have been aware at the time of registration, that any commercial use of said domain name would be likely to amount to passing off or an infringement of the Complainant's trademark rights.
This Administrative Panel is satisfied that the Complainant has made out a prima facie case that the said domain name <electrophilipsindia.com> was registered in bad faith.
With regard to whether the said domain name is being used in bad faith, this Administrative Panel further notes that said domain name does not resolve to an active web site. This fact alone is obviously not indicative of either registration or use of the domain name in bad faith, but when taken together with the facts that the Respondent has furnished false contact details and has failed to reply to the Complainant's cease and desist letter or to file any Response in these Administrative Proceedings it is open to this Administrative Panel to infer that the Respondent is engaged in passive holding of the said domain name <electrophilipsindia.com> such as to permit this Administrative Panel to conclude that said domain name was registered and is being used in bad faith.
In the present case the Complainant clearly has a strong reputation in the widely known trademark "PHILIPS" in many jurisdictions throughout the world including India. The Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by him or her of the domain name. While the Respondent is entitled to the benefit of the doubt that he or she has provided correct information as to his or her identity, the Respondent has actively provided and failed to correct, false contact details. Furthermore, it is unlikely that any plausible actual or contemplated commercial use of the said domain name by the Respondent that would not be illegitimate, such as by being a passing off, or an infringement of the Complainant's trademark.
Taking into account all of the above, in the absence of any Response from the Respondent and the fact that this Administrative Panel has concluded that the Respondent has no rights or legitimate interest in said domain name, this Administrative Panel is satisfied that the Complainant has established a prima facie case that the Respondent is engaged in passive domain name holding with respect to the domain name registration <electrophilipsindia.com> such as to amount to a registration and use in bad faith.
In conclusion therefore, the view of this Administrative Panel is that the Complainant has failed to establish the first element of the test in paragraph 4(a) of the Policy in respect of the domain names <forphilipsindia.com> and <microphilipsindia.com> and cannot succeed in respect of either of these registrations.
On the other hand, the Complainant has succeeded in establishing a prima facie case in respect of each of the elements set out in paragraph 4 of the Policy with regard to the domain name <electophilipsindia.com> and is entitled to the relief sought in respect of that registration.
1. The Complainant has failed to meet the test set out in paragraph 4(a) of the Policy with regard to the domain names <forphilipsindia.com> and <microphilipsindia.com> and the relief sought must be refused.
2. The Complainant has succeeded in establishing that the Respondent has registered the domain name <electrophilipsindia.com> confusingly similar to a trademark mark in which the Complainant has rights, that the Respondent has no rights or legitimate interest in respect of said domain name <electrophilipsindia.com> and that the Respondent has registered and is using that domain name in bad faith. Accordingly, this Administrative Panel decides that said domain name <electrophilipsindia.com> should be transferred to the Complainant.

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


STATE LOTTERY COMMISSION, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and JOEL GARCIA, Respondents.
Krimen, DaSilva, Daneri, Bloom & Landsiedel and Robert A. LaPorta for Petitioners.
Mastagni, Holstedt & Chiurazzi and J. Stephen Donovan for Respondents.
Petitioner California State Lottery Commission (the Lottery) filed its petition for writ of review seeking to overturn the order of respondent Workers' Compensation Appeals Board (the Board) awarding compensation to respondent Joel Garcia, an employee of the Lottery, for what the Board found to be a work-related injury. (Lab. Code, § 3600.) fn. 1 We issued a writ of review and now shall annul the award.
On the morning of January 4, 1993, after dressing for work (including his gun and pager), he sustained injury when he slipped and fell on the icy sidewalk leading from the front door of his house to his state-owned car, which he was about to enter in order to drive to work. He filed a claim for workers' compensation.
The Lottery opposed the claim, contending as relevant that Garcia's injury did not arise out of or in the course of his employment because at the time of his injury he was on his own premises, had not yet entered his state-owned car, and was not covered by any statutory provision dealing with injuries suffered by off-duty peace officers. In his trial brief, Garcia argued inter alia that he was acting within the scope of his employment when injured because he was on his way to pick up his travel assignments for the day.
A workers' compensation judge (WCJ) issued findings and an award in favor of Garcia. The WCJ's opinion states that the WCJ had "considered" Garcia's round-the-clock on-call status as a peace officer, but drew no conclusion from that fact. The opinion rests mainly on the ground that though Garcia had not yet entered his car he had already begun his commute; thus the case came within the exception to the "going and coming" rule (which ordinarily bars compensation) for trips made in vehicles furnished by the employer.
The Lottery filed a petition for reconsideration with the Board. The Board denied the petition and upheld the award by a vote of two to one. The majority relied solely on the exception to the "going and coming" rule invoked by the WCJ and did not reach the parties' other contentions. The dissent found this exception to the "going and coming" rule inapplicable, and also rejected the other exceptions to this rule urged by Garcia as grounds to uphold the award: the "second job site" exception and the uniformed off-duty peace officers' exception.
Pursuant to section 3600, workers' compensation liability exists "against an employer for any injury sustained by his or her employees arising out of and in the course of the employment ...."
[2b] The courts have carved out numerous exceptions to the "going and coming" rule. For example, if the employer provides the employee with a vehicle and requires it to be used as an incident of employment, an injury suffered by the employee during the commute to or from work will be compensable. (Kobe v. Industrial Acc. Com., supra, 35 Cal.2d at p. 35.) [1b] It is this exception on which the Board relied in awarding compensation to Garcia. Its reliance was misplaced.
Neither the Board nor Garcia has cited any authority which extends the reach of the above exception to facts such as those presented here, and we have found none. In every case where this exception has been held to apply, the employee was actually driving the employer-furnished vehicle when he or she sustained injury. (See, e.g., Smith v. Workmen's Comp. App. Bd. (1968) 69 Cal. 2d 814, 815 [73 Cal. Rptr. 253, 447 P.2d 365]; Kobe v. Industrial Acc. Com., supra, 35 Cal.2d at p. 35.) To stretch this exception so far as to include cases where the employee has not yet entered the vehicle, such as the present case, would make it almost infinitely elastic. If an employee has already begun his commute in an employer-supplied vehicle [50 Cal. App. 4th 316] when he steps out the door of his house, he might just as well be said to have begun it when he steps out of bed in the morning. Both conclusions are absurd, and the second is not more so than the first.
We acknowledge that drawing the line at any particular point so as to cut off compensation under any of the exceptions to the "going and coming" rule may appear arbitrary. (See Santa Rosa Junior College v. Workers' Comp. Appeals Bd., supra, 40 Cal.3d at pp. 352-353.) With respect to the "employer-supplied vehicle" exception, however, the appearance of arbitrariness is less striking than it might be with some of the other exceptions. [2c] The rationale for this exception is that "the employer [has] agree[d], either expressly or impliedly, that the [employment] relationship shall continue during the period of 'going and coming' ..." (Kobe v. Industrial Acc. Com., supra, 35 Cal.2d at p. 35), by furnishing the vehicle and requiring its use. This rationale necessarily entails that the employer's agreement to continue the employment relationship during the employee's commute extends only to the period when the employee is actually in the employer-supplied vehicle: it is the employee's use of the vehicle as an incident of employment which extends the employment relationship beyond the workplace, not the mere fact that the employee is at some stage of progress to or from work.
[1c] The Board majority decided differently because it failed to grasp the rationale for this exception to the "going and coming" rule. Instead, it concluded that Garcia was "traveling to work" within the meaning of this exception at the time of his accident on the ground that "[h]is journey began when he left the safety of his house. (Cf. Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal. App. 3d 528 ....)" The cited case is inapposite, and the language quoted by the Board does not support its finding.
Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (1980) 104 Cal. App. 3d 528 [163 Cal. Rptr. 750] deals not with the employer-supplied-vehicle exception to the "going and coming" rule but with the "special mission" exception, under which an employee acts within the scope of employment when carrying out a specially assigned task for the employer's benefit outside normal working hours. (104 Cal.App.3d at pp. 535-537.) In Safeway Stores the employee, who had stayed beyond his usual departure time to help complete an inventory, was assaulted after leaving the workplace as he got out of his car to enter his house. (Id. at p. 531.) The reviewing court found this injury compensable under the "special mission" exception because the employee had stayed late in order to confer an extraordinary benefit on his employer and the [50 Cal. App. 4th 317] employee's late journey home was an essential and foreseeable part of his service to the employer. (Id. at p. 537.) The court also found that the employee's "special mission" continued so long as he "was still in a place exposed to the public." (Id. at p. 538.) In this context, the court cited with approval the Board's finding in the employee's favor that his mission did not end until he had entered "the safety of his house." (Ibid.) Thus, the court's use of this expression grew out of the peculiar facts of the case: the danger the employee faced resulted directly from the special mission he had undertaken for the employer. Safeway Stores does not stand for the proposition that an employee begins his commute in an employer-supplied vehicle merely by leaving "the safety of his house."
Finding that the Board's extension of the scope of the employer-supplied-vehicle exception is supported neither by authority nor by the logic of the exception, we cannot uphold the Board's award on this ground.
The order of the Board is annulled. The case is remanded to the Board with directions to enter a new order conforming to the views set forth in this opinion.
Blease, Acting P. J., and Sparks, J., concurred.
FN 1. All section references are to the Labor Code unless otherwise specified.
FN 2. In the proceedings below, the Lottery argued that section 3600.3 governed this case, and the Board dissenter (the only member of the Board to consider the question) appears to have accepted that premise. They were mistaken.
Section 3600.3 provides as relevant: "(a) For the purposes of Section 3600, an off-duty peace officer, as defined in subdivision (b), who is performing, within the jurisdiction of his or her employing agency, a service he or she would, in the course of his or her employment, have been required to perform if he or she were on duty, is performing a service growing out of and incidental to his or her employment and is acting within the course of his or her employment if, as a condition of his or her employment, he or she is required to be on call within the jurisdiction during off-duty hours. [¶] (b) As used in subdivision (a), 'peace officer' means those employees of the Department of Forestry and Fire Protection named as peace officers for purposes of subdivision (b) of Section 830.37 of the Penal Code...." (Italics added.) The italicized language in plain terms applies only to peace officers employed by the Department of Forestry and Fire Protection, not to other peace officers such as lottery agents. Our review of the legislative history of section 3600.3 confirms this view.
Although not cited by the parties, we also note that section 3600.2 speaks to the compensability of injury to off-duty peace officers. However, by its express terms section 3600.2 applies only to peace officers "as defined in Section 50920 of the Government Code." State lottery agents are not included in the definition of peace officers set out in Government Code section 50920, so section 3600.2 does not apply to state lottery agents such as Garcia. In the instant case, since neither side has argued that section 3600.2 has any effect on this dispute, we have no occasion to discuss the statute further.
FN 3. Garzoli involved a situation where the officer was performing no law enforcement function other than his commute. He was not, for example, investigating a crime or responding to the scene of an accident. (Cf. Minor v. Sonoma County Employees Retirement Bd., supra, 53 Cal. App. 3d 540 [off-duty officer assisting at automobile accident]; Petrocelli v. Workmen's Comp. Appeals Bd., supra, 45 Cal. App. 3d 635 [off-duty officer investigating suspicious activity]; see also Gov. Code, § 50921.) We do not suggest, and indeed have no reason to determine, whether an off-duty officer must be in uniform when performing active law enforcement duties in order to be within the scope of employment. Here, Garcia was merely walking to his car. That activity was analogous to the officer's commute in Garzoli. Garcia's mere act of walking to his car was insufficient to avoid the ordinary application of the going and coming rule.


This is one of a series of articles under the by line "Butler on Bad Faith" originally published in Mealey's Litigation Report: Insurance Bad Faith, Vol. 18, #22, p. 31 (March 22, 2005). © Copyright Butler 2005.
So the insurer is going to get hit hard, right? Perhaps, . . . perhaps not.
Does your state's probate code require that a "claim" against the decedent be filed in the probate court within a specified period of time after the decedent's death? If the claimant fails to timely file a claim against the decedent's estate in the probate court, the claimant may not be able to use that excess judgment in a bad faith action against the decedent's insurer.
Most states have jurisdictional statutes of "nonclaim" which generally require that all claims be brought against a decedent within a specified time following the decedent's death. This leaves the responsibility to a claimant to be mindful of the nonclaim deadline, to set up an estate (if one is not already created), and to timely file a notice of claim. Nonclaim statutes frequently define what is meant by a "claim" and usually require that a technical "Statement of Claim" be filed in the decedent's estate. However, a "Statement of Claim" generally cannot be filed when the decedent's estate has not been set up in the probate court. If a decedent's estate is not established and/or the claim not filed within the prescribed period, then the claimant may be barred from any recovery against the decedent.
A common exception in nonclaim statutes allows an untimely claim to be brought, but only to the extent of insurance limits. A claimant who brings an action against a decedent's estate solely to obtain an excess judgment as a prerequisite to sue its insurer for bad faith may be in for a rude awakening. If the claimant failed to timely present a claim in the probate proceeding, the insurer may avert its own liability for the excess exposure.
II. Can An Untimely Probate Claim Be Revived?
A claimant may try desperately to resuscitate an untimely probate claim to pursue an excess judgment and proceed with a bad faith action.
In the absence of any statutory authorization, a court may not extend the time for filing a claim fixed by the nonclaim statute. A probate nonclaim statute generally sets an absolute jurisdictional deadline beyond which no claim against an estate may be entertained. Failure to strictly comply may preclude a claim altogether. The public policy behind the jurisdictional nonclaim statutes is to provide finality and speedy resolution to the administration of an estate. A probate court generally has no jurisdiction to enlarge the time period under a nonclaim statute as it would "frustrate the obvious purpose underlying [the statute] to provide an absolute bar date on the estate's liability. . . ." The time periods set forth in probate nonclaim statutes are generally not subject to waiver or equitable tolling. While some states will allow equitable tolling or waiver for fraud or other misconduct, other nonclaim statutes do not permit the time for filing a claim to be extended for any reason whatsoever.
Your state's probate code may specifically define a "claim" and detail the procedure for filing one. Technical compliance may be strictly required. Filing a lawsuit outside of the probate action is not the equivalent of a "claim" under the nonclaim statute. Even a personal representative's knowledge of a claim against the estate is not a probate "claim."
Uncollectible judgments are commonly used to reach an insurer in a third-party bad faith scenario. An early view in the law of insurer bad faith provided that the insured is not damaged unless he or she had the ability to pay an excess judgment. If the insured could not pay the excess amount, then no actionable bad faith could exist. This "payment rule," as it became known, has been abandoned in most states. The more prevalent "judgment rule" allows the claimant to proceed with a bad faith action against an insurer as soon as an excess judgment is entered against its insured. The insured's insolvency is no defense because the judgment is binding, albeit uncollectible.
This "judgment rule" is intended to prevent the bad faith practice of an insurer refusing to settle simply because of an insured's insolvency. Many courts find that the entry of an excess judgment itself is damage enough to the insured, whether collectible or not, to reach an insurer for bad faith exposure. Therefore, a majority of jurisdictions have held that an excess judgment against a decedent's estate, collectible or not, may be used as the vehicle upon which a claimant may bring a bad faith action against an insurer.
However, jurisdictional time lines set forth in the probate codes typically insulate a decedent's estate from liability in excess of casualty insurance limits. The estate is not liable because a binding excess judgment cannot be entered. This is different from a binding – albeit uncollectible – judgment being entered. No bad faith cause of action against an insurer for failure to settle within policy limits accrues where the excess judgment is not binding on (as opposed to uncollectible from) the estate.
A personal representative cannot waive the requirement for timely presentation of claims. A nonclaim statute, unlike a statute of limitations, is not subject to equitable tolling. The failure of a personal representative to object in a probate proceeding to a creditor's notice of claim does not waive the statute's timeliness requirements for a notice of claim. Depending on the wording of the probate code in your jurisdiction, this may not apply to claims brought against an estate to recover up to the decedent's liability insurance coverage limits. Therefore, an untimely claim against a decedent's estate may be permitted to proceed, but only to recover up to the limits of defendant's liability coverage. Either way, both the estate and the insurer will not be liable in excess of policy limits.
Most states have a jurisdictional statute of "nonclaim" which requires that all claims be brought against a decedent within a specified time period. When a claim not filed within the prescribed nonclaim period, then the claimant may be barred from recovery in excess of casualty insurance limits against the decedent's estate. The estate is thus insulated from any judgment that exceeds policy limits. Indeed, when a claimant's estate is insulated from excess exposure, an insurer may also avert excess exposure.
The "nonclaim" statutes usually start the time period for bringing a claim from the date of the decedent's death. It is the responsibility of the claimant to establish an estate and file a claim within nonclaim deadline. If no estate is set up and/or no claim is brought against the decedent before the nonclaim time period expires, then the claimant may be barred from any claim beyond casualty insurance limits.
1. Look not only for statutes of limitations, but also for statutes of nonclaim. A jurisdictional time limit in the probate code for bringing a claim against a decedent and the failure of a claimant to follow the statutory procedural requirements may insulate the estate and the insurer from any liability in excess exposure.
2. Determine whether a probate proceeding for the insured has been timely commenced by an interested party. It is NOT the insurer's responsibility, since doing so would expose the estate to potential claims, which is clearly not in the best interest of the insured. The responsibility for setting up an estate in which to present a claim is the responsibility of the claimant.
3. Determine whether a timely Statement of Claim has been presented in the probate proceeding. If not, then consider petitioning the probate court to have all claims limited to policy limits.
4. If the nonclaim time period for bringing a claim against a decedent's estate has lapsed, but a liability action is nevertheless initiated, then consider asserting the probate nonclaim defense not only in the probate proceeding, but also in the liability matter to prevent the entry of an excess judgment.
Do not be deterred from aggressively defending against excess exposure, even if the claimant presents arguments in an attempt to circumvent his or her failure to comply with the probate statutes. Remember, statutes of nonclaim are more stringent than statutes of limitations. Their requirements are often set in stone. The probate statute of nonclaim is based on an important public policy interest – to ensure the speedy administration of probate estates. The courts vigorously defend this principle of public policy.
1. Nonclaim statutes commonly provide that all claims are barred within a specified time after decedent's death, whether or not an estate of the decedent is set up. See, e.g., ALA. CODE § 43-2-350 (Alabama); ALASKA STAT. § 13.16.460 (Alaska); ARIZ. REV. STAT. § 14-3803 (Arizona); ARK. CODE ANN. § 28-50-101 (Arkansas); COLO. REV. STAT. § 15-12-803 (Colorado); CONN. GEN. STAT. § 45a-395 (Connecticut); DEL. CODE ANN. 12 § 2102 (Delaware); FLA. STAT. §§ 733.702; 733.710 (Florida); GA. CODE ANN. § 9-3-90 (Georgia); HAW. REV. STAT. § 560:3-803 (Hawaii); IDAHO CODE § 15-3-803 (Idaho); 755 ILL. COMP. STAT. 5/18-12 (Illinois); IND. CODE § 29-1-14-1 (Indiana); IOWA CODE § 633.410 (Iowa); KAN. STAT. § 59-2239 (Kansas); KY. REV. STAT. ANN. § 396.011 (Kentucky); ME. REV. STAT. ANN. 18 § 3-803 (Maine); MD. CODE ANN., Estates and Trusts, § 8-103 (Maryland); MICH. COMP. LAWS § 700.3803 (Michigan); MINN. STAT. § 524.3-803 (Minnesota); MISS. CODE ANN. § 91-7-151 (Mississippi); MO. REV. STAT. § 473.360 (Missouri); MONT. CODE ANN. § 72-3-803 (Montana); NEB. REV. STAT. § 30-2485 (Nebraska); NEV. REV. STAT. § 147.040 (Nevada); N.M. STAT. ANN. 1978 §§ 45-3-803 (New Mexico); N.C. GEN. STAT. § 28A-19-3 (North Carolina); N.D. CENT. CODE § 30.1-19-03 (North Dakota); OHIO REV. CODE ANN. § 2117.06 (Ohio); OR. REV. STAT. § 115.005 (Oregon); R.I. GEN. LAWS § 33-11-14 (Rhode Island); S.D. CODIFIED LAWS § 29A-3-803 (South Dakota); TENN. CODE ANN. § 30-2-310 (Tennessee); UTAH CODE ANN. § 75-3-803 (Utah); VT. STAT. ANN. 14 § 1203 (Vermont); WASH. REV. CODE §§ 11.40.020; 11.40.040; 11.40.070; 11.40.051 (Washington); WIS. STAT. § 859.02 (Wisconsin).
2. See, e.g., McCoy's, Inc. v. Garner, 315 S.E.2d 812, 813 (S.C. App. 1984) (holding that the nonclaim statute bars all claims which are not timely filed against an estate); In re Estate of Speaker, 603 N.E.2d 1194 (Ill. App. 1992)(holding that claimant's personal injury claim is not barred by expiration of nonclaim statute, but only to the extent of available insurance limits, whether or not the available limits were listed in the inventory of estate).
3. See, e.g., 755 ILL. COMP. STAT. 5/18-12(c) (Illinois)("This [nonclaim statute] does not bar actions to establish liability of the decedent to the extent the estate is protected by liability insurance."); See also, May v. Illinois Nat'l Ins. Co., 771 So. 2d 1143 (Fla. 2000)(holding that neither the decedent's estate, the personal representative, if any, nor the beneficiaries were liable for a judgment beyond what was available in insurance limits since a valid claim had not been filed against the decedent's estate within two years of the decedent's death, even though the personal representative knew of the claim, and allowed the liability action to proceed to judgment against the decedent's estate).
4. See, e.g., May v. Illinois Nat'l Ins. Co., 771 So. 2d 1143 (Fla. 2000). May involved a two car automobile accident in which the tortfeasor was killed. The claimant, in the midst of failing to properly file a claim against the decedent in the probate court, obtained a consent to liability and an excess judgment. The claimant, by assignment, proceeded to bring an action for bad faith against the decedent's insurer. The court found that since the excess judgment was entered in violation of the probate code, it could not be used to reach the insurer for bad faith.
5. See, e.g., Estate of Staples, 672 A.2d 99 (Me. 1996); May v. Illinois Nat'l Ins. Co., 771 So. 2d 1143 (Fla. 2000).
6. See, e.g., Comerica Bank and Trust, F.S.B. v. SDI Operating Partners, LP., 673 So. 2d 163 (Fla. App. 1996).
7. See, e.g., May v. Illinois Nat'l Ins. Co., 771 So. 2d 1143 (Fla. 2000); State v. Probate Court of Hennepin County, 177 N. W. 354, 355 (Minn. 1920).
8. Comerica, 673 So. 2d at 166.
9. See, e.g., In re Estate of Ongaro, 973 P.2d 660 (Colo. App. 1998), reh'g denied, cert. granted, aff'd, 998 P.2d 1097 (Colo. 2000)(holding that the statutory one-year time limit for bringing a claim against a decedent's estate could not be tolled, even when the personal representative had personal knowledge of the claim which was not asserted within the time limit because the statute was a nonclaim statute and as such tolling would conflict with the purpose of Colorado's Probate Code to promote a speedy and efficient settlement of estates and their distribution to successors); Burnett v. Villaneuve, 685 N.E.2d 1103, 1110 (Ind. App. 1997)(holding that the nonclaim statute is not subject to equitable tolling).
10. In re Estate of Reynolds, 970 P.2d 537 (Kan. 1998)(holding that the nonclaim statute may be tolled for fraud or some other form of unconscionable conduct).
11. See, e.g., Comerica, 673 So. 2d at 167 (finding the nonclaim statute is to be self executing, providing absolute immunity to claims filed beyond the nonclaim time period which may not be extended for fraud or estoppel).
12. See, e.g., Ivory v. Fitzpatrick, 445 So. 2d 262, 265 (Ala. 1984)(holding that even though the claimant had filed complaint for wrongful death within the applicable statute of limitations for wrongful death, since the claimant did not file a claim in the probate proceeding within the six month nonclaim period, claimant's action could not be maintained); Clarke v. Organ, 329 S.W.2d 670, 673 (Mo. 1959) (stating that the nonclaim statute bars all claims, whether filed in the probate court or instituted in the circuit court, unless the claim or the required notice of suit or copies of the process and return are timely filed in the probate court); Smith v. Maynard, 339 S.W.2d 737 (Mo. 1960) (finding that the nonclaim statutes allow a civil suit to be conducted and concluded when a "claim" has not been filed in the probate court, but prohibit collection on any judgment against the estate).
13. Ivory v. Fitzpatrick, 445 So. 2d at 266; Comerica Bank and Trust, F.S.B. v. SDI Operating Partners, LP, 673 So. 2d 163 (Fla. App. 1996); But cf., Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991)(holding that the filing of a complaint outside of the probate proceeding is not the same as bringing a "claim" in the probate proceeding for purposes of Florida Statutes Section 733.702 – a probate statute of limitations).
14. See, e.g., Levantino v. Ins. Co. of North America, 422 N.Y.S.2d 995, 999 (NY Sup. Ct. 1979).
15. See, e.g., Carter v. Pioneer Mut. Cas. Co., 423 N.E.2d 188, 190-91(Ohio 1981)(reasoning that entry of judgment against an insured is damage enough, whether collectible or not, and is sufficient for a bad faith cause of action) and cases cited therein.
16. See, e.g., Carter v. Pioneer Mut. Cas. Co., 423 N.E.2d 188, 190-92 (Ohio 1981)(reasoning that the insolvency of an insured or his estate should not excuse the insurer from exercising the same good faith it would be expected to exercise were the insured fully financially responsible).
18. See, e.g., Carter v. Pioneer Mut. Cas. Co., 423 N.E.2d 188, 190-91 (Ohio 1981) and cases therein.
19. See, e.g., Carter v. Pioneer Mut. Cas. Co., 423 N.E.2d 188, 191 (Ohio 1981)(holding that the entry of judgment against an estate is damage enough for there to be potential liability for bad faith); Maguire v. Allstate Ins. Co., 341 F. Supp. 866, 869 (D. Del. 1972) (applying Delaware law)(finding it not necessary to address the question of whether the "judgment" or "payment" rule would apply in Delaware because a policy provision stated that neither bankruptcy nor insolvency of the insured would relieve the insurer from its obligations); Smiley v. Manchester Ins. & Indem. Co. of St. Louis, 301 N.E.2d 19, 22 (Ill. App. 1973)(holding that an insolvent estate may become solvent and then be forced to satisfy a seemingly worthless judgment); Jessen v. O'Daniel, 210 F. Supp. 317, 328 (D. Mont. 1962), judgment aff'd, 329 F.2d 60 (9th Cir. 1964)(reasoning that even an insolvent estate is damaged by the entry of an excess judgment); National Farmers Union Property & Casualty Co. v. O'Daniel, 329 F.2d 60, 66 (9th Cir. 1964)(holding that excess judgment need not be paid before a bad faith cause of action accrues, even against an insolvent estate); Wolfberg v. Prudence Mut. Cas. Co., 240 N.E.2d 176, 180 (Ill. App. 1968)(holding that the entry of an excess judgment itself is damage sufficient to permit recovery); Henke v. Iowa Home Mut. Casualty Co., 97 N.W.2d 168, 181 (Iowa 1959)(adopting the view that mere entry of an excess judgment is sufficient to accrue a bad faith action); Farmers Ins. Exchange v. Schropp, 567 P.2d 1359, 1369 (Kan. 1977)(reasoning that because an excess judgment against an individual is sufficient for a bad faith action, an excess judgment against an estate should be as well); Lee v. Nationwide Mut. Ins. Co., 286 F.2d 295, 298 (4th Cir. 1961)(reasoning that damages do not have to be "paid" to be considered "incurred"); Sweeten v. National Mut. Ins. Co. of D.C., 194 A.2d 817, 819 (Md. 1963)(reasoning that before payment the mere existence of an excess judgment may cause injury); Torrez v. State Farm Mut. Auto. Ins. Co., 705 F.2d 1192, 1201 (10th Cir. 1982)(reasoning that the insurer's duty of good faith extends to an insured's estate).
20. See, e.g., May v. Illinois Nat'l Ins. Co., 190 F.3d 1200, 1203 (11th Cir.1999), citing Camp v. St. Paul Fire & Marine Ins. Co., 616 So. 2d 12 (Fla. 1993)(rejecting the plaintiff's contention that since an insured's bankruptcy and consequent relief of liability to the debtor from an excess judgment does not prevent a bad faith action by the bankruptcy trustee, a claimant similarly should be able to use an uncollectible excess judgment entered against an estate to bring a bad faith action against an insurer).
21. See, e.g., In re Estate of Ongaro, 973 P.2d 660 (Colo. App.1998), reh'g denied, cert. granted, aff'd 998 P.2d 1097 (Colo. 2000); State v. Probate Court of Hennepin County, 177 N.W. 354, 355 (Minn. 1920).
22. See, e.g., May v. Illinois Nat'l Ins. Co., 771 So. 2d 1143 (Fla. 2000).
23. See, e.g., Pezzi v. Brown, 697 So. 2d 883 (Fla. App. 1997), review denied, 705 So. 2d 7 (Fla. 1997)(finding that an untimely claim may still be brought against a decedent's estate, but only to the extent of insurance proceeds); Nicholls v. Lowther, 491 S.W.2d 3, 5-6 (Mo. App. 1973)(holding that failure to comply with the nonclaim statute does not bar plaintiff from instituting his litigation in the Circuit Court nor from obtaining a judgment against the administrator, although it may preclude plaintiff from any recovery on the judgment obtained out of assets being administered upon); Thorpe v. Wilson, 293 S.E.2d 675, 678 (N.C. App. 1982)(finding the failure of petitioner to file a claim for unliquidated damages with appellant does not bar his action, where he is seeking to recover damages for an alleged wrongful death, and to collect it out of the automobile liability insurance policy issued to the decedent); Pierce v. Johnson, 571 S.E.2d 661, 667 (N.C. App. 2002)(finding that liability, if any, is limited to the amount of insurance coverage available for deceased defendant's alleged negligence).
24. See, e.g., May v. Illinois Nat'l Ins. Co., 771 So. 2d 1143, 1159 (Fla. 2000), citing Pezzi v. Brown, 697 So. 2d 883 (Fla. App. 1997), review denied, 705 So. 2d 7 (Fla. 1997). In Pezzi, the plaintiff brought an injury action against a decedent more than two years after that decedent's death. The plaintiff sought to recover damages only from the decedent's liability insurance and not from the assets of the estate. The court allowed this and reasoned that the nonclaim statute protects only the estate's assets, the personal representative individually, and the beneficiaries. The statute is not designed to protect a liability carrier's limits. Accordingly, the court allowed the claim to proceed.