text:
The Complainant is F. Hoffmann-La Roche AG, Basel, Switzerland, represented by J�r�me Rhein, Switzerland.
The Respondent is N/A / Krysztof Balicki, Poland.
The disputed domain name <1buyvalium.com> (the “Disputed Domain Name”) is registered with RegisterFly.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December�19,�2007. On December�20,�2006, the Center transmitted by email to RegisterFly.com a request for registrar verification in connection with the domain name at issue. On January�15,�2007, RegsiterFly.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January�19,�2007. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January�30,�2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February�19,�2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February�21,�2007.
The Center appointed Maxim H. Waldbaum as the sole panelist in this matter on March�6,�2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The following uncontested facts are summarized from the Complaint.
Complainant is together with its affiliated companies one of the world’s leading research-focused healthcare groups in the fields of pharmaceuticals and diagnostics and having global operations in more than 100 countries. Complainant’s mark VALIUM is protected as a trademark in a multitude of countries worldwide. For example, Complainant holds International Registration No. R250784 for the trademark VALIUM. Priority date for the mark is October�20,�1961.
The mark VALIUM designates a sedative and anxiolytic drug belonging to the benzodiazepine family, which enabled Complainant to build a world-wide reputation in psychotropic medications. For the mark VALIUM Complainant holds registrations in over hundred countries on a world-wide basis.
Respondent registered the Disputed Domain Name on December�3,�2006.
The Disputed Domain Name is confusingly similar to Complainant’s VALIUM mark seeing that it incorporates the mark in its entirety.
The mark VALIUM is well-known and notorious. The notoriety will increase the likelihood of confusion. Furthermore, Complainant’s use and registration of the mark VALIUM do predate Respondent’s registration of the Disputed Domain Name. Therefore the Disputed Domain Name is confusingly similar to the trademark of Complainant.
Complainant has exclusive rights for VALIUM, and no license, permission, or authorization was granted to Respondent to use VALIUM in the Disputed Domain Name. Furthermore it is obvious that Respondent uses the domain for commercial gain and with the purpose of capitalizing on the fame of the Complainant’s mark VALIUM.
The website associated with the Disputed Domain Name contains information about Complainant’s Valium product, but also provides sponsored links to Netseter.com (a search engine with search results for Valium), to the Free Online Encyclopedia (which provides sponsored links to on-line pharmacies), to “www.1buycialis.com” (another website owned by Respondent, which promotes a product manufactured by a competitor of Complainant) and to “www.123-pharmacy.com” (an online pharmacy).
Such a website does not represent a bona fide offering of goods or services. Respondent’s only reason in registering and using the Disputed Domain Name is to benefit from the reputation of the trademark VALIUM and illegitimately trade on its fame for commercial gain and profit, presumably via advertised click-through revenue. There is no reason why the Respondent should have any right or interest in the Disputed Domain Name.
The Disputed Domain Name was registered in bad faith because at the time of the registration, July�14,�2005, Respondent had, no doubt, knowledge of Complainant’s well-known product/mark, VALIUM.
The Disputed Domain Name is also being used in bad faith. This is obvious because Respondent’s website contains sponsored links to other commercial websites, and thus Respondent uses the Disputed Domain Name to intentionally cause confusion with Complainant’s well-known mark as to the source, affiliation and endorsement of Respondent’s website or of the products or services posted on or linked to by Respondent’s website. By capitalizing on this confusion, Respondent may generate click-through revenues by Internet users looking for Complainant’s products. Respondent therefore is using Complainant’s mark in bad faith.
The Panel finds that Complainant has rights, through registration and use, in the mark VALIUM. The Panel further finds that the Disputed Domain Name, which differs from the mark only by virtue of the inclusion of the prefix “1buy”, is confusingly similar to Complainant’s mark. Numerous panels in prior cases under the Policy have held that the mere addition of a descriptive word or term to the complainant’s trademark does not overcome confusing similarity. See, e.g., Sanofi-aventis v. Edith Van Der Linden, WIPO Case No. D2006-0372 (involving <buyambien.info>); Roche Products Inc. v. Eugene Geist, WIPO Case No. D2006-0697 (involving <valium-site.com>).
Complainant bears the burden of proof on the “rights or legitimate interests” issue (as�it�does for all three elements of the Policy). Louis de Bernieres v. Old Barn Studios Limited, WIPO Case No. D2001-0122.
Respondent, who filed no response in this proceeding, has not invoked any of the circumstances of Policy,�paragraph�4(c) to suggest any “rights or legitimate interests” in respect of the Disputed Domain Name.
Based on the evidence put forward by Complainant, Respondent was not licensed or authorized by Complainant to use the latter’s mark in any manner. Respondent’s use of the Disputed Domain Name for a website that contains general information about Complainant’s product while providing links to unrelated third-party commercial websites are neither fair use nor bona fide under the Policy. There are numerous prior decisions under the Policy holding that the unauthorized appropriation of another’s trademark in one’s domain name and the commercial use of the corresponding website do not confer rights or legitimate interests upon the owner of such a domain name. See Sigikid H. Scharrer & Koch GmbH & Co. KG, MyBear Marketing-und Vertriebs GmbH, Mr. Thomas Dufner v. Bestinfo, WIPO Case No. D2004-0990 (“the sole diversion of Internet traffic by Respondent to other, unrelated websites, does not represent a use of the Domain Name in connection with a bona fide offering of goods and services. Rather, the conduct of Respondent serves the purpose of generating revenues, e.g. from advertised pay-per-click products”); Pfizer Inc. v. jg a/k/a Josh Green, WIPO Case No. D2004-0784 (“several cases have found that a registrant has no legitimate interest in a domain name that is similar to a pharmaceutical manufacturer’s mark and that is being used to direct consumers to an on-line pharmacy”).
The Panel finds that Respondent in all probability had Complainant’s mark in mind when registering the Disputed Domain Name. VALIUM is a fanciful mark, and its constituent combination of letters has no known meaning other than as a reference to Complainant’s famous Valium product. See Roche Products Inc. v. Peter Tonderby/Tonderby Designs Ltd, WIPO Case No. D2006-0698 (“Registration of a domain name that is confusingly similar to a famous trademark by any entity that has no relationship to that mark is itself sufficient evidence of bad faith registration and use. No relationship exists between Complainant and Respondent, and Complainant has not authorized or licensed Respondent to use the VALIUM mark”).
Respondent has also used the Disputed Domain Name in bad faith, within the meaning of paragraph 4(b)(iv) of the Policy, by hosting sponsored links to commercial websites where products in competition with Complainant’s products are offered for sale. See L’Or�al, Biotherm, Lanc�me Parfums et Beaut� & Cie v. Unasi, Inc., WIPO Case No. D2005-0623 (“such exploitation of the reputation of trademarks to obtain click-through commissions from the diversion of Internet users is a common example of use in bad faith as referred to in paragraph 4(b)(iv) of the Policy and identified in many previous decisions”).
Based on the undisputed evidence, there is no reasonable conclusion other than that Respondent registered the Disputed Domain Name with the intention of seeking to attract, for commercial gain, Internet visitors to his website by creating confusion between the Disputed Domain Name and Complainant’s mark.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <1buyvalium.com> be transferred to Complainant.

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


text:
Benny Pena hit by pitch.
Benny Pena advanced to second on a wild pitch.
Matthew Sant hit by pitch.
Mauricio Ron doubled to left center, RBI; Matthew Sant scored.
Kyle Welch pinch ran for Mauricio Ron.
Mauricio Ron to c for Kyle Welch.
Benny Pena singled through the right side.
Brian Navarr struck out swinging, reached first on a wild pitch; Benny Pena scored on a wild pitch.
T. Sumerlin hit by pitch.
L. Baxter pinch ran for T. Sumerlin.
T. Sumerlin to c for L. Baxter.
D. Anagnos doubled to center field.
N. Bottari hit by pitch.
N. Bottari advanced to second on a wild pitch; D. Anagnos advanced to third on a wild pitch.
John Loschia doubled to left center, advanced to third on an error by cf.
Brian Quezad singled through the left side, RBI; Benny Pena advanced to second; John Loschia scored.
Brian Quezad advanced to second on a wild pitch; Benny Pena advanced to third on a wild pitch.
Brian Navarr singled to right field, RBI; Brian Quezad advanced to third, out at home rf to c; Benny Pena scored.
D. Valerio homered to left field, RBI.
K. Pitoy pinch hit for K.Colmenarez.
K. Pitoy walked; V. Volpatti advanced to second.
T. Sumerlin homered to left field, 3 RBI; K. Pitoy scored; V. Volpatti scored.
Zachery Matt to p for Sage McCoy.
McCoy faced four batters in the bottom of the 5th.
M. Mesa homered to center field, RBI.
D. Anagnos doubled to left field.
M. Malone stole second; D. Anagnos scored on the throw.
I. Nunez singled to center field.
D. Valerio singled to left field, advanced to second on an error by lf, RBI; I. Nunez advanced to second, scored on the error; M. Malone advanced to third, scored on the error.
Luis Ramos to p for Zachery Matt.
D. Valerio advanced to third on a wild pitch.
V. Volpatti singled to right field, RBI; D. Valerio scored.
T. Sumerlin singled to shortstop; K. Pitoy advanced to second; V. Volpatti advanced to third.
M. Mesa flied out to rf, SAC, RBI; L. Baxter advanced to second on an error by 3b; K. Pitoy advanced to third; V. Volpatti scored.
D. Anagnos reached on an error by ss; L. Baxter advanced to third; K. Pitoy scored, unearned.
D. Anagnos advanced to second on a throwing error by p; L. Baxter scored on the error, unearned.
K.Colmenarez to 3b for K. Pitoy.
B. Holub to p for J.Crescentin.
Kameron Brou pinch hit for Ben Brown.
Kameron Brou singled to shortstop.
William Lein to p for Luis Ramos.
V. Volpatti homered to right field, RBI.
K.Colmenarez advanced to second on a wild pitch.
K. Gast to p for B. Holub.
John Loschia advanced to second on a wild pitch.

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


text:
L.E. Nelson collection, Special Collections Department, Mississippi State University Libraries.
Collection of L. E. Nelson, clergyman and lawyer of Jackson, Mississippi. Includes deeds, tax receipts, and other business and legal papers (1839-1938) of George A. Smythe, Arthur W. Smythe, and Ella V. (Smythe) Hipple; ledger (1836-1865) of the firm Daly and McKee, Jackson, Miss.; other items many dealing with the antebellum, Civil War, and reconstruction periods in Jackson, Mississippi. These papers mostly concern George A. Smythe, an Englishman who obtained U.S. citizenship in 1859 and settled in Jackson; and correspondence (1892-1943) of Ella V. Hipple and other family members.
Collection loaned for microfilming by L. E. Nelson of Jackson, Mississippi.
1836-1865. Ledger from firm of Daly and McKee, Jackson, Miss.
Nov. 21, 1839. Writ of fieri facias from Circuit Court of Hinds Co.
Oct. 1, 1847. Deed. Sam’l Mays and wife to Melinda Baine. Property in Hinds Co.
Jan. 15, 1851. Power of attorney.
March 10, 1852. Deed to Hinds Co. property.
Mar. 16, 1852. Deed. Powhattan Ellis to Isaac Shewalter. Property in Hinds Co.
Feb. 14, 1853. Deed. P. Ellis to I. Shewalter. Property in Hinds Co.
June 16, 1859. Certificate of Citizenship of George A. Smythe. From Circuit Court Hinds Co., 1st District.
Oct. 21, 1859. Memorandum of agreement. Jesse Mabry to Geo. A. Smythe.
Mar. 22, 1860. Bond for title by Jesse Mabry to Geo. Smythe. Property in Hinds Co.
May 11, 1862. Minutes of proceedings, Christian Church, Jackson, Miss.
Mar. 16, 1863. Letter. Geo. Smythe, Jackson, Miss., to Gov. John J. Pettus.
Aug. 1863. Deed of land from Col. Jesse Mabry to Geo. A. Smythe.
Nov. 19, 1863. Receipt signed by Smythe for payment for land.
June 22, 1864. Certification of exemption from military duty (Geo. Smythe).
Feb. 20, 1865. Bill of sale. E. Vanzantd to Smythe.
June 3, 1867. Certificate issued to Smythe of his eligibility to vote.
Nov. 27, 1867. License issued to Smythe to practice law in Hinds Co.
Feb. 4, 1869. Deed to Hinds Co. property acquired by payment of back taxes by Smythe.
Mar. 1, 1873. George Smythe’s appointment as commissioner for Southern District of Miss. Signed by R.A. Hill.
Oct. 21, 1873. Deed. State of Miss. to George Smythe for payment of back taxes.
Apr. 25, 1875. Deed in trust from Geo. A. Smythe to D.H. Barrows.
Jan. 12, 1880. Promissory note signed by Smythe.
Jan. 15, 1880. Deed in trust. Smythe to Barrows.
Mar. 5, 1880. Smythe’s appointment to office of trustee of Institute for Blind. Signed by J.M. Stone.
Mar. 5, 1880. Document re above.
Feb. 28, 1881. Bill of sale for cemetery lot in Jackson, Miss.
Sept. 22, 1883. Deed of trust.
Sept. 22, 1883. Promissory Note.
Sept. 20, 1892. Trust Deed. Mrs. Ella V. Hipple to Jules A. Blanc.
Feb. 14, 1901. Trust Deed. Mrs. Ella V. Hipple to Joachim R. Saussy, Jr.
Dec. 26, 1901. Will of Arthur W. Smythe.
March 1905. Will of Arthur W. Smythe.
Feb. 1909. Bond. Ella V. Hipple to Georgia State Building and Loan Association.
May 1909. Land Deed of Trust. Promissory note signed by Mrs. Hipple.
July 29, 1920. Deed of Trust from Mrs. Hipple to Mrs. Ida S. Todd.
Series 3. 1892-1943, Scattered Correspondence (18).
Sept. 15, 1892. John Hamon Kennard, New Orleans, La., to Judge J. T. Wharton, Jackson, Miss.
Sept. 27, 1892. Same to same.
Oct. 4, 1892. Same to same.
Nov. 29, 1897. New South Building and Loan Assn., New Orleans, La., to Judge J.T. Wharton, Jackson, Miss.
Mar. 20, 1934. Bro Faulconer to Mrs. Ella V. Hipple.
Aug. 9, 1934. One of “your girls” – Garnett, Lexington, Kentucky, to “Dearest Mrs. Hipple”.
Aug. 25, 1936. Same to same.
Feb. 19, 1937. Lilliam Hucker, New York City, New York, to Mrs. Hipple.
Oct. 31, 1943. W. van Tets, Private Secretary of H.R.H. Princess Juliana, Miami, Florida, to Mrs. E. Galceran, Jackson, Miss.
Nd. Bro. Faulconer to Sister Hipple.
Nd. Olga to “Hippie” dearest.
Nd. Bro Faulconer to Mrs. Hipple.
Nd. Lamar Lodge, No. 30, Domain of Mississippi, to State of Miss., County of Hinds.
1867-1908. Scattered Tax receipts and related items (63).
1857-1939. Scattered Receipts, promissory notes, cancelled checks, etc. (35).
1875-1938. Scattered Statements of account (15).
Nd. Miscellany: Name cards, certificates, insurance policies and other (21).


FindACase | In re J.T.S.
Before Justices Bridges, Evans, and Whitehill.
Mother, appearing pro se, appeals the trial court's order appointing paternal Grandmother sole managing conservator and Mother the possessory conservator of J.T.S. and J.R.S., her children. In six issues, Mother alleges (1) Grandmother did not have standing to bring suit; (2) the evidence is insufficient to order possession of the children to a grandparent under section 153.433 of the family code; (3) the trial court violated her due process rights by deciding who has access to her children; (4) the best interest of the children is for the parents to have joint managing conservatorship rather than a non-parent; (5) the trial court should modify custody because of new evidence showing a history of past and present domestic violence by Grandmother; and (6) ineffective assistance of counsel. We affirm the trial court's order.
The grandparents of JTS and JRS filed an original petition for grandparent possession or access alleging Mother and Father were unable and unwilling to care for the children. They alleged the parents abandoned both children and the grandparents now took care of them. Shortly thereafter, Grandmother filed a SAPCR motion and a motion to adjudicate parentage. In the motion, Grandmother asked to be appointed sole managing conservator of the children because "appointment of the parents as joint managing conservators would not be in the best interest of the children."
According to the SAPCR order, a bench trial occurred on January 10, 2017. The court appointed Grandmother the children's sole managing conservator and Mother the possessory conservator. The order further provided that Mother's possession and access to the children "are to be at the sole discretion of, coordinated by and supervised by [grandmother] at her home or a place of choosing." The court noted supervision was required because it found credible evidence that Mother had a "history or pattern of child neglect directed against the children."
Mother filed a notice of appeal challenging the court's order and an "affidavit of indigency" alleging she did not have sufficient funds to pay for preparation of the reporter's record. The court reporter challenged the affidavit, and after a hearing, the trial court sustained the court reporter's challenge. Mother appealed the order, and this Court affirmed. See In re J.S., No. 05-17-00341-CV, 2017 WL 1455406, at *1 (Tex. App.-Dallas Apr. 20, 2017, no pet.) (mem. op.). Thereafter, this Court ordered Mother to confirm in writing that she had paid or made arrangements to pay the reporter's fee and cautioned that failure to comply "may result in the appeal being submitted without the reporter's record." See Tex. R. App. P. 37.3(c).
Mother filed a motion requesting appointment of counsel, arguing she was "being treated as if [her] parental rights have been terminated." Section 107.013 of the family code requires a court to appoint an attorney ad litem to represent the interest of an indigent parent of the child who responds in opposition to the termination when a governmental entity files a termination suit. See Tex. Fam. Code Ann. § 107.013(a)(1) (West 2015). Here, a governmental entity did not file a termination suit; therefore, section 107.013 did not apply. This Court denied Mother's motion and directed the Clerk of the Court to send a copy of the Pro Bono Program Pamphlet to her. We further ordered the appeal submitted without the reporter's record. Mother filed her brief and after receiving a defective briefing notice from the Court, filed an amended brief. Grandmother has not filed an appellee brief.
When, as in this case, there is no reporter's record and findings of fact or conclusions of law are neither requested nor filed, the judgment of the trial court implies all necessary findings of fact to sustain the judgment. See Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex. App.- Dallas 2008, no pet.). In other words, we must presume the missing reporter's record supports the decision of the trial court. See Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002) (stating "court of appeals was correct in holding that, absent a complete record on appeal, it must presume the omitted items supported the trial court's judgment"). Similarly, statements in a brief that are unsupported by the record cannot be accepted as facts by an appellate court. Lyons v. Polymathic Props., Inc., No. 05-15-00408-CV, 2016 WL 3564210, at *2 (Tex. App.-Dallas Jun. 29, 2016, no pet.) (mem. op). With this in mind, we turn to the issues at hand.
In her first issue, Mother challenges Grandmother's standing to bring the SAPCR suit. A person seeking conservatorship must have standing to bring suit. In re I.I.G.T., 412 S.W.3d 803, 805 (Tex. App.-Dallas 2013, no pet.). Standing is a component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit. Id. The plaintiff has the burden of alleging facts that, if taken as true, affirmatively demonstrate a court's jurisdiction to hear a case. Asshauer v. Wells Fargo Foothill, 263 S.W.3d 468, 471 (Tex. App.-Dallas 2008, pet. Denied). The absence of a reporter's record obligates us to presume the evidence presented supports the judgment. Bennett, 96 S.W.3d at 230. This presumption applies even to matters of standing. See In re J.A.T., 502 S.W.3d 834, 836 (Tex. App.-Houston [14th Dist.] 2016, no pet.) (presuming record of hearing challenging party's standing to file SAPCR, which was not filed in appellate court, supported trial court's ruling). Because we do not have a reporter's record, we must presume Grandmother presented evidence to the trial court to support her standing to bring the SAPCR. Id. Mother's first issue is overruled.
In her second issue, Mother argues the trial court erred because Grandmother presented no evidence to meet the statutory burden of proof under family code section 153.433. This section of the family code allows a trial court to order reasonable possession of or access to a grandchild if certain statutory requirements are met. See Tex. Fam. Code Ann. § 153.433 (West 2014). Again, because we do not have a reporter's record, we must presume Grandmother presented evidence to the trial court supporting the statutory requirements. See Waltenburg, 270 S.W.3d at 312. C.f, In re H.M.J.H., 209 S.W.3d 320, 321 (Tex. App.-Dallas 2006, no pet.) (trial court did not abuse its discretion by denying grandparent access under section 153.433 when record contained no evidence establishing statutory requirements). Mother's second issue is overruled.


(A) Application of ma information.—A PDP sponsor shall disclose, in a clear, accurate, and standardized form to each enrollee with a prescription drug plan offered by the sponsor under this part at the time of enrollment and at least annually thereafter, the information described in section 1852(c)(1) relating to such plan, insofar as the Secretary determines appropriate with respect to benefits provided under this part, and including the information described in subparagraph (B).
(i) Access to specific covered part D drugs, including access through pharmacy networks.
(ii) How any formulary (including any tiered formulary structure) used by the sponsor functions, including a description of how a part D eligible individual may obtain information on the formulary consistent with paragraph (3).
(iii) Beneficiary cost-sharing requirements and how a part D eligible individual may obtain information on such requirements, including tiered or other copayment level applicable to each drug (or class of drugs), consistent with paragraph (3).
(iv) The medication therapy management program required under subsection (c).
(2) Disclosure upon request of general coverage, utilization, and grievance information.—Upon request of a part D eligible individual who is eligible to enroll in a prescription drug plan, the PDP sponsor offering such plan shall provide information similar (as determined by the Secretary) to the information described in subparagraphs (A), (B), and (C) of section 1852(c)(2) to such individual.
(A) Response to beneficiary questions.—Each PDP sponsor offering a prescription drug plan shall have a mechanism for providing specific information on a timely basis to enrollees upon request. Such mechanism shall include access to information through the use of a toll-free telephone number and, upon request, the provision of such information in writing.
(B) Availability of information on changes in formulary through the internet.—A PDP sponsor offering a prescription drug plan shall make available on a timely basis through an Internet website information on specific changes in the formulary under the plan (including changes to tiered or preferred status of covered part D drugs).
(ii) the annual out-of-pocket threshold for the current year. Notices under subparagraph (B) need not be provided more often than as specified by the Secretary and notices under subparagraph (B)(ii) shall take into account the application of section 1860D-2(b)(4)(C) to the extent practicable, as specified by the Secretary.
(A) Participation of any willing pharmacy.—A prescription drug plan shall permit the participation of any pharmacy that meets the terms and conditions under the plan.
(B) Discounts allowed for network pharmacies.—For covered part D drugs dispensed through in-network pharmacies, a prescription drug plan may, notwithstanding subparagraph (A), reduce coinsurance or copayments for part D eligible individuals enrolled in the plan below the level otherwise required. In no case shall such a reduction result in an increase in payments made by the Secretary under section 1860D-15 to a plan.
(i) In general.—The PDP sponsor of the prescription drug plan shall secure the participation in its network of a sufficient number of pharmacies that dispense (other than by mail order) drugs directly to patients to ensure convenient access (consistent with rules established by the Secretary).
(ii) Application of tricare standards.—The Secretary shall establish rules for convenient access to in-network pharmacies under this subparagraph that are no less favorable to enrollees than the rules for convenient access to pharmacies included in the statement of work of solicitation (#MDA906-03-R-0002) of the Department of Defense under the TRICARE Retail Pharmacy (TRRx) as of March 13, 2003.
(iii) Adequate emergency access.—Such rules shall include adequate emergency access for enrollees.
(iv) Convenient access in long-term care facilities.—Such rules may include standards with respect to access for enrollees who are residing in long-term care facilities and for pharmacies operated by the Indian Health Service, Indian tribes and tribal organizations, and urban Indian organizations (as defined in section 4 of the Indian Health Care Improvement Act).
(D) Level playing field.—Such a sponsor shall permit enrollees to receive benefits (which may include a 90-day supply of drugs or biologicals) through a pharmacy (other than a mail order pharmacy), with any differential in charge paid by such enrollees.
(E) Not required to accept insurance risk.—The terms and conditions under subparagraph (A) may not require participating pharmacies to accept insurance risk as a condition of participation.
(A) In general.—The PDP sponsor of a prescription drug plan shall issue (and reissue, as appropriate) such a card (or other technology) that may be used by an enrollee to assure access to negotiated prices under section 1860D-2(d).
(i) In general.—The Secretary shall provide for the development, adoption, or recognition of standards relating to a standardized format for the card or other technology required under subparagraph (A). Such standards shall be compatible with part C of title XI and may be based on standards developed by an appropriate standard setting organization.
(ii) Consultation.—In developing the standards under clause (i), the Secretary shall consult with the National Council for Prescription Drug Programs and other standard setting organizations determined appropriate by the Secretary.
(iii) Implementation.—The Secretary shall develop, adopt, or recognize the standards under clause (i) by such date as the Secretary determines shall be sufficient to ensure that PDP sponsors utilize such standards beginning January 1, 2006.
(i) In general.—The formulary must be developed and reviewed by a pharmacy and therapeutic committee. A majority of the members of such committee shall consist of individuals who are practicing physicians or practicing pharmacists (or both).
(II) has expertise in the care of elderly or disabled persons.
(ii) take into account whether including in the formulary (or in a tier in such formulary) particular covered part D drugs has therapeutic advantages in terms of safety and efficacy.
(i) In general.—Subject to subparagraph (G), the formulary must include drugs within each therapeutic category and class of covered part D drugs, although not necessarily all drugs within such categories and classes.
(ii) Model guidelines.—The Secretary shall request the United States Pharmacopeia to develop, in consultation with pharmaceutical benefit managers and other interested parties, a list of categories and classes that may be used by prescription drug plans under this paragraph and to revise such classification from time to time to reflect changes in therapeutic uses of covered part D drugs and the additions of new covered part D drugs.
(iii) Limitation on changes in therapeutic classification.—The PDP sponsor of a prescription drug plan may not change the therapeutic categories and classes in a formulary other than at the beginning of each plan year except as the Secretary may permit to take into account new therapeutic uses and newly approved covered part D drugs.
(D) Provider and patient education.—The PDP sponsor shall establish policies and procedures to educate and inform health care providers and enrollees concerning the formulary.
(E) Notice before removing drug from formulary or changing preferred or tier status of drug.—Any removal of a covered part D drug from a formulary and any change in the preferred or tiered cost-sharing status of such a drug shall take effect only after appropriate notice is made available (such as under subsection (a)(3)) to the Secretary, affected enrollees, physicians, pharmacies, and pharmacists.
(F) Periodic evaluation of protocols.—In connection with the formulary, the sponsor of a prescription drug plan shall provide for the periodic evaluation and analysis of treatment protocols and procedures. The requirements of this paragraph may be met by a PDP sponsor directly or through arrangements with another entity.
(I) Restricted access to drugs in the category or class would have major or life threatening clinical consequences for individuals who have a disease or disorder treated by the drugs in such category or class.
(II) There is significant clinical need for such individuals to have access to multiple drugs within a category or class due to unique chemical actions and pharmacological effects of the drugs within the category or class, such as drugs used in the treatment of cancer.
(ii) Formulary requirements.—Subject to clause (iii), PDP sponsors offering prescription drug plans shall be required to include all covered part D drugs in the categories and classes identified by the Secretary under clause (i).
(II) includes a public notice and comment period.
(ii) provide instant access to such process by enrollees through a toll-free telephone number and an Internet website.
(A) A cost-effective drug utilization management program, including incentives to reduce costs when medically appropriate, such as through the use of multiple source drugs (as defined in section 1927(k)(7)(A)(i)).
(B) Quality assurance measures and systems to reduce medication errors and adverse drug interactions and improve medication use.
(C) A medication therapy management program described in paragraph (2).
(D) A program to control fraud, abuse, and waste. Nothing in this section shall be construed as impairing a PDP sponsor from utilizing cost management tools (including differential payments) under all methods of operation.
(i) In general.—A medication therapy management program described in this paragraph is a program of drug therapy management that may be furnished by a pharmacist and that is designed to assure, with respect to targeted beneficiaries described in clause (ii), that covered part D drugs under the prescription drug plan are appropriately used to optimize therapeutic outcomes through improved medication use, and to reduce the risk of adverse events, including adverse drug interactions. Such a program may distinguish between services in ambulatory and institutional settings.
(III) are identified as likely to incur annual costs for covered part D drugs that exceed a level specified by the Secretary.
(iii) detection of adverse drug events and patterns of overuse and underuse of prescription drugs.
(II) shall include providing the individual with a written or printed summary of the results of the review.
The Secretary, in consultation with relevant stakeholders, shall develop a standardized format for the action plan under subclause (I) and the summary under subclause (II).
(ii) Follow-up interventions as warranted based on the findings of the annual medication review or the targeted medication enrollment and which may be provided person-to-person or using telehealth technologies (as defined by the Secretary).
(D) Assessment.—The prescription drug plan sponsor shall have in place a process to assess, at least on a quarterly basis, the medication use of individuals who are at risk but not enrolled in the medication therapy management program, including individuals who have experienced a transition in care, if the prescription drug plan sponsor has access to that information.
(ii) permit such beneficiaries to opt-out of enrollment in such program.
(E) Development of program in cooperation with licensed pharmacists.—Such program shall be developed in cooperation with licensed and practicing pharmacists and physicians.
(F) Coordination with care management plans.—The Secretary shall establish guidelines for the coordination of any medication therapy management program under this paragraph with respect to a targeted beneficiary with any care management plan established with respect to such beneficiary under a chronic care improvement program under section 1807.
(G) Considerations in pharmacy fees.—The PDP sponsor of a prescription drug plan shall take into account, in establishing fees for pharmacists and others providing services under such plan, the resources used, and time required to, implement the medication therapy management program under this paragraph. Each such sponsor shall disclose to the Secretary upon request the amount of any such management or dispensing fees. The provisions of section 1927(b)(3)(D) apply to information disclosed under this subparagraph.
(3) Reducing wasteful dispensing of outpatient prescription drugs in long-term care facilities.—The Secretary shall require PDP sponsors of prescription drug plans to utilize specific, uniform dispensing techniques, as determined by the Secretary, in consultation with relevant stakeholders (including representatives of nursing facilities, residents of nursing facilities, pharmacists, the pharmacy industry (including retail and long-term care pharmacy), prescription drug plans, MA–PD plans, and any other stakeholders the Secretary determines appropriate), such as weekly, daily, or automated dose dispensing, when dispensing covered part D drugs to enrollees who reside in a long-term care facility in order to reduce waste associated with 30-day fills.
(A) In general.— For plan year 2016 and subsequent plan years, the Secretary shall require a claim for a covered part D drug for a part D eligible individual enrolled in a prescription drug plan under this part or an MA-PD plan under part C to include a prescriber National Provider Identifier that is determined to be valid under the procedures established under subparagraph (B)(i).
(i) Validity of prescriber national provider identifiers.— The Secretary, in consultation with appropriate stakeholders, shall establish procedures for determining the validity of prescriber National Provider Identifiers under subparagraph (A).
(ii) Informing beneficiaries of reason for denial.— The Secretary shall establish procedures to ensure that, in the case that a claim for a covered part D drug of an individual described in subparagraph (A) is denied because the claim does not meet the requirements of this paragraph, the individual is properly informed at the point of service of the reason for the denial.
(C) Report.— Not later than January 1, 2018, the Inspector General of the Department of Health and Human Services shall submit to Congress a report on the effectiveness of the procedures established under subparagraph (B)(i).
(A) Authority to establishA PDP sponsor may establish a drug management program for at-risk beneficiaries under which, subject to subparagraph (B), the PDP sponsor may, in the case of an at-risk beneficiary for prescription drug abuse who is an enrollee in a prescription drug plan of such PDP sponsor, limit such beneficiary's access to coverage for frequently abused drugs under such plan to frequently abused drugs that are prescribed for such beneficiary by one or more prescribers selected under subparagraph (D), and dispensed for such beneficiary by one or more pharmacies selected under such subparagraph.
(II) verifies with the providers of the beneficiary that the beneficiary is an at-risk beneficiary for prescription drug abuse.
(VII) contact information for other organizations that can provide the beneficiary with assistance regarding such drug management program (similar to the information provided by the Secretary in other standardized notices provided to part D eligible individuals enrolled in prescription drug plans under this part).
(V) that includes clear instructions that explain how the beneficiary can contact the PDP sponsor.
(I) In generalSubject to subclause (II), a second notice described in clause (iii) shall be provided to the beneficiary on a date that is not less than 30 days after an initial notice described in clause (ii) is provided to the beneficiary.
(II) ExceptionIn the case that the PDP sponsor, in conjunction with the Secretary, determines that concerns identified through rulemaking by the Secretary regarding the health or safety of the beneficiary or regarding significant drug diversion activities require the PDP sponsor to provide a second notice described in clause (iii) to the beneficiary on a date that is earlier than the date described in subclause (I), the PDP sponsor may provide such second notice on such earlier date.
(II) with respect to whom the PDP sponsor of a prescription drug plan, upon enrolling such individual in such plan, received notice from the Secretary that such individual was identified under this paragraph to be an at-risk beneficiary for prescription drug abuse under the prescription drug plan in which such individual was most recently previously enrolled and such identification has not been terminated under subparagraph (F).
(III) the Secretary elects to treat as an exempted individual for purposes of clause (i).
(iii) Program sizeThe Secretary shall establish policies, including the guidelines developed under clause (i)(I) and the exemptions under clause (ii)(III), to ensure that the population of enrollees in a drug management program for at-risk beneficiaries operated by a prescription drug plan can be effectively managed by such plans.
(iv) Clinical contactWith respect to each at-risk beneficiary for prescription drug abuse enrolled in a prescription drug plan offered by a PDP sponsor, the PDP sponsor shall contact the beneficiary's providers who have prescribed frequently abused drugs regarding whether prescribed medications are appropriate for such beneficiary's medical conditions.
(II) one, or, if the PDP sponsor reasonably determines it necessary to provide the beneficiary with reasonable access under clause (ii), more than one, pharmacy that may dispense such drugs to such beneficiary. For purposes of subclause (II), in the case of a pharmacy that has multiple locations that share real-time electronic data, all such locations of the pharmacy shall collectively be treated as one pharmacy.
(II) a PDP sponsor shall ensure such access (including access to prescribers and pharmacies with respect to frequently abused drugs) in the case of individuals with multiple residences, in the case of natural disasters and similar situations, and in the case of the provision of emergency services.
(III) inform the beneficiary of such selection or change of selection.
(II) a rationale for the change.
(v) ConfirmationBefore selecting a prescriber or pharmacy under this subparagraph, a PDP sponsor must notify the prescriber and pharmacy that the beneficiary involved has been identified for inclusion in the drug management program for at-risk beneficiaries and that the prescriber and pharmacy has been selected as the beneficiary's designated prescriber and pharmacy.
(E) Terminations and appealsThe identification of an individual as an at-risk beneficiary for prescription drug abuse under this paragraph, a coverage determination made under a drug management program for at-risk beneficiaries, the selection of prescriber or pharmacy under subparagraph (D), and information to be shared under subparagraph (I), with respect to such individual, shall be subject to reconsideration and appeal under subsection (h) and the option of an automatic escalation to external review to the extent provided by the Secretary.
(II) the end of such maximum period of identification as the Secretary may specify.
(ii) Rule of constructionNothing in clause (i) shall be construed as preventing a plan from identifying an individual as an at-risk beneficiary for prescription drug abuse under subparagraph (C)(i) after such termination on the basis of additional information on drug use occurring after the date of notice of such termination.
(G) Frequently abused drugFor purposes of this subsection, the term ‘frequently abused drug’ means a drug that is a controlled substance that the Secretary determines to be frequently abused or diverted.
(i) Data on decision to impose limitationIn the case of an at-risk beneficiary for prescription drug abuse (or an individual who is a potentially at-risk beneficiary for prescription drug abuse) whose access to coverage for frequently abused drugs under a prescription drug plan has been limited by a PDP sponsor under this paragraph, the Secretary shall establish rules and procedures to require the PDP sponsor to disclose data, including any necessary individually identifiable health information, in a form and manner specified by the Secretary, about the decision to impose such limitations and the limitations imposed by the sponsor under this part.
(ii) Data to reduce fraud, abuse, and wasteThe Secretary shall establish rules and procedures to require PDP sponsors operating a drug management program for at-risk beneficiaries under this paragraph to provide the Secretary with such data as the Secretary determines appropriate for purposes of identifying patterns of prescription drug utilization for plan enrollees that are outside normal patterns and that may indicate fraudulent, medically unnecessary, or unsafe use.
(I) Sharing of information for subsequent plan enrollmentsThe Secretary shall establish procedures under which PDP sponsors who offer prescription drug plans shall share information with respect to individuals who are at-risk beneficiaries for prescription drug abuse (or individuals who are potentially at-risk beneficiaries for prescription drug abuse) and enrolled in a prescription drug plan and who subsequently disenroll from such plan and enroll in another prescription drug plan offered by another PDP sponsor.
(J) Privacy issuesPrior to the implementation of the rules and procedures under this paragraph, the Secretary shall clarify privacy requirements, including requirements under the regulations promulgated pursuant to section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d-2 note), related to the sharing of data under subparagraphs (H) and (I) by PDP sponsors. Such clarification shall provide that the sharing of such data shall be considered to be protected health information in accordance with the requirements of the regulations promulgated pursuant to such section 264(c).
(ii) through current education efforts (such as State health insurance assistance programs described in subsection (a)(1)(A) of section 119 of the Medicare Improvements for Patients and Providers Act of 2008 (42 U.S.C. 1395b-3 note)) and materials directed toward such enrollees.
(L) Application under ma-pd plansPursuant to section 1860D-21(c)(1), the provisions of this paragraph apply under part D to MA organizations offering MA-PD plans to MA eligible individuals in the same manner as such provisions apply under this part to a PDP sponsor offering a prescription drug plan to a part D eligible individual.
(i) A utilization tool designed to prevent the abuse of frequently abused drugs by individuals and to prevent the diversion of such drugs at pharmacies.
(II) providers of services or suppliers that may facilitate the abuse or diversion of frequently abused drugs by beneficiaries.
(iii) Consultation with the contractor described in subparagraph (B) to verify if an individual enrolling in a prescription drug plan offered by a PDP sponsor has been previously identified by another PDP sponsor as an individual described in clause (ii)(I).
(ii) the name and prescription records of individuals described in paragraph (5)(C).
(C) CMS compliance reviewThe Secretary shall ensure that plan sponsor compliance reviews and program audits biennially include a certification that utilization management tools under this paragraph are in compliance with the requirements for such tools.
(d) Consumer Satisfaction Surveys.—In order to provide for comparative information under section 1860D-1(c)(3)(A)(v), the Secretary shall conduct consumer satisfaction surveys with respect to PDP sponsors and prescription drug plans in a manner similar to the manner such surveys are conducted for MA organizations and MA plans under part C.
(1) Application of standards.—As of such date as the Secretary may specify, but not later than 1 year after the date of promulgation of final standards under paragraph (4)(D), prescriptions and other information described in paragraph (2)(A) for covered part D drugs prescribed for part D eligible individuals that are transmitted electronically shall be transmitted only in accordance with such standards under an electronic prescription drug program that meets the requirements of paragraph (2).
(i) Information on the drug being prescribed or dispensed and other drugs listed on the medication history, including information on drug-drug interactions, warnings or cautions, and, when indicated, dosage adjustments.
(ii) Information on the availability of lower cost, therapeutically appropriate alternatives (if any) for the drug prescribed.
(B) Application to medical history information.—Effective on and after such date as the Secretary specifies and after the establishment of appropriate standards to carry out this subparagraph, the program shall provide for the electronic transmittal in a manner similar to the manner under subparagraph (A) of information that relates to the medical history concerning the individual and related to a covered part D drug being prescribed or dispensed, upon request of the professional or pharmacist involved.
(C) Limitations.—Information shall only be disclosed under subparagraph (A) or (B) if the disclosure of such information is permitted under the Federal regulations (concerning the privacy of individually identifiable health information) promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996.
(D) Timing.—To the extent feasible, the information exchanged under this paragraph shall be on an interactive, real-time basis.
(A) In general.—The Secretary shall provide consistent with this subsection for the promulgation of uniform standards relating to the requirements for electronic prescription drug programs under paragraph (2).
(iii) efficiencies, including cost savings, in the delivery of care.
(iii) be designed so that they permit electronic exchange of drug labeling and drug listing information maintained by the Food and Drug Administration and the National Library of Medicine.
(D) Permitting use of appropriate messaging.—Such standards shall allow for the messaging of information only if it relates to the appropriate prescribing of drugs, including quality assurance measures and systems referred to in subsection (c)(1)(B).
(i) In general.—Consistent with clause (ii), such standards shall permit a part D eligible individual to designate a particular pharmacy to dispense a prescribed drug.
(II) the application of any differences in benefits or payments under such a plan based on the pharmacy dispensing a covered part D drug.
(A) Initial standards.—Not later than September 1, 2005, the Secretary shall develop, adopt, recognize, or modify initial uniform standards relating to the requirements for electronic prescription drug programs described in paragraph (2) taking into consideration the recommendations (if any) from the National Committee on Vital and Health Statistics (as established under section 306(k) of the Public Health Service Act (42 U.S.C. 242k(k))) under subparagraph (B).
(vii) State boards of pharmacy.
(viii) State boards of medicine.
(ix) Experts on electronic prescribing.
(x) Other appropriate Federal agencies.
(i) In general.—During the 1-year period that begins on January 1, 2006, the Secretary shall conduct a pilot project to test the initial standards developed under subparagraph (A) prior to the promulgation of the final uniform standards under subparagraph (D) in order to provide for the efficient implementation of the requirements described in paragraph (2).
(ii) Exception.—Pilot testing of standards is not required under clause (i) where there already is adequate industry experience with such standards, as determined by the Secretary after consultation with effected standard setting organizations and industry users.
(iii) Voluntary participation of physicians and pharmacies.—In order to conduct the pilot project under clause (i), the Secretary shall enter into agreements with physicians, physician groups, pharmacies, hospitals, PDP sponsors, MA organizations, and other appropriate entities under which health care professionals electronically transmit prescriptions to dispensing pharmacies and pharmacists in accordance with such standards.
(I) Evaluation.—The Secretary shall conduct an evaluation of the pilot project conducted under clause (i).
(II) Report to congress.—Not later than April 1, 2007, the Secretary shall submit to Congress a report on the evaluation conducted under subclause (I).
(D) Final standards.—Based upon the evaluation of the pilot project under subparagraph (C)(iv)(I) and not later than April 1, 2008, the Secretary shall promulgate uniform standards relating to the requirements described in paragraph (2).
(B) pertains to the electronic transmission of medication history and of information on eligibility, benefits, and prescriptions with respect to covered part D drugs under this part.
(C) in the case of a PDP sponsor or MA organization, by the sponsor or organization to pharmacists and pharmacies participating in the network of such sponsor or organization, and to prescribing health care professionals.
(f) Grievance mechanism.—Each PDP sponsor shall provide meaningful procedures for hearing and resolving grievances between the sponsor (including any entity or individual through which the sponsor provides covered benefits) and enrollees with prescription drug plans of the sponsor under this part in accordance with section 1852(f).
(1) Application of coverage determination and reconsideration provisions.—A PDP sponsor shall meet the requirements of paragraphs (1) through (3) of section 1852(g) with respect to covered benefits under the prescription drug plan it offers under this part in the same manner as such requirements apply to an MA organization with respect to benefits it offers under an MA plan under part C.
(2) Request for a determination for the treatment of tiered formulary drug.—In the case of a prescription drug plan offered by a PDP sponsor that provides for tiered cost-sharing for drugs included within a formulary and provides lower cost-sharing for preferred drugs included within the formulary, a part D eligible individual who is enrolled in the plan may request an exception to the tiered cost-sharing structure. Under such an exception, a nonpreferred drug could be covered under the terms applicable for preferred drugs if the prescribing physician determines that the preferred drug for treatment of the same condition either would not be as effective for the individual or would have adverse effects for the individual or both. A PDP sponsor shall have an exceptions process under this paragraph consistent with guidelines established by the Secretary for making a determination with respect to such a request. Denial of such an exception shall be treated as a coverage denial for purposes of applying subsection (h).
(1) In general.—Subject to paragraph (2), a PDP sponsor shall meet the requirements of paragraphs (4) and (5) of section 1852(g) with respect to benefits (including a determination related to the application of tiered cost-sharing described in subsection (g)(2)) in a manner similar (as determined by the Secretary) to the manner such requirements apply to an MA organization with respect to benefits under the original medicare fee-for-service program option it offers under an MA plan under part C. In applying this paragraph only the part D eligible individual shall be entitled to bring such an appeal.
(2) Limitation in cases on nonformulary determinations.—A part D eligible individual who is enrolled in a prescription drug plan offered by a PDP sponsor may appeal under paragraph (1) a determination not to provide for coverage of a covered part D drug that is not on the formulary under the plan only if the prescribing physician determines that all covered part D drugs on any tier of the formulary for treatment of the same condition would not be as effective for the individual as the nonformulary drug, would have adverse effects for the individual, or both.
(3) Treatment of nonformulary determinations.—If a PDP sponsor determines that a plan provides coverage for a covered part D drug that is not on the formulary of the plan, the drug shall be treated as being included on the formulary for purposes of section 1860D-2(b)(4)(C)(i).
(i) Privacy, Confidentiality, and Accuracy of Enrollee Records.—The provisions of section 1852(h) shall apply to a PDP sponsor and prescription drug plan in the same manner as it applies to an MA organization and an MA plan.
(1) Subsection (b) of this section (relating to access to covered part D drugs).
(2) Subsection (c) of this section (including quality assurance and medication therapy management).
(3) Subsection (i) of this section (relating to confidentiality and accuracy of enrollee records).
(1) In general.—A PDP sponsor offering a prescription drug plan shall provide that each pharmacy that dispenses a covered part D drug shall inform an enrollee of any differential between the price of the drug to the enrollee and the price of the lowest priced generic covered part D drug under the plan that is therapeutically equivalent and bioequivalent and available at such pharmacy.
(A) In general.—Subject to subparagraph (B), the information under paragraph (1) shall be provided at the time of purchase of the drug involved, or, in the case of dispensing by mail order, at the time of delivery of such drug.
(B) Waiver.—The Secretary may waive subparagraph (A) in such circumstances as the Secretary may specify.
(1) The prohibition under section 1851(h)(4)(C) on conducting activities described in section 1851(j)(1).
(2) The requirement under section 1851(h)(4)(D) to conduct activities described in section 1851(j)(2)in accordance with the limitations established under such subsection.
(3) The inclusion of the plan type in the plan name under section 1851(h)(6).
(4) The requirements regarding the appointment of agents and brokers and compliance with State information requests under subparagraphs (A) and (B), respectively, of section 1851(h)(7).
 P.L.114-255, §704(a)(2) inserted clause (v). Effective December 10, 2016.
 See Vol. II, P.L. 94-437.
 P.L.114-255, §704(b)(1) inserted subparagraph (E). Effective December 10, 2016.
 P.L. 114-10, §507 inserted paragraph (4). Effective April 16, 2015.
 P.L.114-255, §704(a)(1) inserted paragraph (5). Effective December 10, 2016.
 P.L.114-255, §704(b)(2) inserted paragraph (6). Effective December 10, 2016.
 See Vol. II, P.L. 108-173, §108, with respect to grants to physicians to implement electronic prescription drug programs.


Section 657 of the Code of the District of Columbia, as amended, provides that each life insurance company doing business in the District shall deliver with each policy issued by it a copy of the application made by the insured, so that the whole contract may appear in the said application and policy, "in default of which no defense shall be allowed to such policy on account of anything contained in, or omitted from, such application." Held: that where the policy declared that it constituted the entire agreement, the fact that no application was delivered with it did not preclude a defense based upon a provision of the policy avoiding it if the insured was not in sound health at the time of issue. P. 287 U. S. 100.
Certiorari, 286 U.S. 536, to review the affirmance of a judgment in an action on a life insurance policy.
"This Policy constitutes the entire agreement between the Company and the Insured and the holder and owner hereof. . . . If the Insured . . . is not in sound health on the date hereof . . . , the Company may declare this Policy void. . . ."
"Each life insurance company, benefit order, and association doing a life insurance business in the District of Columbia shall deliver with each policy issued by it a copy of the application made by the insured so that the whole contract may appear in said application and policy, in default of which no defense shall be allowed to such policy on account of anything contained in, or omitted from, such application."
was delivered with the policy. The court, relying on the statute, sustained the objection and refused to permit defendant to interpose that defense and gave judgment for plaintiff. The Court of Appeals affirmed. 56 F.2d 300.
The sole question is whether § 657 was rightly construed.
inconvenience, and danger of injustice liable to arise where the policy does not contain the entire agreement and refers for parts of it to applications or other papers. That purpose is reflected clearly by the clause that, in default of the required delivery of a copy of the application, no defense shall be allowed to such policy on account of anything "contained in, or omitted from, such application." And the barring of such defenses is the only consequence declared to result.
Here, the policy definitely declares that it constitutes the entire agreement between the parties. The defense interposed is based solely on one of its provisions, and has no relation to the application. The section does not require written applications to be made, or declare that, where one is made but not delivered with the policy, there shall be no defense based on the provisions of the policy itself. And no reason is suggested in support of a construction of the section that would prevent defense based on a provision of the policy, even though a similar or the same provision were contained in an application. As this policy expressed the entire agreement, defendant, notwithstanding its failure to deliver a copy of the application, was entitled to interpose such defenses as would have been open to it if no application had been made. MacKinnon & Co. v. Mut. Fire Ins. Co., 89 Iowa, 170, 173, 56 N.W. 423; Imperial F. Ins. Co. v. Dunham, 117 Pa. 460, 473, 12 A. 668. It follows that § 657 furnishes no support for the refusal of the trial court to permit defendant to show that the insured was not in sound health when the policy was issued.
* MacKinnon & Co. v. Mut. Fire Ins. Co., 89 Iowa, 170, 56 N.W. 423; Rauen v. Insurance Co., 129 Iowa, 725, 106 N.W.198; Kirkpatrick v. Accident Co., 139 Iowa, 370, 115 N.W. 1107; Lenox v. Insurance Co., 165 Pa. 575, 30 A. 940; Washington Fire Relief Assn. v. Albro, 130 Wash. 114, 226 P. 264; Metropolitan L. Ins Co. & Scott, 160 Miss. 537, 134 So. 159.
along with the policy, the district statute, in terms, provides that "no defense shall be allowed to such policy on account of anything contained in, or omitted from, such application." In this case, it does not appear that there was any written application, and, as the defense was based on a clause contained in the policy, which purported to embody the "whole contract," no case was presented calling for the application of the statute, or which would enable a court to say just what force should be given to its prohibition in a case where the written application, not delivered with the policy, is in evidence. For that reason, the case should be reversed if it is not, for other reasons, to be dismissed.
I think it should be dismissed. The certiorari was granted upon a petition which set forth as grounds for its allowance that the court below, in construing the prohibition of the statute, had "decided erroneously a question of general importance," and that the decision "is in conflict with all decisions in other jurisdictions involving similar statutes, and therefore tends to unsettle the law." Upon the briefs and the argument, the statutes of many states were quoted prescribing the legal consequences of the failure of the insurer to deliver to the insured, with the policy, a copy of the written application. Most of them provide only that, in such cases, the application is not to be considered a part of the policy or received in evidence in a suit brought upon it. None contain language like that of the present statute prohibiting any defense on the policy "on account of anything contained in or omitted from" the application, and we have been cited to no decision of any court outside the District of Columbia in which that language or any resembling it has been considered.
decisions asserted is not shown. Plainly the question is not of such general interest or importance as under the rules and practice of this Court warrants its review upon certiorari . For these reasons, it is the duty of this Court to dismiss the writ as improvidently granted. Tyrrell v. District of Columbia, 243 U. S. 1; Southern Power Co. v. Public Service Co., 263 U. S. 508; Houston Oil Co. v. Goodrich, 245 U. S. 440; Layne & Bowler Corp. v. Western Well Works, 261 U. S. 387; Furness, Withy & Co. v. Yang-Tsze Insurance Assn., 242 U. S. 430.
If the writ is not to be dismissed and the case is to be decided on the construction of the statute, the Court's reversal of the judgment, in the absence of the application which, for purposes of decision, it assumes to exist, can only proceed on the ground that under no circumstances could a defense based on a clause in the policy itself be said to be one "on account of anything contained in or omitted from the application." With that conclusion I am unable to agree. The defense here was that the insured was not in sound health at the date of the policy. Petitioner sought to establish it by showing that the state of health of the insured, then deceased, had been bad for several years before the policy was issued. If the written application were before the Court and revealed that the insured had been asked about his condition of health and had either answered fully and truthfully, or not at all, it would show, I think, that the defense, within the very meaning and purpose of the statute, was "on account" of something "contained in or omitted from the application," and that the petitioner was precluded from making it.