April 22, 1974. On Rehearing June 28, 1974.
APPEAL FROM 32ND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE, STATE OF LOUISIANA, HONORABLE LEONARD GREENBURG, J.
John F. Pugh, John L. Lanier, Thibodaux, for Billy Ross and State Farm Mut. Auto. Ins., Joel L. Borrello, New Orleans, for Hanover Ins. Co.
A. Deutsche O'Neal, Sr., Houma, for plaintiff-appellee Adams.
Before SARTAIN, J., and VERON and BAILES, JJ. Pro Tem.
This appeal is from the trial court judgment in favor of plaintiff, Walter A. Adams, and against defendants, Billy C. Ross (Ross), State Farm Mutual Automobile Insurance Company (State Farm), and Hanover Insurance Company (Hanover), in solido, for the sum of $60,000, together with interest and court costs. The appealed judgment cast Ross for this full amount but restricted liability of State Farm to $10,000 and Hanover to $50,000, these amounts being the respective liability policy limits.
On our findings herein, we affirm in part and reverse in part the judgment appealed.
On the night of May 8, 1964, plaintiff and three young girls, including the daughter of defendant Ross, together with Ross, their host driver, were retuning to Houma from Baton Rouge where this group, together with others, had participated in a choir festival sponsored by certain Baptist Churches of Louisiana. The group had motored to Baton Rouge earlier this same day. The return trip was uneventful until they reached a point about one-fourth mile south of Labadieville on Louisiana Highway One where the Ross vehicle left its right side of the highway, crossed the left or north bound traffic lane and ran into an embankment of a ditch on the bayou or east side of the highway.
None of the five occupants of the Ross vehicle were able to explain how the accident occurred. The three young girls occupying the rear seat and the plaintiff who occupied the right front seat were apparently asleep.
Mr. Ross, the host driver, testified that he, together with his passengers, left Baton Rouge at about 10:30 P.M. for their return trip to Houma. He stated that just prior to the accident he began to feel drowsy, that he remembered approaching or meeting two cars and was aware of having passed the first car but not the second car. He testified that there is a blank in his memory from the passing of this first car until after the accident. He recalled that the last time he looked at his vehicle speedometer his speed was 45 mph and that he did not know why he ran off the road.
Lt. Leonce E. Caballero, the trooper who investigated the accident testified that when he arrived at the scene at about 11:55 P.M., he found the car in the ditch on the east side of Highway One against an embankment. From his investigation he determined that the Ross vehicle was traveling south, crossed the north bound traffic lane and ran into the ditch on the Bayou LaFourche side. Only the front of the car was damaged. No skid marks were found.
The only witness to the accident was Robert H. Leblanc. He explained what he saw in the following quoted testimony.
"Q. Would you tell the jury just what it was that you saw?
"A. Well, I was going towards Napoleonville and the car was coming. There was a big, like an S curve, and when I seen the car coming he turned. He turned kind of sharp fast, and I thought he was turning in a driveway. When I got to him he had went over in the little ditch, and I stopped and picked them up out the car.
"Q. Now how did you know, how much of this oncoming car did you see?
"A. Not too much. I just seen his lights turn off.
"Q. Did you see that oncoming car make any signal?
"Q. How did you know that he turned?
"A. With his lights. I seen his lights, you see. I thought he was turning in a driveway.
"Q. From his standpoint, from the driver of that car's standpoint which way did he turn?
"A. Left. He turned left.
"Q. To his left. He turned to his left?
"Q. Did his car cross your lane of traffic?
Initially, plaintiff brought this suit against Ross, his automobile public liability insurer, State Farm, The first Baptist Church of Houma, Louisiana (Baptist Church), and its automobile public liability insurer, Hanover Insurance Company, alleging that he was injured through the negligence of Ross and that Ross was operating his vehicle for and on behalf and as an agent of the Baptist Church.
Plaintiff alleged specific negligent operation by Ross of his vehicle which he details as failing to pay attention to where he was going, failing to keep alert, driving in a sleepy or tired condition and going to sleep while driving. He further pleads the doctrine of res ipsa loquitur, and for trial by jury.
The original answers of these defendants were essentially general denials of liability.
"The First Baptist Church, prior to and since May 8, 1964, has regularly and frequently sponsored attendance by its members at various organized church related functions away from Houma.
"The groups of members were and are normally transported to such functions by individual members who volunteer to drive the groups in their own cars.
"The First Baptist Church desired that adequate liability insurance coverage be provided to members who having volunteered to drive their own cars as described above, caused injury to others, and also in favor of other members injured by members who volunteered to drive their own cars.
"Prior to May 8, 1964, The First Baptist Church requested the Funderburk Agency to procure for it an insurance policy affording the coverage desired in the foregoing paragraph.
"The Funderburk Agency undertook to do so and, acting as agent for Hanover Insurance Company, issued to The First Baptist Church the policy referred to in paragraph 6 and 7 of the original petition, for which policy The First Baptist Church duly paid premiums.
"On the day of the accident complained of herein, members of The First Baptist Church, including Billy C. Ross and petitioner, attended a choir festival held in Baton Rouge under the sponsorship of The first Baptist Church.
"Billy C. Ross had volunteered to drive and did drive other members, including petitioner, to and from the choir festival in Baton Rouge in his own car.
"While Billy C. Ross was driving his car from the choir festival in Baton Rouge back to Houma, the accident complained of occurred.
"In the event that the policy by Hanover Insurance Company to The First Baptist Church does not by its written terms provide coverage in accord with the intent of the parties; and specifically to the accident complained of, then it should be reformed to do so."
Third party actions were filed by the Baptist Church and Hanover against Ross and State Farm seeking indemnification of any liability to plaintiff. The Baptist Church filed third party action for reformation of its policy against Hanover, Funderburk Agency and the latter's errors and omissions insurer, St. Paul Fire and Marine Co. Finally, Hanover files a third party demand against Funderburk Agency and St. Paul Fire and Marine Insurance Company to recover any amount it must pay to plaintiff if the policy is reformed.
It was agreed that the jury would try the demands of the plaintiff against Ross, State Farm, Baptist Church and Hanover as well as the demands of the plaintiff for reformation of the Hanover policy issued to the Baptist Church. It was further agreed between the parties that the district judge would decide all other issues.
Although the Baptist Church filed a third party demand against Hanover and Funderburk Agency, Inc. (Funderburk), and St. Paul Fire and Marine Ins. Co. (St. Paul), for reformation of the liability policy it obtained through Funderburk, these actions terminated with the voluntary dismissal by the plaintiff of the Baptist Church (See Bolin v. Hartford Accident Indemnity Company, La.App., 204 So.2d 49, and the cases cited therein), the third party actions by Hanover against Funderburk and St. Paul remained viable because plaintiff's policy reformation demands against Hanover was a relief sought in the main demand by supplemental and amended petition.
Therefore, under the agreement for a division of trial of the matters, the trial court was required to try and adjudicate the third party demands of Hanover against Funderburk and St. Paul, as well as the third party demands of Funderburk and St. Paul against J. Everett Eaves, Inc., the general agent of Hanover through whom the Hanover policy was written, all of which inextricably involved whether there was proof made such as to support reformation of the Hanover policy.
The trial court sustained the exception of one year prescription filed by Funderburk and St. Paul to the third party demand of the Baptist Church. Further, the trial court held that the plaintiff had no right of action against Hanover for reformation because of the lack of privy to the insurance contract between the Baptist Church and Hanover. Additionally, the trial court held that the essential legal requirements for reformation had not been proved.
In view of our holding, it is not essential that we pass on the correctness of the trial court's holdings.
Prior to submission of the case to the jury, the Baptist Church was dismissed as a defendant in the principal demand, on the exception of no right of action urging charitable immunity.
In addition to the general verdict, the jury was submitted interrogatories which it answered in writing.
1. Was Billy C. Ross negligent?
2. Did negligence, if any, of Billy C. Ross proximately cause the accident?
3. Was Walter A. Adams negligent?
5. On May 8, 1964, did Mr. Ross have a very close economic relationship with The First Baptist Church?
6. On May 8, 1964, did Mr. Ross receive a salary from The First Baptist Church for driving his car to Baton Rouge?
7. Do you find that The First Baptist Church had the right to control and did in fact control the physical movements of Mr. Ross in driving to and from Baton Rouge on May 8, 1964?
8. What amount, if any, is the plaintiff entitled to recover?
9. Do you find as a fact that Rev. Hyatt representing The First Baptist Church specifically requested a policy different from the policy issued by the Funderburk Agency?
10. Do you find as a fact that Mr. Richard Mire, representing the Funderburk Agency, at any time represented to the church or Rev. Hyatt that the automobile liability policy would provide legal liability coverage for Mr. Ross, if any (sic)?
11. Was there mutual agreement between Mr. Mire and Rev. Hyatt with respect to the type of insurance coverage intended?
12. Should the policy issued by Hanover Insurance Company to The First Baptist Church be reformed to cover the legal liability, if any, of Mr. Ross?
We find the judgment appealed correctly determined liability against Ross and State Farm; however, the plaintiff's demand for reformation of the Hanover policy issued to the Baptist Church must be reversed. We find the jury committed an error of law in this finding for reformation.
(e) with respect to any non-owned automobile, to any executive officer if such automobile is owned by him or a member of the same household.
From the record it is obvious that there were only two persons who had knowledge of the negotiations leading to the issuance of the insurance policy by Hanover to the Baptist Church. The pastor of the Baptist Church, the Reverend Leon M. Hyatt, Jr., and Mr. Richard Mire, the representative of the Funderburk Agency, were the only persons involved in the negotiations for the insurance and had knowledge of what transpired. Both the Rev. Hyatt and Mr. Mire testified.
The testimony of the Rev. Hyatt was elicited on cross- examination under the provisions of LSA-C.C.P. Article 1634 which permits an adverse party to call on cross-examination any party or his representative.
While it was proper for plaintiff to call the representative of the Baptist Church on cross-examination, it was not proper for such evidence so obtained to be used adversely to Hanover in determining whether there should be reformation of the contract.
"* * * The statute (Act No. 126 of 1908) grants the right to a litigant to examine his opponent, as under cross-examination, without being held as vouching to the court for the credibility of the opponent so placed upon the stand, or as being estopped in any lawful way from impeaching the testimony given by such adversary. The statute does not extend the right and privilege of a litigant to cross-examine one defendant as against his codefendant."
"We think that the trial court erred in overruling the objection urged by the employer and his insurer, and that defendant Hall's testimony, in so far as they were concerned, should have been excluded. Under the provisions of Act No. 126 of 1908, as amended by Act No. 115 of 1934, a litigant may examine his opponent, as under cross-examination, and the testimony elicited is binding on the witness. But such litigant is not granted the right by that statute to obtain testimony under cross-examination from one defendant for use against and to bind his co-defendant. * * *."
This holding has been followed in Schwartz Supply Co. v. Breen, La.App., 184 So. 228 (1938), and in the more recent cases of Switzerland General Insurance Co. Ltd. v. Roe, La. App., 73 So.2d 501 (1954) and Rancatore v. Evans, La.App., 182 So.2d 102 (1966).
"The same conclusion was reached by the Court of Appeal for the Second Circuit in Parks v. Hall, 1937, 179 So. 868, 872. See also 3 La.Law Rev. 135.
"Also see Garner v. Vaughn, La.App., 139 So.2d 239, and Switzerland General Ins. Co. v. Roe, La.App., 73 So.2d 501.
"It was, therefore, proper for plaintiff's counsel to examine Evans under C.C.P. art. 1634, but Evans' testimony on that cross-examination cannot be considered in determining whether plaintiff has made out a case against the other defendant, the insurer."
To warrant reformation of a policy of insurance the trier of fact must be convinced by a preponderance of the evidence that there was a mutual mistake committed by the contracting parties and that the policy as written does not express the actual intent of the parties, or must find mistake on one side and fraud on the other. As no fraud was alleged consideration is to be given only to the question of mutual mistake. This condition for reformation, i.e., mutual mistake, has been consistently adhered to by the courts of this state. See: Davega and Co. v. Crescent Ins. Co., 7 La.Ann. 228; Gaudet v. North River Ins. Co., 156 La. 719, 101 So. 118; Topps v. North British Mercantile Ins. Co., La.App., 148 So. 470; Maryland Casualty Company v. Kramel, La.App., 80 So.2d 897; Easley v. Boston Insurance Company, La.App., 132 So.2d 654; Collins v. State Farm Mutual Auto. Ins. Co., La.App., 188 So.2d 460.
Herein the only evidence legally before the jury on this question of reformation was that of Mr. Richard Mire, the fair import of whose testimony is that the policy ordered by the Rev. Hyatt and delivered to the Baptist Church by Funderburk Agency was one to cover the legal liability of the Baptist Church. This testimony of Mire will not support the jury's verdict awarding reformation of the insurance policy to provide insurance coverage thereunder to members of the church using member-owned vehicles on a church related trip.
Turning now to a consideration of negligence of Ross, the finding of the jury must be affirmed.
In their brief defendants Ross and State Farm argue that the description of the accident and circumstances thereof "clearly substantiate the position of the defendants that carbon monixide (sic) in deadly quantities existed in the automobile and caused four people and ultimately the fifth (the driver) to go to sleep, and that is what caused the car to run off the travelled portion of the roadway. * * * *."
Defendants argue that on the basis of these facts, we should conclude that the accident was unavoidable and that Mr. Ross was free of negligence.
We find this argument totally without factual foundation. There is not one scintilla of evidence of the presence of carbon monoxide gas in the vehicle.
It is not necessary to resort to the doctrine of res ipsa loquitur to find that Mr. Ross was negligent in the operation of his vehicle. The mute evidence that the vehicle ran into the ditch coupled with the testimony of Mr. Leblanc, clearly establishes actionable negligence on the part of Mr. Ross. Mr. Leblanc testified that he observed the approaching Ross vehicle and saw it turn across the highway as though it were turning into a driveway. Moments later he arrived on the scene to find the car had struck the embankment of a ditch on the Bayou Lafourche side of the highway.
On initial examination upon admission to the hospital, plaintiff was conscious, bleeding rather profusely from his mouth and both nasal cavities, a deep laceration down to the bony structures of the nose which was fractured. He had an opening into his left maxillary sinus. He had multiple cuts to the left side of his face in particular and the left upper and lower eyelids. He was complaining of pain in the low part of his back and he had congestion of both lower lungs. Examination of the spine showed compression fracture of his fifth vertebra. A tracheotomy was performed to control respiration and for suction of secretions from the nose and throat.
Mr. Adams was a hospital patient from May 8, 1964, to his discharge on July 6, 1964. During the course of the initial treatment on admission to the hospital a total of four consultations were necessary with doctors of the various involved specialties. He was treated by an oral surgeon, several doctors of the ear, eye, nose and throat specialties, as well as an internist.
His hospital stay was described by the doctor in charge as a "stormy hospital course." In elaborating on this, the doctor testified that Mr. Adams "became shocking and disoriented." Because of the development of some renal problems, he had to be fed through an inserted tube.
As a result of the numerous injuries to the bone and soft tissues, his kidneys could not handle the trauma induced physiological soft tissue changes. This caused toxic psychosis or a mental disorientation. While in the hospital, plaintiff developed pneumonia caused by the aspiration of blood initially from the head and facial injuries. He was diagnosed, clinically, as having had a basal skull fracture. This was based on the finding of blood escaping from the ear.
Mr. Adams was discharged by his principal physician on November 23, 1964.
Subsequently, on January 11, 1965, plaintiff was hospitalized in New Orleans for treatment of a chronic recurrent draining lesion of the left upper eyelid which was caused by the accident. Then he was hospitalized a second time in New Orleans where a dacryocystorhinostomy was performed on the left eye for the formation of a tear duct from the left eye to the nasal cavity. Also at this time a mass of foreign body was removed from the inside of the upper eyelid.
We are convinced, as no doubt the jury was also, that plaintiff was seriously injured and that for a considerable time he was gravely ill.
At the time of the accident, plaintiff was a 67 year old retired driller for Freeport Sulphur Company. The medical bills totalled $3081.54. At the time of trial, plaintiff, then 72 years old, suffered from double vision, pains in the back of his head and pains in his back. He had reached maximum recovery at that time.
In defendant Ross' brief, the argument is made that he is a man of very limited means and that this fact should be taken into consideration in determining quantum. The evidence supports these facts. At the time of the trial in 1970, Mr. Ross was 45 years of age, married, residing with his wife and one ten year old daughter. Two older daughters were both married. He is a graduate mechanical engineer employed by Delta Iron Works in Houma, Louisiana, at an annual salary of $12,000 and is the sole support of his family. He owns his home valued at about $17,000 which is encumbered with a mortgage on which there is a balance due of about $12,000. He owns an undivided one-twelfth interest in a farm in Alabama from which he receives no income. He owns a 1964 sedan automobile worth about $600, and maintains a checking account of about $1,000.
In assessing quantum, it is apparent to us that the jury took into consideration the policy limits of State Farm of $10,000 and Hanover policy limits of $50,000 in arriving at the total sum award of $60,000.
The ability or inability of a tortfeasor to respond in damages is a factor to be considered in assessing damages. This is an element to consider in diminishing an otherwise adequate and fair award. See: Danove v. Mahoney, La.App., 176 So. 404; Hartman v. Aschaffenburg, La.App., 12 So.2d 282; Keith v. Royal Indemn. Co., La.App., 90 So.2d 534; Lacaze v. Horton, La.App., 100 So.2d 252; and Hale v. Aetna Casualty Surety Co. et al., La.App., 273 So.2d 860.
After giving due consideration to the means of the defendant, Ross, and his inability to respond to an award of $60,000, we find that the jury award of $60,000 is excessive and should be reduced. Under the circumstances, we conclude that an award of $25,000 would be fair, adequate and does substantial justice to all parties.
For the foregoing reasons, the judgment in favor of plaintiff and against Hanover Insurance Company in the amount of $50,000 is reversed and all actions herein asserted against Hanover Insurance Company are dismissed; and the judgment in favor of plaintiff and against defendants, Billy C. Ross and State Farm Mutual Automobile Insurance Company, in solido, is amended to reduce it to the amount of $25,000, limiting the in solido judgment against State Farm Mutual Automobile Insurance Company to the policy limit of $10,000, together with legal interest on the total amount of this judgment from date of judicial demand until paid, and for all costs of this suit.
Reversed in part, affirmed in part, and rendered.
We granted a rehearing herein limited to the determination of from what date interest is due on the amount of the judgment in excess of policy limits.
"Supplementary Payments. To pay, in addition to the applicable limits of liability.
(a) All expenses incurred by the company, all costs taxed against the insured in any such suit and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company's liability thereon; * * *."
Under the terms of the policy contract the defendant, State Farm, is liable for legal interest on the maximum amount of coverage for injuries received by one person of $10,000.00 from date of judicial demand until paid and is liable for legal interest on the amount of the judgment in excess of the policy limit from the date the judgment was signed in the trial court until the principal amount of the judgment for which the insurer is liable is paid, or tendered or deposited in the registry of the court.
See: Doty v. Central Mutual Ins. Co., La.App., 186 So.2d 328.
This in no wise affects the liability for interest due by defendant, Billy C. Ross, on the total amount of the award from date of judicial demand until paid; he, of course, will receive the benefit of any interest paid by his insurer.
We fix the date of the judgment for payment of interest on the excess award as February 5, 1973, as it was on that date the trial judge signed the judgment of the trial court.
As qualified by this per curiam, the original opinion is reinstated.


News & Publications - Are Insurance Agents "Professionals"?
"At a recent seminar, the comment was made that insurance agents are NOT professionals! I think there is a statute that debunks this position, but can’t find it. Can you point me in the right direction?"
If you believe the polls, the public does not particularly view agents as professionals...until claim time and then they try to convince a judge or jury that they are professionals because that creates a higher standard of care.
It also depends on how the agent has held himself or herself out to the general public. When I did E&O seminars regularly, I had an overhead/slide with Yellow Page clippings and I'd peruse the ads in the town where I was teaching. Often agents held themselves out to be "experts" in condo insurance or say, "We specialize in contractors." That creates an expectation in the minds of insureds or prospects that the agent or agency possesses some specialized knowledge and experience that can be used in an attempt to hold them to a higher standard of care.
Let's briefly take a look at each criterion.
This depends on the individual. The IIABA has a Code of Ethics, as does the CPCU Society and some other industry organizations. The CPCU Society has an entire set of canons that govern acceptable conduct of persons holding the CPCU designation. Of course, these are voluntary organizations and not all agents are members of an organization that has a code of ethics.
In general, I think most agents DO place their insured's needs before their own. But, like any industry, this is probably more a function of individual character than an industry-wide mentality.
Most states have some sort of mandatory prelicensing education requirement, though the classroom component may amount to only a few days. The question is, how does the extent of this educational requirement compare to that required of people that are in indisputable positions as "professionals." Do most state prelicensing requirements approach the education required to become a doctor or lawyer? Not hardly. However, for someone seeking designations such as CPCU, the educational commitment becomes much greater.
Most states now have mandatory CE, though it may not be as extensive or intensive as that required of, for example, a CPA.
Yes, there are a number of trade associations and professional societies available, ranging from IIABA to NAIW to CPCU and many others.
Again, this depends on the licensed agent. In many, if not most cases, the agent has a significant latitude in making decisions on behalf of clients.
This could be the criterion that is the poorest fit for insurance agents given that many polls have shown that "insurance agents" are not generally held in high professional regard, although if you ask a consumer what they think of their personal insurance agent, they are likely to rate them highly. However, we might arguably concede that "insurance" is not viewed, careerwise, in the same light as medicine or law.
Another consideration is, how have the courts viewed the issue of insurance agents as professionals? Well, the jury is still out (no pun intended), given a diversity of opinion. As mentioned above, plaintiffs in an E&O lawsuit often attempt to show the agent as a "professional" in order to create a higher standard of care. It can also affect the ability to sue given that a number of states have a different statute of limitations for malpractice actions vs. contract or tort actions. In the former, it is a disadvantage for the agent to be a profession, but in the latter it can be an advantage given the usually shorter statutes of limitations for professional malpractice vs. contract law or tort claims.
In general, many courts have not accepted the premise that an insurance agent is a professional except where certain special circumstances or relationships exist.
Defining "professional" is a task engaging many courts, for many purposes (see, Michael J. Polelle, Who's on First, and What's a Professional?, 33 USF L Rev 205 ). While the term has myriad applications in law — as, for example, in insurance policy exclusions, and peer negligence standards — we underscore that our definition is limited to the context presented: CPLR 214 (6). Moreover, our objective, as always in matters of statutory interpretation, is to effectuate the will of the Legislature. Here, that task is complicated by the fact that, in CPLR 214 (6), "malpractice" is undefined and "professional" unmentioned.
"Professional” is a term in wide usage, commonly understood to have several meanings. For example, it denotes a measure of quality, as in professional dry cleaners; a distinction from trade or business people, and from amateur status, as in professional golfers; a lifework as opposed to pastime, as in professional musicians. Often there are study, licensure and continuing skills requirements, as for barbers, electricians and real estate brokers. Thus, neither common parlance nor licensure can determine the meaning of "professional," for surely the Legislature did not have such a vast, amorphous category of service providers in mind when it amended CPLR 214 (6).
The term “professional” is also commonly understood to refer to the learned professions, exemplified by law and medicine, which have particular relevance to the history of CPLR 214 6). The two- and three-year malpractice statutes of limitation, after all, began with doctors, enlarged soon after to encompass attorneys and accountants. In 1996, when CPLR 214 (6) was before the Legislature for amendment, the report of the New York State Bar Association referred specifically to those categories in speaking of professional malpractice: “an architect, engineer, lawyer or accountant” (Legis Rep No 76-B of NY State Bar Assn, Bill Jacket, L 1996, ch 623, at 13-14).
The qualities shared by such groups guide us in defining the term “professional.” In particular, those qualities include extensive formal learning and training, licensure and regulation indicating a qualification to practice, a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards. Additionally, a professional relationship is one of trust and confidence, carrying with it a duty to counsel and advise clients.
Applying these criteria, we conclude that insurance agents and brokers are not within the ambit of CPLR 214 (6). While agents and brokers must be licensed, they are not required to engage in extensive specialized education and training; rather, a person who has been regularly employed by an insurance company, agent or broker for at least one year during the three years preceding the date of license application may qualify to be a broker.
Nor are insurance agents and brokers bound by a standard of conduct for which discipline might be imposed (see, e.g., 22 NYCRR 603 [attorney discipline]; Education Law §§ 6509, 6510, 6511 [professional misconduct, proceedings and discipline for accountants, architects, engineers and others, but not insurance agents or brokers]). Moreover, as this Court recently made clear, an insurance agent has a common-law duty to obtain requested coverage, but generally not a continuing duty to advise, guide or direct a client based on a special relationship of trust and confidence (Murphy v Kuhn, supra, 90 NY2d, at 273). To be sure, insurance agents and brokers are held to high standards of education and qualification (see, e.g., Insurance Law §§ 2103, 2104), but these criteria are simply not as rigorous as those embraced by what we conclude are the professionals within CPLR 214 6).
While I'd disagree with the disciplinary comments above, the court is accurate in it's assessment otherwise, particularly the fact that the educational requirements of becoming a licensed insurance agent are not as rigorous as those of more highly regarded professions.
Does the Court definition of "professional" create the intended bright-line rule? How much weight is to be given to each of the listed factors? Is "learned study" the defining factor? What role should licensure play? What role should the existence of a regulatory code of conduct and a system of discipline play? If the Court's definition of "professional" does not create a standard in the courts, but instead creates an area of litigation, will members of fields not specifically mentioned have less guidance in their out-of-court activities?
Many states have professional malpractice statutes of limitations similar to C.P.L.R. § 214(6). Overwhelmingly, state legislatures have been reluctant to define "professional" when writing malpractice legislation. But see R.I. Gen. Laws § 9-1-14.1 (2) (2000). Consequently, state courts have been left to define the category, relying upon their own criteria to determine who is a "professional" for the purposes of malpractice statutes of limitations.
Most courts rely upon a single requirement to determine whether an occupation is a profession. Florida uses a "bright-line" test with an education requirement. See Garden v. Frier, 602 So. 2d 1273, 1275 (Fla. 1992) (requiring all within an occupation to have a four-year specialized college degree to qualify as a professional). Some courts have turned to the dictionary for a definition, which often stresses the educational training of professionals. See Tylle v. Zoucha, 412 N.W.2d 438, 440 (Neb. 1987); see also Kuntz v. Muehler, 603 N.W.2d 43, 47 (N.D. 1999). Other states have focused upon the nature of the professional-client relationship. See Light v. Roney, No. CA 951414, 1995 WL 1280766, at *3 (Mass. Supp. 1995).
A minority of courts have base their definitions upon the historical evolution of professions, which dates back to medieval guilds. Such definitions refer to multiple factors including extensive education or training requirements, state license requirements, a professional code of conduct, and a mechanism to sanction those who violate that code. Kentucky courts give credence to this definition, although they have not expressly applied this test. See Plaza Bottle Shop v. Al Torstrick Ins. Agency, 712 S.W.2d 349, 351 (Ky. Ct. App. 1986) (holding that insurance agents are not professionals because they lack professional education requirements).
Similar conclusions were reached by the Florida Court of Appeals in Panther Air Boat Corporation v. MacMillan-Buchanan & Kelly Insurance Agency, 520 So. 2d 601 (1987) and by the Florida Supreme Court in Pierce v. AALL Insurance Incorporated, 531 So. 2d 84 (1988). So, as indicated above, the question of whether insurance agents, from the singular standpoint of licensure, are "professionals" depends on state case law, though such is typically not the case outside of special circumstances or situations.
I have long thought Mr. Horn was trying to soften the definition of professional. Let me offer a definition and some suggestions.
4. one that engages in a pursuit or activity professionally.
1. the conduct, aims or qualities that characterize or mark a profession or a professional person.
2. the following of a profession (as athletics) for gain or livelihood.
Other definitions refer to a process of exclusion, i.e., educational requirements and/or examinations. My son will soon complete a PhD in nuclear physics. He will be a professional. My daughter is a certified pharmacy technician. She describes herself as a technician.
Let me suggest reference to the academic requirements imposed on accountants, engineers, speech pathology, and behavioral science fields. This group doesn't require completion of professional schools and is easier to equate to insurance. These four professional programs involve a minimum of a four year degree and a bear of an examination. Most engineering programs are five years, accounting is adding a fifth year requirement, speech pathology generally requires a masters for autonomy, and behavioral science has long required a masters degree for autonomous practice.
I have read a ton of agent depositions. The quality of performance by an agent with a degree in business and CPCU is extraordinary. The plaintiff attorney's demeanor toward these men and women is very different, particularly after they learn about the content of the course curriculum.
Separately, consider other Institute courses qualified for upper division undergraduate credit (all of them) and graduate (ARM, AU, ALCM, IR, APA, ARe, AFSB, Risk Management for Public Entities).
I think it is imperative for CPCU and the Institute to be defined based on external recognition of curriculum quality. The American Council on Education recognition is a big deal. They evaluate texts, curriculum and examinations for regular colleges.
It is equally important to communicate to the agent community that professional curriculum is available AND the economic value of the programs. Insurance buyers are seeking knowledgeable men and women to whom they can entrust their accounts. I simply can't emphasize the latter strong enough. I moved an account approaching $300,000 to a CPCU recently. The board of a non-profit passed a corporate resolution requiring their insurance representative to be a CPCU. Their account is $500,000 per year. I see this regularly. Insurance buyers want people who at least know the words.


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Students will need to purchase: • A small sketchbook for. Students are introduced to.
Summer Assignments and Summer Reading at PHS : 2D Design/ Photography - AP. ), display forethought, good composition, exceptional craftsmanship, have.
Bieber' s Belly Button Fuzz, " students brainstormed what other silly things they could make for some obsessed fan or a silly product they could design and sell. Jenkins, Amy - Art / AP Studio Art 2D Syllabus The assignment is to create a series of 15 designs that metaphorically communicate specific topics using.
How To Write An Essay Essay. AP Studio Art 2D Design Summer Assignments.
If your scores are on the low side but your artwork shows a good, basic understanding of the visual world, we will work with you. AP 2D Studio Art.
Lighting would best express your idea. Austin State University Summer Assignment for AP Studio Art – 2D Design.
Help you to design your own assignments and we provide an assignment checking service. 2d design assignments - Best thesis ghostwriting website for.
Projects | SUNYWCC 2D DESIGN | ART 112 Design Foundations I Projects & Assignments. Begin your search by entering the name of the institution below. Colby, Jason / Drawing and Design. Animsquad — Syllabus: 2D Animation Summer Assignments: AP STUDIO ART 2D.
Web page for those interested in following the alignment of English language development ( ELD) standards with current English language arts standards. For the portfolio due in May, you will need 9- 12 pieces for the.
SUNYWCC 2D DESIGN | ART 112. Photos, doodles, plans, scouting notes or lighting notes, short assignments, quick sketches, and. Additionally, the grid is often seen as a very modern theme in. 2D Design Value AP® STUDIO ART – 2D DESIGN.
Seoul International High School. Pick 2- ‐ 3 to do.
Notebook paper and not in your sketchbook! AP Studio Art: 2D Design Portfolio Summer Assignments Finally, one of the projects that I have been waiting for in this whole semester!
Develop a personal Concentration, 12 pieces. Thinkers, and has excellent definitions and explanations of all basic art and design terms;.
Art, whereby assignments for the Breadth section are initiated. Assignments will vary somewhat from semester to semester.
Develop the skills to design your own unique & imaginative collections. A blank sketchbook for this class only, for assignments, lecture notes, drawing.
The Grid | 2D Design Assignment: Your task is to morph the figure and ground relationship from Clear Figure on Ground through 3 stages of Figure Becoming Ground to Figure and Ground Reversal, another 3 stages of Figure Becoming Ground, and finally to Clear Figure on Ground again. Forgey- AP Studio Art 2D Design Summer Assignment.
California Education Code ( EC) Section 60811 requires the State Board of Education to approve standards for English language development ( ELD) for. Set up a still life.
- FOUNDATION IN DESIGN. You' ll find more.
Computer with either Photoshop, illustrator, or any digital art program ( optional). Make diverse visual relationships with the various design elements as you arrange them into collaged 2D compositions using design.
Got a baby boy, please their assignments are incredible. 001 2D Design - Stephen F. Make several rough drafts of ideas. No smaller than 8x10, hardbound or spiral, with good quality paper, available at art supply and craft stores.
Explore Jessica Martin' s board " 2D Design Assignment Ideas" on Pinterest. • Select five top- quality pieces for presentation.
First, choose an appropriate typeface that best expresses the characteristics of each individual; then, carefully render your whole name, part of your name, or your nickname, considering the typeface style, letter spacing, and. A picture of a butterfly and a picture of a snake do not get the same response.
Best 2d design assignments. 2D Design - ASU This assignment is usually conducted on the first day of class. Projects are introduced and linked in the main course. These assignments will be due the first.
Best 2d design assignments. | See more ideas about Wallpapers, Art collages and Backgrounds.
BlackBoard · WCC Email · MyWCC · WCC Site · Home · Syllabus · Prof. The Quality section of the portfolio consists of your five best works that will be physically sent to the AP.
AP Studio Art: 2D Design Portfolio Summer Assignments Essentially we' re tackling 4 assignments: Bouncing Ball, Character Design, Walk cycle, and Pantomime. It can be done for additional assignment grade credit or not.
Quality: Students, using an informed and critical decision making process, will select five of their best works. By the beginning of May, you will need to submit five original pieces to the College Board that display good drawing, painting, and design skills for the quality section of your portfolio.
AP 2D Studio Art Summer Assignments 201 - Seoul International. GALLERY VISITS - at least two.
The 2D Design Portfolio includes ( but is not limited to) : graphic design, digital imaging, collage & photography. Landmark: Rohini East Metro Station Helpline 1: ADMEC on WhatsApp.
Taking the AP Studio course requires a commitment and an energy level which goes far beyond the completion of assignments and homework in the lower level art courses. Sketchbook Assignments for High School - Incredible Art Department Summer assignments help alleviate the pressure during the school year of producing the many quality pieces needed for a successful portfolio.
Jarvis, Laurent / AP: 2D Design Studio- Syllabus Materials. In addition, you will need to submit 12 works in your concentration.
R has four line departments: Development, Testing, Manufacturing, and Marketing. Design is a plan for arranging elements in such a way as best to.
The following prompts are your breadth assignments for semester one- you will have an average of 2 weeks to complete each and. Two Dimensional Design Syllabus AP Studio Art: 2D Design with an emphasis in Digital Photography is for the serious photography student who is highly.
PROBLEM Objectives:. If you and the learner feel they' ve not performed at their best during the assessment, the learner.
You do not have to do items in the order listed but it' s a good idea to print. Research articles on how to create a successful Movie poster.
Camera ( optional). - Letterform Abstraction.
Most of the work for the semester will be done in class but we may have a few outside assignments. Assignments Due: Presentations - Image and Type As.
Students are given objects ( in this case they were hand tools) and asked to simplify the objects into more basic forms/ shapes. AP 2D Design Syllabus - Natomas Unified School District Task 3: Produce 2D engineering CAD drawings of the bicycle front fork components and assembly to a specified.
Like good literature and. Free Website Maker.
A failure to maintain the sketchbook assignments, or not show a consistent effort will result in a lower grade. Currently collecting graphic design and typography.
Easy and fast - No coding! Explore the specifics of MCAD' s graphic design major, including a four- year breakdown and course descriptions.
Registered Address. 5” x 11” Basic Canson book with acid free.
1) interactive communication: Consideration of visual unity and harmony between 2D layout and 3D mock- up is an important task in idea development. Be drawn or painted on a quality surface ( no lined notebook paper or in your sketchbook!
Foundations of Visual Design / 2D Design Spring - My SMCC AP 2D 24” x 18” or 18” x 24” Line variation / asymmetrical composition. C3 – The course enables students to develop a body of works investigating a strong underlying visual idea in drawing,.
Projects explore the way basic principle and. 2d Design Assignments When you hear someone say “ grid system” they' re often talking about a means by which an artist can reproduce another 2D work faithfully.
Shadow play and the magic lantern offered popular shows with moving images as the result of manipulation by hand and/ or some minor mechanics. No matter how to be the best writer and experience. In the top right quadrant, flip the second cut out shape horizontally. ( Advanced Placement 2D Design or Drawing Portfolio).
All sketchbook assignments for this 3rd quarter will have a direct impact on an in- class project - so put the time and effort that you need to in. 2D Design Basics - AIGA Drawing and 2D design: Need total of 12 Breadth pieces which represent Drawing: breadth of your mastery of drawing technique and.
Art 140: Basic 2D Design, fall - CSUN Mixed media sketchbook that is hard or spiral bound. Manufacturer of Design Engineering Course - Training - Piping Technology - Basic Course - Training, 100% Job Assured Course Piping, Pipe Drafting And Design Training and Piping Technology - Advanced Course - Training offered by MECHCI CAD Engineering Private Limited, Chennai, Tamil Nadu. Inspiration may come from a variety of sources— machinery, shells, architecture, maps, topographical maps, old. A specific personality aspect is described in each of the twelve rectangles on the assignment sheet.
Tech Needs: High. Please teach me how draw a plan from A to Z.
Some local possibilities are Saint Mary' s College and the Bedford Gallery. ARTIFACTS_ _ _ _ _ _ _ _ _ _ _.
I am THRILLED that you are taking on the fun and exciting challenge of AP 3- D! Color studies when needed.
In addition to table supplies, there will be high quality class sets of materials available throughout the semester. Notes on course assignments.
Create visually even, progressive changes between. - UT Dallas Figure GroundIf you desire more time to complete this assignment, you may submit it next class.
114 best 2D Design Assignment Ideas images on Pinterest. This assignment was an in class assignment.
Advanced Placement Studio 2D Design Portfolio. Visit some Fine Art galleries downtown ( San Francisco, Oakland, Berkeley or another major city).
Course Description: The. Course expectations.
Summer Assignment Advanced Placement Studio 2D Design Portfolio Summer Assignment for AP Art Students. Printmaking materials ( optional).
Net, qualified academic writing services, i still have expert over the team. Elements of Design” ( Line, Space, Shape and Form/ Volume, Texture, Motion,.
Sadly, this was the last project of the. Fundamental Elements and.
2D DESIGN PHOENIX COLLEGE, Studio Art, Spring ART112. They were placed back on top of the scene and photographed with their cell phones and the class i- Pad.
A sample architectural drawing from the beggining to finishing of the plan. Assignment # 1: Circle, Line, Rectangle - 2d Foundations assignment help, online assignment help, homework help, writing quality assignment help help services for USA, UK, Australia, Canada and other. Summer Assignments- AP Studio Art, 2D design Net, is truly remarkable online but they have you to use custom essays dissertations, 2d design, reports, management. Value, Color) and.
K You are required to work in an A4 sized hard backed sketchbook ( spiral binding is best). Figure/ Ground Transformation, Assignment 1 - Pacific Graphic Design Instructional Philosophy: Students will be given challenging real- world projects and assignments typical of the photography field.
2D design or 3D design that grows out. Claudia Jacques de Moraes Cardoso, MFA, PhD researcher.
2D Projects - Art Ed Guru Summer Assignments for AP Studio Art – 2D Design and Drawing. Many students have not had a college level drawing course at this point in their studies. Art 160 / Greg Clayton. Summer Assignments: AP STUDIO ART 2D IMPORTANT: ( These. Multimedia and Animation students are required to submit a final video reel of their works,. Potomac Falls High School Summer Studio Art Assignments.
Portfolios are narrowed down to the best works, and students complete a. Eastchester High School.
College Board for review in May of. AP Portfolio Syllabus: 2D Design Those in 2D Design Photography will focus on photography only, but will utilize many of the same principles and assignments as the varied- media 2D Design. The point of the exercise is to get the students. This is not a course where you get to do.
AP® Studio Art: Drawing/ 2D Design Exam Syllabus - Art Lesson Plans AP Portfolio Syllabus: 2D Design. Summer is a good time for you to begin doing design work – maybe even outdoors – and begin thinking about possible concentration.
2D design refers to the underlying visual structure of painting, drawing, photography,. Find four websites about Poster Design and.
Brainstorm a list of possible ideas on a separate sheet of paper we will eventually narrow the list down to your Top 10 ideas. 003 2D Design Foundations.
The computer, and making simple drawings in pencil on tracing paper. But it' s very important that we will allow students, who have a bit of 2D experience, to “ spice up” the assignments.
Find a good visual system. Ap studio art: summer assignments - School Webmasters Everybody immediately responds to subject matter in art.
Assignment help legit - Writing Custom Research Papers Quickly. Create awesome responsive websites. Ap 2d photo focus summer assignments - Kell High School I start with observational drawings first and vivid color works as the second assignment. Most supplies may be checked out if necessary to complete an assignment at home.
Quality assignment help - Emmanuel Daigle play web design web development quizzes. Cad drawings | cad 2d design ( drafting) | free cad design | tutorials examples.
• Critiques and displays of work are ongoing. Find colleges and universities that offer credit or placement for AP scores.
ADMEC MULTIMEDIA INSTITUTE C- 7/ 114, IInd Floor, Sector- 7, Rohini, Delhi- 85. First four breadth works along with other class assignments.
2D Design Assignments. Good composition means consider the background as well as the foreground.
Order to make your project the best it can be! Summer Assignments 201.
A “ Scape” work: Find a. 2d design art projects | Work created by students in FA102: 2D.
Their best works and capstone project. Letterform Abstraction is an optional assignment.
From your best study, lightly block in with a light pencil a shape drawing on your. Humans have probably attempted to depict motion as far back as the paleolithic period.
What is there not to love with a good set of music playlist and just lose yourself and start painting what you feel. Two Dimensional Design ARTS 1310.
Gaddy in 2D | The greatest 2D Design site in all the land! AP® Studio Art: Drawing/ 2D Design Exam Syllabus.
A: Consideration of visual concept development. Goal # 3: Submit 3 of 10 Photo Summer Assignments from the following series ( due Sept).
The history of animation started long before the development of cinematography. CP, an Asian American, is an electronics engineer in the Development department.
Development of modular design or repeated pattern. 2D design elements and principles. Interactive function and aesthet- ical visualization brings a good attention to consumers. Jacques · Requirements · Materials & Supplies · Technology + Media Access · Assessment · Graded Assignments · Extra- Credits · Attendance + Effort.
PHS AP Art – Mrs. And if you have a GOOD amount of 2D experience, we' ll let you add legs and a face to the ball.
Course ARTS 2380. In writing, a story is written with words - subject matter.
Now that is what I called honesty in design. We offer rare & challenging online assignment help in Prolog, Matlab, C programming, Java netbeans, 3D design, 2D design, Multimedia, video making Top quality assignment. Learned in 2D Design can be applied to any advanced class within the fine, artisanry, and design arts. Students will have access to a variety of art supplies.
Top row: Composition/ depth/ color project; shape + color project. Free for commercial use.
The best sketchbook is the black hardbound 8. Jan 17, book reviews.
In addition to subject matter*, the formal aspects of visual composition are like the grammar of a language. Choose the most effective shape out of the four designs and redraw the shape into a 2” x 2” square on your Bristol.
2D Design/ Photography - AP - Summer Assignments and Summer. Recent blog posts.
Good quality drawing paper 11x14 to 16x20 in size. Assignments ~ Projects - Utah Valley University.
Go to the following website and read all the links to become familiar with the AP 2D Studio. How do i declare a 2d array using new?
Thanks for the best drawing i hope i will learn more on this site. Ruler 12” or 18”, cork back works best, but not necessary.
Graphic Design Track Curriculum. A “ perspective grid” is a particular kind of grid that assists artist in depicting one point, two point or three point perspective.
BASIC DESIGN STUDIO AP 2D PHOTO FOCUS SUMMER ASSIGNMENTS: Mrs. ASSIGNMENT: You will complete a minimum of 3 projects over the summer as your AP Studio Art class preparation.
Note: A huge part of this assignment is craftsmanship, so be sure your final is as neat as humanly possible— in other words, flawless. Cheryl Lambie org. Example 1: R is a large manufacturer of electronic equipment. Best 2d design assignments.
Three years worth of my 2D and 3D lessons HERE. Assignments are generated to develop both a visual and verbal understanding of the principles of design while allowing the student to practice setting up visual problems and investigating possible solutions.
AP’ s Studio Art: 2- D Design course is a rigorous, college- level class that provides an opportunity to gain skills colleges recognize. 2D Foundations, Fall - Nancy Nowacek.
Assignments are developed to allow students to review an aspect of design theory and to demonstrate expertise in using specific elements and principles of design. The chosen visual idea should be explored to the greatest possible extent.
2D Design and Color - George Mason University' s School of Art 2D. Like, for a " normal" array I would: int* ary = new int[ Size] but int* * ary = new int[ sizeY] [ sizeX] a) doesn' t work/ compile and b) doesn' t accomplish what.
), display forethought, good composition, exceptional craftsmanship, have mature. Balance of design. Design Foundations is a studio workshop pertaining to the fundamentals of “ The. Developed with a well thought out idea, a composition that is planned out with good layout, and a concept that is clear and well.
GRAPHIC DESIGN Curriculum Map - ARTIFACTS copy AP Studio Art: 2D Design Portfolio Summer Assignments. This portfolio, in the form of digital images and five actual artworks, will be submitted to The.
If you are considering. The concentration section of the AP Studio Art portfolio at the College Board website under the course description for AP Studio Art ( 2D design, drawing or 3D design).
Site: 2D Design | 2ddesign | 2D Design Course Assignments Recent: 2D Design Course Assignments. 2D Design and Color Theory | Just another WordPress.
AP Summer Assignment - York County School Division The studio assignments, lectures, demonstrations and critiques. IMPORTANT: ( These are due the second day of school.
In order to get a jump- start on a very exciting but challenging year of AP art, you must do some work over the summer.

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1. Homestead — Lien Upon, How Fixed. — A lien upon the homestead may be fixed by express contract for work and material, as well as under the statute regulating mechanic's liens.
2. Same — With Whom Contract May be Made. — In order to constitute a lien against the homestead, it is not necessary that the person contracting with the homestead owner shall himself own the material or do the work; he comes within the meaning of the exception if the work done or material furnished be done or furnished under contract with him.
3. Same — Attorney Fees Not a Lien. — Attorney fees are not embraced within the exceptions named in the Constitution for which the homestead may be incumbered.
4. Corporation — Discounting Notes. — While the Constitution prohibits the Legislature from creating corporations with banking and discounting privileges, yet when one has received the proceeds of a note discounted by a corporation, he is estopped from setting up the defense of ultra vires.
5. Usury in Building and Loan Contract. — Appellants made a contract for certain improvements on their homestead, to cost $2600, and then applied for assistance to a building and loan association, which took up the contract and had it carried out, taking appellants' note for $3900, with interest at 12 per cent, payable in monthly installments of $65 each, for a period of five years, the whole to become due on any default. Held, that the excess of the amount over the $2600 actually advanced was interest, and the contract usurious.
APPEAL from Navarro. Tried below before Hon. RUFUS HARDY.
F.M. Etheridge and Frost Blanding, for appellants. — 1. The mechanic's and materialman's liens are creatures of law, not of contract, and are specific, existing only to secure payment for work and material furnished, and can not be by construction extended to cover other considerations. Const., art. 16, sec. 50; Phil. Mech. Liens, sec. 36.
2. The mechanic's and materialman's lien being created by the Constitution, and the method of fixing and enforcing the same, and its extent and duration, being governed by statute, any departure from the terms of the statute or omission to pursue the manner of fixing or enforcing the lien prescribed by law, renders such lien of no avail as against the homestead. Rev. Stats., arts. 3174, 3175, 3179a.
3. A contract whereby a private corporation, created and organized by and under the laws of the State of Texas, exercises the privilege of discounting paper, or any moneyed obligation, is void, and no recovery can be had thereon by suit. Const., art. 16, sec. 16; Anderson v. B. and L. Assn., 16 S.W. Rep.; 53 Am. Dec., 742; Saltmarsh v. Bank, 14 Ala. 677; Bank v. Johnson, 14 Otto, 276; Munn v. Com. Co., 15 Johns. (N.Y.), 44; Ins. Co. v. Ely, 2 Cow. (N.Y.), 699; Loan Co. v. Towner, 13 Conn. 259; Bank v. Baker, 15 Ohio St. 85; Talmadge v. Pell, 7 N.Y. 328; Bank v. Benedict, 1 Hall (N.Y.), 556; Wickler v. Bank, 42 Md. 592.
4. Usury is defined to be the contracting to pay for the use or loan of money a greater rate of interest than 12 per cent per annum. Whether a contract is usurious or not does not depend upon the forms employed by the parties. The jury should look to all the facts proved touching the transaction, and from them determine whether the writings made by the parties express the real contract between them, or whether such writings are only a device or pretense not expressing the real transaction, but expressing a condition or conditions not true, but which are colorable and apparently render them true for the purpose of evading the usury law. Mitchell v. Napier, 22 Tex. 120; Smith v. Glanton, 39 Tex. 366.
Richard Mays, R.S. Neblett, and Watts, Aldredge Eckford, for appellee. — 1. Any person or firm, lumber dealer, artisan, or mechanic, who may labor or furnish material for the erection of a building or improvements, has a lien on such building and improvements and on the lot or lots connected therewith, to secure the payment of same. Sayles' Civ. Stats., arts. 3140, 3164; Pool v. Sanford, 52 Tex. 621; Fagan v. Boyle, 65 Tex. 324 [ 65 Tex. 324]; Sanvall v. Ford, 55 Iowa 464; Phil. on Mech. Liens, p. 88, sec. 53; Martin v. The State, 24 Tex. 68; Bartee v. Railway, 36 Tex. 649.
2. The Constitution does not prohibit incumbrances on the homestead, signed by husband and wife and privily acknowledged by the wife, for improvements thereon, and appellee's contract was good at common law, independent of the statute, and had four years from maturity of same in which to foreclose its lien. Const., art. 16, sec. 50; Taylor v. Houck, 65 Tex. 238; Martin v. Roberts, 57 Tex. 564; Mundine v. Berwin, 62 Tex. 343; Cameron v. Marshall, 65 Tex. 11 [ 65 Tex. 11], 12; Lyon v. Elser, 72 Tex. 305; 2 Jones on Liens, sec. 1185; Hansell v. B. and L. Assn., 20 S.W. Rep., 116; Rev. Stats., art. 2341; Waples on Homestead and Exemption, p. 301.
3. No question of usury arises in the case as presented to the jury by the charge. The jury found that it was a contract between the parties to place improvements upon the homestead, and not a loan of money, and the error, if any, became immaterial. Rev. Stats., art. 2972; White v. Holliday, 11 Tex. 606; Oliver v. Chapman, 15 Tex. 400; Bradshaw v. Mayfield, 18 Tex. 21.
The facts of this case are substantially as follows: G.W. Walters and Elizabeth E. Walters, husband and wife, residents of Vernon, Wilbarger County, Texas, owners of four contiguous lots in the town of Vernon, known and designated as their homestead, were sued by appellee, the Texas Building and Loan Association, a private corporation, with its home office at Corsicana, Texas, for recovery on a note of $3900, executed by appellants, less $520, payments indorsed thereon, dated August 12, 1890, payable to appellee at Corsicana, in monthly installments of $65 each, the first due September 12, 1890, with interest at 12 per cent per annum, and attorney's fees of 10 per cent on the amount due. The note provides, that should any installment become due and remain unpaid for ten days thereafter, then at the option of the holder the whole sum remaining unpaid shall become immediately due, and bear from that date 12 per cent interest. There is also a recital in the note, that it is given for labor and material advanced for the improvement of appellants' homestead, and that appellants had executed, to secure said note, a lien on their homestead premises superior to the homestead exemption. The suit also embraces the mortgage executed by appellants, which recites, that defendants are desirous of making improvements on their homestead. Appellee contracted to advance to appellants labor and material for the purpose of making improvements on appellants' homestead, and secured themselves by lien on the premises, and the procurement of insurance by appellants on the premises, payable, in case of loss, to appellee. In consideration of the labor and material, and to secure the note executed by appellants therefor, a conveyance was made of said premises — 120 by 240 feet — with defeasance in event of payment of said note. This mortgage is acknowledged by appellants, with separate acknowledgement of the wife, and recorded August 18, 1890, in Wilbarger County.
G.W. Walters had, some time previous to the date of the note, in contemplation of the erection of a new residence house on said premises, caused plans and specifications to be prepared, and advertised for bids, in response to which several bids were submitted. The contract was first let to Wells Co., who began the work, but were discharged by Walters, and the bid of Wood Tunnell for $2600 accepted. The basement story had already been built. After accepting the bid of Wood Tunnell, G.W. Walters applied to local agents of appellee at Vernon, with the plans and specifications and bid of the contractors, Wood Tunnell, and proposed to borrow $2600 for the purpose of building a house. The agents informed him that he would have to fix it so that appellee would have a lien on the premises, which he agreed to do. G.W. Walters signed an application addressed to appellee, prepared by its agents, setting forth that he desired assistance from appellee to the extent of $2600, to be used in constructing a building on the described premises, also an estimate of the probable cost of the proposed building, and an agreement that he would pay $10 as attorney's fees for examining title to the premises and preparation of papers. The application is dated July 30, 1890. This application was passed upon and accepted by appellee, and the note and mortgage prepared and forwarded by appellee to its local agents at Vernon, who had appellants to execute the same. Appellee required of the builders, Wood Tunnell, a bond for the faithful performance of the contract to build the house, and formally entered into a contract with them to build the house, which contract to build between appellee and Wood Tunnell was a verbal contract for the sum of $2600. Wood Tunnell built the house, and were paid for labor and material performed and used in the erection of the building, as it progressed, by drafts drawn by them on appellee, which they cashed in the bank at Vernon. When the work required by the contract was completed, but before the building was finished, the appellants moved into the building.
The first eight monthly installments were paid on the note, making total payments of $527, the last of which was made on May 11, 1891.
Plaintiff's original petition was filed August 10, 1891, and first amended petition October 29, 1891, praying for judgment of the whole amount of the note remaining unpaid, for the interest thereon at 12 per cent, and 10 per cent attorney's fees, and for foreclosure of the mortgage, designated as mechanic's and materialman's lien, against appellants and their homestead.
The appellants filed their answer, October 20, 1891: (1) Plea to jurisdiction. (2) General demurrer. (3) Special demurrers: first, plaintiff's petition fails to show that plaintiff is either a mechanic, artisan, materialman, or laborer; second, that the attorney's fees stipulated in the note constitute no lien against the defendants' homestead; third, the note sued on is not due; fourth, plaintiff's lien, if any ever existed, was waived and abandoned by the acceptance of the note payable long after the time when by the statute the lien shall cease to exist. (4) Answer to the merits: first, general issue; second, special answer, that the contract evidenced by the note and mortgage sued on is void on account of its being the execution and carrying out of a discount by appellee, a private corporation; third, the contract sued on is usurious; fourth, the contract sued on was to secure $2600 by a mortgage on the defendants' homestead.
The plea to the jurisdiction, and general and special demurrers interposed by defendants, were overruled. Defendants excepted. The trial was had on November 2, 1891, before a jury, on the issues of fact, which resulted in a verdict and judgment for the plaintiff against defendant G.W. Walters, for $3808.13, with foreclosure of a lien on defendants' homestead premises, as the same is alleged to have existed on August 10, 1891, and direction for order of sale and writ of assistance.
1. It is contended that no lien can be created, fixed, and enforced upon the homestead for improvements made thereon, except it be under and in conformity with the statutes regulating mechanics' liens. This proposition is untenable.
In Lippencott v. York, 24 Southwestern Reporter, 275, the proposition is denied; and it is expressly held that a valid lien upon the homestead may be created by contract providing for work and material, properly executed, as in case of sale.
2. It is urged that the transaction was a discounting transaction, and that it was therefore illegal and void, and for that reason no recovery could be had. The contention is, that as the Constitution prohibits the Legislature from creating any corporation with banking and discounting privileges, that therefore the act of the corporation which partakes of the character of discounting is illegal, and a contract made in relation thereto can not be enforced by the courts. As said in the case of Logan v. Building and Loan Association, ante, p. 490, the Constitution does not denounce discounting as illegal, but merely places a limitation upon the power of the Legislature in creating corporations. The act of discounting itself is not made illegal, but the power to engage in that business is withheld from corporations. The defense is one of ultra vires simply, and as appellants received the benefits of the contract, they can not be heard to deny the power of the corporation to enter into the contract. See Logan case, above referred to, for fuller expression of our views upon this proposition.
3. Was the subject matter of this contract such as to authorize the creation of a lien upon the homestead by contract? Our Constitution provides, that "the homestead of the head of a family shall be and is hereby protected from forced sale for the payment of all debts, except for the purchase money thereof, or for part of such purchase money, the taxes due thereon, and for work and material used in constructing improvements thereon; and in this last case, only when the work and material are contracted for in writing with the consent of the wife, given in the same manner as is required in making sale of the homestead." The contract here was for work and material used in constructing improvements upon the homestead, and comes strictly within the terms of the exception made in the Constitution. It is not required that the person with whom the contract is made for such work and material shall be the very person who does the work or who owns the material; he comes within the meaning of the exception, if the work done or material furnished be done or furnished under contract with him. The clear intent of the Constitution is, that the homestead shall not be exempt from a debt created by contract, properly executed, for improvements on the homestead.
4. Under the issue of usury, it is contended that the contract entered into was not for the erection of the building by appellee at an agreed price; but at most it was a contract to furnish labor and material for the purpose of making said improvements, estimated to cost $2600, that sum only being expended, and that the note for $3900 sued upon embraced usurious interest. We think it clear, from the language of the note and the mortgage, that the undertaking on the part of the appellee was to furnish the labor and material, and not to erect the house at any agreed price. Not only does this intention appear from the language of the note and mortgage, but it is also made conclusive to our minds by other evidence in the case. Appellants advertised for bids, made plans and specifications of the house; the contractors who built the house bid for the work, delivering their bid to appellants, and their bid was accepted by appellants. After this, appellants made a written application, through appellee's local agents at Vernon, for assistance to the amount of $2600 in the erection of these improvements upon the homestead. When the note and mortgage were signed, the contractors' bid for the work had already been accepted, and the amount that the improvements were to cost was not only known to appellants, but known to appellee, and appellee, after the execution of the note and mortgage, then formally arranged with the contractors to do the work and to look to it for payment.
Under this state of facts, we can not consider the note for $3900 in any other light than as representing the amount of money which the building and loan association was to pay for the improvements, and the additional amount it demanded as compensation in the way of interest for the advancement of the money. In other words, $2600 of the note represented the amount to be expended by appellee in payment for the work and material going into the improvements, and $1300 represented the interest which was to be paid for the use of this money, aggregating the total sum of $3900. The sum of $1300 would be the amount of interest at 10 per cent for the period of five years on the principal sum of $2600. The contract provided for monthly payments of $65 each month; therefore, it was contemplated that the principal sum should be reduced by the amount of such monthly installments each succeeding month, and the interest provided for was greatly in excess of the rate authorized by law to be contracted for. We think the contract was usurious, and under our statute appellee forfeited its right to enforce the collection of anything beyond the principal debt. Rev. Stats., art. 2979; Fisher v. Hoover, 21 S.W. Rep., 930.
It is urged, that if the interest contracted for was illegal, then a failure to pay the installments could not be treated as a default authorizing appellee to declare the entire debt to be due, and for this reason the suit was prematurely brought, the note not being due. We do not think this proposition sound. The monthly installments provided for in the note were the consideration upon which the work and material were furnished to go into the improvements; and appellants can not be heard to repudiate the contract by refusing to pay the installments, and at the same time, claim under the contract the utmost limit of the contract time for payment before compensating appellee for the work and material furnished. When appellants repudiated the contract by failing to pay the installments, appellee had the right to sue upon the contract, but its right to recover is limited by statute to the amount of the principal sued for, the entire interest being forfeited.
It is also insisted, that the 10 per cent attorney's fees can not be recovered and enforced as a lien upon the homestead. Such attorney's fees are not embraced within the exceptions named in the Constitution for which the homestead may be incumbered and subjected to force sale. It is not a liability for which the parties may contract and incumber the homestead. They may contract in a particular way, and incumber the homestead for work and material furnished in improvements upon the homestead. It is held, that attorney's fees provided for in a note, when the contingency happens which renders them a liability, become a part of the obligation, and the security provided for the principal must be treated also as security for such attorney's fees. The principle is recognized in Neese v. Riley, 77 Tex. 348 [ 77 Tex. 348]; Garrett v. Bank, 79 Tex. 133; Stansell v. Cleveland, 64 Tex. 660, and other cases. This proposition is clearly right where the parties are authorized to incumber the property generally to secure their obligations; but when the property can not legally be incumbered, except for certain purposes specified in the Constitution, a liability not embraced in such purposes can not become by contract a charge upon the property on account of the fact that it is coupled with another obligation with which the property may be charged.
We are of the opinion that appellee had the right to recover the attorney's fees, but that no lien upon the homestead existed to secure the payment of such attorney's fees.
If appellee will, within twenty days, remit all the judgment recovered below in excess of $2080 of the principal, and $208 as attorney's fees, the judgment will be reformed and affirmed, at appellee's cost, foreclosing the lien upon the homestead for the $2080, and giving a personal judgment for the $208 attorney's fees, the judgment to bear the legal rate of interest. If the remittitur is not entered within the time stated, the judgment will be reversed and the cause remanded.


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It’s an odd mistake, but this is the third time I’ve had to handle it in the last 10 years: representing an employer that was sold a retirement plan that they weren’t supposed to have. Weird? You bet, but it happens and it happens because you have retirement plan providers who made a mistake.
A union can’t sponsor a 403(b) plan. A government unit can’t start a new 401(k) plan since the 80s. A city housing authority can’t have a 403(b) plan. Yet each time, they had a retirement plan provider that had them sponsor a plan they shouldn’t have had. Mistakes happen, but these are big mistakes. A mistake that requires submission of the plan to the Internal Revenue Service’s Voluntary Compliance Program and the odd outcome is that these plans end up being mothballed and not terminated.
If you’re a non-government employer, you could have a 401(k) plan. 403(b) plans are for not for profits, schools, and universities. Just make sure your provider knows when you are an ineligible employer.
I think LinkedIn is one of the greatest tools out there that can be used to effectively grow your plan provider book of business. Starting conversations in the newsgroups and providing free content has gone a long way to developing my national ERISA practice. It’s been a great way to meet other plan providers around the country.
My biggest complaint on LinkedIn is how certain people use it. I think there are a few providers that while connecting with people on LinkedIn either don’t pick up on social cues, don’t pick up on what people do, and don’t understand that any relationship requires time to build trust.
A few weeks back, a private investigator in my area connected with me on LinkedIn. If you read my profile, you can tell that I don’t do any litigation. Yet, that hasn’t stopped this investigator to contact me 4-5 times about arranging a phone call to learn more about his services. That brings to my point, I think anyone who tries to connect with you and tries to see you right off the boat isn’t interested in building a two-way relationship, they just want to sell you something. That doesn’t stop from the occasional advisor to contact me about their services and how I should refer clients to them. If you know anything about my practice, most of it is referred by advisors or third-party administrators. Plus if I got the client directly and they need an advisor, I’m going to recommend an advisor where I’ve had a long term relationship so I can vouch for them. I’m not going to recommend an advisor I just met last week on LinkedIn.
There is nothing wrong with trying to tout your business, but do it in a way where it’s so blatant that this is all you care about.
My newsletter for retirement plan providers can be found here.
People have asked me about the possibility of new laws pertaining to multiple employer plans (MEPs) and other changes to 401(k) plans. Quite honestly, I’m not one to pay attention to any legislation unless it actually becomes law. My practice is retirement plan law, not retirement plan politics.
For over 6 years, there has been one piece of legislation or another that was supposed to overturn the Department of Labor’s 2012 advisory opinion requiring commonality among participating employers for a MEP to be considered a single plan for ERISA.
A committee approving retirement plan legislation isn’t law and who can forget how fee disclosure legislation never took off, it required the Department of Labor to implement it.
Heck, I remember when Roth 401(k) provisions were proposed, a few years before it ever became part of the Internal Revenue Code. The point here is that while it’s nice to see what’s being proposed, it doesn’t mean much to me until it’s signed into law.
For 9 years working for third-party administrators (TPAs), I never worked a day without Richard Laurita being the salesman for the TPA. Richard is going to be gone 12 years in March and the most important lesson that he ever taught me is that the retirement plan business is a relationship-driven business.
What does it mean? It means a lot of things, but how you deal with other providers and even competing providers can go a long way in helping develop your business. Cultivating long term and beneficial/reciprocal relationships can really help augment your business. The first person who decided to sponsor That 401(k) Conference is someone I met through Richard. My friend who books all player appearances at That 401(k) Conference is again, someone I met through Richard. There are so many people that I met through Richard and so many have been beneficial to my practice by helping me out through referrals and speaking opportunities, as well as support for my conferences. It isn’t a one-way street and I’ve certainly tried to give a hand out to these providers as well as those that I’ve met beyond Richard’s circle in the last 9 years.
There are certain relationships that may benefit you more or vice versa, benefiting other providers more. As long as you understand that building relationships is a give and take and there are many times when it seems that it’s all give. I’ve never had a relationship where it was 50-50, but it’s not something I care to keep score of.
In addition, relationships are also how you deal with the competition. Be respectful and don’t deride the competition. It is both unprofessional and makes you look bad in front of other providers and your clients/potential clients. Plus Richard always showed that the competitor today maybe the partner/employee/employer one day. How you deal with the competition and how you deal with clients is something important because treating people badly will travel fast. If you don’t do the right thing by other providers or clients, people in the industry will find out about it.
Understand that relationships in this industry are one of the most important measuring sticks on whether you succeed or fail in this business.
One of the best developments in the retirement plan business over the last ten years is the proliferation of advisors serving as an ERISA §3(38) fiduciary. The idea that a plan sponsor can shift almost all of their liability in the fiduciary process to an ERISA defined investment manager is attractive in a litigious happy environment. Sort of like having the folks at Stew Leonard’s to cook my annual Thanksgiving dinner, it allows the plan sponsor to delegate almost all of the headaches of being a fiduciary to the experts.
While I support the work of ERISA §3(38) fiduciaries, I have two concerns. They are two minor concerns that should not overshadow the good work of ERISA §3(38) fiduciaries.
First, I can’t put a sign on my front lawn that I am a lawyer unless I have been admitted to the state bar. The same can be said of advertising being a registered investment advisor (RIA) without the proper licensing and registration. However, I can claim to be an ERISA attorney without any experience and an RIA can claim to be an ERISA §3(38) fiduciary without any experience. While any RIA can learn to be an ERISA §3(38) fiduciary, it’s not something you can wake up one morning and can become one. So plan sponsors should be wary of people advertising themselves as an ERISA §3(38) fiduciary because not all ERISA §3(38) fiduciaries are created equally. The proliferation of ERISA §3(38) fiduciaries will create a herd mentality where I think so RIAs will tout their ERISA §3(38) services without understanding what that job entails.
So with the marketplace expanding with people claiming to be ERISA §3(38) fiduciaries, there will be some incompetent ERISA §3(38) fiduciaries out there who will make some mistakes that will lead to litigation and the issue is that ERISA §3(38) was drafted in 1974, years before there were ever 401(k) plans and daily valued, participant-directed plans. While ERISA §3(38) fiduciaries assume the liability of being an investment manager in the contract (if drafted correctly), will courts decide that what the ERISA §3(38) fiduciaries really are who they say they are? Are their function covered under a definition that was drafted before there was a 401(k) industry? I don’t know, I’m not a litigator. I am also not stating that hiring an ERISA §3(38) fiduciaries are a mistake nor do I want to spread any innuendoes (like what happened with multiple employer plans), I just think that plan sponsors should hire competent fiduciaries and if RIAs want to be in the §3(38) game, they need to learn the rules. Of course, any advisor interested in that side of the business should give me a call.

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