Terms and Conditions define general terms, conditions and manner of sale of BEAUTY COMPANY S.C. with it's registered office in Leszno, via the online store www.ladymakeup.com (hereafter referred to as 'Online Shop') and the terms and conditions of providing free of charge electronic services.
Delivery - means the actual act of delivering to the Customer by the Seller through the Provider, the goods specified in the order.
Password - means a sequence of letters, numbers or other characters selected by the Customer during registration in the Online Shop, used to secure access to the Customer Account in the Online Shop.
Client - means the entity for which, according to the Terms and Conditions and regulations of law, services may be provided electronically or with which the Sales Agreement may be concluded.
Consumer - means a natural person performing a business activity with an entrepreneur not directly related to his or her business or profession.
Client Account - means an individual panel for each Client, activated on his behalf by the Seller, after the Client has registered and signed the Customer Service Account Agreement.
Login - means the Customer's individual designation, consisting of a sequence of letters, digits or other characters, required with the Password to create a Customer Account on the Online Shop. Login is the correct e-mail address of the Customer.
Entrepreneur - means a natural person, legal entity or organizational unit that is not a legal entity whose law grants legal capacity to carry out, in it's own name, an economic or professional activity and perform legal transactions directly related to it's economic or professional activities.
Terms & Conditions - means these regulations.
Registration - means the actual act performed in the manner specified in the Regulations, required for the Customer to use all functionalities of the Online Shop.
Acting as partners of a civil partnership BEAUTY COMPANY S.C. with it's registered office in Leszno (64-100), ul. Poznańska 39, NIP: 697-230-42-80, REGON: 301988292; E-mail: sklep@ladymakeup.pl, which is also the owner of the Online Shop.
Goods - means the products presented by the Seller through the Website of the Shop, which may be the subject of the Sale Agreement.
Durable media - means a material or tool that enables the Customer or the Seller to store personally identifiable information to him or her in such a way that future information is accessible for the purpose for which it is used and which allow the stored information to remain unaltered.
Sales contract - means a sale contract concluded at a distance, on the terms and conditions set out in the Regulations, between the Customer and the Seller.
All rights to the Online Shop, including proprietary copyrights, intellectual property rights to it's name, it's Internet domain, the Website of the Shop, as well as templates, logos and forms posted on the Shop Website (except logos and images presented on the Shop Website for the purpose of presenting goods to which the copyright belongs to third parties) belong to the Seller, and use of them may only take place in a manner specified and in accordance with the Regulations and the Seller's agreement in writing.
The Seller uses 'cookie' file mechanism, which is stored by the Seller's server on the Client's hard drive, while the Customer uses the Shop Website. The use of 'cookies' is for the proper functioning of the Shop Website on the Customer's device. This mechanism does not damage the client's device and does not cause configuration changes to client devices or software installed on these devices. Each Client may disable the 'cookies' mechanism in the web browser of his or her device. The seller indicates that the exclusion of 'cookies' may make it difficult or impossible to use the Shop Website.
To place an order in the Online Shop through the Shop Website and to use the services available on the Shop Website, it is necessary for the Customer to have an active email account.
It is forbidden to provide unlawful content or to use the Online Shop, the Shop Website, or the Free Services provided by the Seller in a manner that is against the law, moral rules or infringing on the personal rights of third parties.
The Seller declares that the public nature of the Internet and the use of electronic services may entail the risk of unauthorized access and modification of Customer data, so customers should use appropriate technical means to minimize the risks identified above. Especially they should use anti-virus programs protecting the identity of the Internet users. The Seller never asks the Customer to provide his/her Password.
In order to create a Client Account, the Client is obliged to make a free registration.
Registration is not required to place an order in the Internet Shop.
In order to register, the Customer should complete the registration form provided by the Seller on the Website of the Store and send the completed registration form electronically to the Seller by selecting the appropriate function on the registration form. During the Registration, the Customer sets an individual Password.
When completing the registration form, the Client has the opportunity to familiarize with the Terms and Conditions by accepting the content and marking the appropriate field in the form.
During the Registration, the Customer may voluntarily agree to the processing of his personal data for marketing purposes by ticking the appropriate box in the registration form. In such a case, the Seller expressly informs you of the purpose of collecting the Customer's personal data, as well as the known Seller or the intended recipients of such data.
Customer's consent to the processing of his personal data for marketing purposes does not imply the possibility of concluding a contract with the Seller for the provision of the Customer Account Management service electronically. The consent may be withdrawn at any time by placing the Customer's relevant statement on the media at any time. A statement may, for example, be sent to the Seller's address by e-mail.
Once the completed registration form has been submitted, the Customer will immediately receive the confirmation of registration from the Seller, via e-mail to the e-mail address provided in the registration form. At this moment an agreement is signed to electronically provide the Customer Account Service, and the Customer obtains the ability to access the Customer's Account and to make changes to the data provided during the Registration, except for the Login.
The information contained on the Shop Website does not constitute the Seller's offer within the meaning of the Civil Code, but only an invitation for Clients to submit bids for conclusion of the Sale Agreement.
The customer may place orders at the Online Shop through the Store Website for 7 days a week, 24 hours a day.
The Customer may place orders at the Online Shop via telephone during working hours and days indicated on the Shop Website.
The customer placing an order through the Shop Website completes an order by selecting the Goods, which he/she is interested in. Adding Goods to your order is made by selecting the 'ADD TO CART' command under the displayed Item on the Shop Website. After completing the order and indicating method of delivery andform of payment in the 'CART', the customer submits the order by sending the order form to the Seller by selecting button 'PLACE AN ORDER WITH PAYMENT OBLIGATION' on the Shop Website. Each time prior to sending the order to the Seller, the Customer is informed of the total price for the selected Goods and Delivery as well as any additional costs that he/she is liable to bear in connection with the Sales Contract.
The customer placing an order via telephone uses the telephone number provided by the Seller on the Shop Website. The customer orders by telephone giving the Seller the name of the Goods from the Shop Website and the number of Goods he wants to order. Then, after completing the entire order, the Customer determines the manner and address of Delivery and form of payment, and also indicates, by choice, his e-mail address or mailing address to confirm the order. Whenever the Customer submits an order by telephone, the Seller informs the Customer about the total price of the selected Goods and the total cost of the selected Method of Delivery, as well as any additional costs that it is liable to bear in connection with the Sales Agreement.
Once the order is placed by the Customer via telephone, the Seller will send on Durable Media to the e-mail or mailing address provided by the Customer confirmation of the terms of the Sales Agreement. The confirmation includes in particular: determination of the Goods subject to the Sales Contract, it's price, cost of delivery and information about any other costs that the Customer is obliged to bear in connection with the Sales Contract.
Placing an order is the Customer's submission to the Seller of the offer to conclude the Sales Contract for the Goods being the subject of the order.
After the order is placed, the Seller sends a confirmation e-mail to the e-mail address provided by the Customer.
After confirming placing of the order, the Seller sends to the email address provided by the Customer the information about acceptance of the order for execution. Information about the acceptance of the order for execution is a statement of the Seller's Acceptance of the offer referred to in §4 sec. 4 The Sales Agreement is concluded upon receipt of the confirmation by the Customer.
Upon conclusion of the Sales Agreement, the Seller confirms with the Customer it's terms and conditions by sending them to the Customer's e-mail address or in writing to the address indicated by the Customer during registration or placing an order.
Prices on the Store Website placed on given Goods are gross prices of all orders shipped to Poland and all the EU countries; placed on given Goods are net prices - without VAT - of all orders shipped outside the EU. The prices placed on given Goods do not contain information on the costs of the Supply and any other costs that the Customer will be liable to bear in connection with the Sales Contract, about which the Customer will be informed when choosing the method of Delivery and placing the order.
Payment via external system PayPal (Europe) S.à r.l. & Cie, S.C.A. based in Luxembourg (in this case, the order will be initiated after completing the ordering process in the Online Shop by the Customer and after receiving the information from PayPal about the successful payment).
Cash on personal pick-up - payment at the Seller's office (in this case the execution of the order will be made immediately after sending the order confirmation to the Customer by the Seller and the goods will be delivered in the Seller's office).
The Customer is informed by the Seller on the Shop Website about the time in which he is obliged to pay for the order in the amount resulting from the concluded Sales Agreement.
In the event of default by the Customer in payment within the time limit referred to in §5 clause 3, the Seller shall designate the Customer an additional deadline for making the payment and shall inform the Customer using durable media. Information about the additional payment date also indicates that after the expiry of that period, the Seller will withdraw from the Sale Agreement. In this case the Seller will send to the Client on a urable media a declaration of withdrawal on the basis of §491 of the Civil Code.
The Seller is obliged to deliver the Goods subject to the Sales Contract without any defect.
The Seller places on the Shop Website information on the number of Business Days needed to deliver and execute the order.
Time of delivery and fulfillment of the order indicated on the Shop Website is counted in Working Days in accordance with §5 clause 2.
Time of delivery and fulfillment of the order indicated on the Shop Website is counted in Working Days from the date of conclusion of the Sales Contract in the event of choosing by the Customer the payment option 'Cash On Delivery'.
In case of choosing InPost Paczkomaty Sp. z o.o. based in Cracow as the Supplier, the address of Delivery will be the address of the parcel machine selected by the Customer at the time of placing the order.
In case of choosing Ruch S.A. based in Warsaw as the Supplier, the address of Delivery will be the point of sale chosen by the Customer at the time of placing the order.
On the day of sending the Goods to the Customer (if the possibility of personal receipt of the Goods was not chosen) the information confirming the delivery of the goods by the Seller is sent to the Customer's e-mail address.
The customer should check the content of the shipment in the time and manner accepted for consignments of this type, in the presence of the supplier's employee. In the event of a defect or damage to the consignment, the Customer shall have the right to require the Supplier's employee to write down the applicable protocol.
The customer has the opportunity to pick up his or her ordered Goods at the Seller's Office on Business Days, during the opening hours indicated on the Shop Website, after setting with the Seller the delivery deadline by e-mail or telephone.
The Seller according to the Customer's wishes, attaches to the package a receipt or VAT invoice covering the supplied Goods.
In case of the Client's absence at the address indicated when placing the order as the Address of Delivery, the Supplier's employee will leave a note or make a telephone contact attempt to determine the date on which the Customer will be present. In the event of a return of the ordered goods to the Online Shop by the Supplier, the Seller will contact the Customer by e-mail or telephone to re-set the Customer's date and cost of Delivery.
The Seller provides the Delivery of Goods without physical or legal defects. The Seller is liable to the Customer if the Goods have a physical or legal defect (warranty).
Make a statement of price reduction or withdrawal from the Sales Contract unless the Seller promptly and without undue inconvenience to the Customer will replace defective Goods or remove the defects. This restriction does not apply if the Goods have already been replaced or repaired by the seller or the seller has failed to fulfill the obligation to exchange the Goods for free from defects. The Customer may, instead of the Seller's proposed removal of the defect, demand replacement of the Goods for defect free or instead of exchanging the Goods demand the removal of the defect, unless it is impossible for them to meet the contract in a manner chosen by the Customer or require excessive costs in comparison with the manner proposed by the Seller. When evaluating the cost overrun, the value of the defect-free merchandise, the nature and significance of the identified defect, and the inconvenience that the Customer would otherwise face would be taken into consideration.
Demand replacement of defective Goods for defect free or defect removal. The Seller is obliged to exchange defective Goods for defect free or remove defects within a reasonable time without undue inconvenience to the Customer. The Seller may refuse to refund Customer's request if it is impossible to comply with the Sales Contract for the Goods in the manner chosen by the Customer, or if compared to the second possible way to comply with the Sales Contract would be unreasonably costly. Repair or replacement costs are borne by the Seller.
A customer who performs warranty rights is obliged to deliver defective items to the Seller's address. In the case in the Client is a Consumer the cost of delivery shall be borne by the Seller.
The Seller shall be liable under the warranty if a physical defect is discovered within two years of the Goods being delivered to the Customer. A claim for the removal of a defect or replacement of the Goods to free from defects expires by the end of the year, but such term may not be terminated before the expiry of the period specified in the first sentence. Within this period, the Customer may withdraw from the Sales Agreement or declare the price decrease due to defect of the Goods. If the Customer requests replacement of the Goods for defect free or removal of a defect, the time limit for withdrawing from the Sales Contract or the declaration of price reduction shall begin upon the expiry of the period for replacement of the Goods or the removal of the defect.
The seller enables the Consumer to use the out-of-court resolution of consumer disputes. The authorized entity, competent for the Seller is the Provincial Inspectorate of Trade Inspection in Poznań, Al. Marcinkowskiego 3, 60-967 Poznań, http://www.poznan.wiih.gov.pl.
Any complaints relating to the Goods or the performance of the Sales Contract may be addressed in writing to the Seller.
Within 14 days from the day the claim is made the Seller will address to the Goods or execution of the Sales Contract related complaint submitted by the Customer.
The Customer may make a complaint to the Seller in connection with the use of the free services provided by the Seller by electronic means. The complaints can be submitted in an electronic form and sent to sklep@ladymakeup.pl. In the complaint form, the customer should describe the problem. The Seller shall promptly, but not later than within 14 days, consider the complaints and answer the Customer.
The consumer who has entered a Sales Contract may withdraw within 14 days without giving a reason.
The period of time for withdrawal from the Sales Agreement commences from the moment the Goods are taken over by the Customer.
The consumer may withdraw from the Sales Agreement by submitting a withdrawal statement to the Seller. This statement may be submitted, for example, in writing to the Seller's address, or via email to the Seller's address. The statement may be submitted in a form, the model of which has been provided by the Seller on the Shop Website at the following address: Form of withdrawal. It is enough to send a statement before the expiry of the deadline.
In the event of withdrawal from the Sales Agreement, it is considered not to be made.
If the Consumer has made a statement of withdrawal from the Sales Contract before the Seller has accepted his offer, the offer shall cease to be binding.
The Seller shall immediately, not later than within 14 days of receipt of the Consumer's statement of withdrawal from the Sales Contract, return to him all the made payments, including the cost of Delivery. The Seller may withhold return of payments received from the Consumer until returning the Goods or delivery of the proof of return by the Customer, whichever occurs earlier.
If the Consumer using the right of withdrawal chooses to deliver the Goods other than the cheapest ordinary way of delivery offered by the Seller, the Seller shall not be obliged to reimburse the Customer for any additional costs.
The consumer is obliged to return the Goods to the Seller immediately, however not later than within 14 days of the date on which he departed from the Sales Contract. To keep the deadline, it is enough to send the goods to the Seller's address before the deadline.
In the event of withdrawal, the Consumer is liable only for the cost of direct return of the Goods.
If due to their nature the Goods can not be normally shipped, the Seller informs the Consumer of the cost of returning the Goods on the Shop Website.
The Consumer bears the responsibility for reducing the value of the Goods resulting from their use in such a way that it is beyond the means necessary to establish the nature, characteristics and functioning of the Goods.
The Seller returns the payment using the same method of payment as used by the Consumer, unless the Consumer expressly agrees to a different return, which does not incur him to any expenses.
In case when the Goods are delivered in sealed packaging which can not be returned for health or hygiene reasons, if the packaging has been opened after delivery the Consumer is not entitled to the right of withdrawal from the Sales Contract.
The services indicated in § 10 clause 1 above are provided 7 days a week, 24 hours a day.
The Seller reserves the right to choose and change the type, form, time and manner of accessing the selected services, about which he will inform the Customer in a manner appropriate to the amendment of the Regulations.
The Newsletter service can be used by any Customer who will enter his / her email address by using the registration form provided by the Seller on the Shop Website. After submitting the completed registration form, the Customer shall immediately receive, by e-mail, the confirmation provided by the Seller to the e-mail address provided in the registration form. At this moment an agreement is signed to electronically provide the Newsletter service. The Customer may additionally mark the corresponding box in the registration form in order to subscribe to the Newsletter.
The Newsletter service is about sending by the Seller electronic messages containing information about new products or services in the Seller's offer. The newsletter is sent by the Seller to all Clients who have subscribed.
Each Newsletter addressed to the Customer's e-mail address includes, in particular: the sender's data, filled-in 'topic' field, specifying the content of the e-mail, and information on the possibility and manner of resignation of the free Newsletter service.
The Customer may at any time opt-out of receiving the Newsletter by unsubscribing via the link provided in any e-mail sent through the Newsletter or by activating the appropriate field in the Client's Account.
Customer Account Service is available after registration under the regulations described in the Terms and Conditions, and provides the Customer with a dedicated panel within the Website, enabling the Customer to modify the data he has provided during the Registration process, as well as tracking the status of orders and the history of orders.
The Customer who made the Registration may submit a request to remove the Seller's Customer Account, but in case of requesting removal of the Customer Account by the Seller, it may be removed within 14 days of the request.
The Posting Service is to enable by the Seller the Customers with a Client Accounts to publish on the Shop Website subjective and individual statements regarding the Goods.
Resignation of the posting service is possible at any time and relies on the Customer to cease posting content on the Shop Website.
The seller is entitled to block access to the Customer Account and free services, in the event of Customer's actions to the detriment of the Seller or other Customers, Customer's breach of law or the Terms and Conditions, and when blocking access to the Customer Account and unpaid services is justified by security reasons. - in particular: the Customer's breaking into the Shop Website's security or other hacking activities. Blocking access to your Customer Account and unpaid services for the aforementioned reasons will continue for as long as necessary to resolve the issue. The Seller notifies the Customer of the blocking of access to the Customer Account and free of charge services by electronic means to the address provided by the Customer in the registration form.
When posting content and making it available, the Client makes a voluntary dissemination of content. The posted content does not express the Seller's views and should not be associated with the Seller's business. The Seller is not a content provider, but an entity that provides adequate IT resources for that purpose.
agrees to work on content within the meaning of the Copyright and Related Rights Act.
posting as part of the use of the services referred to in §10, advertising and / or promotional content.
The Seller is responsible for the content posted by the Customers, in case of receiving a notification in accordance with §12 of the Regulations.
otherwise violate the provisions of these Regulations, good manners, rules of law, social norms or customs.
In the event of receipt of a notice pursuant to §12 of the Regulations, the Seller reserves the right to modify or delete the content posted by Customers in the course of their use of the services referred to in §10, in particular in regard to the content reported by third parties or the relevant authorities to may constitute a breach of these Regulations or applicable laws. The seller does not keep an ongoing check on the posted content.
The Customer agrees to the Seller's use of the content provided free of charge within the Shop Website.
In the event if the Customer or other person or entity deems that the content posted on the Store Website infringes their rights, personal property, good morals, feelings, morals, beliefs, fair competition, know-how, secret protected by law or under obligation may notify the Seller of a potential violation.
The Seller notified of potential infringement, takes immediate action to remove the content of the infringement from the Shop Website.
Both the Customer and the Seller may terminate the electronic service contract at any time without giving any reason, subject to the rights acquired by the other party prior to termination of the agreement and the provisions below.
The registered customer terminates the service contract by electronic means by sending the appropriate will statement to the Seller using any remote means of communication to enable the Seller to become aware of the will of the Customer.
The Seller terminates the Service Agreement by electronic means by sending to the Customer a statement of will to the Customer's e-mail address provided during registration.
The seller is liable for fault or improper performance of the contract, but in the case of contracts concluded with Business Customers, the Seller is liable only in the event of willful damage and within the limits of actual losses suffered by the Entrepreneur.
The content of these Terms and Conditions may be preserved by printing, saving or downloading at any time from the Shop Website.
In the event of a dispute under the terms of the Sales Agreement, the parties will seek to resolve the matter amicably. The law applicable to the settlement of any disputes arising on the basis of these Regulations is the Polish law.
Seller reserves the right to amend these Terms and Conditions. All orders accepted by the Seller before the date of entering into force of the new Regulations shall be implemented on the basis of the Regulations, which were binding on the day of ordering by the Customer. The amendment of the Regulations comes into force within 7 days of publication on the Shop Website. The Seller will inform the Customer 7 days before the entry into force of the new Regulations on the amendment of the Regulations by means of an e-mail message containing a link to the text of the amended Regulations. In the event that the Customer does not accept the new content of the Terms and Conditions, the Seller is obliged to notify the Seller of this fact, which results in termination of the contract in accordance with the provisions from §14.
The Regulations come into force on 25.05.2018 r.


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Fig. 1 The calculated free carrier absorption for different levels of n and p-type doping concentrations (units of cm−3) in Ge. Data from [22–25]. The inset shows the secondary ion mass spectrometry measurement of the phosphorous doping concentration in the 2 µm thick Ge epitaxial layers.
Fig. 2 (a) A scanning electron microscope image showing the sidewall of a 1 µm deep etched Ge-on-Si rib-waveguide. (b) The modeled TE mode profile for a Ge-on-Si rib-waveguide at 8 µm wavelength.
Fig. 3 (a) A schematic diagram showing the optical characterization setup. (b) The Fabry-Perot fringes observed from transmission through a 22.5 mm long Ge-on-Si rib waveguide, as the sample is thermally tuned. Thermal expansion of the stage causes a drift in the alignment, producing a slope in the raw data, which is subsequently corrected.
Fig. 4 (a) - The propagation losses from a 4 µm wide Ge-on-Si rib waveguide for both transverse electric (TE) and transverse magnetic (TM) polarizations. The error bars denote the standard deviation of the losses calculated by successive Fabry-Perot fringes in the transmission measurement. (b) - The Si substrate absorption measured by Fourier transform infrared spectroscopy. The corresponding waveguide loss caused by the optical overlap of the TE and TM modes in the Ge-on-Si rib waveguide with the Si substrate as modeled by Lumerical Mode Solutions.
Fig. 5 (a) and (b) The measured waveguide loss (solid lines) and the calculated loss following the subtraction of the Si absorption (grey dashed lines), for TM and TE modes respectively. The data points are fitted with a second order polynomial. (c) The scattering losses as calculated by an analytical scattering model (Payne and Lacey) for a 4 µm wide fully etched ridge Ge-on-Si waveguide for three different rms roughness amplitude values. A correlation length of 150 nm was used.

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Application of William D. Lamont, Serial No. 573,871, filed January 25, 1984. Accorded benefit of: Serial No. 477,498, filed March 21, 1983, now U.S. Patent No. 4,478,214, issued October 23, 1984.
Patent granted to Ramon Berguer on January 25, 1983, Patent No. 4,369,588, filed January 22, 1981, Serial No. 227,367.
Because of the novel issue involving count construction raised in this case, as discussed below, an expanded panel has been assigned to decide the questions presented.
a body of weight-bearing material along at least a portion of the back of said leg-receiving part in a position to extend along the heel cord of the wearer such that when the wearer is lying on his back the weight-bearing surface of the extremity of the wearer will be over the heel cord and lower aspect of the calf and not the bottom of the heel.
This interference was declared on November 5, 1985 with count 1. In a 'Decision on Preliminary Motion' rendered May 16, 1986 the Examiner-in-Chief granted a motion of Lamont for judgment on the ground that the claims of Berguer's involved patent corresponding to the count are unpatentable to Berguer under 35 USC 103 over U.S. Patents 3,511,233 and 3,691,658 to Holy, Jr. and DiPerno, respectively. The Examiner-in-Chief further determined that the aforementioned claims of Berguer are unpatentable to him under 35 USC 103 over Walker U.S. Patent 4,076,022 and DiPerno, and that Lamont's claims corresponding to the count are unpatentable under 35 USC 103 over Holy, Jr. or Walker and DiPerno.
In view of the findings by the Examiner-in-Chief, notice was given that pursuant to the provisions of 37 CFR 1.640(d)(1) and 37 CFR 1.641 judgment on the record would be entered against the parties Lamont and Berguer unless they showed within 20 days of the decision good and sufficient cause why such action should not be taken.
*2 In response, Berguer requested a final hearing on the issue of patentability of his claims corresponding to the count (Paper No. 14) an filed a motion for a testimony period (Paper No. 15). Lamont did not respond to the above order to show cause but filed oppositions to the Berguer request for final hearing and motion for a testimony period (Paper Nos. 16 and 17, respectively). On June 25, 1986 the Examiner-in-Chief set this proceeding down for final hearing and set a testimony period for Berguer only for the purpose of establishing unobviousness of his claims corresponding to the count over the art applied in the 'Decision on Preliminary Motion.' At that time, Lamont was notified that in view of his failure to respond to the order to show cause, judgment would be entered against him in due course.
Berguer took deposition testimony in the time provided. Lamont took deposition testimony in rebuttal thereof.
Both parties filed briefs and appeared for oral hearing.
Office records indicate that the involved Berguer patent is assigned to Lunax Corporation and that the involved Lamont application is unassigned.
Berguer cites ACS--Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 221 USPQ 929 (Fed. Cir. 1984) in support of his position.
(d) have ridges which take pressure off the apex of the heel while concentrating pressure in the rim around the heel.
The senior party further contends that commercial sales of his boots from 1981 into 1986 must be considered as evidence which tends to show unobviousness of the invention and that the invention satisfied a long felt need in that before Berguer designed his boot, there was virtually nothing available that was specifically designed for the treatment of the vascular patient.
*3 Initially, we note that Berguer does not contend at final hearing that any of his claims 1 to 18 should be designated as not corresponding to the count. Accordingly, these claims stand or fall together with the count. See 37 CFR 1.601(f) and 37 CFR 1.637(c)(4)(ii).
We are of the opinion that the subject matter of count 1 and, consequently, Berguer claims 1 to 18 are unpatentable under 35 USC 103 over Holy, Jr. or Walker in view of DiPerno. Section 103 requires us to presume that the artisan has full knowledge of the prior art in his field of endeavor and the ability to select and utilize knowledge from analogous arts. In re Deminski, 796 F.2d 436, 230 USPQ 313 (Fed. Cir. 1986); In re Wood, 599 F.2d 1032, 202 USPQ 171 (CCPA 1979); In re Antle, 444 F.2d 1168, 170 USPQ 285 (CCPA 1971). The references are evidence of knowledge from analogous arts in that each relates to footgear. One of ordinary skill in the art would have been motivated to utilize an isothermic inner lining as taught by DiPerno in the boot of Holy, Jr. or Walker where the wearer of the Holy, Jr. or Walker boot experienced discomfort caused by relatively cool environmental air contacting exposed skin at the instep.
Reliance of Berguer on ACS-Hospital Systems Inc. v. Montefiore Hospital, supra, is considered misplaced. That case involved an action for patent infringement where the validity of patent claims was in issue and as such, is not considered controlling in an interference proceeding under 35 USC 135(a). Accordingly, the presumption of patent validity under 35 USC 282 which must be overcome by a party charging invalidity is not applicable in interferences. Rather, in reaching our decision, we have applied the established standard of count interpretation that absent any ambiguity, counts are to be given the broadest interpretation which they will reasonably support. Mead v. McKirnan, 585 F.2d 504, 199 USPQ 513 (CCPA 1978). Berguer has specified no count language which he considers ambiguous, nor do we find any, and consequently there is no need to look to the Berguer patent to resolve any ambiguity. Mead v. McKirnan, supra.
As to aforementioned assertions (b) to (d) of the senior party with respect to Holy, Jr. and Walker, we find nothing in count 1 which requires a non-rigid or strapless boot, or one devoid of ridges.
It is considered that Berguer's evidence as to commercial success is not indicative of nonobviousness. Commercial success is only probative of nonobviousness if it is the result of the inventive features claimed, as opposed to other factors. Pentec, Inc. v. Graphic Controls Corp., 776 F.2d 309, 227 USPQ 766 (Fed. Cir. 1985); Simmons Fastener Corp. v. Ill. Tool Works, Inc. 739 F.2d 1573, 222 USPQ 744 (Fed. Cir. 1984), cert. denied, 105 S.Ct. 2138 (1985); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871 (Fed. Cir. 1983). Here, the senior party has not established the requisite nexus. Any degree of commercial success established by Berguer could have resulted from the prior art feature disclosed by both Holy, Jr. and Walker of a body of weight bearing material along at least a portion of the back of the leg receiving part of the boot to distribute the weight of the extremity over a large surface area and off the heel or to the fact that the majority of the sales of Dr. Berguer's boot were the result of Dr. Berguer and his staff ordering the boot through Harper Hospital from Berguer's marketing unit.
*4 As to long-felt need, the evidence is even less substantial. At column 1, lines 36 to 38, the Berguer patent indicates a general object of the invention is to provide '. . . a boot which gives improved protection for the foot and lower leg of a patient who may, for example, be suffering from arterial disease'. There is no showing from Berguer that the need was not being satisfied by other boots, i.e., Holy, Jr. and Walker.
On May 20, 1987 the senior party filed a motion to suppress certain specified exhibits of the party Lamont and testimony of the junior party which relates thereto. Berguer contends that this evidence is outside the scope of the evidence for which a testimony period was granted as it discloses additional prior art and the special testimony period was set by the Examiner-in-Chief only for the purpose of establishing unobviousness of Berguer's claims corresponding to the count over the art applied in the 'Decision on Preliminary Motion' of May 16, 1986.
The motion is granted to the extent the specified exhibits and testimony related thereto are relied on by Lamont to establish unpatentability of Berguer's claims over any art not applied in the aforementioned decision of May 16. In the letter of June 25, 1986 the Examiner-in-Chief set a testimony period for Berguer only for the purpose of establishing unobviousness of his claims corresponding to the count over the art applied in the decision of May 16.
The motion is denied to the extent it seeks suppression of Lamont Exhibits 5, 6 and 15 and testimony related thereto on the basis that the exhibits are not contained in the list of documents served by the junior party under 37 CFR 1.673(b). The statement in the 'Declaration of Charles W. Chandler' attached to the junior party's opposition filed June 11, 1987 to the effect that the parties had agreed that neither would move under 37 CFR 1.656(h) to suppress any evidence of the other party on the grounds that such evidence was not listed in accordance with 37 CFR 1.673(b) is unanswered by the senior party and such an agreement between the parties is authorized under Rule § 1.673(b).
In view of our findings and discussion above, entry of adverse judgment against both parties herein is appropriate.
Judgment as to the subject matter of the count in issue is hereby awarded against William D. Lamont, the junior party. The junior party Lamont is not entitled to a patent containing claims 1 to 18 corresponding to the count.
Judgment as to the subject matter of the count in issue is hereby awarded against Ramon Berguer, the senior party. The senior party Berguer is not entitled to his patent containing claims 1 to 18 corresponding to the count.

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Over the last decade,the attorneys associated with Rock Fusco & Connelly, LLC have represented Fortune 100 companies with regard to the defense of toxic tort claims made against such entitles as a result of premise and product liability claims concerning the alleged exposure to substances such as asbestos, benzene,and vinyl chloride. Over that time frame,the attorneys associated with Rock Fusco & Connelly, LLC have handled in excess of 500 cases, each with an average exposure in each case to our clients of in excess of $5,000,000.00. During the course of our representation of these entitles, we achieved volumes of voluntary and involuntary dismissals of such matters from counsel for the claimants, or by way of motion. In the event that a matter were to proceed on the merits, our average fees and settlement values for such matters were each under six figures. Rock Fusco & Connelly, LLC prides itself on such results, given the high exposures to our clients In such matters. We were able to achieve such results due to our understanding of our client’s corporate history, our long standing relationship with plaintiffs’ attorneys In such matters, as well as Its diligence In pursuing the merits of defensible claims.
RFC litigators won a $1.75 million summary judgment for their client, a former business owner who did not receive his buyout from the company. RFC litigators were able to prove, as a matter of law, that the former owner’s company breached his buyout contract by failing to pay the amount owed to him. They were also able to prove that The Private Bank committed tortious interference with a contract when Private Bank told MPD not to pay the plaintiff, or else Private Bank would default MPD on all its loans. The Court awarded RFC’s client 100% of his claimed damages, including attorneys’ fees and costs associated with the lawsuit.
RFC attorneys successfully overturned a judgment entered by the U.S. District Court for the Southern District of New York against their client, the Government of Romania, by appealing to the U.S. Court of Appeals for the Second Circuit. Plaintiffs filed an ex parte petition in the District Court seeking to enforce an international arbitration award. The District Court entered judgment against Romania in the amount of 376,433,229 Romanian Leu (RON) ($96,341,169.88), plus interest. On appeal, the Court of Appeals for the Second Circuit agreed with RFC’s arguments that plaintiffs violated the Foreign Sovereigns Immunity Act. Specifically, Plaintiffs should have filed a plenary action to enforce the judgment, not an ex parte petition; that the New York District Court was an improper venue for plaintiffs’ action; and that the New York District Court lacked personal and subject matter jurisdiction to enter a judgment against Romania. For those reasons, the Court of Appeals for the Second Circuit vacated the District Court’s judgment. Thereafter, the District Court reversed the judgment and dismissed Plaintiffs’ petition.
Rock Fusco & Connelly, LLC (“RFC”), recently won a significant breach of contract case on behalf of one of its clients and against the Township of Lockport (“Lockport”) and its utility board. RFC asserted various claims against Lockport, with RFC primarily arguing that Lockport had prematurely and unjustifiably terminated the contract with RFC’s client. At trial, RFC obtained a high six-figure judgment in favor of its client. Lockport appealed the judgment to the Third District Appellate Court, where RFC defended the judgment on appeal. The Appellate Court affirmed the judgment in full, and the Illinois Supreme Court declined Lockport’s Petition for Leave to Appeal, which was also defended by RFC. Successful judgment enforcement was also prosecuted by RFC on behalf of its client.
Salmeron v. ERS: The attorneys associated with Rock Fusco & Connelly, LLC represented the defendant, one of the nation’s largest student loan collection agencies, against claims from a former employee alleging violations of the False Claims Act. The district court granted our dispositive motion on Plaintiffs complaint, with prejudice. The dismissal was affirmed by the J1h Circuit Court of Appeals. The decision is believed to be the first of its kind In holding that a claim can be dismissed as a sanction for disclosing a document the parties agreed to be for “attorney’s eyes only,” but not protected by a protective order. Our client was facing exposure in excess of $28,000,000.
ERS v. Salmeron: The attorneys associated with Rock Fusco & Connelly, LLC represented the plaintiff in an action against a former employee for fraud in the inducement and breach of fiduciary duty. Employee stole proprietary information and fraudulently induced plaintiff Into executing a settlement agreement upon termination of her employment. After successfully barring the defendant from producing any evidence in her defense,the trial court granted our motion for summary judgment and awarded damages In mid-six figures.
McCaffrey v. Kerr-McGee: Our client operated a rare earths facility in West Chicago, Illinois. The plaintiff, an employee of a contractor, filed suit against our client after he slipped and fell at the facility. The attorneys associated with Rock Fusco & Connelly, LLC successfully resolved the claims by establishing contributory negligence on the part of the plaintiff.
Blankenship v. Kerr-McGee: In defending a lawsuit filed by 18 former employees of a Firestone facility in Decatur, Illinois, the attorneys associated with Rock Fusco & Connelly, LLC were able to reach a favorable settlement with each plaintiff by attacking the cause of plaintiffs injuries as well as the evidence linking our client’s product to the facility. The confidential settlements were a small percentage of the client’s ultimate exposure.
Midwest Bank v. Union Pacific: Our attorneys successfully resolved action for breach of contract and negligence arising out of contamination that occurred in railyard in Chicago’s south side. Our client was facing exposure in excess of $2 million. The confidential settlement was a fraction of the exposure.
Hawkinson Nissan v. Planet Hondo: Represented Hawkinson Nissan (plaintiff); within 30 days of filing suit, obtained consent judgment, permanent injunction, and attorney fees for improper use of client’s trademark.
Rivero v. Sheridan Place LLC: Represented plaintiff; within 60 days of filing suit, obtained full amount asked for in damages for contractor’s failure to perform a residential construction contract.
Rokos v. Unilever, et al.: Represented Unilever; settled for a high six figure demand premise liability matter for a double digit confidential amount and obtained indemnification from third.party insurer for 90% of attorney fees and costs and 80% of settlement payment.
VMedia v. Meadows Club Realty LLC: Represented Meadows Club Realty LLC (defendant); VMedia, without notice, executed a writ of replevin on certain stereo equipment in the possession of our client. We immediately obtained an Order from the Court returning the parties to status quo. After the matter was heard on Its merits, the court found in our client’s favor, and ordered plaintlff to forfeit their replevin bond, which resulted In a payment to our client for the full amount of damages.
OS&M v. Blackwing Ostrich Form: The attorneys associated with Rock Fusco & Connelly, LLC represented OS&M. After 24 months of non-payment for a high six figures worth of Imported product, our client retained us to obtain said amounts of money from delinquent defendant. The entire outstanding amount was obtained,and done so in less than 60 days.
Laborers’ Pension Fund, et al. v. MACC Environmental, LLC, et al.: The attorneys associated with Rock Fusco & Connelly, LLC represented defendants. Facing exposure of over $1.5 million for alleged unpaid union ERISA contributions, back wages, interest, costs, and attorney fees, and allegations of fraud,we procured a settlement for approximately a single digit percentage of the amount to be claimed.
Maitland v. Connor: The attorneys associated with Rock Fusco & Connelly, LLC were able to achieve a voluntary dismissal of Defendant emergency room physician that did not have insurance coverage. The matter arose out of an allegation of a misdiagnosis of meningitis. Subsequent to the dismissal of our client, the remaining physician defendants settled the matter for in excess of $5 million.
Wosikowski v. Connor, Furlan, and Urgo: The attorneys associated with Rock Fusco & Connelly, LLC were able to achieve the voluntary dismissal of three emergency room physicians that did not have insurance coverage for the allegations contained within plaintiffs complaint, which alleged the failure to diagnose an existing condition which resulted in plaintiff suffering an alleged neurological disorder. The remaining physicians in this matter subsequently settled the case with plaintiff for undisclosed amount believed to be near seven figures.
Toth v. Rush University Medical Center: The attorneys associated with Rock Fusco & Connelly, LLC obtained a high six figure jury verdict in favor of client, who was the plaintiff in a medical malpractice matter which alleged negligence on the part of the plaintiffs attending physician and Rush University Medical Center during the performance of a partial mastectomy. We represented the plaintiff during a week-long jury trial in the Circuit Court of Cook County. Plaintiff was able to enforce her verdict against both named defendants.
Aqua Service v. Bates: The attorneys associated with Rock Fusco & Connelly, LLC were able to achieve a settlement that was in the high six figures for Aqua Service after defendant, a former principal of Aqua Service,utilized Aqua Service trade secrets for the creation of his own business, in competition with Aqua Service. We were successful In establishing that the materials obtained by defendant in this case were its client’s trade secrets and, therefore, protected by way of court order.
Markos v. Nairn: The attorneys associated with Rock Fusco & Connelly, LLC were able to obtain a judgment against defendant with regard to a breach of contract claim concerning defendant’s failure to perform his obligations pursuant to a promissory note. The judgment achieved by us values in high six figures. The judgment obtained by us also included our client’s fees and costs associated with the prosecution of this claim.
Amado v. Precision: The attorneys associated wlth Rock Fusco & Connelly, LLC were able to achieve a judgment against defendantin an amount in excess of $1mill on due to defendant’s breach of its contract with our client. The judgment achieved by us in this matter also included values for the client’s fees and costs related to the prosecution of its claim. From inception,the matter was concluded within six months of our initial filing of plaintiff’s complaint.
Excel Dowel v. “X”: The attorneys associated with Rock Fusco & Connelly, LLC were able to achieve a successful resolution of claims made against Its defendant client via mediation In advance of litigation. Plaintiffs allegations arose out of an alleged breach of an asset purchase agreement. The value of the original agreement was in the eight figure range. Our efforts in advance of litigation facilitated the resolution of the dispute, which resulted in the parties’ ability to finalize the asset purchase agreement in an amicable fashion.
CEVA Logistics, Inc. and EGL Eagle Global Logistics, LP v. American Home Assurance Company: Underlying litigation arose out of the destruction of a multi million dollar jet engine while in transit. The attorneys associated with Rock Fusco & Connelly, LLC represented the freight forwarder in a coverage dispute matter with the carrier, American Home Assurance Company. Subsequent to an outright denial of coverage, our attorneys negotiated and secured Its client substantial coverage in advance of the settlement of the underlying litigation.
Amado America, Inc. v. Precision Metals, et al.: The attorneys associated with Rock Fusco & Connelly, LLC represented a manufacturer and global lessor of heavy machinery and factory equipment, against a Chicago-based metal manufacturing company that was in breach of various contractual obligations to our client. Our attorneys secured a seven figure judgment in our client’s favor. While enforcing that judgment, our attorneys also recouped dozens of pieces of heavy machinery while fending off numerous creditors and purchasers of the opposingparty’s assets.
City of Chicago v. 529 Condominium Association, et al.: The attorneys associated with Rock Fusco & Connelly, LLC represent numerous condominium associations in matters adverse to the City of Chicago, developers,and contractors. In this particular matter, our attorneys secured the dismissal of this action filed against the condominium association and its individual members. Additionally, our attorneys secured a partial occupancy for the condominium owners,ensuring that future actions could not be filed by the City of Chicago. Concurrently,our attorneys negotiated with the City of Chicago and brokered a reduced payment of delinquent taxes related to the condominium property, which were caused by a fraudulent developer that had fled the country. Our attorneys then recouped additional funds owed to our clients pursuant to the original sale of the condominium units and applied those funds to satisfy the outstanding tax liens on the property.
Cook County v. 2930 Lee Street Property: The attorneys associated with Rock Fusco & Connelly, LLC defended their small business client in a zoning action filed by Cook County. Had the zoning action been successful,it would have threatened the business operations of our client and presented a real potential that the company itself,would be shut down. Our attorneys successfully secured a ruling that estopped Cook County from enforcing the zoning code against our client’s property. In other words, Cook County and the State’s Attorney were prevented from enforcing a portion of the existing zoning code that threatened our client’s livelihood.
Illinois Central Sweeping v. International Teamsters: The attorneys associated with Rock Fusco & Connelly,LLC represent many small and mid-sized business in various disputes with local unions. In this instance, we successfully defended our business owner client against union harassment by pursuing remedies through the Illinois Department of Labor and the Federal Court system. Our attorneys negotiated an agreement through the federal court action, whereby certain union actions became prohibited, the leader of the Local was removed from his International post following the resolution and our client was able to resume his normal business operations.
Murphy Paving v. Illinois Department of Labor: The attorneys associated with Rock Fusco & Connelly, LLC represent many businesses in disputes with the Illinois Department of Labor. In this Instance,the Illinois Department of Labor alleged that our client owed a mid-six figures in back-due wages for prevailing wage work done in Illinois. Our attorneys successfully cut the alleged amount owed by over 80% and negotiated a settlement and release of the all the alleged claims against our client.
Peerless Industries, Inc. in re: Various Asbestos Matters: The attorneys associated with Rock Fusco & Connelly, LLC have secured dismissals for our client, a major Chicagoland manufacturer, of various asbestos matters in which our client has been improperly named. Prior to engaging our attorneys, our client had previously engaged a large Chicago law firm to handle these matters. Our attorneys handled these same matters at a substantially lower cost than the much larger firm that our client had previously engaged.
Standard Equipment v. International Union of Auto Mechanics Local 701: The attorneys associated with Rock Fusco & Connelly, LLC successfully represented our equipment manufacturing client in negotiations with its employee base, andits union representatives, In the comprehensive overhaul of the company’s union agreement. Our attorneys secured terms that were more favorable to our client,in this uncertain economic climate.
Scrip v. Hessco: The attorneys associated with Rock Fusco & Connelly, LLC represented our client, a chiropractic device distributor, in a dispute arising from our client’s acquisition of a device distribution company. Our attorneys successfully negotiated a settlement in our client’s favor in mid-six figures.
“X” v. AEGON: The attorneys associated with Rock Fusco & Connelly, LLC represented one of the world’s largest publicly traded asset management companies in the successful negotiation of a settlement agreement arisingfrom the potential failure of a stable value insurance fund.
Lorillard Tobacco v. Shah: Our attorneys obtained a favorable verdict for one of our clients after a trial in the United States Federal District Court for the Northern District of Illinois. The Plaintiff, a fortune 500 company and owner of a number of trademarks and copyrights, claimed that our client, an owner of a chain of retail liquor stores, violated the Federal statutes governing trademarks and claimed that he personally as well as his company were guilty of a number of pendent claims relating to fraud and unfair competition. The Plaintiff also asked that they be awarded their attorneys fees and costs which are believed to be in the mid six figure range. The Plaintiff requested over $500,000 In damages. The Judge ruled that our client did not “willfully” violate any of the Acts or laws claimed and, as a result, judgment was entered for a mere $2,000. Our client had previously offered a sum greater than the verdict to settle the matter, but that offer was rejected by the Plaintiff prior to trial.
Stevenson Crane v. BWDC: Our attorneys obtained a favorable verdict in the Circuit Court of DuPage County on behalf of our client, Stevenson Crane for breach of contract. Our client contracted with the defendants to purchase a parcel of property wherein the defendants were to have performed multiple improvements on the property which they ultimately refused to perform.
Stevenson Crane v. Coules: Our attorneys obtained a favorable settlement on behalf of our client in a legal malpractice action. Our client had alleged various omissions on the part of the defendant attorney in connection with a commercial real estate transaction worth several million dollars.
Wishbone Restaurant v. Yoo: Our attorneys successfully defended and obtained a favorable settlement on behalf of our client who was the owner of the premises which was rented by a popular restaurant in Chicago. Our client was accused of failing to perform repairs to the premises and causing a loss of business for the plaintiff. The plalntiff was seeking hundreds of thousands of dollars In damages and a settlement was reached that was farless than that.
Horizon Staffing v. Stafflogix: Our attorneys filed a Motion to Dismiss this breach of contract action in the State Court of Connecticut. The Plaintiff had sought well over a hundred thousand dollars in damages. The Judge granted our motion to dismiss and the matter was settled very favorable for our client prior to appeal.
UPS v. American Airlines: Our attorneys successfully defended American Airlines in a suit In the US District Court for the Northern District of Illinois where the plaintiff was accusing American Airlines of negligently transporting perishable items.
Bellwood v. American National Bank, et al.: Our attorneys represented Village of Bellwood in 10 condemnation matters. During proceedings of condemnation,the economy crashed leaving the project for which the Village was acquiring the land in serious doubt. The Village moved to abandon the proceedings and the property owners objected based upon the fact that an Agreed Judgment and Stipulatlon had been entered by the Court. The trial court denied the motion and Bellwood appealed. On appeal, the Appellate Court, First District, agreed with the Village and allowed It to abandon the proceedings. The Illinois Supreme Court denied the petition for leave to appeal filed by the property owners.
Kosla v. Sav-Rx Prescription Services: RFC represented Sav-Rx in a putative class action where the plaintiffs alleged that the manner in which Sav-Rx shipped pharmaceutical products diminished their efficacy. RFC attorneys positioned the case such that, after filing a motion for summary judgment, plaintiffs voluntarily dismissed their complaint with prejudice.
DMS Pharmaceticals v. Sav-Rx Prescription Services: RFC represented Sav-Rx in a breach of contract action in which OMS sought in excess of $1,000,000 for underpayment of invoices. Following a bench trial,the trial court found in favor of Sav-Rx and awarded OMS nothing.
Evans v. City of Chicago, et al., Docket No.04 C 3570 (N.D. Ill.) Extremely high-profile Section 1983 reverse conviction jury trial,which resulted in a verdict for all defendants. Plaintiff was convicted of murder and served twenty-seven years before his conviction was overturned. He sued the investigating detectives and the City alleging due process violations. At trial,Plaintiff asked for over $60 million in damages.
Wade v. City of Chicago, et al., Docket No.08 C 3063 (N.D. 111.) Section 1983 reversed conviction jury trial, which resulted in a verdict for all defendants. Plaintiff was convicted of possession of a stolen motor vehicle. Her conviction was overturned when the arresting officers were federally indicted for stealing drug money. Plaintiff sued the investigating officers alleging due process violations. By the time the case went to trial,the arresting officers had been convicted of the federal charges and testified while serving lengthy prison sentences. At trial,Plaintiff asked for close to $5 million dollars.
Davidson v. City of Chicago, et al., Docket No. 06 L 1577 (Cir.Ct. Cook County) State law shooting case, which resulted in a verdict for all defendants. Plaintiff was an innocent bystander who was accidentally shot by police when police officers exchanged gun fire with a gang member. She alleged the officers were willful and wanton and asked the jury to return a verdict close to $2 million.
Ramirez v. City of Chicago, et al., Docket No. 05 C 317 (N.D. Ill.) Section 1983 jury trial which resulted in a verdict for the City. Plaintiffs alleged that a series of police encounters that spanned three years between Plaintiffs and officers assigned to the Si+. District, Area One and the Special Operations Section conspired to retaliate against them through numerous incidents of false arrest, unreasonable searches of their property, vehicles and persons, and excessive force. At times there were as many as twenty-nine defendant police officers, who were all dismissed prior to trial. There was also a Monell claim against the City of Chicago.

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Punitive damages are designed to “punish” a person or company for extremely negligent conduct. Punitive damages are available to the insured in addition to the amount of the claim in some cases when the insurance company wrongfully refuses to pay a claim. The jury may consider these damages only when the evidence has established that the insurer acted with (a) malice or (b) gross negligence or reckless disregard for the rights of others. Scott v Transport Indemnity Co., 513 So. 2d 889 (Miss. 1987). See also, Miss. Code Ann. § 11-1-65, regarding punitive damages.
If the insurer has a reasonable factual or legal basis (sometimes referred to as an arguable reason) for denying a claim, the insurer cannot be liable for bad faith in denying it. Jenkins v. Ohio Cas. Ins. Co., 794 So. 2d 228 (Miss. 2001).
When a suit covered by a liability insurer is for an amount in excess of the policy limits, and an offer of settlement is made within the policy limits, the insurer has a fiduciary duty to look after the insured’s interest to the same extent as its own, and also to make a knowledgeable, honest and intelligent evaluation of the claim in consideration with its ability to do so. A failure to do this may subject the carrier to all damages, even in excess of the policy. Hartford Acc.& Indem. Co. v. Foster, 528 So. 2d 255, 265 (Miss. 1988).
A carrier can be liable for certain expenses incurred by an insured even if the conduct falls short of bad faith or punitive conduct. Even though if an insurer’s failure to pay a claim was the result of a clerical mistake, the insurer may be liable for extra-contractual damages caused by anxiety resulting from the delay in payment. Additional expenses including attorney’s fees which are reasonably incurred in an effort to correct the mistake may also be recovered. Universal Life Ins. Co. v. Veasley, 610 So. 2d 290, 295-96 (Miss. 1992).
The denial of a claim without the proper investigation may give rise to punitive damages. Gilbert v. Infinity Ins. Co., 769 So. 2d 266, 269 (Miss. Ct. App. 2000) (citing Bankers Life & Casualty Company v. Crenshaw, 483 So. 2d 254, 276 (Miss. 1985)).
At a minimum, the insurer must determine whether the policy provision at issue has been voided by state or federal court, interview its agents and employees to see if they have knowledge relevant to the claim, and make a reasonable effort to secure all relevant medical records before denying the claim. Eichenseer v. Reserve Life Insurance Co., 682 F.Supp 1355, 1366 (N.D. Miss. 1988).
There is no direct action allowed by third parties in Mississippi, except to contest a coverage issue. Kaplan v. Harco Nat. Ins. Co., 716 So. 2d 673, 677 (Miss. Ct. App. 1998).


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