State Farm General Ins. Co. v. Oetiker, Inc.

Filed 12/18/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
STATE FARM GENERAL 2d Civ. No. B302348
INSURANCE COMPANY, (Super. Ct. No. 18CV-0046)
(San Luis Obispo County)
Plaintiff and Appellant,
v.
OETIKER, INC.,
Defendant and Respondent.
In Aas v. Superior Court (2000) 24 Cal.4th 627, 632
(Aas), our Supreme Court held that homeowners were barred
from proceeding with negligence claims for construction defects
absent a showing of property damage or personal injury. In 2002,
the Legislature abrogated Aas when it passed the Right to Repair
Act (the Act) (Civ. Code, § 895, et seq.).1
The Act codifies a comprehensive reform to
construction defect litigation applicable to residential dwellings
in California. (Stats. 2002, ch. 722, § 3; McMillin Albany LLC v.
1 Further unspecified statutory references are to the Civil
Code.
Superior Court (2018) 4 Cal.5th 241, 246-247 (McMillin).) Among
other things, “[t]he Act sets forth detailed statewide standards
that the components of a dwelling must satisfy. It also
establishes a prelitigation dispute resolution process that affords
builders notice of alleged construction defects and the
opportunity to cure such defects, while granting homeowners the
right to sue for deficiencies even in the absence of property
damage or personal injury.” (McMillin, at p. 247.) It also
provides an outside limit of 10 years for filing a lawsuit for latent
construction defects. (§ 941.)
In McMillin, supra, 4 Cal.5th 241, a builder was sued
for defective construction under multiple theories, based both on
common law (e.g., negligence) and the Act. The plaintiffs later
dismissed the statutory causes of action in an attempt to avoid
the prelitigation dispute resolution requirements of the Act. Our
Supreme Court rejected that attempt, holding that the Act was
intended to displace the common law and was the “virtually
exclusive remedy not just for economic loss but also for property
damage arising from construction defects.” (Id. at p. 247.)
Here, Oetiker raises the same argument, contending
that the Act applies to bar State Farm’s complaint. But unlike
McMillin, here we are dealing with a lawsuit against an
individual product manufacturer whose allegedly defective part
failed after it was incorporated into the structure, causing
damage to the residence. Although non-builders such as product
manufacturers are subject to the Act under certain
circumstances, the Act treats builders and non-builders
differently. McMillin is therefore distinguishable.
Here we hold that as applied to non-builders such as
Oetiker, the Act covers claims based on negligence and breach of
2
contract, but not those based on strict liability and breach of
implied warranty. We accordingly reverse and remand with
directions to allow the claims based on strict liability and implied
warranty to proceed.2
FACTUAL AND PROCEDURAL HISTORY
James and Jennifer Philson insured their residence
with State Farm General Insurance Company (State Farm).
Construction of their home was substantially completed, and a
Notice of Completion recorded, in 2004.
Oetiker, Inc. was the manufacturer of a stainless
steel ear clamp that was attached to plumbing pipes in the
Philson’s home. In 2016, significant water damage occurred at
the home. The Philsons filed a claim under their policy, and
State Farm paid the claim.
In 2018, State Farm brought a subrogation action
against Oetiker to recover the amount State Farm paid the
Philsons under their policy. State Farm alleged the home was
“damaged by a water leak from the failure of a defective stainless
steel ear clamp on a water PEX fitting” and that the clamp was
“defective when it left the control of [Oetiker].” The complaint
included causes of action for negligence, strict products liability,
and breach of implied warranty.
Oetiker moved for summary judgment. It argued the
Act’s 10-year statute of repose for latent defects barred State
Farm’s lawsuit. (§ 941.) State Farm countered that the Act did
not apply to its action because it alleged a defect only in a
2 The National Association of Subrogation Professionals
filed an amicus curiae brief in support of State Farm’s
contentions.
3
“manufactured product” (i.e., the ear clamp). (§ 896, subd.
(g)(3)(E).)
The trial court granted Oetiker’s motion for summary
judgment. The court found that “Oetiker has established that
Plaintiff’s claims for property damage . . . fall within Civil Code
section 896(a)(14),(15), that the exception set forth in Civil Code
section 896(g)(3)(E) does not apply, and that this action is
therefore subject to the provisions of the Act.” Thus, the court
found the Act’s 10-year statute of repose barred the action.
DISCUSSION
State Farm contends the trial court erred when it
granted the motion for summary judgment because the Act does
not apply to its lawsuit. We agree that the Act does not apply to
the strict liability and breach of implied warranty causes of
action, but conclude otherwise as to the negligence cause of
action.3
Standard of Review
Summary judgment is appropriate “if all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The moving
party bears the initial burden of showing that the opposing party
cannot establish one or more elements of the cause of action, or
that there is an affirmative defense to it. (§ 437c, subd. (o);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850
(Aguilar).) If the moving party makes one of the required
3Oetiker’s request for judicial notice of the California Bill
Analysis of Senate Bill 800 is granted. (Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 800 (2001-2002 Reg. Sess.) as amended
Aug. 28, 2002.)
4
showings, the burden shifts to the opposing party to establish a
triable issue of material fact. (Aguilar, at p. 850.)
Our review is de novo. (Knapp v. Doherty (2004) 123
Cal.App.4th 76, 84.) We liberally construe the opposing party’s
evidence and resolve all doubts in their favor. (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 274.) We
consider all evidence in the moving and opposition papers, except
that to which objections were properly sustained. (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
Right to Repair Act
The Act consists of five chapters. “Chapter 1
establishes definitions applicable to the entire title. (§ 895.)
Chapter 2 defines standards for building construction. (§§ 896-
897.) Chapter 3 governs various builder obligations, including
the warranties a builder must [or may] provide. (§§ 900-907.)
Chapter 4 creates a prelitigation dispute resolution process.
(§§ 910-938.) Chapter 5 describes the procedures for lawsuits
under the Act. (§§ 941-945.5.)” (McMillin, supra, 4 Cal.5th at p.
250.)
Section 896 is in Chapter 2. It provides that in “any
action seeking recovery of damages arising out of, or related to
deficiencies in, the residential construction . . ., a builder, and to
the extent set forth in Chapter 4 . . . [an] individual product
manufacturer . . . shall, except as specifically set forth in this
title, be liable for, and the claimant’s claims or causes of action
shall be limited to violation of, the following standards, except as
specifically set forth in this title. This title applies to original
construction intended to be sold as an individual dwelling unit.”
(§ 896, emphasis added.)
5
Section 896 lists the applicable standards for
residential construction, including those “[w]ith respect to water
issues.” (§ 896, subd. (a).) Water issue standards require that
the “lines and components of the plumbing system, sewer system,
and utility systems shall not leak” (id. at subd. (a)(14)) and that
the “[p]lumbing lines, sewer lines, and utility lines shall not
corrode so as to impede the useful life of the systems” (id. at subd.
(a)(15)).
Section 896 also includes exceptions to the Act. As
relevant here, one exception provides: “This title does not apply
in any action seeking recovery solely for a defect in a
manufactured product located within or adjacent to a structure.”
(§ 896, subd. (g)(3)(E).) A “‘manufactured product’” is defined as
“a product that is completely manufactured offsite.” (Id. at subd.
(g)(3)(C).) Manufactured products include plumbing products and
fixtures. (Id. at subd. (g)(3)(A).)
Section 897 states that the standards in section 896
were “intended to address every function or component of a
structure. To the extent that a function or component of a
structure is not addressed by these standards, it shall be
actionable if it causes damage.” (§ 897.)
As pertains to an “individual product manufacturer,”
section 936 (in Chapter 4) states that “[e]ach and every provision
of the other chapters of this title appl[ies] . . . to the extent that
. . . individual product manufacturers . . . caused, in whole or in
part, a violation of a particular standard as the result of a
negligent act or omission or a breach of a contract . . . . However,
the negligence standard in this section does not apply to any . . .
individual product manufacturer . . . with respect to claims for
which strict liability would apply.” (Emphasis added.)
6
Section 943 (in Chapter 5) discusses the exclusivity of
the Act. It provides that “except as provided in this title, no other
cause of action for a claim covered by this title or for damages
recoverable under Section 944 is allowed.” Section 944 discusses
recoverable damages, which include “damages for the reasonable
value of repairing any violation of the standards,” “the reasonable
cost of repairing and rectifying any damages resulting from the
failure of the home to meet standards,” and “the reasonable cost
of removing and replacing any improper repair by the builder.”
(§ 944.)
Application of the Act
State Farm contends the Act was not intended to
preclude common law products liability claims “waged solely
against the product manufacturer and related solely to the
defective product.” Whether the Act applies to State Farm’s
lawsuit is a question of statutory interpretation, which we review
de novo. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th
717, 724.) Our fundamental task is to ascertain the Legislature’s
intent. (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los
Angeles (2012) 55 Cal.4th 783, 803 (Pacific Palisades).) We begin
with the statute’s words, giving them their plain, commonsense
meanings. (Bruns v. E-Commerce Exchange, Inc., supra, at p.
724.) We interpret the words in the context of related statutes,
harmonizing them whenever possible. (Mejia v. Reed (2003) 31
Cal.4th 657, 663.) If the statutory language is ambiguous, we
may examine the legislative history to determine the
Legislature’s intent. (Pacific Palisades, supra, at p. 803.)
Violation of the Standards
To determine whether the Act applies, we must first
decide if the nature of the defect alleged here constitutes a
7
violation of the section 896 standards. It does. The standards
require that the “lines and components of the plumbing system
. . . shall not leak” (§ 896 at subd. (a)(14)) and that the
“[p]lumbing lines . . . shall not corrode so as to impede the useful
life of the systems” (id. at subd. (a)(15)).
The ear clamp at issue was installed on a PEX fitting
(a type of plumbing line fitting). “[L]ines and components of a
plumbing system” include an ear clamp attached to a plumbing
line fitting. (See Kohler Co. v. Superior Court (2018) 29
Cal.App.5th 55, 60 (Kohler) [pressure valves and mixer caps were
plumbing components subject to the Act].) The ear clamp is also
a “function or component of a structure” that allegedly caused the
property damage. (§ 897.) State Farm alleges here that the ear
clamp was defective and caused the property damage.
Manufactured Product Exception
Next, we consider State Farm’s argument that
section 896, subdivision (g)(3)(E)’s exception for “manufactured
product” applies. We conclude the exception does not apply here.
Section 896, subdivision (g)(3)(E) excludes “any
action seeking recovery solely for a defect in a manufactured
product located within or adjacent to a structure.” (Emphasis
added.) While it is undisputed that an ear clamp is a
manufactured product, the exception does not apply when a
defective product causes a violation of the section 896 standards.
(Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th
1194, 1222 (Greystone); Kohler, supra, 29 Cal.App.5th at p. 63.)
In Greystone, a homebuilder (Greystone) brought an
equitable indemnity action against a manufacturer of plumbing
fittings (Midtec). (Greystone, supra, 168 Cal.App.4th at p. 1202.)
Greystone alleged that Midtec violated section 896 standards
8
when it produced defective fittings that Greystone used to
construct homes. (Ibid.) Midtec argued the Act did not apply
because it “‘specifically excludes from the entire title product
liability claims that are based solely on a claim of a defective
product.’” (Id. at p. 1221, emphasis in the original.)
The Court of Appeal disagreed with Midtec and
concluded that a “claim—such as Greystone’s equitable
indemnity claim—that a defect in a manufactured product
constitutes a violation of the standards established in section 896
is not an ‘action seeking recovery solely for a defect in a
manufactured product.’ [Citations.]” (Greystone, supra, 168
Cal.App.4th at p. 1222, emphasis in original.) The court
concluded that section 896, subdivision (g)(3)(E) was “intended to
bar actions in which the claimant seeks to recover for a defect in
a product that does not violate one of the standards set forth in
section 896.” (Ibid., emphasis in the original.)
Here, State Farm did not seek recovery solely for the
cost of the ear clamp. Instead, it sought recovery for the damages
resulting from the defective ear clamp (i.e., the water leak).
Therefore, the “manufactured product” exception does not apply.
Product Manufacturer’s Liability Under the Act
We next determine whether the Act precludes State
Farm’s non-statutory causes of action for negligence, strict
liability, and breach of implied warranty. We conclude the
negligence cause of action is barred, but not the strict liability
and implied warranty causes of action.
Our Supreme Court in McMillin, supra, 4 Cal.5th
241, examined the extent to which the Act displaces common law
causes of action such as those pled here. In McMillin,
homeowners sought to recover economic loss and property
9
damage from the builder (McMillin). They alleged common law
causes of action for negligence, strict products liability, breach of
contract, and breach of warranty. (McMillin, supra, 4 Cal.5th at
p. 247.) The homeowners also alleged a statutory cause of action
for violation of section 896 standards, but later dismissed this
cause of action to avoid the Act’s prelitigation dispute procedures.
(Id. at p. 248.)
The court concluded the homeowners could not avoid
the Act’s prelitigation procedures. It held that except for certain
causes of action that were expressly excluded in the Act, the
Legislature intended to make “the Act the virtually exclusive
remedy” for economic loss and property damage arising from
residential construction defects. (Id. at p. 247.)
In so holding, the court reasoned that “the text and
legislative history reflect a clear and unequivocal intent to
supplant common law negligence and strict product liability
actions with a statutory claim under the Act.” (McMillin, supra,
4 Cal.5th at p. 249.) The court observed that the plain language
of section 896 states “the provision applies to ‘any action’ seeking
damages for a construction defect, not just any action under the
title. [Citation.] This suggests an intent to create not merely a
remedy for construction defects but the remedy.” (Id. at p. 250,
emphasis in original.)
Section 896 also states that “claims or causes of
action shall be limited to violation of . . . the following standards,
except as specifically set forth in this title.” The court observed
that this “express language of limitation means that a party
seeking damages for a construction defect may sue for violation of
these standards, and only violation of these standards, unless the
Act provides an exception. This clause evinces a clear intent to
10
displace, in whole or in part, existing remedies for construction
defects.” (McMillin, at p. 250, emphasis in original.)
The court also examined sections 943 and 944, which
govern the exclusivity of the Act and recoverable damages. The
court observed that “section 944 identifies what damages may be
recovered in an action under the Act, and section 943 establishes
that such damages may only be recovered in an action under the
Act,” unless there is an express exception. (McMillin, supra, 4
Cal.5th at p. 251, emphasis in the original.) These sections
expressly include economic loss and property damage resulting
from construction defects as categories of damages that may only
be recovered in an action under the Act. (Id. at pp. 252-253.) The
court noted that where the Legislature intended to preserve
common law claims, it omitted that theory of recovery in section
944, and/or expressly exempted such common law claims from
the Act. (Id. at p. 252 [personal injury damages not listed as a
category recoverable under the Act (§ 944) and are included in
the list of claims exempt from the Act (§ 931)].)
The court concluded that regardless of how the claims
were pled, the Act applied because the “suit remains an ‘action
seeking recovery of damages arising out of, or related to
deficiencies in, the residential construction’ of plaintiffs’ homes
(§ 896), and McMillin’s liability under [the] negligence and strict
liability claims depends on the extent to which it violated the
standards.” (McMillin, supra, 4 Cal.5th at pp. 258-259.)
Oetiker relies on McMillin, supra, 4 Cal.5th at page
247, to argue that because State Farm alleged a violation of the
section 896 standards, the Act precludes its entire action. State
Farm counters that McMillin is distinguishable because that case
11
involved a lawsuit against a builder, not a product manufacturer.
We agree, in part, with both parties.
A builder’s liability under the Act is different from a
non-builder’s liability. Section 896 extends liability under the
Act to an individual product manufacturer only “to the extent set
forth in Chapter 4.” (§ 896, emphasis added.) Section 936 (in
Chapter 4), specifies that “[e]ach and every provision of the other
chapters of this title apply to . . . individual product
manufacturers . . . to the extent that [they] caused, in whole or in
part, a violation of a particular standard as the result of a
negligent act or omission or a breach of contract.” (§ 936,
emphasis added.)
Taken together, sections 896 and 936 state that a
product manufacturer is liable under the Act only where its
negligence or breach of contract caused a violation of the
standards. (See Greystone, supra, 168 Cal.App.4th at p. 1216;
Gillotti v. Stewart (2017) 11 Cal.App.5th 875, 899; Acqua Vista
Homeowners Assn. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1142-
1143 (Acqua Vista).) Section 936 makes clear that where a
product manufacturer is liable under the Act, “[e]ach and every
provision” of the Act (with the exception of the prelitigation
dispute resolution provisions of Chapter 4) applies—which
includes the provisions making the Act the exclusive means for
recovery for specified damage claims.
State Farm is therefore precluded from bringing its
negligence cause of action, which was based on the allegation
that the property damage resulted from “a water leak from the
failure of” the ear clamp. Because State Farm alleged that
Oetiker’s negligence in manufacturing the product caused a
violation of the Act (§ 936), and it sought recovery for the
12
resulting property damage (§§ 943, 944), State Farm was
“limited” to a statutory cause of action. (§ 896; McMillin, supra, 4
Cal.5th at p. 250.)
We reach a different conclusion with respect to State
Farm’s strict liability and breach of implied warranty causes of
action. Nothing in the Act restricts a homeowner or its insurer
from bringing causes of action which fall outside of the Act. (See
McMillin, supra, 4 Cal.5th at p. 259 [holding does not apply to
causes of action “placed outside the reach of the Act’s
exclusivity”].) For actions against non-builders, causes of action
not based on negligence or breach of contract fall outside of the
Act. (See Acqua Vista, supra, 7 Cal.App.5th at pp. 1140-1143 [a
statutory cause of action requires proof of a non-builder’s
negligence or breach of contract].)
Moreover, as McMillin recognized, the Act “leaves the
common law undisturbed in some areas, expressly preserving”
certain causes of action. (McMillin, supra, 4 Cal.5th at p. 249.)
“To the extent possible, we construe statutory enactments as
consonant with existing common law and reconcile the two bodies
of law.” (Ibid.; California Assn. of Health Facilities v. Department
of Health Services (1997) 16 Cal.4th 284, 297 [statutes are
generally interpreted to “‘avoid conflict with common law rules’”
unless the language clearly intends to depart from it].)
The Act expressly preserves common law strict
liability claims. (§ 936; Acqua Vista, supra, 7 Cal.App.5th at pp.
1143-1144.) The last sentence of section 936 states that “the
negligence standard in this section does not apply to any . . .
individual product manufacturer . . . with respect to claims for
which strict liability would apply.” In Acqua Vista, the Court of
Appeal construed section 936 “as providing that the negligence
13
standard specified in the first sentence of section 936 does not
apply to common law strict liability claims against the specified
nonbuilder entities.” (Acqua Vista, at p. 1143, emphasis in
original.) The court noted that its interpretation of the last
sentence of section 936 was “strongly supported by the similarity
of that sentence to other provisions in the Act that clearly reflect
the Legislature’s intent to limit the Act’s effect on the common
law. The Act repeatedly refers to common law claims—often
within the final sentence of a section as in section 936.” (Id. at
pp. 1143-1144, emphasis in original.)
The plaintiff in Acqua Vista argued that the last
sentence of section 936 means that the Act’s standard of liability
(§ 942) applies to claims that would have been common law strict
liability claims. (Acqua Vista, supra, 7 Cal.App.5th at pp. 1147-
1148.) The court rejected this interpretation. It explained that
under the plaintiff’s interpretation, the Act “‘places a [non-
builder] “on par,” with a builder’” and that “the standard of
liability for a claim brought pursuant to the Act would be
determined by the standard of liability that would have applied if
the claim had been brought at common law.” (Id. at pp. 1144,
1149, emphasis omitted.) Such an interpretation was “entirely
inconsistent” with the statute’s text and structure. (Id. at p.
1144, emphasis in original.)
In contrast, interpreting the last sentence of section
936 to expressly preserve common law strict liability claims
against non-builders is “entirely consistent” with the statute’s
differing standards of liability for builders (§ 896) and non-
builders (see the first sentence of § 936). (Ibid.) We agree with
Acqua Vista and conclude that the last sentence of section 936
14
excludes from the Act common law strict liability claims against a
product manufacturer.4
And although there is no express provision
preserving the breach of implied warranty cause of action, we
conclude it also falls outside the Act. Section 936 states that a
non-builder may be liable under the Act based on theories of
negligence or breach of contract. Although a breach of implied
warranty claim is rooted in contract theory (Windham at Carmel
Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th
1162, 1168), claims for breach of implied warranty and breach of
contract are distinct and separate. Breach of implied warranty
and strict products liability causes of action are similar—under
both theories, a manufacturer is liable if the product is defective
and no proof of negligence or fault is required. (See Greenman v.
Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63-64 [action for
strict products liability rooted in warranty law].) Moreover, if the
Legislature intended “breach of contract” to mean “breach of
implied warranty,” it could have expressly said so. It is not our
task to speculate about the meaning of a word or phrase, or insert
language into legislation. (Mikkelsen v. Hansen (2019) 31
Cal.App.5th 170, 181.)
Statute of Repose
Because the Act’s statute of repose applies, State
Farm’s negligence cause of action is time-barred.
4 We reject Oetiker’s argument that State Farm’s reliance
on Acqua Vista was “incorrect, outdated, and inapplicable”
because it was decided before McMillin. Acqua Vista was not
overruled by McMillin. The cases are also distinguishable
because Acqua Vista involved a lawsuit against a non-builder
(i.e., a material supplier), whereas McMillin involved a lawsuit
against the builder/developer.
15
Section 941 provides that “no action may be brought
to recover under this title more than 10 years after substantial
completion of the improvement but not later than the date of
recordation of a valid notice of completion.” Thus, section 941
“‘imposes an “absolute requirement” that a lawsuit to recover
damages for latent defects be brought within 10 years of
substantial completion of the construction, whether or not the
defect was or could have been discovered within that period.’”
(Hensel Phelps Construction Co. v. Superior Court (2020 44
Cal.App.5th 595, 613-614.)
Here, a Notice of Completion of the home was
recorded in 2004. State Farm filed its complaint more than 10
years later. The statute of repose thus barred its negligence
cause of action. Accordingly, State Farm did not carry its burden
to establish a triable issue of material fact as to that cause of
action.
But even though the trial court correctly determined
the negligence cause of action is time-barred, the court erred
when it granted the motion for summary judgment because
viable causes of action remain. When Oetiker moved for
summary judgment, it did not bring an alternative motion for
summary adjudication. (Code of Civ. Proc., § 437c, subd. (f)(1).)
Accordingly, the motion should have been denied. (See People ex
rel. Government Employees Ins. Co. v. Cruz (2016) 244
Cal.App.4th 1184, 1197 [trial court erroneously grants summary
judgment when a factual dispute exists but affects fewer than all
causes of action, and reviewing court lacks authority to enter an
order granting summary adjudication of the unaffected causes of
action unless the moving party alternatively moved for summary
adjudication].)
16
DISPOSITION
The judgment is reversed. The matter is remanded
to the trial court with directions to vacate the order granting
summary judgment without prejudice to a motion for summary
adjudication on the negligence cause of action. In the interest of
justice, the parties shall each bear their own costs pending the
final outcome of this matter. (Cal. Rules of Court, rule 8.278
(a)(5).)
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
17
Ginger E. Garrett, Judge
Superior Court County of San Luis Obispo
______________________________
Watkins & Letofsky, Jeffrey A. Korinko, Michael
Long; Grotefeld Hoffmann, Jordan Everakes and Daniel W.
Berglund for Plaintiff and Appellant.
Williams|Palecek Law Group, Jason P. Williams;
Noma Law Firm and Sally Noma for National Association of
Subrogation Professionals, Amici Curiae on behalf of Plaintiff
and Appellant.
Selman Breitman, Elaine K. Fresch and Melanie M.
Smith for Defendant and Respondent.