Community Hospitals of Indiana, Inc. v. Aspen Insurance UK Limited and Hiscox, LTD

FILED
Oct 19 2018, 8:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert G. Zeigler Robert W. York
Erin E. Meyers Robert W. York & Associates
Zeigler, Cohen & Koch Indianapolis, Indiana
Indianapolis, Indiana Christopher C. White
Addie L. Jones
Lewis Brisbois Bisgaard & Smith,
LLP
Dallas, Texas
IN THE
COURT OF APPEALS OF INDIANA
Community Hospitals of October 19, 2018
Indiana, Inc., Court of Appeals Case No.
Appellant-Defendant, 18A-PL-69
Appeal from the Marion Superior
v. Court
The Honorable James B. Osborn,
Aspen Insurance UK Limited Judge
and Hiscox, LTD, Trial Court Cause No.
Appellees-Plaintiffs 49D14-1204-PL-16336
May, Judge.
[1] Community Hospitals of Indiana, Inc. (“Community”) appeals the grant of
partial summary judgment in favor of Aspen Insurance UK Limited (“Aspen”)
and Hiscox, Ltd (“Hiscox”) (collectively, “Insurance Companies”) in which the
Court of Appeals of Indiana | Opinion 18A-PL-69 | October 19, 2018 Page 1 of 18
trial court determined the Insurance Companies’ claims fell outside the
procedural and substantive provisions of the Indiana Medical Malpractice Act
(“IMMA”). Because it determined the IMMA did not apply, the trial court
concluded Community could not claim certain affirmative defenses available
only under the IMMA.
[2] Community presents three issues for our review, one of which we find
dispositive: whether Insurance Companies are estopped from denying the
IMMA applies to their claims. We reverse and remand.
Facts and Procedural History 1
[3] On May 7, 2010, David Downey, 2 a truck driver for Celadon Trucking
Services, Inc. (“Celadon”), was involved in a multi-vehicle accident in Texas
that resulted in the death of one driver and serious injury to that driver’s wife,
who was in the passenger seat of the car. The deceased’s children, as well as his
wife and estate, sued Celadon, and the parties settled out of court in Texas.
Celadon, which is located in Indiana, is insured by Insurance Companies, and
Insurance Companies paid the victims’ damages on behalf of Celadon.
[4] Prior to the accident, Celadon and Community, which is also located in
Indiana, contracted for qualified Community employees to complete physical
1
We held oral argument on this matter on July 31, 2018, in the Indiana Court of Appeals courtroom. We
thank counsel for their able advocacy.
2
Downey passed away from unrelated causes in 2012.
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examinations of Celadon truck drivers based on Department of Transportation
(“DOT”) requirements. Under the agreement, a qualified Community
employee would determine whether a driver was medically able to drive, and
then Community would communicate general information about that decision
and any medical concerns observed to Celadon. The Community employee
assigned to examine Downey was a nurse practitioner (“the NP”).
[5] On February 17, 2010, the NP conducted Downey’s annual DOT examination.
She noted Downey suffered from various medical conditions, and she suspected
he also had sleep apnea. The NP certified Downey to operate a commercial
motor vehicle for six months but instructed Downey to undergo a sleep study
and send the results to the NP. On February 22, Downey completed the sleep
study and was diagnosed with severe obstructive sleep apnea (“OSA”) and
prescribed a continuous positive airway pressure (“CPAP”) machine. The NP
attempted to call Downey the same day, but she could not hear him when she
reached him via telephone. The NP did not attempt to call Downey again, and
Downey did not report his diagnosis to the NP. On April 16, 2010, Downey’s
cardiologist sent Community a fax with the sleep study results and Downey’s
prescription for the CPAP machine. On April 19, the NP declared Downey
was safe to drive a commercial motor vehicle. 3
3
It is unclear from the record why the NP was recertifying Downey in April, as she had just certified him to
operate a commercial motor vehicle in February.
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[6] The accident in this case occurred May 17, 2010, when Downey drove his truck
into a line of stopped cars. At the scene of the accident, Downey prepared a
written statement admitting he was distracted by a wrecked truck on the side of
the road and did not see the line of stopped cars until it was too late. (See
Appellant’s App. Vol. II at 151) (Downey’s account of the accident as part of
his December 16, 2010, deposition). The victims of the accident sued Celadon
and received a judgment of approximately $3 million. Aspen and Hiscox are
Celadon’s insurance companies.
[7] On April 16, 2012, Aspen filed a proposed complaint with the Indiana
Department of Insurance (“IDOI”) against Community, alleging
[11.] . . . Community was negligent in failing to notify Celadon
on April 16, 2010, or shortly thereafter, that Downey was
suffering from a medical condition which precluded his ability to
drive under FMCSA regulations. Had such results been
conveyed, Celadon would have removed Downey from the
operation of his vehicle and placed him on a safety hold pending
successful treatment of his sleep apnea.
12. The failure to [sic] Community to exercise ordinary care
proximately caused, in whole or in part, the injuries sustained [by
the accident victims], as well as the other minor bodily injury
claimants, which caused, in whole or in part, Celadon to incur
over $3 million to resolve their claims.
(Id. at 41.) Aspen indicated in its proposed complaint to the IDOI that
Community’s “physicians, nurse practitioners, nurses, wellness specialists, and
administrative support/medical assistants . . . qualif[ied] as health care
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providers under the Indiana Medical Malpractice Act.” (Id. at 23-4.) Aspen
contemporaneously filed an action in Marion County Superior Court asserting
the same facts and alleging Community 4 committed negligence and breach of
contract. In the complaint before the Marion County Superior Court, Aspen
indicated Community’s “physicians, nurse practitioners, nurses, wellness
specialists, and administrative support/medical assistants . . . qualif[ied] as
health care providers under the Indiana Medical Malpractice Act.” (Id. at 16.)
[8] Insurance Companies 5 filed an amended proposed complaint with the IDOI on
May 25, 2012, and in that amended complaint stated the Community
employees allegedly involved were health care providers under the IMMA.
Insurance Companies filed an amended complaint with the Marion County
Superior Court on May 30, 2012, and they again noted the Community
employees in question were health care providers under the IMMA.
[9] On April 29, 2015, the trial court, sua sponte, scheduled an Indiana Trial Rule
41(E) hearing due to inactivity in the Marion County case. On May 6, 2015 the
Insurance Companies filed an agreed motion to remove the Trial Rule 41(E)
hearing from the docket stating Insurance Companies were “seeking damages
for negligence and breach of contract arising from medical services or medically
related services provided by [Community].” (Id. at 166.) In the motion, the
4
At this time, Community was referred to only as “ABC Hospital.” (Appellant’s App Vol. II. at 15.)
5
Aspen added Hiscox as a plaintiff on May 25, 2012.
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Insurance Companies also explained they were awaiting the medical review
panel’s decision. The trial court cancelled the hearing. The same process
occurred on October 13, 2015, and September 14, 2016.
[10] On October 21, 2016, the medical review panel of the IDOI issued its decision
on the Insurance Companies’ complaint, concluding the “conduct complained
of was not a factor in the resultant damages.” (Br. of Appellant at 9) (citing
Appellant’s App. Vol II at 154). 6 On January 17, 2017, the Insurance
Companies filed a second amended complaint in the Marion County case,
noting “[a]ll procedural requirements of Indiana Code section 34-18-8-4 have
been completed and the Medical Review Panel has provided its Opinion.”
(Appellant’s App. Vol. II at 44.) The Insurance Companies alleged:
On or about April 16, 2010, a facsimile was sent to and received
by [Community] which contained Downey’s February 22, 2010
sleep study. At that point, based on the nurse practitioner’s
understanding of applicable DOT and/or FMCSA regulations, in
conjunction with the results of the sleep study which diagnosed
Downey as having uncontrolled sleep apnea, Downey would
have been disqualified from operating a commercial motor
vehicle. The results of the facsimile and accompanying sleep
study were never conveyed to Celadon by [Community], and
[Community] did not pull Downey’s certification to drive or tell
him he could not operate his vehicle until he [was] successfully
treated for sleep apnea. As found by the Medical Review Panel,
[Community] failed to comply with the appropriate standard of
6
Neither party cites to the decision from the medical review panel, and it seems that decision is not part of
the record presented to us. This citation is to Community’s response to the Insurance Companies’ motion for
summary judgment, which was filed on October 11, 2017.
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care with respect to the receipt and/or review of relevant health
care information.
(Id. at 48.) Again, the Insurance Companies indicated the relevant Community
employees qualified as health care providers under the IMMA. The Insurance
Companies contended Community was negligent in not communicating to
Celadon regarding Downey’s condition and, had they done so, Downey would
not have caused the accident in Texas. Further, the Insurance Companies
asserted a claim in breach of contract regarding the contract between Celadon
and Community.
[11] On March 13, 2017, Community filed a response to the Insurance Companies’
second amended complaint. In its answer, Community certified it was a
qualified health care provider “entitled to all rights, privileges, limitations,
liability caps, defenses and immunities provided for [by the IMMA].” (Id. at
70.) Community further asserted: “Claims of negligence and causation raised
in [Plaintiffs’] Proposed Complaint before the Indiana Department of Insurance
and considered by the Medical Review Panel are the sole claims upon which
the subject matter jurisdiction have been granted . . .Additionally, any claim for
breach of contract is subsumed under the malpractice.” (Id. at 70-1) (internal
citations omitted) (errors in original). Finally, Community argued, as a defense
to Insurance Companies’ negligence and breach of contract claims: “Plaintiffs
are estopped to deny that the limitations of the Medical Malpractice Act,
including the liability cap, apply to the plaintiff insurance companies.” (Id. at
71.)
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[12] On September 11, 2017, the Insurance Companies filed a motion for summary
judgment. The Insurance Companies’ motion for summary judgment asked the
trial court to declare, as a matter of law, that Community’s affirmative defenses
regarding the applicability of the IMMA were unavailable. In their brief in
support of their motion for summary judgment, the Insurance Companies
stated:
At its core, Plaintiffs allege that a non-medical employee of
Community Hospital negligently failed to provide a facsimile
transmission to a nurse practitioner so that she could take
appropriate action and pull the DOT driving certification for
David Downey, a Celadon driver diagnosed with sleep apnea.
The administrative failure of Community Hospital’s staff to relay
the information about the driver’s sleep apnea diagnosis to a
medical provider who could take appropriate action or to
Celadon was not a medical determination or exercise of medical
judgment and thus, this Court should grant summary judgment
on all of Defendant’s affirmative defenses related to the
applicability of Indiana’s Medical Malpractice Act.
(Id. at 77.)
[13] On October 11, 2017, Community filed a response to the Insurance Companies’
motion for summary judgment, arguing the Insurance Companies were
estopped from denying the applicability of the IMMA based on the doctrine of
judicial estoppel; the Insurance Companies had forfeited their right to challenge
the applicability of the IMMA because the Insurance Companies frequently
asserted the IMMA governed of the issues before the court; and the IMMA
applied to the Insurance Companies’ claims “because the acts or omission at
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issue are based on the provider’s behavior or practices while acting in its
professional capacity as a provider of medical services.” (Id. at 160.) The trial
court held a hearing on the Insurance Companies’ motion for summary
judgment on November 13, 2017. On January 1, 2018, the trial court entered
an order granting the Insurance Companies’ motion for summary judgment,
concluding:
[T]here is no genuine issue as to any material facts that the
claims for negligence and breach of contract made by [Insurance
Companies] against [Community] in [Insurance Companies’]
January 20, 2017 Second Amended Complaint, fall outside the
procedural and substantive provisions of the [IMMA], and that
judgment should be entered for [Insurance Companies] and
against [Community] on all of [Community’s] affirmative
defenses seeking to invoke the procedural and substantive
provisions of the [IMMA].
(Id. at 13-14.) The trial court also stated, “there is no just reason for delay and
the Court expressly directs entry of judgment as to less than all the issues,
claims or parties, as hereinabove set forth.” 7 (Id. at 14.)
Discussion and Decision
[14] We review summary judgment de novo, applying the same standard as the trial
court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all
7
This language certifies the order for appeal pursuant to Indiana Trial Rule 54(B), despite the fact it does not
dispose of all claims between the parties.
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reasonable inferences in favor of the non-moving party, we will find summary
judgment appropriate if the designated evidence shows there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter
of law. Id. A fact is material if its resolution would affect the outcome of the
case, and an issue is genuine if a trier of fact is required to resolve the parties’
differing accounts of the truth or if the undisputed material facts support
conflicting reasonable inferences. Id.[15] The initial burden is on the summary judgment movant to demonstrate there is
no genuine issue of fact as to a determinative issue, at which point the burden
shifts to the non-movant to come forward with evidence showing there is an
issue for the trier of fact. Id. While the non-moving party has the burden on
appeal of persuading us summary judgment was erroneous, we carefully assess
the trial court’s decision to ensure the non-movant was not improperly denied
his day in court. Id. Summary judgment is not a summary trial, and it is not
appropriate just because the non-movant appears unlikely to prevail at trial. Id.
at 1003-04. We “consciously err[ ] on the side of letting marginal cases proceed
to trial on the merits, rather than risk short-circuiting meritorious claims.” Id.
at 1004.
[16] We have previously outlined the purpose and general requirements of the
IMMA:
Our Supreme Court has explained that the [IMMA] was a
legislative response to escalating problems in the malpractice
insurance industry, with physicians being fearful of exposure to
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malpractice claims and, further, being unable to obtain adequate
malpractice insurance. Johnson v. St. Vincent Hospital, Inc., 273
Ind. 374, 379-80, 404 N.E.2d 585, 589-90 (1980).
*****
The [IMMA] defines malpractice as “a tort or breach of contract
based on health care or professional services that were provided,
or that should have been provided, by a health care provider, to a
patient.” Ind. Code § 34-18-2-18. Health care is “an act or
treatment performed or furnished, or that should have been
performed or furnished, by a health care provider for, to, or on
behalf of a patient during the patient’s medical care, treatment, or
confinement.” Ind. Code § 34-18-2-13. A “patient” is “an
individual who receives or should have received health care from
a health care provider, under a contract, express or implied, and
includes a person having a claim of any kind, whether derivative
or otherwise, as a result of alleged malpractice on the part of a
health care provider.” Ind. Code § 34-18-2-22. The [IMMA]
does not necessarily apply to all cases where a health care
provider is a party. [Midtown Cmty. Mental Health Ctr. v. Estate of
Gahl by Gahl,] 540 N.E.2d [1259, 1260 (Ind. Ct. App. 1989),
trans. denied.] The [IMMA] covers “curative or salutary conduct
of a health care provider acting within his or her professional
capacity,” i.e., it must be undertaken in the interest of or for the
benefit of the patient’s health. Collins v. Thakkar, 552 N.E.2d 507,
510 (Ind. Ct. App. 1990), trans. denied. The [IMMA] does not
apply to conduct unrelated to the promotion of a patient’s health
or the provider’s exercise of professional expertise, skill, or
judgment. Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182,
185 (Ind. 2011) (emphasis added); Doe by Roe v. Madison Center
Hosp., 652 N.E.2d 101, 103 (Ind. Ct. App. 1995), trans. dismissed.
When deciding whether a claim falls under the provisions of the
[IMMA,] “we are guided by the substance of a claim to
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determine the applicability of the Act.” Doe by Roe, 652 N.E.2d
at 104. “[T]he test to determine whether a claim sounds in
medical malpractice is ‘whether the claim is based on the
provider’s behavior or practices while acting in his professional
capacity as a provider of medical services.’” Madison Ctr., Inc. v.
R.R.K., 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006) (quoting
Collins, 552 N.E.2d at 511), trans. denied. We have observed that
application of this test “has resulted in hairline distinctions
between claims that sound in medical negligence and those that
sound in ordinary negligence.” Anonymous Hospital [v. Doe], 996
N.E.2d [329,] 333 [(Ind. Ct. App. 2013)] (citing Estate of O’Neal ex
rel. Newkirk v. Bethlehem Woods Nursing & Rehab. Ctr., 878 N.E.2d
303, 311 (Ind. Ct. App. 2007))[, trans. denied]. Indeed, “‘[f]or
more than thirty years, claimants and courts have wrestled with
the question of what activities fall within the [IMMA.]’” Eads v.
Cmty. Hosp., 932 N.E.2d 1239, 1244 (Ind. 2010) (quoting Judge
Kirsch’s dissent).
Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 727 (Ind. Ct. App. 2014), trans.
denied. We have also noted, regarding the difference between medical and
ordinary negligence claims:
A case sounds in ordinary negligence [rather than medical
negligence] where the factual issues are capable of resolution by a
jury without application of the standard of care prevalent in the
local medical community. By contrast, a claim falls under the
[IMMA] where there is a causal connection between the conduct
complained of and the nature of the patient-health care provider
relationship.
Terry v. Cmty. Health Network, Inc., 17 N.E.3d 389, 393 (Ind. Ct. App. 2014).
[17] Here, Insurance Companies filed their claims with the IDOI and their claims in
the trial court contemporaneously. The Insurance Companies then successfully
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petitioned the trial court to hold in abeyance the claims before the trial court
until the Medical Review Board issued its opinion regarding the Insurance
Companies’ claims under the IMMA. Four years later, after receiving an
unfavorable opinion from the IMMA, the Insurance Companies argued before
the trial court that the IMMA no longer applied to the claims before the trial
court and that Community should be precluded from relying on their
affirmative defenses related to the IMMA. The trial court agreed and granted
the Insurance Companies summary judgment on the request that Community
be precluded from using affirmative defenses they asserted under the IMMA.
Community asserts the trial court erred when it granted summary judgment.
We agree with Community.
[18] We find our holding in West, 23 N.E.3d at 732, to be instructive. In West,
Crystal West sustained significant permanent injuries after a co-worker,
Michael, drove a vehicle into the elevated mechanical platform on which
Crystal was standing. Crystal and her husband, William West, (“the Wests”)
filed a complaint in St. Joseph County against certain healthcare providers of
Michael, alleging the healthcare providers were negligent in treating Michael
with narcotic pain medication for a cervical strain and releasing him to work.
The Wests also filed a proposed claim under the IMMA with the IDOI.
[19] The Wests alleged there was a breakdown in communication between a nurse
and Michael, and between the same nurse and Michael’s doctor, who cleared
Michael to return to work, not knowing he had been prescribed a narcotic pain
reliever. The Wests then filed a motion for preliminary determination of law
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with the St. Joseph County Court, asking the court to determine if the IMMA
applied to their claims against Michael’s healthcare providers. The trial court
denied the motion; however, in a footnote the trial court stated that, had it
entered a preliminary determination of law, it “would have likely ruled that the
proposed complaint sounds in medical malpractice and is covered by the
[IMMA].” West, 23 N.E.3d at 720.
[20] A month later, the Wests filed a complaint for declaratory judgment in Marion
County. In that action, the Wests named the healthcare providers’ insurance
companies, the IDOI, and the Patients’ Compensation Fund as defendants.
The Wests asked the Marion County Court to determine if the IMMA applied
to their claims against the healthcare providers in St. Joseph County, as the
clarification of applicable law “would affect not only how and where the case
would be litigated but also which insurance policies and coverage would be
available to the Wests should they ultimately be successful in their claims.” Id.
[21] After denying the insurance companies’ motion to dismiss under Indiana Trial
Rule 12(B)(8), the trial court considered the issue of whether the IMMA applied
to the Wests’ claims in St. Joseph County. Following briefing and an oral
argument, the Marion County Court decided the Wests’ claims were founded in
common law negligence, rather than the IMMA, because there were no factual
disputes regarding the dosage of narcotic pain medication given to Michael,
Michael’s treatment, or the appropriateness of the warnings Michael was given,
which were all issues that could have been decided by a medical review panel.
The Marion County Court also held the Wests did not fit the IMMA’s
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definition of “patient” or “a person having a claim of any kind, derivative or
otherwise.” Ind. Code § 34-18-2-22. The insurance companies appealed.
[22] As is relevant to this action, the insurance companies argued on appeal that the
Wests were estopped from claiming the IMMA did not apply to their claims
because the Wests had filed a proposed claim before the IDOI. Our court
rejected that argument, noting:
[T]he Wests simultaneously filed a complaint in the St. Joseph
Circuit Court and with the IDOI, and they promptly sought a
preliminary determination of law approximately two months
after the filing the St. Joseph action, asking that court to find that
their claims were not governed by the [IMMA.] They have
consistently and thoroughly pursued that position throughout
years of proceedings in multiple courts. We do not find that the
Wests’ decision to simultaneously file complaints in the St.
Joseph Circuit Court and the IDOI, likely done to avoid any
potential statute of limitations issues, is problematic or that it
thereby prevented them from pursuing a determination that the
[IMMA] did not apply to their claims.
West, 23 N.E.3d at 732.
[23] Community argues West is distinguishable from the facts of the case before us
because, while the Wests sought clarification from the beginning of all
litigation, the Insurance Companies here waited until after the medical review
panel rendered its decision contrary to the Insurance Companies’ interests
before seeking clarification about whether the IMMA applied to the Insurance
Companies’ claims. Further, Community contends, West is inapposite because
despite the Insurance Companies’ reliance on its holding for the premise they
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did not waive their ability to challenge the applicability of the IMMA, “the
Insurance Companies consistently and repeatedly claimed to the trial court that
the [IMMA] did apply[.]” (Br. of Appellant at 25) (emphasis in original). We
agree.
[24] Unlike in West, the Insurance Companies repeatedly delayed the proceedings in
trial court while waiting for an opinion from the Medical Review Board. At no
time did the Insurance Companies file a request for declaratory judgment or
indicate in any way that they did not believe the case to be under the purview of
the IMMA. 8 In fact, the Insurance Companies repeatedly represented that their
claim fell under the IMMA by indicating the relevant Community employees
were health care providers under the IMMA.
[25] In Manley v. Sherer, 992 N.E.2d 670, 674 (Ind. 2013), our Indiana Supreme
Court confronted an issue very similar to the one at issue here. In Manley, the
Manleys filed a proposed complaint with the IDOI against Dr. Sherer, who
provided care to Kimberly Zehr, the driver in an accident in which Mrs.
Manley sustained injury. Dr. Sherer subsequently filed a motion for
preliminary determination of law and for summary judgment with the trial
8
The Insurance Companies contend Community was well-aware of the Insurance Companies’ intent to
challenge the applicability of the IMMA because the Insurance Companies “consistently alleged that they
had been damaged in a sum not less than $3,250,000 - an amount clearly over the cap imposed by [IMMA].”
(Br. of Appellees at 13.) However, as our Indiana Supreme Court noted in Eads, the amount of damages
requested is of no consequence because “[t]o the extent there is a difference . . . to the caps on medical
malpractice recovery or other procedural differences in medical malpractice cases, these are matters of law
that the Hospital is equipped to evaluate itself.” Eads v. Cmty. Hosp., 932 N.E.2d 1239, 1247 (Ind. 2010).
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court, in which Dr. Sherer alleged the Manleys’ proposed complaint before the
IDOI was untimely because it was filed four days after the two-year statute of
limitations under the IMMA. In response, the Manleys contended that their
claim fell under the doctrine of continuing wrong, such that the two-year statute
of limitations imposed by the IMMA did not apply. Manley v. Sherer, 960
N.E.2d 815, 821 (Ind. Ct. App. 2011), vacated by Manley v. Sherer, 992 N.E.2d
670, 674 (Ind. 2013). Our Indiana Supreme Court rejected this argument,
holding:
We preliminarily reject the plaintiffs’ claim that their action
against Dr. Sherer and his medical group is not governed by the
Indiana Medical Malpractice Act. The plaintiffs have treated it
otherwise by filing their proposed complaint with the
Department of Insurance as required by the Act. They may not
now contend that the Medical Malpractice Act and its time
limitation do not apply to their claim.
Manley, 992 N.E.2d at 674. The same is true here. The Insurance Companies
cannot now, after receiving a decision from the medical review board that does
not comport with their trial strategy, claim the IMMA does not apply because
the issue is purely clerical.
Conclusion
[26] The trial court erred when it granted summary judgment in favor of the
Insurance Companies because, under Manley, they cannot proceed as if the
IMMA applies to their claim and then disavow the IMMA when the Medical
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Review Board renders an unfavorable decision. Like in West, the Insurance
Companies should have, and had ample time to, file a motion for declaratory
judgment early in the proceedings if they believed the IMMA did not apply.
Accordingly, we reverse and remand for proceedings consistent with this
opinion.
[27] Reversed and remanded.
Riley, J. and Mathias, J., concur.
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