Docket: 1799 Saskatchewan Government Insurance Appellant (Respondent) - v. -, 2011 SKCA 70

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 70 Date: 20110610 Between: Docket: 1799 Saskatchewan Government Insurance Appellant (Respondent) - and - Patricia Hotel

(1973) Ltd. Respondent (Applicant) Coram: Jackson, Richards and Ottenbreit JJ.A. Counsel: Allan F. McLeod for the Appellant Robert F. Thornton, Q.C. for the Respondent

Appeal: From: Q.B.G. No. 386 of 2009, J.C. Saskatoon Heard: February 17, 2011 Disposition: Appeal allowed Written Reasons: June 10, 2011 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Richards J.A. I. Introduction [ 1 ] A building under demolition collapsed onto an electrical sub-station owned by the City of Saskatoon and caused significant damage. The City then sued several parties including the respondent, Patricia Hotel

(1973) Ltd. (“the Pat”). [ 2 ] The Pat was insured by the appellant, Saskatchewan Government Insurance (“SGI”). The issue in this appeal is whether SGI has a duty to defend the City’s claim. [ 3 ] I conclude, for the reasons set out below, that SGI has no obligation to defend. It is clear that the facts alleged by the City in its pleadings do not disclose a claim falling within the coverage provided by the contract of insurance between the Pat and SGI. II. Background [ 4 ] The Pat was a named insured in an all-risk Commercial Pak insurance policy (the “Policy”) issued by SGI.

The coverage period under the Policy ran from November 1, 2004 to November 1, 2005. [ 5 ] The relevant parts of the Policy are set out below: Policy Cover Page … Name and Postal Address PATRICIA HOTEL

(1973) LTD 345 2ND AVE N SASKATOON SK S7K 2B8 … Property Description / Coverage … Location 1: 345 2nd Avenue N, Saskatoon, SK Occupancy by Insured: Hotel, Beverage Room and Beer and Wine Store Occupancy by Others: Nil

LIABILITY Commercial General Liability Each Occurrence Limit 2,000,000 Products – Completed Operations Aggregate Limit 2,000,000 Personal Injury Limit 2,000,000 Medical Expenses Limit - any one person 2,500 Description of Operations: Hotel, Night Club and Beer and Wine Store …

Section I – Coverages Coverage A – Bodily Injury and Property Damage Liability This insurance applies only when an Each Occurrence Limit is stated on the Policy Cover Page. 1. Insuring Agreement (

a) We will pay those sums that the insured becomes legally obligated to pay as compensatory damages because of “bodily injury” or “property damage” to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments – Coverages A, B and D . This insurance applies only to “bodily injury” and “property damage” which occurs during the policy period. The “bodily injury” or “property damage” must be caused by an “occurrence”. The “occurrence” must take place in the “coverage territory”. We will have the right and duty to defend any “action” seeking those compensatory damages but:

(1) The amount we will pay for compensatory damages is limited as described in

Section III – Limits of Liability ;

(2) We may investigate and settle any claim or “action” at our discretion; and

(3) Our right and duty to defend end when we have used up the applicable limit of liability in the payment of judgments or settlements under Coverages A, B or D or medical expenses under Coverage C. (

b) Compensatory damages because of “bodily injury” include compensatory damages claimed by any person or organization for care, loss of services or death resulting at any time from the “bodily injury”. (c) “Property damage” that is loss of use of tangible property that is not physically injured shall be deemed to occur at the time of the “occurrence” that caused it. 2. Exclusions This insurance does not apply to: … (m) “Property damage” arising out of: …

(3) The removal or weakening of support of any property, building or land whether such support be natural or otherwise. This exclusion (

m) does not apply: (

a) To “property damage” arising out of work performed on your behalf by any contractor or sub-contractor; or … (underlining added) [ 6 ] In 2007, the City of Saskatoon issued a statement of claim (the “Claim”) naming Randy Evans, the Pat and P.R.M. Holdings Ltd. (“P.R.M. Holdings”) as defendants. It claimed damages in relation to the loss suffered when a building being demolished by Mr. Evans collapsed on a City-owned electrical sub-station. The Claim alleged the Pat had been negligent in failing to ensure that Mr. Evans was competent to take down the building and in failing to ensure the building was demolished in a proper manner. [ 7 ] The key aspects of the Claim are set out below:

2. The Defendant, RANDY EVANS (“ Mr. Evans ”), is, and was at all times material to this action, an individual who resided in the City of Saskatoon, in the Province of Saskatchewan. 3. The Defendant, PATRICIA HOTEL

(1973) LTD. (“ The Pat ”), is a business corporation duly incorporated and registered pursuant to the provisions of The Business Corporations Act , R.S.S. 1978, c. B-10, and has a registered office at 100 316 6 th Avenue North, Saskatoon, Saskatchewan. 4. The Defendant, P.R.M. HOLDINGS LTD. (“ P.R.M. Holdings ”), is a business corporation duly incorporated and registered pursuant to the provisions of The Business Corporations Act , R.S.S. 1978, c. B-10, to carry on the business of operating a nightclub, and has a registered office at 100 316 6 th Avenue North, Saskatoon, Saskatchewan. 5.

The Plaintiff owns an electrical sub-station located on land just south of 356 1 st Avenue North, Saskatoon, Saskatchewan… (the “ Sub-Station ”). The Sub-Station is used by the Plaintiff to, inter alia , provide power to local residents and businesses of Saskatoon. 6. In 2005, P.R.M. Holdings owned the building that used to be located to the north of the Sub-Station… 7. The Plaintiff states that, at the instruction of Elvin Nelson, a part owner and manager of “The Pat”, and with the knowledge and consent of P.R.M. Holdings, Mr. Evans was hired to demolish the Building. 8. On Thursday, May 19, 2005, Mr.

Evans began demolishing the interior of the Building. 9. At approximately 16:55 on May 22, 2005, a portion of the south wall of the Building fell and hit three transformers owned by the Plaintiff and located within the Sub-Station… 10. As a result of a portion of the south wall of the Building falling on the Sub-Station and, in particular, on T1, T2, and T3, the Plaintiff has suffered loss and damage,… 13. The Plaintiff states that, in hiring Mr. Evans to demolish the Building, “The Pat” had a duty of care to ensure that he was competent and sufficiently qualified to demolish it.

The Plaintiff states that, in the event “The Pat” failed to ensure that Mr. Evans was competent and sufficiently qualified to demolish the Building, it knew or ought to have known that its failure would result in damage to neighbouring properties and, in particular, damage to the Sub-Station and any property located within its boundaries. 14. The Plaintiff states that the damage to the Sub-Station and, in particular, to T1, T2, and T3 was caused by the negligence of “The Pat”, particulars of which are that it failed to: (

a) ensure that Mr. Evans was competent and sufficiently qualified to demolish the Building; (

b) ensure that the work in demolishing the Building was done in a safe and reasonable manner; and (

c) obtain a permit allowing demolition of the Building in accordance with the standards required by the Plaintiff. 15. In the alternative, the Plaintiff states that “The Pat” was vicariously liable for the acts of Mr. Evans in demolishing the Building as the work was “inherently dangerous” or “extra-hazardous”. Consequently, “The Pat” had a non-delegable duty to ensure that the work performed by Mr. Evans in demolishing the Building was done in a safe and reasonable manner and without causing damage to any neighbouring properties, including the Sub-Station and any property located within its boundaries. … 22. The Plaintiff, therefore, requests the following relief: (

a) general damages in an amount to be determined at trial; (

b) special damages in the amount of $312,445.39, and such other amounts as may [be] determined at trial; (

c) interest pursuant to the Pre-judgment Interest Act; (

d) costs of the within action; and (

e) such further and other relief as counsel may advise and this Honourable Court may allow. III. The Queen’s Bench Decision [ 8 ] The Pat asked SGI to defend the City’s action but SGI declined to do so. [ 9 ] The Pat then applied to the Court of Queen’s Bench for an order or declaration that SGI had a duty to defend. The application proceeded on the basis of an Agreed Statement of Facts. It recounted SGI’s refusal to defend and set out the Policy and the Claim. [ 10 ] The Chambers judge held in the Pat’s favour. He began his analysis by looking at “the provisions of the policy as a whole” and the

description in the Policy of the Pat’s insured operations. He found that the demolition of the building was outside the scope of insuredactivities: [6] In those circumstances, I ask whether an insured reasonably would expect that the existing insurance policy would extend toclaims that might arise from the demolition. I must answer in the negative. The demolition of a nearby building, even for purposesrelated to the ongoing operations, is different from the operations themselves.

An insured would not reasonably expect that the insurancethat was obtained to cover the “Hotel, Night Club and Beer and Wine Store” operations would extend to a building demolition. Thedemolition of a building is so different from the operation of a “Hotel, Night Club and Beer and Wine Store” that an insured – if he or sheturned his or her mind to the question – would conclude that other insurance would be necessary to cover claims that might arise fromthe demolition. … [9] For these reasons, I conclude that in general the demolition work is outside the scope of the insured operations of Patricia Hotel.

This analysis does not end with my examination of the scope of operations in general, though. [11] However, the Chambers judge then turned to the exclusions in the Policy and, in particular, to exclusion 2(m), reproduced above atpara. 5 of these reasons. He concluded it created an ambiguity with respect to the issue of possible coverage and said the ambiguity hadto be resolved against SGI. The Chambers judge wrote as follows: [11] Exclusion (m)(3) provides that the policy does not cover property damage arising out of the removal or weakening of support of abuilding.

A reasonable inference to be drawn from the City of Saskatoon’s statement of claim is that, in causing the wall to fall, Mr.Evans removed or weakened support of the building. Thus, reading as far as exclusion (m)(3), one may conclude that proof of the Cityof Saskatoon’s claim against Patricia Hotel would not establish facts requiring SGI to indemnify Patricia Hotel. [12] Clause (

a) of exclusion (m), however, eliminates the exclusion of coverage for property damage caused by the removal orweakening of support, in the event that the property damage arose out of work performed by a contractor retained by Patricia Hotel. Inthat event – the event of property damage arising out of removal or weakening of support of a building by Patricia Hotel’s contractor –clause (

a) contemplates the possibility of coverage. Thus Patricia Hotel, upon reading the policy provisions, reasonably could expectthat work such as that identified in the statement of claim would be covered by the policy. [12] SGI appeals from that decision. IV. Analysis [13] An insurer’s obligation to pay for and instruct legal counsel in defending an insured against a third party claim (the “duty todefend”) arises as a matter of contract between the insurer and the insured.

It is, of course, separate and distinct from the insurer’s dutyto indemnify, i.e. its duty to pay for a judgment awarded to the third party. [14] The question of how the duty to defend is triggered has been addressed by the Supreme Court in a line of cases including Nichols v.American Home Assurance Co., (SCC), [1990] 1 S.C.R. 801; Non-Marine Underwriters, Lloyd’s of London v. Scalera,2000 SCC 24, [2000] 1 S.C.R. 551; and Monenco Ltd. v.

Commonwealth Insurance Co., 2001 SCC 49, [2001] 2 S.C.R. 699. [15] In Nichols, the Court endorsed the so-called “Pleadings Rule” which holds that, in deciding whether an insurer has a duty to defend,the controlling consideration is the pleadings, not the insurer’s view of the merits of the claim. According to McLachlin J. (as she thenwas), proof of an obligation to indemnify is not necessary to engage an obligation to defend. Rather, “[t]he mere possibility that a claimwithin the policy may succeed suffices” (p. 810). [16] This approach was explained further in Non-Marine Underwriters.

There, the Court clarified that the Pleadings Rule did not meanthe process of determining whether there was a duty to defend is hostage to the specific language used in the pleadings. It said, at para.79, that “[w]hat really matters is not the labels used by the plaintiff, but the true nature of the claim.” Iacobucci J., for the Court,indicated as follows: 81 [Nichols] does not, however, mean that the parties to an insurance contract are to be bound by the plaintiff’s choice of labels, andthus defenceless against inaccurate or manipulative pleadings.

Nichols only held that, having determined the nature of the claim, aninsured need not further prove that the claim would succeed.

This is just common sense, since otherwise an insured would have to provehe is actually liable in order to get an insurer to defend a liability claim. [17] In Monenco Ltd., the Supreme Court again endorsed the Pleadings Rule and confirmed that the duty to defend “requires anassessment of the pleadings to ascertain the ‘substance’ and ‘true nature’ of the claims” and that, in this regard, it is necessary to considerwhether the “factual allegations…in their entirety…could possibly support the plaintiff’s legal claims.” (para. 35)

[18] The principles established by this trilogy of cases were recently revisited by the Supreme Court in Progressive Homes Ltd. v.Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245. Rothstein J. succinctly summarized them as follows: [19] An insurer is required to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer toindemnify the insured for the claim (Nichols v. American Home Assurance Co., (SCC), [1990] 1 S.C.R. 801, atpp. 810-11; Monenco Ltd. v.

Commonwealth Insurance Co., 2001 SCC 49, [2001] 2 S.C.R. 699, at para. 28; Jesuit Fathers of UpperCanada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744, at paras. 54-55). It is irrelevant whether the allegationsin the pleadings can be proven in evidence. That is to say, the duty to defend is not dependent on the insured actually being liable and theinsurer actually being required to indemnify.

What is required is the mere possibility that a claim falls within the insurance policy.Where it is clear that the claim falls outside the policy, either because it does not come within the initial grant of coverage or is excludedby an exclusion clause, there will be no duty to defend (see Nichols, at p. 810; Monenco, at para. 29). [20] In examining the pleadings to determine whether the claims fall within the scope of coverage, the parties to the insurance contractare not bound by the labels selected by the plaintiff (Non-Marine Underwriters, Lloyd's of London v.

Scalera, 2000 SCC 24, [2000] 1S.C.R. 551, at paras. 79 and 81). The use or absence of a particular term will not determine whether the duty to defend arises. What isdeterminative is the true nature or the substance of the claim (Scalera, at para. 79; Monenco, at para. 35; Nichols, at p. 810). [Emphasis added] [19] The Supreme Court has not resolved the issue of whether a court is entitled to go beyond the pleadings and consider extrinsicevidence when assessing the “substance” of a claim.

It deliberately left that question unanswered in Moneco Ltd. at para. 36. [20] Turning to the task of applying the principles summarized in Progressive Homes to the case at hand, it is necessary to begin bytaking a closer look at the Claim itself. It sets out the following allegations relevant to the issue raised by this appeal: (

a) The Pat has a registered office at 100, 316 6th Avenue North in Saskatoon. (

b) P.R.M. Holdings is incorporated to carry on the business of operating a nightclub and has a registered office at 100, 316 6th Avenue North in Saskatoon. (

c) P.R.M. Holdings owned the building that used to be located to the north of the City of Saskatoon electrical sub-station. Thebuilding was located on Lot 27, Blk/Par 176, Plan No. 99SA32572. The sub-station was located on Lot 26. (

d) At the instruction of Elvin Nelson, a part owner and manager of the Pat, and with the knowledge and consent of P.R.M.Holdings, Randy Evans was hired to demolish the building owned by P.R.M. Holdings. (

e) Mr. Evans began demolishing the building and, on May 22, 2005, a portion of the south wall of the building fell and damagedthree transformers located in the City’s sub-station. (

f) The Pat is liable to the City in negligence because it failed to ensure that Mr. Evans was competent and sufficiently qualified todemolish the building, failed to ensure that the work in demolishing the building was done in a safe and reasonable manner, and failed toobtain a permit allowing demolition of the building in accordance with the standards required by the City. In the alternative, the Pat isvicariously liable for the acts of Mr.

Evans in demolishing the building. [21] I should note here that the Chambers judge appeared to assume the building was being demolished to create extra parking space forthe Pat’s operations. However, there is nothing in the pleadings or the Agreed Statement of Facts on this point. Counsel for SGIindicated that SGI knows nothing of this aspect of the situation and is not prepared to concede it.

On the other hand, although the Claimand the Agreed Statement of Facts are silent as to the location of the building relative to the Patricia Hotel, counsel for the Pat and SGIagreed to proceed on the basis that the building was located across the back alley from the Hotel. [22] Thus, in the absence of any attempt on the part of the Pat to have the Court consider matters not alleged in the Claim or contained inthe Agreed Statement of Facts, I am obliged to proceed on the basis that (

a) the reason why the building was being demolished isunknown, and (

b) the building was located across the back alley from the Patricia Hotel. I should note as well that the Claim and theAgreed Statement of Facts say nothing about the corporate or other relationship (if any) between the Pat and P.R.M. Holdings. [23] Having reviewed the nature of the claim against the Pat, the next step in the analysis is to consider the terms of the Policy anddetermine if the claim falls within its scope. The principles of contract

interpretation that should be brought to bear in this regard havebeen extensively canvassed by the Supreme Court. They were summarized as follows by the Court in Progressive Homes:

[22] The primary interpretive principle is that when the language of the policy is unambiguous, the court should give effect to clear language, reading the contract as a whole ( Scalera , at para. 71 ). [23] Where the language of the insurance policy is ambiguous, the courts rely on general rules of contract construction ( Consolidated- Bathurst , at pp. 900-902). For example, courts should prefer

interpretations that are consistent with the reasonable expectations of the parties ( Gibbens , at para. 26; Scalera , at para. 71 ; Consolidated-Bathurst , at p. 901), so long as such an

interpretation can be supported by the text of the policy. Courts should avoid

interpretations that would give rise to an unrealistic result or that would not have been in the contemplation of the parties at the time the policy was concluded ( Scalera , at para. 71 ; Consolidated-Bathurst , at p. 901). Courts should also strive to ensure that similar insurance policies are construed consistently ( Gibbens , at para. 27). These rules of construction are applied to resolve ambiguity.

They do not operate to create ambiguity where there is none in the first place. [ 24 ] When these rules of construction fail to resolve the ambiguity, courts will construe the policy contra proferentem - against the insurer ( Gibbens , at para. 25; Scalera , at para. 70 ; Consolidated-Bathurst , at pp. 899-901).

One corollary of the contra proferentem rule is that coverage provisions are interpreted broadly, and exclusion clauses narrowly ( Jesuit Fathers , at para. 28). [24] The Pat submits that the proper approach to understanding the Policy is reasonably straightforward and is driven by the “Insuring Agreement” found under the heading “Section I – Coverages” of the Policy. For ease of reference, the Insuring Agreement is set out below:

Section I – Coverages … 1. Insuring Agreement (

a) We will pay those sums that the insured becomes legally obligated to pay as compensatory damages because of “bodily injury” or “property damage” to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments – Coverages A, B and D . This insurance applies only to “bodily injury” and “property damage” which occurs during the policy period. The “bodily injury” or “property damage” must be caused by an “occurrence”.

The “occurrence” must take place in the “coverage territory”. … [ 25 ] The Pat says the claim in issue here comes within these terms because it alleges “property damage” caused by an “occurrence” taking place in the “coverage territory.” The Pat also refers to clause 2(

m) under the “Exclusions” heading in the Policy which, as will be recalled, says coverage does not apply to property damage arising out of the removal or weakening of the support of any building but then goes on to say that the exclusion does not apply to property damage arising out of work performed on behalf of the insured by a contractor. In the Pat’s submission, clause 2(

m) reinforces the idea that property damage caused by Mr. Evans necessarily came within the scope of the Policy because he was a contractor working on the Pat’s behalf. In making these points, the Pat contends the “Description of Operations” found on the first page of the “Policy Cover Page” is not relevant to the proper construction of the Policy. [ 26 ] The Pat’s line of thinking with respect to the Policy is clearly incorrect.

The Cover Page is self-evidently part of the Policy as it sets out terms that are essential to the description of the extent and nature of the contractual agreement between the Pat and SGI.

As noted above, those terms include the following: Property Description / Coverage … Location 1: 345 2nd Avenue N, Saskatoon, SK Occupancy by Insured: Hotel, Beverage Room and Beer and Wine Store Occupancy by Others: Nil LIABILITY Commercial General Liability Each Occurrence Limit 2,000,000 Products – Completed Operations Aggregate Limit 2,000,000 Personal Injury Limit 2,000,000 Medical Expenses Limit- any one person 2,500 Description of Operations: Hotel, Night Club and Beer and Wine Store

… [ 27 ] The status of the Cover Page as an integral part of the contract of insurance is underlined by

Article 13 of the Policy found under the heading “Section V – Commercial General Liability Conditions.” It reads as follows: 13. Representations By accepting this insurance, you agree: (

a) The statements on the Policy Cover Page are accurate and complete; (

b) Those statements are based upon representations you made to us; and (

c) We have issued this insurance in reliance upon your representations. [ 28 ] All of this only makes common sense. SGI would not know whether to agree to insure the Pat, or how to determine appropriate premiums or exemptions, unless it knew what sort of operations the Pat conducted. The business of underwriting a policy of insurance in relation to “Hotel, Night Club and Beer and Wine Store” operations is obviously quite different than the business of underwriting a policy in relation to, for example, sky diving or munitions manufacturing operations. [ 29 ] Exclusion 2(

m) does not change any of this. It operates as an exception to SGI’s general obligation to indemnify the Pat with respect to property damage claims. As such, it cannot create coverage where none would have existed otherwise. Thus, to refer back to the situation I alluded to earlier, imagine that the Pat had decided to diversify into munitions manufacturing. The mere fact that it might hire a contractor to demolish a building in order to expand its new munitions business would not itself bring damage caused by the demolition within the scope of the operations described in the Policy. In other words, coverage does not flow directly from an exemption like clause 2(

m) or the limitations found in it and, in my opinion, no aspect of clause 2(

m) creates an ambiguity with respect to coverage. If the Pat’s potential liability arises from activities outside the scope of hotel, beverage room and beer and wine store operations, the fact that such activities involve property damage arising from work performed by a contractor cannot engage coverage under the Policy. [ 30 ] However, the Pat says that seeing the Policy Cover Page as part of the Policy is not necessarily the end of the road.

It also submits that the demolition of the building should be understood or assumed to be related to “Hotel, Night Club and Beer and Wine Store” operations because clause 7 of the Claim alleges Mr. Evans was hired to demolish the building “at the instruction of Elvin Nelson, a part owner and manager of ‘The Pat’.” Framed in more complete terms, this argument raises the question of whether the Policy applies in circumstances where (

a) a part owner and manager of the Pat hired Mr. Evans to demolish a building, (

b) the building was located across the alley from the Patricia Hotel, and (

c) the building was owned by P.R.M. Holdings, a company incorporated to carry on the business of operating a nightclub. [ 31 ] In assessing this argument, it is perhaps important to recognize that, if property damage had been caused by repair or maintenance work being done to the Patricia Hotel, a claim by a third party in respect of that damage would attract a duty for SGI to defend. SGI itself does not suggest otherwise. But the present situation is not like that. On the basis of the facts alleged in the Claim and otherwise agreed, Mr.

Evans was demolishing a building physically separate from the Patricia Hotel and located across the alley from it on a legally distinct parcel of land. The building in question was not owned by the Pat but rather by P.R.M. Holdings. P.R.M. Holdings was incorporated to carry on the business of operating a nightclub but we know nothing of its relationship (if any) with the Pat. Further, as explained above, we also know nothing of why the building was being demolished and, in particular, we do not know if the demolition related in any way to the Pat’s “Hotel, Night Club and Beer and Wine Store” operations.

As a bottom line, there is simply not enough here to bring the City’s claim within the possible ambit of the coverage provided by the Policy. [ 32 ] Significantly, the result is the same if the inferences available from the alleged facts are stretched and the demolition is characterized as having been somehow undertaken in the larger business interests of the Pat.

Even in that situation, the act of tearing down a free-standing building owned by a third party is itself (as noted by the Chambers judge) not included in what might reasonably be considered to be comprehended by hotel, nightclub and beer and wine store operations. This is determinative because those operations delimit the scope of the coverage provided by the Policy. [ 33 ] Thus, all things considered, I am not persuaded that the City’s claim against the Pat engages a duty to defend on the part of SGI.

This, of course, does not answer the question of whether, in light of the full factual picture, SGI might have a duty to indemnify the Pat.

V. Conclusion [ 34 ] I conclude, for the reasons outlined above, that the appeal must be allowed. SGI is entitled to costs in the usual way. DATED at the City of Regina, in the Province of Saskatchewan, this 10 th day of June, A.D. 2011. ___ “Richards J.A.” ___________________ Richards J.A. I concur ____ “Jackson J.A.” __________________ Jackson J.A. I concur ____ “Ottenbreit J.A.” _________________ Ottenbreit J.A.