806 S.W.2d 608 (1991)
305 Ark. 33
Gari WEST and Larry West, Appellants,
v.
SEARLE & COMPANY, G.D. Searle & Company, and Searle Pharmaceuticals, Inc., Appellees.
No. 90-49.
Supreme Court of Arkansas.
March 18, 1991.
*609 David Hodges and Josh McHughes, Little Rock, for appellants.
Elizabeth J. Robben and Rick Jett, Little Rock, for appellees.
DUDLEY, Justice.
Appellants, Gari and Larry West, filed a products liability suit against appellees, Searle & Co., G.D. Searle & Co., and Searle Pharmaceuticals, Inc. In their complaint the Wests pleaded that Gari's use of Ovulen-28, a birth control medication, caused her to develop a hepatic adenoma, or a benign liver tumor, which eventually ruptured and caused a life threatening situation. The complaint next recites by conclusory, not factual, allegations, or issue pleadings, that the oral contraceptive was defectively designed and manufactured; that the appellee drug companies were negligent in warning of the danger of the drug; and that the product breached the warranty of fitness. Recovery was asked upon the theories of strict liability, negligence, and breach of warranty. The Wests' complaint additionally alleged that the product was designed, manufactured, *610 and delivered by the appellees. After limited discovery, the appellee drug companies filed a motion for summary judgment. The trial court granted the motion. We affirm in part, as modified, and reverse in part the order granting summary judgment.
We do not address the eight points of appeal, and numerous sub-points, in the order they are argued. Instead, we divide the opinion into two main categories and address the points in that manner.

I. Negligence and Breach of Warranty

The trial court granted summary judgment on those counts of the complaint, among others, that alleged negligence and breach of warranty. However, neither side addressed those counts in the motion for summary judgment or the response. There were no affidavits, counter-affidavits, or other proof on those counts. They were wholly ignored by both sides. Obviously, the trial court should not have ruled that there was no genuine issue of material fact on those particular counts. Even so, we will sustain a trial court's ruling if it reached the right result, even though it announced the wrong reason. Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983). The trial court reached the right result on those counts because they do not state facts upon which relief can be granted. They give "issue notice" but not "factual notice." We require factual pleadings, not notice pleadings. ARCP Rule 8; Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981).
Summary judgment may be granted on pleadings, Joey Brown Interest, Inc. v. Merchants Nat'l Bank, 284 Ark. 418, 683 S.W.2d 601 (1985), and that should have been done here. However, summary judgment based upon a failure to state a claim upon which relief can be granted is different from a summary judgment based upon a lack of disputed material facts, which results in a party's entitlement to the judgment as a matter of law. The first is the failure to state a claim, the second is the failure to have a claim. Id. When summary judgment is granted upon failure to have a claim, and the ruling is affirmed on that basis, the matter is ended with prejudice. Id. However, when summary judgment is granted in the trial court because of failure to have a claim, but is affirmed on the basis of failure to state a claim, we modify to make the dismissal without prejudice in order to afford the plaintiff-appellant a chance to plead further. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984); ARCP Rule 12(j). Accordingly, we affirm the trial court's granting of the motion for summary judgment on the counts alleging negligence and breach of warranty, but modify it to dismiss without prejudice in order to afford the plaintiff-appellant a chance to plead further.

II. Strict Liability

A. Defective Manufacture and Inadequate Warning

The trial court also granted summary judgment on the count of the complaint alleging strict liability. Again, the plaintiff-appellant did not plead facts upon which relief can be granted.
In order to state a cause of action under the strict liability theory, the plaintiff must plead (1) that he has sustained damages; (2) that the defendant was engaged in the business of manufacturing, or assembling, or selling, or leasing, or distributing the product; (3) that the product was supplied by the defendant in a defective condition which rendered it unreasonably dangerous; and (4) that the defective condition was a proximate cause of plaintiff's damages. Ark.Code Ann. §§ 16-116-101 to -107 (1987); EI. DuPont De Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).
Generally speaking, there are three varieties of product defects: manufacturing defects, design defects, and inadequate warnings. Feldman v. Lederle Laboratories, 97 N.J. 429, 479 A.2d 374, 385 (1984). Here, the plaintiff-appellant did not plead facts sufficient to state a cause of action for defective manufacture of the product or inadequate warning. Accordingly, we treat these counts just as we did the counts *611 on negligence and breach of warranty and affirm the granting of summary judgment, but modify it to a dismissal without prejudice in order to afford appellant a chance to plead further.

B. Defective Design

Similarly, the plaintiff-appellant neither factually pleaded that there was a defect in the design of the drug, nor gave an affidavit in opposition to the motion for summary judgment. Of course, an argument can be made that this count should be treated the same as the previously discussed counts have been treated. However, there is a distinguishing factor. On this count, strict liability for defective design, the appellee drug companies pleaded that they were protected by the "unavoidably unsafe product" defense as set out in comment k to § 402A of the Restatement (Second) of Torts. This constituted a tacit admission by the appellees that the complaint stated a cause of action in strict liability for negligent design. The appellees' pleadings and proof in support of their motion went to whether they were entitled to a summary judgment because of their defense. Accordingly, basic fairness and the appellee drug companies' waiver of appellants' failure to state the cause of action, necessitate that we address this issue, and, on it, we hold that the trial court erred in granting summary judgment.

1. Unavoidably Unsafe Product

The "unavoidably unsafe product" defense contained in comment k to § 402A of the Restatement (Second) of Torts provides in full:
Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.
Comment k represents a judgment that some products, such as certain prescription drugs, are so beneficial to society that their manufacturer should not be held strictly liable if the products are properly prepared and are accompanied by adequate warnings. See Note, Hill v. Searle Laboratories: The Decline of the Learned Intermediary Doctrine in Favor of Direct Patient Warnings of Drug Product Risks, 43 Ark.L.Rev. 821 (1990). Policy justifications for the comment k exception have been described as follows:
Dean Prosser stated an important justification for exempting prescription drugs from strict liability:
The argument that industries producing potentially dangerous products should make good the harm, distribute it by liability insurance, and add the cost to the price of the product, encounters reason for pause, when we *612 consider that two of the greatest medical boons to the human race, penicillin and cortisone, both have their dangerous side effects, and that drug companies might well have been deterred from producing and selling them. Comment k reflects the concern of
American Law Institute members that large monetary judgments would deter drug manufacturers from undertaking research programs to develop socially beneficial pharmaceuticals. Therefore, the adoption of comment k was motivated by the fear that large judgments would increase the costs of beneficial and necessary drugs beyond the reach of the people who need them.
(Footnotes omitted.) Note, Hill v. Searle Laboratories: The Decline of the Learned Intermediary Doctrine in Favor of Direct Patient Warnings of Drug Product Risks, 43 Ark.L.Rev. 821 (1990).
Although this court has never formally adopted comment k into our case law, we do so now, based upon the policy considerations set out above. We are aware of only one court that has declined to adopt comment k. See Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37 (1984). Our choice to adopt the comment does not end the matter, however, but rather requires a second decision: Whether to apply it to all prescription pharmaceutical products, as California did in Brown v. Superior Court, 44 Cal.3d 1049, 751 P.2d 470, 245 Cal.Rptr. 412 (1988), or to apply it as an affirmative defense requiring proof that the drug product is indeed unavoidably dangerous.
The California court's policy decision, to apply the comment k defense to all pharmaceutical products is well summarized in the casenote, Hill v. Searle Laboratories: The Decline of the Learned Intermediary Doctrine in Favor of Direct Patient Warnings of Drug Product Risks, 43 Ark.L.Rev. 821 (1990), and may be reviewed there as well as in the case itself.
On the other hand, a majority of jurisdictions interpret the comment to constitute an affirmative defense. See Hill v. Searle Laboratories, 884 F.2d 1064 (8th Cir.1989) for a listing of those cases. We adopt this second view because of the wording of the comment itself and because it is the better public policy. In reading the comment it is obvious that the drafters did not intend to grant all manufacturers of prescriptive drugs a blanket exception to strict liability. As pointed out by the Supreme Court of Idaho, in Toner v. Lederle Laboratories, 112 Idaho 328, 732 P.2d 297 (1987):
[C]omment [k] refers to "some" products which are unavoidably unsafe; the comment states such products are "especially common in the field of drugs;" the comment cites certain examples from that field deserving of its protection and notes that "[t]he same is true of many other drugs ... [and in particular] many new or experimental drugs...." Obviously, the comment does not apply to all drugs.
This plain meaning is emphasized by the fact that a blanket exception was proposed, but rejected, at the American Law Institute meeting when section 402A and comment k were adopted. 38 A.L.I. Proc. 19, 90-98 (1961). Further, by its wording, the comment applies only to those products which supply a special social need. The last sentence of the comment discusses supplying "the public with an apparently useful and desirable product...."
In order for this affirmative defense to apply, the designer of the drug must show that the product is "unavoidably unsafe." Necessarily then, there must be no feasible alternative design which accomplishes the product's purpose at lesser risk. The evaluation of a purported alternative design and the product's actual design should focus on: (1) the magnitude of the product's risk that the alternative avoids; (2) the costs of the two designs; (3) the benefits of the two designs; and (4) the relative safety of the two designs. See Toner v. Lederle Laboratories, 112 Idaho 328, 732 P.2d 297 at 306 (1987).
In addition, for the comment to protect the designer of the product, the benefit of the product must outweigh the risk. This weighing process must consider the value of the benefit, the seriousness of the risk, and the likelihood of both. See *613 Toner v. Lederle Laboratories, supra, 732 P.2d at 306. However, in the weighing process it should be remembered that comment k only requires that the balance "apparently" tip toward the benefit of a product at the time of distribution. See last sentence of comment k.
As mentioned previously, by its terms comment k exempts unavoidably unsafe products from strict liability only where the plaintiff alleges a design defect, but it does not offer protection from allegations of manufacturing flaws or inadequate warnings.
In the case at bar, the trial court either determined that comment k applied to all prescription pharmaceuticals, or it determined that there was no genuine issue of any material fact, that is, that the drug at issue met a special social need, that there was no feasible alternative, that the drug was unavoidably unsafe, and that the benefits of the drug outweighed the risks. We must reverse on either basis. As previously set out, (1) we reject the point of view that all prescription pharmaceuticals are covered by the comment, and (2) in this case, there is a genuine issue of fact as to whether the drug is "unavoidably unsafe." The appellee drug companies' proof did not meet all of the required criteria to show that Ovulen-28 was an unavoidably unsafe drug. Thus, the trial court erred in ruling that the drug companies' comment k defense entitled them to a summary judgment on the issue of negligent design. Accordingly, the matter must be reversed and remanded.

2. Warning of Danger

There is a second, but equally important factor concerning applicability of the comment k defense: Whether there was an adequate warning of danger. Such a warning must be proved before a judgment is granted on the basis of the affirmative defense set out in comment k. The seller of a product proven to be "unavoidably unsafe" is not held to strict liability for the unfortunate consequences of its use when the product is "accompanied by proper directions and warning" and "proper warning is given." See comment k. The first issue then is, how is a proper warning given?
As a general rule, a manufacturer has a duty to warn the ultimate user of the risks of its product. This duty exists under either the negligence or strict liability theories. An almost universally applied exception to this general rule is known as the learned intermediary doctrine. Note, Hill v. Searle Laboratories: The Decline of the Learned Intermediary Doctrine in Favor of Direct Patient Warnings of Drug Product Risks, 43 Ark. L.Rev. 821 (1990); Comment, The Impact of Product Liability Law on the Development of a Vaccine Against the AIDS Virus, 55 U.Chi.L.Rev. 943, 958, n. 68 (1988). This doctrine provides that a drug manufacturer may rely on the prescribing physician to warn the ultimate consumer of the risks of a prescription drug. The physician acts as the "learned intermediary" between the manufacturer and the ultimate consumer. There are a number of arguments supporting the application of this exception to prescription drug products. They may be summarized as: First, a physician must prescribe the drug, the patient relies upon the physician's judgment in selecting the drug, and the patient relies upon the physician's advice in using the drug. That is to say that there is an independent medical decision by the learned intermediary that the drug is appropriate. Second, it is virtually impossible in many cases for a manufacturer to directly warn each patient. Third, imposition of a duty to warn the user directly would interfere with the relationship between the doctor and the patient. Hill v. Searle Laboratories, 884 F.2d 1064 (1989); In re Certified Questions, 419 Mich. 686, 358 N.W.2d 873, 878 (1984). Note, Hill v. Searle Laboratories: The Decline of the Learned Intermediary Doctrine In Favor of Direct Patient Warnings of Drug Product Risks, supra.
A minority of courts have rejected the learned intermediary doctrine in cases involving oral contraceptives. All three of these cases were decided under Massachusetts and Michigan law. MacDonald v. *614 Ortho Pharmaceuticals, 394 Mass. 131, 475 N.E.2d 65, cert, denied 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985); Odgers v. Ortho Pharmaceutical Corp., 609 F.Supp. 867 (E.D.Mich.1985); and Stephens v. G.D. Searle & Co., 602 F.Supp. 379 (E.D.Mich.1985). The basis of these decisions was that a patient chooses to take an oral contraceptive, and the prescribing physician plays only a passive role. The Massachusetts court wrote:
Whereas a patient's involvement in decision-making concerning use of a prescription drug necessary to treat a malady is typically minimal or nonexistent, the healthy, young consumer of oral contraceptives is usually actively involved in the decision to use "the pill," as opposed to other available birth control products, and the prescribing physician is relegated to a relatively passive role.
(Footnotes omitted).
In a case involving the CU-7, a prescription intrauterine device (IUD), the Eighth Circuit predicted that this court would adopt a somewhat modified approach to the learned intermediary doctrine: "Our view of prescription drugs and the learned intermediary rule is that Arkansas would adopt the test set forth on the issue of adequate warning in Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir.1974)." Hill v. Searle Laboratories, 884 F.2d 1064, 1070 (8th Cir.1989). As the Eighth Circuit explained, the Reyes test is "that there must be either a warning [to the ultimate user] meaningful and complete so as to be understood by the recipientor an individualized medical judgment that this treatment or medication is necessary and desirable for the patient." Id. In other words, under Reyes the mere fact that a prescription drug or device is involved does not automatically invoke the learned intermediary doctrine; there must be an intervening, individualized medical judgment. For example, in Reyes a mass immunization program with a polio vaccine was at issue. The Reyes court determined that because there was no individualized, medical judgment exercised in that situation, the learned intermediary doctrine would not apply, even though a prescription drug was involved.
Here, however, it is not necessary to decide whether we will follow the Eighth Circuit's prediction that we will adopt the Reyes test because we are convinced that the stated public policy reasons for the learned intermediary doctrine are present with respect to oral contaceptives. For example, the patient would normally make the initial choice about birth control but, after that, the physician would exercise his medical judgment concerning the best method of contraception for his patient. In this case, for instance, the physician chose an oral contraceptive, Ovulen-28, because it contained the proper estrogen dosage for appellee Gari West. The doctor was fully aware of the risks associated with the drug and considered those risks in periodically renewing the prescription for her. Moreover, Gari West relied on his advice that the drug was the most suitable for her. Accordingly, application of the learned intermediary rule is appropriate in the case of oral contraceptives.
Here, the trial court applied the learned intermediary rule, but also held that there was no issue of any material fact, and that as a matter of law, the appellee drug companies' warning to the prescribing physician was proper.
We must reverse that ruling because of a procedural matter which may be summarized as follows: In his deposition the prescribing physician referred to warnings contained in the Physician's Desk Reference. However, those warnings were not identified by the doctor and were not properly made a part of the deposition. The drug companies' attorney subsequently filed copies of warnings contained in the Physician's Desk Reference. The plaintiff, Gari West, moved that the copies of the warnings be stricken. The trial court should have stricken the warnings, see ARCP Rule 56(e), but did not do so, and considered the warnings as evidence in making his ruling. That was error. Even so, the drug companies argue that it was a harmless error because we can take judicial notice of the Physician's Desk Reference. *615 They cite Edwards v. Sec. of Dept. of Health & Human Serv., 572 P.Supp. 1235 (1983) as an example. It is not subject to reasonable dispute that the Physician's Desk Reference is a reference book supplied to physicians throughout the United States to advise them as to the pharmacological actions of the drug they intend to prescribe. It is a manual found in physicians' offices, pharmacies, and attorneys' offices, and it is universally recognized as having reasonably indisputable accuracy. Thus, under A.R.E. Rule 201, judicial notice of the book might be taken for some purposes. In addition, judicial notice may be taken at the appellate level as well as the trial level. See A.R.E. Rule 201(f).
However, we decline to take judicial notice of the warnings. We are not certain that the attachment warnings are of the same date as those to which the physician referred. Consequently, we must reverse the trial court's ruling that the drug companies' warning to the prescribing physician was proper.
Affirmed in part, as modified, and reversed and remanded in part, with the trial court to proceed in a manner consistent with this opinion.
HAYS, J., dissents.
BROWN, J., not participating.
HAYS, Justice, dissenting in part.
I would apply the comment k defense to all prescription drugs so long as the drug is properly manufactured and accompanied by warnings of any dangerous propensities which are known or reasonably knowable at the time of distribution. First, it would facilitate the research, development and marketing of potentially beneficial new drugs. Second, the case by case approach of the majority will not give clear guidelines to drug manufacturersone drug may receive the protection of comment k while another may not, and, equally undesirable, a manufacturer may be held strictly liable in one locale but not in another. Third, there is no feasible method to determine which drugs are extremely beneficial and which are not. Drug manufacturers should not be exposed to strict liability under conditions which would clearly have a chilling effect on the development of new medications.
In sum, I would adopt the view of the Supreme Court of California in its well reasoned opinion of Brown v. Superior Court, 44 Cal.3d 1049, 245 Cal.Rptr. 412, 751 P.2d 470 (1988).


45 F.3d 440NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,v.Jerry Steven THURMAN, Defendant-Appellant.
No. 94-5064.
United States Court of Appeals, Tenth Circuit.
Dec. 20, 1994.

Before McWILLIAMS, BARRETT and LOGAN, Circuit Judges.

ORDER AND JUDGMENT1

1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  The case is therefore ordered submitted without oral argument.

2
Defendant Jerry Steven Thurman pleaded guilty to two counts of interstate travel in aid of racketeering, violations of 18 U.S.C.1952(a).  The district court sentenced him to the statutory maximum of five years on each count, to run consecutively.  Defendant then filed a 28 U.S.C. 2255 motion to vacate, set aside, or correct that sentence, the denial of which was affirmed on appeal.  United States v. Thurman, No. 92-5191 (10th Cir.  Aug.23, 1993).  Defendant then filed a second 2255 motion, arguing that his two convictions should have been treated as a single offense, limiting his sentence to one five-year term under the statutory maximum.  He alleged that the imposition of consecutive sentences constitutes double jeopardy and that the rule of lenity should be invoked because of statutory ambiguity.  The district court denied relief on the merits, and defendant has filed the appeal now before us.2

3
Defendant concedes that the district court correctly calculated his sentencing range under the guidelines at 168-210 months, based upon a total offense level of 30 and criminal history category of VI.  U.S.S.G. Ch. 5, Pt. A. We reject defendant's arguments because the guidelines specifically address at 5G1.2(d) how to sentence a defendant convicted on multiple counts when the statutory maximum is less than the sentence that is the minimum of the applicable guideline range, as here.

4
If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.

5
The commentary defines "total punishment" and explains how this section is to be applied.

6
The combined length of the sentences ("total punishment") is determined by the adjusted combined offense level.  To the extent possible, the total punishment is to be imposed on each count.  Sentences on all counts run concurrently, except as required to achieve the total sentence, or as required by law....

7
Usually, at least one of the counts will have a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count.  The sentence on each of the other counts will then be set at the lesser of the total punishment and the applicable statutory maximum, and be made to run concurrently with all or part of the longest sentence.  If no count carries an adequate statutory maximum, consecutive sentences are to be imposed to the extent necessary to achieve the total punishment.

8
U.S.S.G. 5G1.2(d) comment.

9
Applying the directives of 5G1.2, the district court correctly imposed consecutive sentences in an effort to achieve the total punishment dictated by the Sentencing Guidelines of at least 168 months.  It was unable to do that because there were only two counts with five-year maximums, which running consecutively permitted only a total of 120 months incarceration.

10
This sentencing scheme raises no double jeopardy issues because the indictment and defendant's guilty plea dealt with two separate crimes, two separate violations of 18 U.S.C.1952(a).  The rule of lenity does not operate because there exists no ambiguity.  See Bell v. United States, 349 U.S. 81, 83 (1955).3

11
AFFIRMED.

12
The mandate shall issue forthwith.

*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993.  151 F.R.D. 470

2
 The government has not argued abuse of process under Rule 9 of the Rules Governing Proceedings Under 2255.  We therefore address the merits of defendant's assertions

3
 We deny defendant's motion to supplement and do not discuss his argument, raised for the first time in his reply brief, that the district court violated Fed.R.Crim.P. 11.  That was not presented to the district court;  there is no record that would permit our disposition of the issue on the merits


546 F.3d 403 (2008)
Samuel B. JOHNSON, Petitioner,
v.
Michael B. MUKASEY, Attorney General of the United States, Respondent.
No. 08-1126.
United States Court of Appeals, Seventh Circuit.
Submitted August 21, 2008.
Decided October 1, 2008.
Samuel B. Johnson, Baton Rouge, LA, pro se.
Thomas B. Fatouros, Jeffrey R. Meyer, Terri J. Scadron, Anh-Thu P. Mai, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before POSNER, ROVNER, and WOOD, Circuit Judges.
*404 POSNER, Circuit Judge.
The petitioner, originally a lawful permanent resident of the United States, was ordered removed because of a drug conviction. That was in 1996. In 2006, the order not having been executed (as is common, because of the limited resources of the immigration authorities, in cases in which the illegal alien is not a criminal), he was still in the United States and he filed a motion both to reopen the removal proceeding and to reconsider the order of removal. A motion to reopen presents new facts bearing on the decision to remove the alien, while a motion to reconsider points to errors in that decision. 8 C.F.R. § 1003.2(c)(1) (motion to reopen must "state the new facts that will be proven"); 8 C.F.R. § 1003.2(b)(1) (motion to reconsider "shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision"); Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007); Patel v. Gonzales, 442 F.3d 1011, 1015-16 (7th Cir.2006); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir. 2001) (en banc).
The Board of Immigration Appeals denied the alien's motion and a similar motion that he filed the following year. He then filed a third motion to reopen and reconsider, but this one was addressed not to the order of removal but to the denial of his second motion. The Board denied the third motion as untimely because filed six weeks after the deadline for filing it, and he has petitioned us to set aside the denial. Because (as we shall see) he does not present a question of law or a colorable constitutional claim, the denial of his motion, so far as it seeks reopening, is outside our jurisdiction to review. Kucana v. Mukasey, 533 F.3d 534 (7th Cir.2008). But we have not had occasion to consider whether the discretionary denial of a motion to reconsider is similarly outside our jurisdiction.
The Immigration and Nationality Act provides, with an immaterial exception, that no court has jurisdiction to review an immigration ruling by either the Attorney General or the Secretary of Homeland Security "the authority for which is specified under this subchapter to be in the discretion of [either of those officials]." 8 U.S.C. § 1252(a)(2)(B)(ii). We held in Ali v. Gonzales, 502 F.3d 659 (7th Cir.2007), and repeated in Kucana, that the statute applies to discretionary decisions authorized by regulations that are based on and implement the Immigration and Nationality Act, as well as by the Act itself. The regulation that we cited in Kucana as satisfying these requirements, 8 C.F.R. § 1003.2(a), applies both to motions to reopen and to motions to reconsider. So far as the discretionary character of rulings on such motions is concerned, 8 C.F.R. § 1003.2(a) provides that the Board of Immigration Appeals' "decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section." See, e.g., Gaberov v. Mukasey, 516 F.3d 590, 594 (7th Cir.2008); Vasquez Salazar v. Mukasey, 514 F.3d 643, 645 (6th Cir.2008) (per curiam); Mungongo v. Gonzales, supra, 479 F.3d at 534; Lenis v. Attorney General, 525 F.3d 1291, 1294 (11th Cir. 2008).
But an error of law, or denial of a constitutional right, committed in the course of denying a motion to reopen is judicially reviewable, and likewise such an error or denial committed in the course of denying a motion to reconsider. See 8 U.S.C. § 1252(a)(2)(D) (both exceptions); Iglesias v. Mukasey, 540 F.3d 528 (7th Cir.2008) (motion to reopen); Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.2008) (same); Fadiga v. Attorney General, 488 *405 F.3d 142, 153-54 (3d Cir.2007) (same); Atunnise v. Mukasey, 523 F.3d 830, 836-37 (7th Cir.2008) (motion to reconsider); Wu v. INS, 436 F.3d 157, 164 (2d Cir.2006) (same); Oh v. Gonzales, 406 F.3d 611, 613-14 (9th Cir.2005) (same). So if the Board denied a motion to reconsider because it thought the deadline was 10 days rather than 30 days, 8 C.F.R. § 1003.2(b)(2), we would have jurisdiction to vacate the Board's denial. But this is not such a case.
The 30-day deadline expired, as we said, six weeks before the petitioner filed his motion. He argues that the Board should have equitably tolled the deadline, as it indeed had the power to do. Gao v. Mukasey, 519 F.3d 376, 377 (7th Cir.2008); Gaberov v. Mukasey, 516 F.3d 590, 594 (7th Cir.2008); Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 845 (9th Cir. 2006); see Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir.2005); In re Calderon Gutierrez, A91 534 876, 2008 WL 3861940 (BIA July 9, 2008); In re Uche, A72 309 946, 2008 WL 2938454 (BIA July 2, 2008); In re Maknojiya, A78 567 316, 2005 WL 3709280 (BIA Dec. 28, 2005); In re Medina-Herrera, A29 331 428, 2005 WL 698554 (BIA Feb. 10, 2005). But a plea to allow an untimely filing requires the tribunal to which the plea is addressed to weigh intangibles of delay (here, as a practical matter, eleven years, since the goal of the alien's repeated motions to reopen and reconsider is to quash the removal order), reliance, diligence, excuse, and prejudice. Gao v. Mukasey, supra, 519 F.3d at 377; Gaberov v. Mukasey, supra, 516 F.3d at 594; Pervaiz v. Gonzales, supra, 405 F.3d 488, 490; Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990); Mendez-Alcaraz v. Gonzales, supra, 464 F.3d at 845. There is no suggestion that the Board misunderstood the legal standard for equitable tolling; "the governing rules of law are undisputed." Viracacha v. Mukasey, 518 F.3d 511, 516 (7th Cir.2008). That ends the case, because only pure questions of law are reviewable, and not the application of a legal standard to fact, when a discretionary determination by the Board is challenged in court. Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir.2006). The alien's quarrel is with the application, not the standard. The petition for review is therefore
DISMISSED.


                                   NUMBER
13-01-755-CR

                             COURT
OF APPEALS

                   THIRTEENTH
DISTRICT OF TEXAS

                                CORPUS
CHRISTI
__________________________________________________________________

RICHARD JONES,                                                                 Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.
__________________________________________________________________

                        On
appeal from the 105th District Court
                                  of Nueces County, Texas.
___________________________________________________________________

                                   O
P I N I O N

         Before
Chief Justice Valdez and Justices Hinojosa and Yanez
                                       Opinion
Per Curiam

Appellant, RICHARD JONES,
perfected an appeal from a judgment entered by the 105th
District Court of Nueces County, Texas,  in cause number 01-CR-1762-D.  Appellant has filed a motion to dismiss the
appeal.  The motion complies with Tex. R. App. P. 42.2(a).
The Court, having considered the documents on file and appellant=s motion to dismiss
the appeal, is of the opinion that appellant's motion to dismiss the appeal
should be granted.  Appellant's motion to
dismiss the appeal is granted, and the appeal is hereby DISMISSED.
PER CURIAM
Do not publish.
Tex.
R. App. P.
47.3.
Opinion delivered and
filed this
the 2nd
day of May, 2002.


689 N.W.2d 233 (2004)
PEOPLE
v.
COE
No. 126262.
Supreme Court of Michigan.
December 9, 2004.
SC: 126262, COA: 243450.
On order of the Court, the application for leave to appeal the April 6, 2004 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
CAVANAGH and KELLY, JJ., would remand this case to the Genesee Circuit Court for resentencing.


985 F.2d 553
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.THE FIRST SAVINGS BANK, FSB, Plaintiff-Appellant,v.AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, INC.,Defendant-Appellee.
No. 92-1320.
United States Court of Appeals,Fourth Circuit.
Argued:  October 27, 1992Decided:  February 8, 1993

Appeal from the United States District Court for the District of South Carolina, at Greenville.  Henry Michael Herlong, Jr., District Judge.  (CA-90-287-6-20)
Walker DuVall Spruill, TURNER, PADGET, GRAHAM & LANEY, P.A., Columbia, South Carolina, for Appellant.
sThomas S.  Schaufelberger, WRIGHT, ROBINSON, MCCAMMON, OSTHIMER & TATUM, Washington, D.C., for Appellee.
Danny C. Crowe, TURNER, PADGET, GRAHAM & LANEY, P.A., Columbia, South Carolina;  James K.  Price, BOZE MAN, GRAYSON, SMITH & PRICE, Greenville, South Carolina, for Appellant.
M. Joseph Sterner, DRINKER, BIDDLE & REATH, Washington, D.C.; Marshall Winn, WYCHE, BURGESS, FREEMAN & PARHAM, P.A., Greenville, South Carolina, for Appellee.
D.S.C.
AFFIRMED.
Before HALL, WILKINSON, and LUTTIG, Circuit Judges.
PER CURIAM:

OPINION

1
First Savings Bank (the "Bank") appeals a judgment on a jury's verdict entered in favor of defendant American Casualty Company in the Bank's action seeking indemnity under a fidelity bond for losses sustained in an investment scam.  We affirm.

I.
A.

2
This case has 1980s trappings-reckless real estate ventures, investment fraud, and big losses for a savings and loan.  Over $10 million is gone, and this case is the savings and loan's successor's attempt to recover $3 million under a fidelity bond.

3
Landbank Equity Corporation operated a sophisticated nationwide fraud during the mid-1980s.  Landbank made second mortgage loans and then sold pools of the mortgages to savings and loans and other large investors, including the Federal National Mortgage AssociationMA.  Typically, the investor would not actually take possession of the promissory notes and collect on them from the borrower;  instead, it would pay Landbank a servicing fee for processing and servicing collection of the loans.  In return, Landbank guaranteed timely "pass-through" of principal and interest.  This guarantee was secured by private mortgage guaranty insurance (PMI).

4
Misrepresentation was the routine at Landbank.  Though it promised investors that its lending and appraisal practices satisfied FNMA standards, it often lent money on "drive-by" informal appraisals.  It ignored its promises not to loan more than 80% of the value of the collateral.  Its violations of the Truth-in-Lending Act1 made interest collection on many loans vulnerable to legal attack.  In borrowers, creditworthiness was a welcome but unnecessary trait, because Landbank made most of its money up front-Landbank's fees for originating, processing, and closing a loan ran an astonishing 25-30% of the nominal amount financed.  In sum, a typical Landbank loan and mortgage sale left (a) an uncreditworthy borrower with a lot less money than he "borrowed";  (b) a savings and loan paying, sight unseen, face or almost face value for the mortgage;  and (c) Landbank with a tidy profit.

5
There were flaws in the scam, though.  The riskiness of privatelybacked pools of mortgages forced Landbank to offer a high interest rate to investors so that they would not simply choose less risky government-sponsored mortgage securities.  In addition, the loans had high default rates.  Landbank confronted these hurdles in typical Ponzi fashion-it paid "principal and interest" payments to investors out of its fees for new loans, while falsely representing to investors and the PMI carrier that default rates were low.  As in all Ponzi schemes, the pyramid could stand only so long as more and more new money could be attracted to an ever-widening base.

B.

6
In three transactions between September 10, 1984, and March 1, 1985, the Bank's predecessor, First Federal Savings and Loan Association of South Carolina, purchased $21 million in Landbank mortgages.  Landbank guaranteed a hefty 16% rate of return.

7
On January 16, 1985, the first sign of trouble appeared.  Balboa Insurance Company, the PMI carrier for the underlying Landbank mortgages, sent a letter to the Bank alerting it that "a substantial number of loans described in the [insurance] certificates are not eligible for coverage."  Balboa advised the Bank that it was reserving its right to deny coverage on some loans.

8
Balboa also enclosed copies of some of its previous correspondence with Landbank.  The Bank should have found these enclosures very alarming.  One letter complained to Landbank that its appraisals were too high, yielding an artificially low loan-to-equity ratio.  In another, Balboa detailed the manner in which Landbank's up-front fees violated the Truth-in-Lending Act (these fees must be, but were not, included in calculation of the "annual percentage rate").  A third was Landbank's letter responding to the Truth-in-Lending inquiry, which repeatedly urges Balboa to keep its concerns private and not to notify investors.  Finally, Balboa sent the Bank a letter from counsel for Balboa's parent company, which generally endorsed Balboa's opinion that Truth-in-Lending violations had occurred, and added that several state consumer protection laws had also been transgressed.

9
The Bank did not contact Balboa about this startling information.  Instead, a Bank employee called Landbank, and was assured that Landbank's problems with Balboa were "of a political nature" and that Landbank was "in compliance with [the] master policy."

10
Balboa's "political" differences with Landbank escalated.  In further correspondence directly to the Bank and other investors, Balboa stated that it would refund premiums, that Landbank had been uncooperative, and that Landbank had objected to its direct correspondence with investors.

11
Soon thereafter, Landbank notified investors that Balboa had been replaced as PMI carrier by the "Insurance Exchange of the Americas" (IEA).  At the time, Balboa was rated "Ak" by the Best Insurance Guide;  IEA, a newly created company, was not rated.  On the verbal assurance of the Insurance Commissioner of Florida as to IEA's viability, the Bank agreed to the substitution of PMI carrier.

12
Even after its replacement by IEA as PMI carrier, Balboa continued to inform investors of its findings.2  Nonetheless, the Bank never contacted Balboa directly.

13
In May, after learning that the South Carolina Department of Consumer Affairs was investigating Landbank, the Bank finally decided to look into matters itself.  On June 6, 1985, C. L. Howell, a Bank vice-president, visited Landbank headquarters.  Howell's written report3 to the Bank's investment committee, though business-like in tone, was plainly intended to provoke concern.  Howell found the visit "rather enlightening."  He estimated that 2,900-3,000 accounts out of 9,000-9,500 were over eight days past due.  He found it "interesting" to see that Landbank charged fees averaging 25-31% of the loan amount.  In some instances, second mortgage loans had been made while the borrower was delinquent on a first mortgage.  "Quite a few" loans lacked full appraisals.

14
Howell concluded that "these are not the kind of loans that we are interested in investing in."  He then warned:

15
Landbank is generating new loans very rapidly each month.  They are taking 25% to 30% in fees up front and then turning around and selling these loans in the secondary market.  This creates the cash flow for them to make the monthly payments even when collection efforts are slow.  This will work as long as the circle is maintained and none of the cash flow is stopped.  If for some reason they cannot sell loans quickly enough on the secondary market, there is going to be a shut-down.

16
At the close of his letter, Howell advised that a 5-8% reserve be established to cover possible losses "if for some reason we still decide to go through with additional investments on Landbank loans."

17
The "shut-down" Howell predicted was close at hand.  On June 15, 1985, nine days after Howell's visit, Landbank missed its monthly payment (approximately $700,000) to the Bank.  A bank vicepresident called Landbank, which reported that it was having "computer problems."  Landbank offered to make two payments, with accumulated interest, on July 15.  The Bank agreed.

18
July 15 came, and Landbank made only one of its two payments.  A Bank vice-president called Landbank.  Marika Runnells, vicepresident of Landbank, confessed that Landbank was using mortgage collections (which it was obligated to "pass through" to investors) to pay for Landbank's internal operations.  The Bank did nothing.

19
On August 15, no payment was made, leaving Landbank two months behind.  Landbank soon went bankrupt, and the Bank lost approximately $10.6 million.  Of this amount, only $1.279 million represented money actually remitted to Landbank but not passed through.  IEA proved to have no assets, so the PMI was unavailable.  Though the Bank took over direct servicing of the loans it had purchased, truth-in-lending violations, overblown collateral valuations, and the general uncreditworthiness of borrowers made collection difficult where not impossible.

20
In a last effort to recoup part of its loss, the Bank made a claim against its own fidelity bond for the bond's limit of $3 million.  Unfortunately for the Bank, it had not notified the bond issuer-appellee American Casualty-until September 20, 1985.  The bond required notice "at the earliest practicable moment" and in no event more than thirty days after "discovery" of a loss. "Discovery" was defined as awareness "of facts which would cause a reasonable party to assume that a loss covered by the bond had been or would be incurred, even though the exact amount or details of the loss may not then be known."

21
American Casualty denied coverage, and the Bank filed this suit to recover on the bond.  Jurisdiction is based on diversity of citizenship, and the substantive law of South Carolina applies.

22
The district court ruled in limine that the Bank would not be permitted to introduce evidence of the lack of prejudice to American Casualty, because lack of prejudice does not excuse a late notice of claim under South Carolina law.  After a seven-day trial, a jury returned a verdict for American Casualty.

23
The Bank's motion for a new trial was denied, and it appeals.

II.

24
The Bank argues that the district court should have instructed the jury that, in the absence of prejudice to American Casualty, the late notice of claim would not defeat coverage.

A.

25
The parties engage in a preliminary argument about whether the Bank had a duty to be diligent and investigate when facts arousing suspicion came to its attention;  the Bank disclaims any such duty.  We think the jury was properly instructed.4

26
A reasonable jury could easily have found that the Bank's notice was outside of the thirty-day requirement.  When would a reasonable person have assumed that a covered loss had been or would be incurred?  By June 16, the Bank (i) had the extensive correspondence from Balboa, (ii) had the report of its own vice-president describing Landbank's Ponzi scheme, and (iii) knew that Landbank had missed a $700,000 payment.  If those facts were not enough, Landbank fell two full payments behind on August 15.  Even then, the Bank waited more than thirty days before notifying American Casualty.  A verdict based on strict application of the thirty-day notice provision would be unassailable.

B.

27
The Bank, though, argues that the notice provision should not apply strictly.  In its central argument on appeal, the Bank asserts that the district court should have permitted evidence to show that American Casualty was not prejudiced by the late notice and should have instructed the jury that a lack of prejudice would excuse the late notice.

28
The established South Carolina rule is that the time limits in an insurance contract are binding on the parties to the contract, and the insurer need not prove prejudice.   Prior v. S.C. Medical Malpractice Liability Insurance Joint Underwriting Ass'n, 305 S.C. 247, 407 S.E.2d 655, 657 (App. 1991), cert. denied (Sept. 24, 1991) ("No rule of law is more firmly established in this jurisdiction than that one suing on a policy of insurance, where the notice required by the policy is not timely given, cannot recover");   Lee v. Metropolitan Life Insurance Co., 180 S.C. 475, 186 S.E. 376, 381 (1936) ("[T]he failure to give the required notice in the allotted time is fatal to the right of recovery, even if it be shown that the insurance company has suffered no harm from the delay");  Planter's Savings Bank v. American Surety Co., 177 S.C. 363, 181 S.E. 222 (1935).  In Planter's Savings Bank, the South Carolina Supreme Court explained the long-term policy goal, transcending the result in any one case, it intends to further by its strict rule (181 S.E. at 224):

29
If [the notice provision's] terms are complied with in every instance, both banks and bonding companies would probably gain by the minimizing of losses;  if not complied with, both would probably be losers thereby.

30
On the other hand, "innocent third parties" are permitted to recover their judgments against a tortfeasor's automobile liability insurance unless the insurer can show prejudice from its insured's failure to notify.   Factory Mutual Liability Insurance Co. v. Kennedy, 256 S.C. 376, 182 S.E.2d 727 (1971).  This rule likewise rests on a public policy judgment-expressed by the South Carolina legislature in financial responsibility and uninsured motorist statutes-that automobile liability insurance should be available to protect innocent victims of accidents.  Id., 182 S.E.2d at 729.

31
The Bank acknowledges the cleanly drawn dichotomy of these longstanding precedents, but predicts that the first-party rule is about to change.  In  Humana Hospital-Bayside v. Lightle, 305 S.C. 214, 407 S.E.2d 637 (1991), the plaintiff had failed to notify his medical insurer within 48 hours of emergency hospitalization, as was required by the plan.  The South Carolina Supreme Court held that plaintiff's challenge to strict application of the notice requirement was not properly before the court, but observed (407 S.E.2d at 639):

32
We recognize that there is a trend among several states to develop a relaxed interpretation of notice requirements in insurance contracts and apply a requirement of notice within a time consistent with the reasonable expectations of the parties.... However, we reserve ruling on the issue of whether the 48 hour notice requirement should be relaxed and the contract applied as only requiring notice within a reasonable time until the issue is properly before us.

33
We do not think that this neutral reservation indicates that South Carolina is about to abandon its prior rule.  In fact, the question reserved does not even mention the "prejudice to the insurer" concept the Bank urges.  Whether a 48-hour notice requirement in a policy of medical insurance ought to be enforceable at all is a much different question than whether a thirty-day notice provision in a commercial contract ought to be subject to ad hoc disregard.5  We therefore agree with the ruling of the district court that, under South Carolina law, prejudice (or the lack of prejudice) to American Casualty is irrelevant.

III.

34
A fidelity bond's purpose is to protect a bank from the dishonesty of its employees, though the bond in this case had a rider expanding the bond's reach to acts of "servicing contractors" such as Landbank.  A fidelity bond is ordinarily not intended to protect a bank from ordinary business losses.  In this regard, the American Casualty bond at issue expressly does not cover:

35
(e) loss resulting directly or indirectly from the complete or partial non-payment of, or default upon, any loan or transaction in the nature of a loan or extension of credit, whether involving the insured as a lender or as a borrower, including the purchase, discounting or other acquisition of false or genuine accounts, invoices, notes, agreements or Evidences of Debt, whether such loan or transaction was procured in good faith or through trick, artifice, fraud or false pretenses, except where covered under Insuring Agreements (A)[fidelity of employees], (D) [forgery or alteration] or (E) [forged, altered, or stolen securities].

36
American Casualty argues, as it did to the jury, that all of the Bank's losses were ultimately attributable, directly or indirectly, to defaults on the underlying loans.  Therefore, says American Casualty, it would be entitled to its judgment even if the Bank's failure to promptly notify it were excused.6

37
$1.279 million that was actually collected by Landbank on the Bank's accounts was never paid over to the Bank.  The Bank asked for, but was not granted, a jury instruction that, as a matter of law, the $1.279 million was not subject to the loan loss exclusion.  Instead, the court simply charged the exclusion's language and allowed the parties to argue their respective theories of the case.

38
American Casualty's theory was that Landbank's collapse was ultimately grounded on its failure to collect on loans.  Because of the "guaranteed pass through" feature, the Bank would have suffered no loss but for Landbank's collapse, even if the individual loans sold to the Bank were nonperforming.  Consequently, says American Casualty, all of the Bank's loss, including the $1.279 million collected but not remitted, was "indirectly" related to nonpayment of loans, and the loan loss exclusion applies.

39
Were we the trier of fact, American Casualty's argument would not convince us;  on the other hand, it is good enough to avoid judgment as a matter of law.  Therefore, we see no error in submission of the issue to the jury.

IV.

40
Finally, the Bank complains that, after securing an order in limine excluding evidence of lack of prejudice, American Casualty was permitted to argue prejudice to the jury and to present deposition testimony as to prejudice.  The deposition was read in full after the Bank introduced excerpts.  We review such rulings on evidence for abuse of discretion, and we see no abuse here.  Similarly, the jury argument of which the Bank complains did not provoke a contemporaneous objection, and we see no plain error.

41
The judgment is affirmed.  Judge Luttig joins in the judgment.

AFFIRMED

1
 15 U.S.C. § 1601 et seq

2
 Ironically, the first of these letters is dated March 1, 1985, the day of the Bank's final purchase of $10 million in Landbank mortgages.  In this particular letter, Balboa reported that it was conducting an "intensive investigation" of Landbank, and that the records it had reviewed were "incomplete, contradictory and misleading."

3
 This report is dated June 18, 1985, but Howell had orally reported his findings to his superiors on June 7. At that time, Bank vice-president Clark Ballard was "shocked" and "very upset" to learn that, contrary to Landbank's "representations," the loan documentation did not meet FNMA specifications.  On June 10, Howell's immediate supervisor, executive vice-president Milton Alexander, reported to the Bank's Asset/Liability Committee that the Landbank loans were "lousy quality."

4
 The district court refused the Bank's proposed instructions concerning its duty to investigate, which the Bank assigns as error.  The court also refused American Casualty's proposed instructions imposing a strong duty of diligence on the Bank.  In lieu of the parties' proposals, the district court chose to instruct the jury in an elegantly simple way-by charging the language of the bond itself.  We find that this instruction adequately stated the pertinent legal standard.   See Spell v. McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987), cert. denied, 484 U.S. 1027 (1988) (instructions need not be technically accurate in every detail;  test on appeal is whether the instructions as a whole "adequately informed the jury of the controlling legal principles without misleading or confusing the jury to the prejudice of the objecting party").  The bond defines discovery in terms of the law's "reasonable person"-a ubiquitous character well known to lay jurors.  The reasonable ostrich espoused by the Bank and the reasonable bloodhound on the watch for American Casualty are more obscure creatures who are not mentioned in the bond and whose presence in instructions may have confused the jury

5
 Though we understand that denials of discretionary review have no precedential value, we note that the South Carolina Supreme Court denied certiorari in Prior less than two months after its decision in Humana HospitalBayside.  Thus, the court passed up a prime opportunity to change the law in the manner the Bank predicts it will

6
 The general verdict in favor of American Casualty compels us to examine the soundness of each theory of defense presented to the jury.  Even if it would be fully supported by a proper theory, a general verdict must be set aside unless we are "reasonably certain" that the jury did not rely on an erroneously submitted theory.   Harwood v. Partredereit AF 15.5.81, 944 F.2d 1187, 1192-1193 (4th Cir. 1991), cert. denied, 112 S.Ct. 1265 (1992)


755 F.2d 664
55 A.F.T.R.2d 85-1635, 85-1 USTC  P 16,429
STORALL MANUFACTURING COMPANY, INCORPORATED, Appellant,v.UNITED STATES of America, Appellee.
No. 84-1396.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 16, 1984.Decided Feb. 25, 1985.

Robert I. White, Houston, Tex., for appellant.
Michael J. Roach, Washington, D.C., for appellee.
Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
HENLEY, Senior Circuit Judge.

1
Storall Manufacturing Company, Incorporated filed suit in district court to recover excise taxes it alleges were erroneously assessed and collected.  The government filed a motion for summary judgment which was granted.   Storall Mfg. Co. v. United States, 585 F.Supp. 785 (E.D.Ark.1984).1   Storall appeals from the order granting summary judgment and dismissing its complaint.  We affirm.

2
Appellant manufactures and sells steel storage boxes designed to be used with pickup trucks.  For the years 1978 through 1980, Storall paid excise taxes imposed under 26 U.S.C. Sec. 4061(b)(1), which places a manufacturer's excise tax on all "parts and accessories" used with "automobile trucks."    The application of this tax can be summarized as follows:

3
I.R.C. Sec. 4061 is composed of four parts.  Section 4061(a)(1) imposes a 10% manufacturer's excise tax on all truck bodies and chassis (including parts and accessories sold on or with the truck).  Section 4061(a)(2) exempts from this tax sales of light-duty pickup trucks (and parts sold on or with the truck).  Section 4061(b)(1) imposes an 8% tax on a part or accessory for a truck if it is sold in a separate transaction.  Finally, Sec. 4061(b)(2) exempts from the 8% tax sales of parts and accessories suitable for use on a "passenger automobile."    The code does not provide a definition of the term "passenger automobile."

4
Luben Industries, Inc. v. United States, 707 F.2d 1037, 1038 n. 1 (9th Cir.1983) (emphasis in original).

5
Storall asserts that, while its boxes are parts and accessories, excise taxes are not due on their sales because pickup trucks are passenger vehicles, not cargo vehicles, and as such their parts and accessories are exempt from the tax under Sec. 4061(b)(2).  Appellant argues that pickups should be so classified through a factual analysis of whether they are generally used for transporting passengers or cargo, and concludes that because pickup trucks are used mainly for carrying passengers, they are passenger vehicles.

6
Appellant has not precisely framed the issue.  The question here is not whether a pickup truck is in fact a passenger vehicle but rather, as the district court stated, "whether in enacting section 4061, Congress meant to extend the tax exemption included in section 4061(b)(2) to parts and accessories sold in connection with pickups."   Storall, 585 F.Supp. at 788 (emphasis in original).

7
Generally, in determining the propriety of an order granting summary judgment, the evidence is viewed in a light most favorable to the nonmoving party, and the movant has the burden of establishing that no genuine issue of material fact remains and the case may be decided as a matter of law.   Fields v. Gander, 734 F.2d 1313, 1314 (8th Cir.1984);  Snyder v. United States, 717 F.2d 1193, 1195 (8th Cir.1983);  Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983).  However, the question presented is purely one of legislative interpretation, not one of fact.  Since tax exemptions are a matter of legislative grace, and as such are narrowly construed, a party seeking to gain benefit, as appellant does here, carries the burden of demonstrating that the exemption applies to its situation.   Bingler v. Johnson, 394 U.S. 741, 751-52, 89 S.Ct. 1439, 1445-46, 22 L.Ed.2d 695 (1969);  Holt v. Commissioner, 364 F.2d 38, 40 (8th Cir.1966);  Luben, 707 F.2d at 1041;  see Levy v. Commissioner, 732 F.2d 1435, 1436 (9th Cir.1984).

8
Appellant has failed to carry this burden.  After an exhaustive examination of the statute, its legislative history and the caselaw interpreting this section, the district court concluded that the alterations Congress has made to Sec. 4061 since its enactment, and the discussions surrounding those changes, demonstrate an intent that the exemption for parts and accessories to passenger vehicles not apply to pickup trucks.   Storall, 585 F.Supp. at 795.

9
Appellant's arguments do not persuade us that error has been committed;  thus on the basis of the district court's well-reasoned opinion, id., we affirm.

1
 The Honorable G. Thomas Eisele, Chief Judge, United States District Court, Eastern District of Arkansas