61 F.Supp.2d 720 (1999)
LIBBEY GLASS, INC., Plaintiff,
v.
ONEIDA LTD., et al., Defendants.
No. 3:98CV7439.
United States District Court, N.D. Ohio, Eastern Division.
August 4, 1999.
Douglas A. Freedman, Latham & Watkins, Chicago, IL, for plaintiff.
Steven M. Betensky, Adam Chernichaw, White & Case, New York City, Salem M. *721 Katsh, William J.F. Roll, III, Shearman & Sterling, New York City, Richard M. Kerger, Daniel F. Marinik, Kerger & Kerger, Toledo, OH, for defendant.
Antoinette E. Baker, John Gueli, Alexander Min Sung Kim, Ellen R. Wiseman, Shearman & Sterling, New York City, for counter-claimant.
David S. Foster, Kevin C. May, Kenneth G. Schuler, Latham & Watkins, Chicago, IL, Reginald S. Jackson, Jr., Steven R. Smith, Connelly, Soutar & Jackson, Toledo, OH, for counter-defendant.

ORDER
CARR, District Judge.
This is an intellectual property case in which plaintiff Libbey Glass, Inc. ("Libbey") alleges that defendants Oneida Ltd. ("Oneida") and Pasabahce Cam Sanayii ve Ticaret A.S. ("Pasabahce"), a Turkish glassware manufacturer, conspired to copy protectable trade dress designs for seven lines of glassware. (Complaint at ¶ 15). Pending is Pasabahce's motion for summary judgment pursuant to Fed.R.Civ. P.Rule 56 on the basis that this court lacks subject matter jurisdiction over Libbey's claims. (Doc. 113). For the reasons that follow, Pasabahce's motion shall be overruled.

Summary Judgment Standard
A court must enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. See id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient to "simply [ ] show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

Basis for Exercising Jurisdiction
Libbey seeks damages for dilution and infringement under the Lanham Act, 15 U.S.C. §§ 1117 and 1125. (Complaint at ¶¶ 46, 50, 54-56, 73, 74, 76-78). Although federal question jurisdiction over trade dress violations clearly exists under federal trademark law, Pasabahce challenges exercise of extraterritorial jurisdiction under the Lanham Act. See Fun-Damental Too, Ltd. v. Gemmy Industries Corp., 111 F.3d 993, 1006 (2d Cir.1997). Based on a formalistic interpretation of the relevant case law, Pasabahce argues that as a foreign company engaged in foreign commerce, it is not subject to the Lanham Act's constraints. (Doc. 114 at 14). Pasabahce misinterprets the relevant law and its legal conclusions are incorrect as a consequence.
The Lanham Act confers broad jurisdictional powers on the courts of the United States. See Steele v. Bulova Watch Co., 344 U.S. 280, 283, 73 S.Ct. 252, 97 L.Ed. 319 (1952). American courts may *722 apply the Lanham Act to conduct occurring outside of the borders of the United States to prevent harm to "all commerce which may lawfully be regulated by Congress." 15 U.S.C. § 1127; see Steele, 344 U.S. at 284, 73 S.Ct. 252; see also Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 745 (2d Cir.1994) ("United States courts have jurisdiction to enforce the Lanham Act extraterritorially in order to prevent harm to United States commerce."). Thus, the Lanham Act may extend to entirely foreign commerce which has a substantial effect on commerce between the states or between the United States and foreign countries. See Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 641 (2d Cir.1956); see also Consolidated Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 261-62 (2d Cir.1989) (holding that federal statutes apply if underlying conduct occurred within the United States or if conduct which occurred abroad has a substantial effect within the United States). In Steele, the Supreme Court divined a congressional intent to give extraterritorial effect to the Lanham Act. There, the Court applied the Lanham Act against an American citizen selling fake "Bulova" watches in Mexico on the ground that his sales in both Mexico and the United States harmed the American trademark holder. See Steele, 344 U.S. at 286, 73 S.Ct. 252.
Notwithstanding the Supreme Court's decision in Steele, the extraterritorial reach of the Lanham Act is limited. See Fun-Damental Too, 111 F.3d at 1006. Congress did not intend the Lanham Act to be a sword with which a plaintiff could completely eviscerate a foreign corporation's foreign trademark.[1]See Sterling Drug, 14 F.3d at 746. Thus, courts have narrowed the circumstances under which the Lanham Act applies against foreign defendants. In Vanity Fair, the Second Circuit, interpreting Steele, identified three factors for consideration when deciding if circumstances call for extraterritorial application of the Lanham Act: (1) whether the defendant's conduct has a substantial effect on commerce in the United States; (2) whether the defendant is a citizen of the United States; and (3) whether there exists a conflict between defendant's trademark rights established under foreign law, and plaintiff's trademark rights established under domestic law.[2]See Vanity Fair, 234 F.2d at 642.
Citing Vanity Fair, Pasabahce argues that because it is not a citizen of the United States, it is not subject to the constraints of the Lanham Act. (Doc. 114 at 9-10). Pasabahce relies on the court's reasoning in Vanity Fair that because the Lanham Act "was so thoroughly based on the power of the United States to govern the conduct of its own citizens ... the absence of one of the above factors might well be determinative...." Id. at 642-43. Pasabahce ignores the Second Circuit's later decision in Sterling Drug, in which the court rejected a mechanical application of Vanity Fair. See Sterling Drug, 14 F.3d at 746. The Sterling Drug court observed that such an "unrefined" approach would fail "to preserve the Lanham Act's goals of protecting American consumers against confusion, and protecting holders of American *723 trademarks against misappropriation of their marks." Id.
Even if the court's reasoning in Vanity Fair were controlling, Pasabahce's reliance on that case is misplaced. There, the "crucial issue in the case was the validity of the defendant's Canadian trademark registration under Canadian trademark law." Vanity Fair, 234 F.2d at 646. The court concluded that Congress did not intend the Lanham Act to reach "acts committed by a foreign national in his home country under a presumably valid trademark registration in that country." Id. at 642. Here, unlike the defendant in Vanity Fair, Pasabahce offers no proof of a foreign issuance of a superior right to use the trade dress designs in question. Thus, the Vanity Fair holding is not directly applicable to this case.
In any event, stringent application of the Vanity Fair test is inappropriate where, as here, a defendant could unjustly "evade the thrust of the laws of the United States in a privileged sanctuary beyond our borders." Steele, 344 U.S. at 287, 73 S.Ct. 252; see also Scotch Whiskey Ass'n v. Barton Distilling Co., 489 F.2d 809, 813 (7th Cir.1973) ("The purpose underlying the Lanham Act ... should not be evaded by the simple device of selecting a foreign licensee."). To enforce the Lanham Act as Congress intended, a court must weigh each Vanity Fair factor against the others; the presence or absence of any one factor is not dispositive. See Nintendo of America, Inc. v. Aeropower Co., Ltd., 34 F.3d 246, 251 (4th Cir.1994); see also Liberty Toy Co., Inc. v. Fred Silber Co., No. 97-3177, 1998 WL 385469, at *5 (6th Cir. June 29, 1998) (referring to the Vanity Fair factors as a "balancing test."). Such balancing test determines whether "the contacts and interests of the United States are sufficient to support the exercise of extraterritorial jurisdiction," American Rice, Inc. v. Arkansas Rice Growers Coop. Ass'n, 701 F.2d 408, 414 (5th Cir.1983), as gauged "in light of international comity concerns." Nintendo, 34 F.3d at 250. Here, a balancing of the Vanity Fair factors reveals that the exercise of extraterritorial jurisdiction over Pasabahce is proper.

Substantial Commercial Effect
As mentioned, Libbey does not contend that Pasabahce is an American citizen. Pasabahce, however, has not shown it has valid rights to the trade dress designs at issue in Turkey. There is, accordingly, no basis for fearing that adjudication of Libbey's rights to those designs would interfere with the laws of Turkey. Likewise, because Pasabahce has not shown a registration under Turkish law, there is no evidence to support the proposition that Turkey has an interest in this litigation that conflicts with application of the Lanham Act. Thus, the only question remaining, and the one on which disposition of this motion hinges, is whether Pasabahce's production of the allegedly infringing glassware would have a substantial effect in this country on interstate commerce. I believe that Libbey has met its burden and made that showing.
A substantial effect on commerce may exist where a defendant's activities are supported by or related to conduct in United States commerce. See Calvin Klein Industries, Inc. v. BFK Hong Kong, Ltd., 714 F.Supp. 78, 80 (S.D.N.Y.1989). Effects on domestic commerce may include certain harms to a plaintiff, as a domestic corporation, such as diversion of sales or injury to reputation. See Warnaco Inc. v. VF Corp., 844 F.Supp. 940, 950-51 (S.D.N.Y.1994). In Steele, for example, plaintiff Bulova's sales dropped because consumers could find cheap imitation "Bulova" watches just over the Mexican border. See Steele, 344 U.S. at 286, 73 S.Ct. 252. Additionally, as defective spurious watches filtered through the Mexican border into the United States, Bulova's trade reputation suffered significantly. See id. The Steele Court regarded both consequences of defendant's infringement as having a substantial effect on commerce. See id.
*724 In Vanity Fair, plaintiff sought a blanket prohibition against a Canadian retailer's use of the name "Vanity Fair" in connection with the sale of defendant's products in Canada. See Vanity Fair, 234 F.2d at 638. Even though the court refused to extend the Lanham Act extraterritorially, the court observed that the first factor, whether there is a substantial effect on commerce, was present. See id. at 642. The court emphasized that as a result of the "high quality of plaintiff's merchandise, and its extensive promotion and advertising, the name `Vanity Fair' has become associated ... with plaintiff's products," and that defendant's use of the name would likely interfere with that association. Id. at 637. As in Steele, the likelihood of consumer confusion and harm to reputation were enough to constitute a substantial effect on American commerce.
Here, Pasabahce does not dispute that it manufactured to glassware at issue, nor does it dispute that the glassware at issue is sold in the United States. While these facts alone may not be enough to support a finding that Pasabahce's conduct had a substantial effect on American commerce, they raise a question of material fact as to that issue. As I held in an earlier opinion (Doc. 201), Libbey has raised a question of material fact as to whether Pasabahce's conduct constituted infringement. In Vanity Fair and Steele, negative consequences of infringement, such as consumer confusion and harm to plaintiff's reputation, constituted substantial effects on commerce. See Steele, 344 U.S. at 286, 73 S.Ct. 252; Vanity Fair, 234 F.2d at 637. Thus, Libbey has raised a question of material fact as to whether Pasabahce's conduct substantially affected commerce in the United States.
Because Libbey has a raised a question of material fact as to two of the three Vanity Fair factors, I shall overrule Pasabahce's motion for summary judgment.[3]

Conclusion
For the foregoing reasons, it is hereby
ORDERED THAT:
Pasabahce's motion for summary judgment on the basis that this court lacks subject matter jurisdiction over plaintiff's claims shall be, and hereby is, overruled without prejudice to Pasabahce's right to renew the motion at the close of Libbey's case at trial.
So ordered.
NOTES
[1]  Congress did intend, however, that the Lanham Act "be used as a shield against foreign uses that have significant trademark-impairing effects upon American commerce." Sterling Drug, 14 F.3d at 746.
[2]  At least one court has proposed a more exhaustive list of factors for consideration when determining whether to exercise extraterritorial jurisdiction. These factors include: the degree of conflict with foreign policy or law; the nationality of the parties and the locations of principal places of business; the extent to which enforcement will lead to compliance; the relative significance of effects on the United States as compared with those elsewhere; the extent to which there is explicit purpose to harm or affect American commerce; the foreseeability of such effect; and the relative importance to the violations charged of conduct within the United States as compared with conduct abroad. See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 428 (9th Cir.1977).
[3]  A pretrial decision regarding jurisdiction can have a binding effect on the rest of the litigation. Here, however, I prefer to handle this as a conventional summary judgment motion, and will simply overrule the motion without prejudice to Pasabahce's right to renew at the close of Libbey's case at trial. Thus, if Libbey fails adequately to show at trial that Pasabahce's conduct has a substantial effect on American commerce, Pasabahce will be able to seek dismissal.


649 N.E.2d 964 (1995)
272 Ill.App.3d 200
208 Ill.Dec. 604
Joseph JOSEPH et al., Plaintiffs-Appellants,
v.
Richard L. COLLIS III et al., Defendants-Appellees.
Nos. 2-94-0213, 2-94-0327.
Appellate Court of Illinois, Second District.
April 26, 1995.
Rehearing Denied June 9, 1995.
*966 George C. Pontikes, Darlene A. Blaszczak, George C. Pontikes & Associates, Chicago, for Mark Entwistle, Joseph Joseph and Guy Spinelli.
Wylie, Mulherin, Rehfeldt & Varchetto, P.C., Louis A. Varchetto, Stephen A. Rehfeldt, Wheaton, for Colleen T. Horek.
John J. Henely, John J. Henely, Ltd., Chicago, for Alice Doyle.
Kubiesa & Power, Ltd., Kenneth T. Kubiesa, Barbara J. Gosselar, Oakbrook Terrace, for Carol Josefowicz, Donald F. Olson and Janice A. Vanek.
Bauer & Hotte, P.C., James G. Bauer, Elmhurst, for James C. Zakos, Richard L. Collis III, James P. Hershoff and Lawrence E. Schoenbeck.
Justice THOMAS delivered the opinion of the court:
Plaintiffs, Joseph Joseph, Guy Spinelli, and Mark Entwistle, appeal from: (1) the trial court's order dismissing the plaintiffs' amended complaint for libel against defendants Janice Vanek, Donald Olson, Colleen Horek, and Carol Josefowicz; and (2) the trial court's order dismissing the plaintiffs' second amended complaint for libel against defendant James Zakos. These appeals, designated as case No. 2-94-0327 and case No. 2-94-0213, respectively, have been consolidated. We affirm both orders of the trial court.
The record reveals the relevant facts to be as follows. In an attempt to get a referendum question on the ballot for the November 3, 1992, general election in the City of Elmhurst (City), the plaintiffs caused petitions to be circulated for signature by registered voters. The proposed question, if approved by voters, would have reduced the number of aldermen representing each ward in the City from two to one. The plaintiffs caused the question to be filed with the City on or about August 17, 1992. At that time, Spinelli and Entwistle were aldermen of the City.
Upon receipt of the question, an eight member committee was formed for the purpose of attacking the question. The committee was a voluntary association; it was not associated with any official function of the City. The membership of the committee included Richard Collis, Lawrence Schoenbeck, James Hershoff, Alice Doyle, Vanek, Olson, Horek, and Josefowicz. Schoenbeck, Vanek, and Josefowicz also were aldermen of the City.
On August 24, 1992, members of the committee filed formal objections to the question with the City clerk, claiming that the petitions *967 filed in support thereof were defective. Among the defects alleged were that a number of the voter signatures on the petitions submitted by the plaintiffs in favor of the question were invalid and that the plaintiffs had declared under oath that they had personally obtained the signatures of voters on the petitions when they, in fact, had not. The Elmhurst electoral board held hearings concerning the petitions, during which the proponents of the petitions stipulated that there were technical defects in the petitions and that the number of valid signatures on the petitions were insufficient for the question to be placed on the ballot.
The plaintiffs filed a five-count amended complaint seeking recovery for libel. The amended complaint alleges that on or about August 24, 1992: (1) Collis published a certain press release concerning the plaintiffs' activities as circulators of the petitions; (2) Collis and Hershoff had a conversation with a Chicago Tribune reporter, during which Collis told the reporter that Spinelli and Entwistle had committed fraud and perjury in connection with the petitions submitted with regard to the question, and during which Hershoff told the reporter that Spinelli and Entwistle had committed a Class 3 felony; and (3) Schoenbeck, at a public meeting in the City Hall, told Spinelli and Entwistle that they were guilty of fraud in connection with the petitions submitted with regard to the question. The statements made by Collis, Hershoff, and Schoenbeck were printed and published in editions of the Elmhurst Press on August 26,1992, and August 28,1992, and in editions of the Chicago Tribune on or about August 27, 1992.
The plaintiffs did not allege that Vanek, Olson, Horek, or Josefowicz personally made any defamatory statements. Rather, in their amended complaint, the plaintiffs alleged that the August 24, 1992, press release was published by Collis "individually and on behalf of" the other committee members and that the August 24, 1992, defamatory statements of Collis, Hershoff, and Schoenbeck were made by them "individually and on behalf of" the other committee members. The amended complaint also contained allegations that the August 24, 1992, statements of Collis, Hershoff, and Schoenbeck were false and published with knowledge of falsity or with reckless disregard as to the truth or falsity of the statements. Thus, the plaintiffs sought recovery against all eight committee members; by Joseph in counts I and II, by Spinelli in count III, and by Entwistle in count IV.
Also alleged in the amended complaint was that on or about August 24, 1992, Zakos, a realtor/developer with a business located in Elmhurst, attended a finance committee meeting of the City council. At the meeting, Zakos stated that Spinelli had disclosed confidential financial information submitted by Zakos and his partners to City officials in violation of Spinelli's duties as an alderman. This statement was published in newspaper articles. In their amended complaint, the plaintiffs further alleged that the August 24, 1992, statement made by Zakos was false and published with knowledge of falsity or with reckless disregard as to the truth or falsity of the statements. Thus, Spinelli sought recovery against Zakos in count V.
All eight committee members and Zakos filed motions to dismiss. This appeal only concerns the motions filed by Vanek, Olson, Horek, Josefowicz, and Zakos. Horek filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1992)), premised on the factual and legal insufficiency of the amended complaint. In her motion, Horek pointed to the absence of factual allegations that Horek made or authorized the alleged defamatory statements, and the absence of a legal basis for recovery against her for the statements of other committee members simply by virtue of her membership on the committee.
Defendants Vanek and Josefowicz jointly filed a motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 1992)) and a memorandum in support thereof. Attached to the memorandum were their own affidavits, which stated that neither of them ever made any statement or published any documents concerning the plaintiffs, and that neither of them ever authorized Collis, Hershoff, or Schoenbeck to make any statement on their behalf. No counteraffidavits were filed by the plaintiffs. Their motion, *968 while titled as pursuant to section 2-619, was, in fact, a joint motion pursuant to sections 2-615 and 2-619 as the motion and memorandum contained assertions similar to Horek's motion both as to the factual and legal insufficiencies of the amended complaint.
Defendants Olson and Zakos also filed motions to dismiss pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 1992)). Olson similarly pointed to the factual and legal insufficiencies of the amended complaint and as affirmative matter alleged that the statements were privileged. Zakos likewise pointed to the factual insufficiency of the second amended complaint and raised as affirmative matter that the City council is a legislative branch of the City, that his statement was made during a meeting of the council's finance committee, a legislative proceeding, and was therefore privileged.
A hearing on the various motions to dismiss was held on October 28, 1993. At the hearing, the plaintiffs attempted to submit a photograph which depicted the committee members, excluding Olson, sitting by Collis at a press conference while Collis made the alleged defamatory statements; however, the trial court refused to consider the photograph. The trial court entered an order granting the motions of Vanek, Olson, Horek, and Josefowicz and dismissing the action with prejudice as against them, having determined that the statements of the other committee members, Collis, Schoenbeck, and Hershoff, could not be attributed to them or each other. The trial court denied the plaintiffs' subsequent motion to reconsider the order dismissing these parties. The plaintiffs filed a timely appeal from the order dismissing the action against Vanek, Olson, Horek, and Josefowicz.
The October 28, 1993, order additionally provided that the court was taking Zakos' motion to dismiss under advisement and called for the submission of supplemental memoranda by the parties after which time the court would rule by mail. The memoranda were to address the issues of whether Zakos made the alleged defamatory statement, whether the statement was libelous, and, if so, whether the statement was privileged.
Thereafter, the plaintiffs filed a second amended complaint naming as defendants only Collis, Schoenbeck, Hershoff, and Zakos. Zakos again filed a section 2-615 and a section 2-619 motion to dismiss. The trial court later issued its opinion concerning Zakos' motion by mail. The court found, as a matter of law, that the statements attributed to Zakos, even if made directly by Zakos, were not actionable. The court found Spinelli to be a public figure and that his actions and comments were open to comment and criticism. Even if the statements were made with malice and a reckless disregard for the truth, the court found them not libelous. Accordingly, the court caused an order to be entered on December 23, 1993, dismissing the action against Zakos with prejudice. The plaintiffs filed a timely notice of appeal as to this order.
On appeal, the plaintiffs contend: (1) that the trial court improperly dismissed their amended complaint against defendants Vanek, Olson, Horek, and Josefowicz; and (2) that the trial court improperly dismissed their second amended complaint against defendant Zakos. We note that the orders from which the plaintiffs appeal do not specify whether dismissal of the complaints were pursuant to section 2-615 or section 2-619 of the Code. Despite this lack of clarity, a reviewing court may affirm a correct decision for any reason appearing in the record regardless of the basis relied upon by the trial court. Geick v. Kay (1992), 236 Ill.App.3d 868, 873, 177 Ill.Dec. 340, 603 N.E.2d 121.
As a preliminary matter, it will be helpful to discuss the principles that apply to the subject motions to dismiss. When a complaint fails to state a cause of action or shows on its face that the plaintiff is not entitled to the relief sought, the complaint is subject to a motion to dismiss. (See Danforth v. Checker Taxi Co. (1969), 114 Ill.App.2d 471, 475, 253 N.E.2d 114.) The legal theories for proceeding on a motion to dismiss under sections 2-615 and 2-619 differ. A section 2-615 motion attacks the legal sufficiency of the complaint by asserting that it fails to state a cause of action upon which relief can be *969 granted. (T & S Signs, Inc. v. Village of Wadsworth (1994), 261 Ill.App.3d 1080, 1083, 199 Ill.Dec. 467, 634 N.E.2d 306.) In considering a motion to dismiss under section 2-615, all well-pleaded facts are admitted and must be taken as true. (Parrillo, Weiss & Moss v. Cashion (1989), 181 Ill.App.3d 920, 923, 130 Ill.Dec. 522, 537 N.E.2d 851.) Conclusions of law or conclusions of fact unsupported by allegations of specific fact are not admitted. (Parrillo, Weiss & Moss, 181 Ill. App.3d at 923, 130 Ill.Dec. 522, 537 N.E.2d 851.) On review, the allegations of the complaint are to be interpreted in the light most favorable to the plaintiff. (Parrillo, Weiss & Moss, 181 Ill.App.3d at 923, 130 Ill.Dec. 522, 537 N.E.2d 851.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the allegations which would entitle the party to relief. Meerbrey v. Marshall Field & Co. (1990), 139 Ill.2d 455, 473, 151 Ill.Dec. 560, 564 N.E.2d 1222.
A section 2-619 motion to dismiss admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter which avoids or defeats the claim. (T & S Signs, Inc., 261 Ill.App.3d at 1083, 199 Ill.Dec. 467, 634 N.E.2d 306.) Like a motion brought under section 2-615, a motion to dismiss under section 2-619 admits all well pleaded facts. (Geick, 236 Ill.App.3d at 874, 177 Ill.Dec. 340, 603 N.E.2d 121.) The purpose of a section 2-619 motion is to provide a mechanism to dispose of issues of law or easily proved issues of fact, and the cause of action should not be dismissed on the pleadings unless it is clearly apparent that no set of facts can be proved which will entitled a plaintiff to recover. Geick, 236 Ill.App.3d at 874, 177 Ill.Dec. 340, 603 N.E.2d 121.
A reviewing court is not required to defer to the trial court's judgment on a motion to dismiss and will review the matter de novo. T & S Signs, Inc., 261 Ill.App.3d at 1084, 199 Ill.Dec. 467, 634 N.E.2d 306.
We first examine the propriety of the trial court's dismissal of the amended complaint against defendants Vanek, Olson, Horek, and Josefowicz. Whereas each of the motions to dismiss filed by Vanek, Olson, Horek, and Josefowicz does not allege affirmative matter, each of the motions does allege that the amended complaint failed to state a cause of action. Thus, we will assume that the trial court dismissed the amended complaint pursuant to section 2-615 of the Code.
Each of the section 2-615 motions to dismiss filed by Vanek, Olson, Horek, and Josefowicz asserted that the plaintiffs' amended complaint was factually insufficient to state a cause of action. We agree. Having reviewed the amended complaint, we find that the plaintiffs failed to allege with specificity facts which would enable them to withstand the motions to dismiss for failure to state a cause of action. In their amended complaint, the plaintiffs did not allege that Vanek, Olson, Horek, or Josefowicz personally made or authorized the alleged defamatory statements. Instead, the plaintiffs alleged that the specified defamatory statements of committee members Collis, Hershoff, and Schoenbeck were made individually "and on behalf of" the other committee members. The plaintiffs' allegation that the statements were made "on behalf of" the other committee members was conclusory, and conclusions of fact unsupported by allegations of specific fact are not admitted. (Parrillo, Weiss & Moss, 181 Ill.App.3d at 923, 130 Ill.Dec. 522, 537 N.E.2d 851.) Accordingly, the amended complaint was properly dismissed. See Madonna v. Giacobbe (1989), 190 Ill.App.3d 859, 865, 138 Ill.Dec. 90, 546 N.E.2d 1145 (a complaint that fails to contain all required factual allegations must be dismissed for failure to state a cause of action); see generally Trembois v. Standard Ry. Equipment Manufacturing Co. (1949), 337 Ill.App. 35, 44, 84 N.E.2d 862 (a complaint for libel may properly be dismissed when it does not allege sufficient facts to constitute a cause of action).
Additionally, each of the section 2-615 motions to dismiss filed by Vanek, Olson, Horek, and Josefowicz asserted that the amended complaint was legally insufficient because there is no legal basis for recovery against them for the statements of other committee members simply by virtue of membership on the committee.
*970 According to the amended complaint, the committee is a voluntary association. On appeal, the plaintiffs baldly assert that the liability of Vanek, Olson, Horek, and Josefowicz for the defamatory statements of their fellow committee members is predicated on membership on the committee. The plaintiffs seek to apply the principles of partnership and agency law, which hold a partner or principal liable for the tortious acts (i.e., defamation) committed by another partner or an agent, as a basis for attributing liability to Vanek, Olson, Horek, and Josefowicz for the statements made by other committee members. The plaintiffs have not cited any cases, however, in which partnership or agency liability has been found to be applicable to the members of a voluntary unincorporated association.
The narrow issue of whether a member of a voluntary unincorporated association may be held vicariously liable for the defamatory statement(s) of another member of the association by virtue of mere membership in the association is one of first impression in Illinois. We find the answer to this issue to turn on whether or not the voluntary unincorporated association is organized for profit. The court in Hossack v. Ottawa Development Association (1910), 244 Ill. 274, 291, 91 N.E. 439, stated that if a voluntary unincorporated association is organized for pecuniary profit, the rights and liabilities of its members to third parties would be determined according to partnership law. Here, since it is not alleged that the committee was organized for profit, we find partnership law to be inapplicable in determining the liabilities of its members.
On appeal, Vanek, Olson, Horek, and Josefowicz further contend that in the case of a nonprofit, voluntary unincorporated association, the liabilities of the members are determined by application of agency law. In support of this assertion, they have cited several cases from other jurisdictions, including Victory Committee v. Genesis Convention Center (Ind.Ct.App.1992), 597 N.E.2d 361, 363-64; Lyons v. American Legion Post No. 650 Realty Co. (1961), 172 Ohio St. 331, 336, 175 N.E.2d 733, 737; Security-First National Bank v. Cooper (1943), 62 Cal. App.2d 653, 666-67, 145 P.2d 722, 729-30; and Stone v. Guth (1937), 232 Mo.App. 217, 223,102 S.W.2d 738, 741. These cases stand for the proposition that a member of a nonprofit voluntary unincorporated association is not liable for the torts of a fellow member in the absence of: (1) authorization or ratification of the tortious conduct (Victory Committee, 597 N.E.2d at 364; Security-First National Bank, 62 Cal.App.2d at 667, 145 P.2d at 730); or (2) active participation in the tortious conduct (Lyons, 172 Ohio St. at 336, 175 N.E.2d at 737; Stone, 232 Mo.App. at 224-25, 102 S.W.2d at 742). We find this proposition to be rational and just. Accordingly, we apply these principles of agency law to the case at hand.
Here, there are no allegations in the amended complaint that Vanek, Olson, Horek, or Josefowicz directly authorized Collis, Hershoff, or Schoenbeck to make the alleged defamatory statements on their behalf. There are no allegations that the statements were authorized or ratified by Vanek, Olson, Horek, or Josefowicz.
We note that in an attempt to attribute the statements of committee member Collis to the other members of the committee, the plaintiffs rely on a photograph which depicted the committee members, excluding Olson, sitting by Collis at a press conference while Collis made alleged defamatory statements. The plaintiffs suggest that the photograph is evidence of implied authorization by the other committee members for Collis to speak on their behalf. The photograph appears in the record on appeal as an exhibit to the plaintiffs' motion to reconsider the trial court's October 28, 1993, order; such motion was later denied. As a preliminary matter, we note that by not raising the issue of whether the trial court properly refused to consider the photograph in their brief, the plaintiffs have waived this issue on appeal. (145 Ill.2d R. 341(e)(7).) Even if we were to consider the photograph, a photograph is no more than a snapshot in time that gives no indication of what happened immediately prior or subsequent thereto. The fact that other committee members are depicted next to Collis when he made the statements does not make the statement attributable to them. *971 The photograph was insufficient to show that the statements were made "on behalf of" all 8 committee members, and the court properly disregarded the photograph.
Since we do not find Collis, Hershoff, or Schoenbeck to have been agents of Vanek, Olson, Horek, or Josefowicz, we find the amended complaint to be legally insufficient to state a claim against Vanek, Olson, Horek, or Josefowicz. As a matter of law, neither Vanek, Olson, Horek, nor Josefowicz can be held liable for the alleged defamatory statements made by other committee members without their direct participation, authorization, or subsequent ratification. The trial court properly refused to attribute the statements of Collis, Hershoff, and Schoenbeck to the other committee members and properly dismissed the action against Vanek, Olson, Horek, and Josefowicz.
Because we have determined that the order of the trial court dismissing the plaintiffs' action against Vanek, Olson, Horek, and Josefowicz was proper, we need not address the additional argument of Vanek, Olson, Horek, and, Josefowicz, however persuasive, that Joseph's appeal must be dismissed under the law of the case doctrine.
We next examine the propriety of the trial court's dismissal of the second amended complaint, in which Spinelli sought recovery against defendant Zakos for an alleged defamatory statement made by Zakos concerning Spinelli. Since the court considered affirmative matter in granting Zakos' motion to dismiss, we must assume that the trial court dismissed the amended complaint against him pursuant to section 2-619 of the Code.
In Illinois, all distinctions between libel and slander for the most part have been abolished, and the rules which apply to slander likewise apply to libel. (Rosner v. Field Enterprises, Inc. (1990), 205 Ill.App.3d 769, 789, 151 Ill.Dec. 154, 564 N.E.2d 131.) Defamatory statements are classified as either libel per se or per quod (Rosner, 205 Ill.App.3d at 789, 151 Ill.Dec. 154, 564 N.E.2d 131.) Our courts have determined that there are four categories of words which constitute libel per se: (1) those imputing the commission of a criminal offense; (2) those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society; (3) those imputing inability to perform or want of integrity in the discharge of duties of office or employment; and (4) those prejudicing a party in his profession or trade. (Rosner, 205 Ill.App.3d at 790, 151 Ill.Dec. 154, 564 N.E.2d 131.) Once it is determined that written or printed words are libelous per se, a plaintiff has the right to a cause of action for defamation without proof of malice and without a showing of special damages, as both malice and damages are presumed. Rosner, 205 Ill.App.3d at 790, 151 Ill.Dec. 154, 564 N.E.2d 131.
With these principles in mind, we turn to the allegations of the second amended complaint. The second amended complaint alleges that on or about August 24, 1992, Zakos, a realtor/developer with a business located in Elmhurst, attended a finance committee meeting of the City council. At the meeting, Zakos stated that Spinelli had disclosed confidential financial information submitted by Zakos and his partners to City officials in violation of Spinelli's duties as an alderman. In its letter opinion, the trial court did not find Zakos' statement to be libelous, citing that the "statement could not reasonably be understood as an accusation of criminal conduct." We cannot agree with the trial court's finding, as we find the court did not apply the statement to the proper category of words constituting libel per se. We find Zakos' statement to have been libelous per se, as it imputed to Spinelli an inability to perform or want of integrity in the discharge of duties of his office as an alderman.
We must now determine whether the statement was actionable. Whether a defamatory statement, otherwise actionable, is protected by an absolute, qualified, or conditional privilege is a question of law for the court. (See Layne v. Builders Plumbing Supply Co. (1991), 210 Ill.App.3d 966, 969, 155 Ill.Dec. 493, 569 N.E.2d 1104.) The issue of privilege is an affirmative defense, and it may be raised by and determined upon a motion to dismiss under section 2-619 of the Code. (See O'Donnell v. Field Enterprises, Inc. (1986), 145 Ill.App.3d 1032, 1041, 96 Ill. *972 Dec. 752, 491 N.E.2d 1212.) Here, in Zakos' motion to dismiss pursuant to sections 2-615 and 2-619 of the Code, Zakos raised the issue of privilege as an affirmative defense. Zakos alleged that the City council is a legislative branch of the City and that his statement was made during a meeting of the council's finance committee, a legislative proceeding.
Generally, the class of occasions where a defamatory statement is absolutely privileged is narrow. (Layne, 210 Ill.App.3d at 969, 155 Ill.Dec. 493, 569 N.E.2d 1104.) The classification of absolutely privileged communications is narrow and is almost exclusively limited to legislative and judicial proceedings. (Rosner, 205 Ill.App.3d at 790, 151 Ill.Dec. 154, 564 N.E.2d 131.) Absolute privilege includes all such proceedings, whether Federal, State, or municipal. Larson v. Doner (1961), 32 Ill.App.2d 471, 474, 178 N.E.2d 399.
Absolute privilege has been applied to bar actions against public officials for their alleged defamatory statements made during legislative proceedings. (See Loniello v. Fitzgerald (1976), 42 Ill.App.3d 900,1 Ill.Dec. 560, 356 N.E.2d 842 (statements by mayor at city council meeting absolutely privileged).) The rationale for such protection is to enable the public official to carry out his or her daily responsibilities free from concern that such actions will result in civil damage suits. (See Loniello, 42 Ill.App.3d at 901, 1 Ill.Dec. 560, 356 N.E.2d 842.) While absolute privilege has not been applied as frequently to bar actions against private citizens for their alleged defamatory statements made during legislative or judicial proceedings, this court has previously held that such privilege can extend to parties other than officials. (See Layne, 210 Ill.App.3d 966, 155 Ill.Dec. 493, 569 N.E.2d 1104 (holding that the trial court properly dismissed a defamation claim against an employer having found statements made by the employer concerning plaintiff's alleged criminal conduct to be absolutely privileged).) As with public officials, we believe private citizens are deserving of protection for their statements made at legislative or judicial proceedings. Here, Zakos' statement was made during a finance committee meeting of the City council, a legislative proceeding. We find therefore that such statement was absolutely privileged.
The trial court found, as a matter of law, that the statements attributed to Zakos, even if made directly by Zakos, were not actionable. Although we do not agree with the rationale explained by the trial court, we agree with the result and find the dismissal of the second amended complaint against Zakos to be proper. Accordingly, we need not address the issue of whether the second amended complaint sufficiently alleged malice on the part of Zakos so as to enable Spinelli, a public figure, to collect damages for defamation as required by New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279, 11 L.Ed.2d 686, 706, 84 S.Ct. 710, 726.
For the foregoing reasons, we affirm the orders of the circuit court of Du Page County dismissing the amended complaint against defendants Vanek, Olson, Horek, and Josefowicz, and dismissing the second amended complaint against defendant Zakos.
Affirmed.
INGLIS and RATHJE, JJ., concur.


129 F.3d 124
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Freddie BLACK, Plaintiff-Appellant,v.BAXTER HEALTHCARE CORPORATION, Tim O'Neill, Defendants-Appellees.
No. 96-55749.
United States Court of Appeals,
Ninth Circuit.Nov. 3, 1997.

Appeal from the United States District Court for the Central District of California John G. Davies, District Judge, Presiding
Before:  O'SCANNLAIN, FERNANDEZ and THOMAS, Circuit Judges.

1
MEMORANDUM*

2
Freddie Black appeals the district court's grant of summary judgment in favor of his former employer Baxter Healthcare Corporation and Baxter employee Tim O'Neill in Black's action under Title VII of the Civil Right's Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and Califernia state law, alleging that Baxter improperly terminated him from his sales representative position because he is black, because of his age, and because of complaints he reported about Baxter's products.  We affirm.  Because the parties are familiar with the factual and procedural background, we will not detail it here.

3
* Because the burdens of proof and persuasion for both the Title VII and ADEA claims are governed by the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), we combine those claims for analysis.  See Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420 (9th Cir.1990).  Under the McDonnell Douglas framework, the plaintiff must first establish a "prima facie" case of discrimination.  Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 252-53 (1981).  The establishment of a prima facie case "in effect creates a presumption that the employer unlawfully discriminated against the employee."  Id. at 254.   Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for terminating the plaintiff.  McDonnell Douglas, 411 U.S. at 802.   Once the defendant articulates a legitimate, nondiscriminatory reason for the challenged action the presumption of unlawful discrimlnation " 'simply drops out of the picture.' "  Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993)).  However, the plaintiff may still prevail by proving "by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination."  Burdine, 450 U.S. at 253.

4
The degree of proof necessary to establish a prima facie case in the context of a motion for summary judgment "is minimal and does not even need to rise to the level of a preponderance of the evidence Wallis, 26 F.3d at 889.   The plaintiff is required only to offer evidence which "give[s] rise to an inference of unlawful discrimination."  Burdine, 450 U.S. at 253.   Baxter does not challenge Black's argument that he has satisfied the minimal requirements of establishing a prima facie case of race and age discrimination.

5
Once a prima facie case has been made, the burden of production shifts to Baxter, which has to submit evidence that Black was terminated for a legitimate, non-discriminatory reason.  Baxter offers evidence to indicate that Black was terminated because his job performance was deficient.  Between 1991 and 1993, Black received at least eleven memoranda from his supervisor Tim O'Neill regarding Black's unsatisfactory job performance.  Six of these memoranda discussed requests by Baxter customers that Black be removed from their accounts because of his poor service.  During the same period, O'Neill received at least three memoranda from hospitals asking that Black be removed from their accounts.  In his 1991 performance evaluation, Black received a "good minus" rating.  In his 1992 evaluation, he received a "needs improvement" rating.  Viewed in its totality, this evidence is sufficient to discharge the defendants' burden of proof and to meet Black's prima facie case of discrimination.

6
To show that the defendants' stated reason for terminating him was pretextual, Black advances a number of arguments.  First, Black contends that he did not have any performance problems before O'Neill became his supervisor in 1991 However, in Black's 1990 performance review, Black was asked to take steps to improve his relationship with clients.  Furthermore, Black produced no evidence to show that O'Neill in any way encouraged or solicited the numerous hospital complaints regarding Black's performance that Baxter received between 1991 and 1993.  Black maintains that back orders, and not Black himself, were the source of Black's problems with hospitals.  However, none of the hospitals that requested Black's removal cited back orders as a source of their dissatisfaction.  Rather, these hospitals claimed to be dissatisfied with the quality of service Black was providing.

7
Black also offers as evidence of pretext the alleged comment by Baxter vice president Larry Jones to "get a rope" when Black boarded a bus at a national sales meeting.  Without more, such isolated remarks are insufficient to establish discrimination.  Price Wsterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality);  id. at 277 (O'Connor, J., concurring).  The plaintiff must demonstrate that the remarks were in some way connected to the employment decision at issue.  Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993).  Black offers no evidence to show that Jones was involved in the decision to terminate him.  Therefore, Jones,' alleged comment alone is insufficient to permit Black to avoid summary judgment.

8
With respect to his age discrimination claim, Black offers as evidence of pretext his contention that he was terminated within six months from the date that his reiement benefits would have vested.  However, even if Black could show that Baxter had terminatated him shortly before his pension benefits would have vested, such evidence would not support Black's claim that Baxter had violated the ADEA.  An employer does not violate the ADEA by acting on the basis of a factor, such as the employee's pension status or seniority, that is empirically correlated with age.  Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993).

II

9
Black also asserts California state claims for wrongful termination in violation. of public policy (as to Baxter), breach of an implied contract and breach of the covenant of good faith and faith dealing (as to Baxter), defamation (as to Baxter and O'Neill, interference with Black's economic relationships (as to O'Neill, misrepresentation of fact (as to Baxter), and intentional and negligent infliction of emotional distress (as to Baxter and O'Neill).

10
* Under California law, an employee whose termination violates fundamental public policy may maintain a tort action for wrongful discharge against the employer.  Tameny v. Atlantic Richfield Co., 610 P.2d 1330, 1331 (Cal.1980).  The Puhlic policies which will support such a claim cannot be abstract, but rather "must be delineated in a constitutional or statutory provision.  Sequoia Ins. Co. v. Superior Court, 16 Cal.Rptr.2d 888, 893 (Cal.Ct.App.1993).  Black contends that Baxter violated public policy by terminating him because of his race and his age.  However, Black has failed to demonstrate that he was terminated because of his race or age as opposed to his unsatisfactory job performance.

11
Black also claims that his termination violated public policy because it occurred after Black made management aware of product defect complaints made by Baxter customers.  It is a violation of California public policy to terminate an employee for complaining to the employer about the employer's violation of a criminal statute.  Tameny, 610 P.2d at 1332-33.   Under California Penal Code § 387, it is illegal for a company to fail to report a "serious concealed danger" in that company's product.  Black has failed to show that the product defects he reported constituted a "serious concealed danger."   Even if Black could demonstrate that such a danger existed, he would be required to establish a nexus between his reporting of the defects and his termination.  Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1031 (Cal.1994).  However Black has not made any showing that his reports of customer complaints were related to his termination.

12
Second, Black asserts state law claims against Baxter for breach of an implied contract andt breach of the covenant of good faith and fair dealing.  To succeed on these claims under California. law, Black must show that Baxter lacked good cause for terminating him.  Pugh v. See's Candies, Inc., 171 Cal.Rptr. 917 (Ca].Ct.App.1981).  Good cause has been defined by the California courts as "a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power."  R.J. Cardinal Co. v. Ritchie, 32 Cal.Rptr. 545, 558 (Cal.  Ct.

13
The record reveals that Baxter did have good cause to terminate Black.  Several hospitals serviced by Black requested that he be replaced on account of his poor service.  O'Neill repeatedly made suggestions to Black as to how he might improve his performance, but Black made no attempt to implement them.  Because Baxter succeeded in showing good cause for Black's termination, Black's claim for breach of an implied contract fails.

14
Third, Black asserts defamation claims against both Baxter and O'Neill.  " 'The sine qua non of recovery for defamation ... is the Existence of falsehcod.' "  Baker v. Los Angeles Herald Examiner, 721 P.2d 87, 90 (Cal.1986) (quoting Old Dominion Branch No. 496 Nat'l Assoc. of Letter Carriers v. Austin, 418 U.S. 264, 283 (1974)).  Black's alleges that O'Neill made false statements to hospitals served by Black about Black's competence.  Black claims that these statements prompted hospitals served by Black to complain about his performance.  Morever, Black fails to identify with specificity what any of O'Neill's defamatory statements were.  Moreover, Black fails to offer any evidence to show that the hospitals' complaints resulted from O'Neill's statements rather than his, own failure to adequately service these hospitals.

D

15
Fourth, Black asserts a claim against O'Neill for intentional and negligent interference with economic advantage.  The elements of the cause of action for the tort of interference with economic advantage are:  (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff;  (2) the defendant's knowledge of the relationship;  (3) intentional acts on the part of the defendant designed to disrupt the relationship;  (4) actual disruption of the relatiolship;  and (5) economic harm proximately caused by the acts of the defendant.  Fisher v. San Pedro Peninsula Hosp., 262 Cal.Rptr. 842, 858 (Cal.Ct.App.1989).

16
Black contends that O'Neill deprived him of economic benefits by removing him from many hospital accounts.  However, Black offers no evidence to show that the realignment of Baxter sales territories that occurred in 1991 was the product of O'Neill's intent toe deprive Black of economic benefits.  On the other hand, Baxter offers evidence to demonstrate that all of the sales representatives who worked under O'Neill were assigned new territories as a result of Baxter's decision to restructure its sales force.  Consequently, Black's claim against O'Neill for intentional interference with prcspective economic advantage fails.

17
To demonstrate negligent interence with prospective economic, advantage, Black is required to show that O'Neill breached a duty of care.  J'Aire Corp. v. Gregory, 598 P.2d 60, 64 (Cal.1979).  Black produced no evidence to show that O'Neill failed to use ordinary care in his employment relationship with Black.  On the contrary, O'Neill repeatedly offered suggestions to Black as to how to improve his job performance.

E

18
Fifth, Black asserts claims for intentional and negligent misrepresentation of fact against Baxter.  To establish a cause of action for misrepresentation of fact, a plaintiff must prove:  (1) misrepresentation;  (2) defendant's knowledge of the statement's falsity;  (3) intent to defraud;  (4) justifiable reliance;  and (5) resulting damage.  Engalla v. Permanente Medical Group, Inc., 938 P.2d 903, 917 (Cal.1997).  Black, claims that Baxter made representations to him promising that Baxter would not discriminate against him.  Because Black cannot show that Baxter ever denied him equal treatment, he cannot show that this alleged promise was ever violated.

F

19
Finally, Black asserts claims against O'Neill and Baxter for intentional and negligent infliction of emotional distress.  To prove intentional infliction of emotional distress, a plaintiff must show:  (1) outrageous conduct by the defendant;  (2) defendant's intention of causing or reckless disregard of the prohability of causing emotional distress;  (3) plaintiff's suffering severe or extreme emotional distress;  and (4) actual and proximate causation of the emotional distress by defendant's outrageous conduct.  Bogard v. Employers Cas. Co., 210 Cal.Rptr. 578, 587 (Cal.Ct.App.1985).  Black alleges that he is currently under the care of a psychologist and that he has become seclusive and anxious.  He further contends that his current condition is the product of Baxter's termination of him on account of his race and age.  Because Black has failed to demonstrate that Baxter terminated him on account of either his race or his age, his claim for intentional infliction of emotional distress also fails.

20
Meanwhile, Black's claim for negligent infliction of emotional distress is barred by the California Workers' Compensation Act, Cal.  Lab.Code § 3200, et seq.   The right to benefits under the California Workers' Compensation Act is an employee's exclusive remedy against his or her employer where the conditions for compensation under the Act exist.  California Labor Code § 3600(a) provides that these conditions of compensation exist where, at the time of the injury:  (1) both the employer and the employee are subject to the compensation provisions of the statute, and (2) the employee is performing services growing out of and incidental to his or her employment and is acting within the course and scope of his or her employment, either with or without negligence.  Black argues that his claim for negligent infliction of emotional distress is not barred by the California Workers Compensation Act because Baxter and O'Neill were acting outside of thr ordinary course and scope of the employment relationship when they unlawfully discriminated against him based upon his race and his age.  However, because Black fails to demonstrate that Baxter and O'Neill discriminated against him based upon his race and age, his argument that they were acting outside of the employment relationship is without merit.

III

21
For the foregoing reasons, we affirm the judgment of the district court.

22
AFFIRMED.

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


618 F.2d 111
U. S.v.Sette
79-1430
UNITED STATES COURT OF APPEALS Seventh Circuit
1/31/80

1
N.D.Ill.

AFFIRMED


504 F.2d 1226
Miroslaw PASON, Plaintiff-Appellant,v.WESTFAL-LARSON CO., INC., a corporation, et al., Defendants,v. WEST WINDS, INC., Third-Party Defendant,Fireman's Fund Insurance Company, LienClaimant-Appellee.
No. 72-2826.
United States Court of Appeals, Ninth Circuit.
Aug. 29, 1974.

Siegfried Hesse (argued), Berkeley, Cal., for appellant.
Michael G. Lowe (argued), of Hanna, Brophy, MacLean, McAleer & Jensen, San Francisco, Cal., for appellee.
OPINION
Before CHOY and WALLACE, Circuit Judges, and BELLONI,* District judge.
WALLACE, Circuit Judge:

1
Pason, a harbor worker employed by West Winds, Inc.  (Employer), was injured in May, 1966, while doing repair work aboard a completed vessel which was lying in navigable waters an filed a claim for workmen's compensation with the California Workmen's Compensation Board.  He also filed a suit in the federal district court in admiralty against Westfal-Larson Co., Inc.  (Shipowner) based on negligence and unseaworthiness of the vessel.  Fireman's Fund Insurance Company (Fireman's Fund), as insurer of Employer, paid Pason $11,230.44 in medical care and disability benefits pursuant to state compensation law.  Shipowner filed a third-party complaint for indemnification against Employer based on the doctrine of maritime warranty of safe, proper and workmanlike performance.  Fireman's Fund filed a lien against any recovery by Pason from Shipowner for the amount of benefits paid to Pason.  California law provides the insurer with such a lien, Cal.Labor Code 3856; admiralty compensation law provides for an assignment of the claim to the employer and subrogation to the insurer.  33 U.S.C. 933.  Fireman's Fund attempts to utilize the lien to recover amounts paid to Pason for disability and other expenses.

2
Pason, Employer and Shipowner settled the case for $21,230.44 and Fireman's Fund sought to recover the amount of its lien from Pason.  Pason argued that the doctrine enunciated in Witt v. Jackson, 57 Cal.2d 57, 366 P.2d 641 (1961), applies to this case because compensation was awarded under the state compensation act rather than the federal compensation act (the Longshoremen's and Harborworkers' Compensation Act, 33 U.S.C. 901 et seq.).  If Witt applies, Fireman's Fund could be barred from recovering sums paid to Pason because of the negligence of Employer.  Had Pason's action been based solely upon unseaworthiness of the vessel, Employer's concurrent negligence may not have been available as a possible defense.  See Curry v. Fred Olsen Lines, 367 F.2d 921 (9th Cir. 1966), cert. denied, 386 U.S. 971, 87 S.Ct. 1165, 18 L.Ed.2d 131 (1967).  The trial court, although applying California law, declined to apply Witt and allowed the lien.  We reverse and remand.

3
The question of whether maritime or state workmen's compensation law applies is narrow but unclear.  This area of the law has been in a state of flux on its judicial road from the Supreme Court decision in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), to the development of the maritime-but-local exception to Jensen, Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 66 L.Ed. 210 (1921), to the development of the twilight zone, Davis v. Department of Labor and Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), and to the decision in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962).  Fortunately for future litigants, the 1972 amendments to the Longshoremen's and Harborworkers' Compensation Act1 provide the needed clarification.  Unfortunately, this case is governed by the prior law.

4
Injuries such as Pason received while doing repair work aboard a completed vessel lying in navigable waters have traditionally given rise to a cause of action under the Longshoremen's and Harborworkers' Compensation Act.  Larson, The Conflict Of Laws Problem Between The Longshoremen's Act And State Workmen's Compensation Acts, 45 S.Cal.L.Rev. 699, 701, 705 (1972).  Nonetheless, Pason filed for state compensation benefits.  While we think that this was not a twilight zone case and Pason's filing for state compensation may have been inappropriate, that question is not is issue on this appeal and we are not prepared to say,2 nor need we hold, that he could not file under the state act.  The state compensation board found jurisdiction.  Fireman's Fund did not appeal that finding although it had a good argument that Pason could file only under the federal act.  As the carrier responsible under either act, Fireman's Fund was content to compensate under the state act rather than challenge state jurisdiction.  Fireman's Fund acknowledged that the federal act would have required the carrier to pay more money.  Compare 33 U.S.C. 908 with Cal.Labor Code 4653, 4654 (1971).  This obviously played a part in its decision not to attack the state jurisdiction.

5
Having now benefited from its failure to challenge the state jurisdiction and from its acceptance of California law, Fireman's Fund resists application of all the California law because under Witt v. Jackson, Employer's concurrent and contributory negligence might bar recovery of its lien.  It argues that inserting this contributory negligence theory into a comparative negligence field will irrevocably damage the uniformity of admiralty laws.  Although uniformity is a great virtue, it does not answer the question before us.  The uniformity has already been damaged when a maritime claim, which was neither maritime-but-local nor twilight zone, was paid under state compensation laws.  It is true that Pason may have erred in making the claim and that the state compensation board may have mistakenly found jurisdiction; but Fireman's Fund, to its own economic advantage, did not appeal that error.  With the uniformity of maritime law already damaged and Fireman's Fund, in part, responsible, we would only add to the confusion were we not to apply at least the California compensation law uniformly.  Fireman's Fund has used the California lien law to perfect its claim.  It has partly allowed the door to open and we do not believe the door may now be shut as one-half of the body of law enters.  With nonuniformity already extant by application of state compensation in an area which should have been governed by the federal act, we do not feel compelled to amputate part of the state law in the name of uniformity.  What the Supreme Court said in The Tungus v. Skovgaard, 358 U.S. 588, 592, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959), about admiralty borrowing state statutory wrongful death claims is equally true to the use of state statutory compensation claims:

6
When admiralty adopts a State's right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached.  That is what was decided in The Harrisburg, (119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358) where the Court's language was unmistakable: '. . . If the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence . . ..  The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right.'  119 U.S. 199, at 214 (, 7 S.Ct. 140, at page 147).  That is the doctrine which has been reiterated by the Court through the years.

7
See Curry v. Fred Olsen Line, 367 F.2d 921 (9th Cir. 1966), cert. denied, 386 U.S. 971, 87 S.Ct. 1165, 18 L.Ed.2d 131 (1967).

8
The Fireman's Fund uniformity argument also fails to distinguish between the jurisdiction question and the question of the choice of law once jurisdiction has been determined.  The Supreme Court decisions upon which Fireman's Fund bases its uniformity argument dealt with the question of jurisdiction to grant an award.3  The question before us is once jurisdiction is established under the state compensation act, does any overriding maritime principle forbid the application of all of that state law.  We think that the answer must be no.  Once Fireman's Fund elected to seek a lien against a possible recovery under state law, the question of whether or not that lien attaches must be determined completely by reference to state law.  We cannot recognize a right created by a state statute and then ignore state cases that have developed limitations on that right.  Had Fireman's Fund wanted to avoid the Witt problem, it should have challenged the jurisdiction of the state compensation board.  Having failed to do so, it now attempts a backdoor approach to stop the application of all of the state substantive law.

9
Fireman's Fund interprets the law to its exclusive benefit by relying upon the California Workmen's Compensation law to reduce its payments and then by asking us to recognize a lien under that same law but not to recognize case law that limits the right to the lien.  We reject the insurance company's argument that maritime policy precludes the application of Witt v. Jackson to a state compensation award made on a maritime claim.  We also reject the argument that in this type of case the Supremacy Clause, as developed in Jensen, mandates that we so radically alter California law.

10
Fireman's Fund charges that the application of the Witt doctrine in this case may allow a double recovery by Pason.  Although the record does not disclose what damages were included in the negotiated settlement between Pason and Shipowner, the fact that the total was exactly $10,000 more than the compensation payments probably indicates that the settlement included an award for the damages for which Fireman's Fund had already compensated Pason.  But even if the record did clearly demonstrate that there was a double recovery, any double recovery would not occur because Pason was allowed to keep what was paid by Fireman's Fund but because Shipowner failed to deduct that amount in arriving at a settlement.  If Shipowner knew of the Witt doctrine, it should have negotiated a settlement with the nonrepayment of compensation benefits in mind.  It is, therefore, Shipowner, if anyone, who made an unnecessary payment.

11
Nevertheless, under California law a third party (Shipowner) cannot settle with a plaintiff (Pason) so as to prejudice the plaintiff's employer (Employer) or the employer's carrier (Fireman's Fund).  Under the California Labor Code section in force at the time Pason's accident occurred, an employee is precluded from settling with a third-party defendant without the consent of his employer and without the approval of the court:

12
No release or settlement of any claim under this chapter as to either the employee or the employer is valid without the written consent of both.  The consent of both the employer and employee filed in court in writing together with the approval of the court, is sufficient in any action or proceeding where such approval is required by law.

13
Cal.Labor Code 3859.  Section 3860(a) and (b) further provided:

14
(a) No release or settlement under this chapter, with or without suit, is valid or binding as to any party thereto without notice to both the employer and the employee, with opportunity to the employer to recover the amount of compensation he has paid or become obligated to pay and any special damages to which he may be entitled under Section 3852, and opportunity to the employee to recover all damages he has suffered and with provision for determination of expenses and attorney's fees as herein provided.

15
(b) The entire amount of such settlement, with or without suit, is subject to the employer's full claim for reimbursement for compensation he has paid or become obligated to pay and any special damages to which he may be entitled under Section 3852, together with expenses and attorney fees, if any, subject to the limitations in this section set forth.

16
In Brown v. Superior Court, 3 Cal.3d 427, 90 Cal.Rptr. 737, 476 P.2d 105 (1970), the California Supreme Court was faced with the question of what effect Witt v. Jackson has on the operation of these two sections.  In Brown an employee sued a third party, seeking recovery for personal injuries.  The employer and the employer's carrier filed notices of lien, claiming a lien upon any recovery by the employee for the amount of workmen's compensation benefits that the carrier had paid to the employee.  Prior to trial, the employee and the third party settled without providing for reimbursement to the carrier on its claimed lien.  Accordingly, the carrier refused to consent to the settlement.  The trial court nevertheless approved the settlement, but upon the carrier's motion vacated its approval.  The employee instituted a mandamus proceeding, seeking to have the trial court compelled to approve the settlement.

17
The Supreme Court denied the writ, holding that the trial court cannot approve a settlement agreement that does not resolve the negligence issue.  The court stated:

18
As correctly pointed out in Smith v. Trapp, supra, 249 Cal.App.2d 929, 940, (58 Cal.Rptr. 229) the employee makes an election to accept the benefits of the Labor Code in receiving a compensation award.  His right to such an award is not defeated by his own negligence or by the employer's lack thereof.  (3600.) However, after electing to receive workmen's compensation from the employer or the latter's carrier the employee cannot reasonably be heard to contend that, in disregard of and free from the reimbursement rights of those who paid his compensation, he should be permitted to settle his claims against a negligent third party without first securing a favorable determination of the negligence issues upon which both employee's and employer's right to recover will initially depend.

19
3 Cal.3d at 432, 90 Cal.Rptr. at 740, 476 P.2d at 108.  The court further reasoned that an employee would not prejudice the employer's interest by failing to resolve the issue of the employer's negligence as long as the issue of the third party's negligence was resolved and the settlement did not include the payment for the compensation that the employer had already paid.  In such a case the employer could bring a separate action against the third party for the recovery of the benefits he had paid and, in that action, the issue of the employer's negligence could be resolved.  But when the settlement agreement has failed to resolve the issues of the third party's negligence and the employee's contributory negligence-- issues that will initially determine whether the employer will be able to recover-- the employer has been prejudiced and the settlement agreement cannot be approved.  Thus, the court concluded:

20
In this case, not only did defendants raise no issue of concurrent negligence by the employer, but plaintiff has made no showing whatever that the issues with respect to negligence as between himself and defendants, upon which both plaintiff's and the employer's recovery rights would depend, had been finally determined in plaintiff's favor in connection with or as an incident of the proposed settlement agreement between plaintiff and defendant.  It follows that the trial court was correct in its ruling that the settlement, which excluded the carrier's claimed lien, should not be approved.

21
3 Cal.3d at 433, 90 Cal.Rptr. at 741, 476 P.2d at 109.

22
We are unable to determine from the record in this case whether the settlement agreement resolved the issues of Pason's and Shipowner's negligence.  In addition, since Employer also signed the settlement agreement, there is a possibility that the issue of Employer's negligence may have been resolved to the prejudice of Fireman's Fund.  Since we have concluded that in recognizing a right to a lien created under California law, we must be governed by all of the conditions attached to that right, we must follow the requirements of Brown v. Superior Court, 3 Cal.3d 427, 90 Cal.Rptr. 737, 476 P.2d 105 (1970).  In the present case the trial court did not apply these principles.  Thus, we remand the case for the district court to determine whether the settlement agreement resolved the issues of negligence and whether it prejudiced Fireman's Fund without its consent.  The ultimate decision by the district court should then be guided by the principles enunciated in this opinion.

23
Reversed and remanded.

*
 Honorable Robert C. Belloni, United States District Judge, District of Oregon, sitting by designation

1
 33 U.S.C. 903, 905 (1972)

2
 Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), Bethlehem Steel Co. v. Moores, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948), aff'g 323 Mass. 162, 80 N.E.2d 478 (1948), and Baskin v. Industrial Accident Comm., 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (1949), might be interpreted to allow Pason to file for state compensation.  Larson, The Conflict Of Laws Problem Between The Longshoremen's Act And State Workmen's Compensation Acts, 45 S.Cal.L.Rev. 699, 705-07 (1972)
The area of concurrent jurisdiction was re-ently analyzed by Professor Larson:
But a strong case can be made for the proposition that the dominant rationale of all the Court cases from Davis through Moores and Baskin to Calbeck is one that also applies to the present issue of state jurisdiction.  That rationale can be bluntly stated: The Court simply does not want to be bothered with hair-splitting and archaic distinctions between activities of local concern and activities prejudicing the uniformity of maritime law, especially when what is at stake is no longer some compensation versus no compensation, but merely the possible differential between two compensation acts.  It must be recalled that the main body of law that is still invoked in these cases was built up before the Longshoremen's Act was passed, at a time when the effect of holding an activity to be non-local was to deprive the injured worker of all protection.  It is not surprising that, although a few such cases reached the Supreme Court after passage of the Act in 1927, they dropped off almost completely after 1930.
Id. at 727.

3
 In one of the early cases dealing with the maritime-but-local doctrine, the Court rejected an argument which is very similar to that of Fireman's Fund.  In Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922), the Court held that a state compensation act could be applied.  That act also abrogated the right of the injured worker to sue in an admiralty court to recover damages.  In the instant case, the California compensation law abrogates the right of the insurance company to recoup its payments.  The Court held:
Assuming that the second question presents the inquiry whether in the circumstances stated the exclusive features of the Oregon Workmen's Compensation Act would apply and abrogate the right to recover damages in an admiralty court which otherwise would exist, we also answer, yes.
Id. at 478, 42 S.Ct. at 159.


971 F.2d 752
Myers (Morris B.)v.Miller (Robert A.)
NO. 91-3610
United States Court of Appeals,Eighth Circuit.
Feb 26, 1992

1
Appeal From:  D.S.D.

2
AFFIRMED.


54 So.2d 505 (1951)
MURRAY
v.
WEBSTER et al.
6 Div. 190.
Supreme Court of Alabama.
October 11, 1951.
Ling & Bains, Bessemer, for appellant.
McEniry, McEniry & McEniry, Bessemer, for appellees.
SIMPSON, Justice.
Under date of April 1, 1946, T. O. Murray, appellant here, respondent below, entered into a lease sale contract with Lilly B. Webster and Annie Bell Simon, appellees here, complainants below, leasing to them a house and lot in the City of Bessemer for a term of eighty-eight months for a recited consideration of $1,200, payable $100 in cash and the balance in monthly installments of $12.50 each, and in addition thereto the payment of taxes. The lease agreement contained a condition subsequent that if at the end of the term the lessees had paid all of the installments of rent and taxes, and had complied with all the conditions of the contract, then the transaction should be treated as a sale, that is to say, the lessor would treat the rent paid under the lease as a payment for the property and would execute a deed thereto to the lessees. The instrument provided for a forfeiture of the lease upon failure of lessees to pay rents as they became due, the right of the lessor to reenter the premises and terminate the lease being reserved without the necessity of giving notice to or making demand upon lessees *506 for payment of rents due. It was further provided that if the lessees became in arrears for as much as two months during the first year, or as much as three months at any time thereafter, or should fail to pay the taxes or to comply with any other condition of the contract, then the agreement of lessor to treat the rents paid as payment for the property should become a nullity, and that failure of lessees to comply with any of the conditions of the instrument should "ipso facto render the said provision a nullity, and make said party of the second part a lessee under this instrument, without any rights whatever except the rights of lessee without any notice or action whatever upon the part of the party of the first part."
Policies of fire insurance were issued from year to year by the respondent American Union Insurance Company upon the improvements upon the lot of land. Such a policy was issued April 24, 1949, for a term of three years and was in force when, on October 4, 1950, the dwelling house on the property was partially destroyed by fire. The face amount of the policy was $1,000, and the insurer agreed to a loss in the sum of $850. On the following day the lessor notified the lessees that he was cancelling the contract by reason of their default in payments. Lessees offered to pay up all sums in arrears or to pay the entire amount of the consideration expressed in the contract and, in the latter event, have a deed to the property. These offers were refused by the lessor who, on November 20, 1950, instituted against the lessees a suit of unlawful detainer.
Thereupon the lessees filed this bill in equity against the lessor and the insurance company, setting up the facts hereinabove set out. It is alleged that at the time of filing the bill complainants had paid, in addition to $100 in cash upon taking possession of the premises, forty-five of the monthly installments, the last payment being made on June 7, 1950, of that installment which was due January 1, 1950, and that "said respondent by his acts during the entire contract has led the complainants to believe that strict performance of the agreement in the contract would not be insisted upon." It is further alleged that the policy of insurance provided that the property in question was sold to complainants under a lease sale contract; that each year prior thereto a like policy, with like provision, had been issued, and that, while the lease sale contract made no provision for insurance, the respondent Murray charged complainants with the premiums for such insurance; that complainants have paid each year's premium as the same became due or, if they have not paid this premium, they stand ready and willing to do so, and if not paid it was because no demand was made upon them; and that before receiving a deed respondent would require them to pay such premiums, and that such premiums were charged to complainants on the books of respondent's insurance agent.
The bill prays for an order restraining prosecution of the unlawful detainer suit; for ascertainment of the amount complainants were in arrears under the contract and permission to pay such arrearages and continue under the contract or, in the alternative, for ascertainment of the entire amount due under the contract and that complainants be allowed to pay such entire amount and that respondent be required to make and execute to them a deed to the property. It is further prayed that the American Union Insurance Company be required to pay into the registry of the court the amount ascertained to be the loss to the property by fire, and that complainants have the benefit of the insurance money, either by way of its application in restoration of the property, or by way of credit on the balance due under the contract.
The respondent insurance company filed an answer and cross bill impleading both the lessor and the lessees as conflicting claimants under the policy. Without objection, the insurer was permitted to pay the agreed amount of the loss into court and be discharged.
After submission on the pleading and the proof offered, a decree favorable to the *507 complainants was rendered. The decree ascertained the balance due on the consideration expressed in the contract, the amount of taxes paid by the respondentlessor, and the amount of the insurance premiums paid by him. It was directed that the aggregate of these amounts be paid to the respondent out of the insurance money, and that respondent thereupon execute a deed to the complainants. It was further decreed that the costs of the suit be paid out of the insurance money on deposit, the balance, if any, to be paid to complainants. Implicit in the decree was the conclusion that any forfeiture of the contractural provisions of which respondent-lessor might have availed had been waived by him, and that the insurance was in fact for the benefit of the complainantslessees. In these phases the decree is assigned as error.
In the case of Spangler v. Barber, 245 Ala. 386, 17 So.2d 232, we had before us a lease sale contract apparently identical with the contract here involved. There the lessor sought, among other things, to enforce specific performance of the contract on the part of the lessees to purchase the property. Reversing the decree appealed from, we there held that the contract contemplated that it should continue a lease until the end of the term and then, if the tenant had paid all installments of rent, he had the right to treat it as a contract of purchase; but that his default ipso facto voided that condition without affirmative action on the part of the vendor. The property involved in that case was vacant lots. The lesseeor his assigneedefaulted in the stipulated installments some twelve years before the bill was filed, and the entire indebtedness, evidenced by unpaid notes, matured more than ten years before the bill was filed. In the case then before us the real question was whether or not the contract, by its terms, imposed upon defendant a binding obligation to purchase and pay for the property. We held that it did not, but that his right to purchase lapsed upon his failure to comply with the conditions upon which it was granted, and that his only obligation remaining was to pay rent. That case dealt with the rights of the lessor-vendor, not with those of the lessee-vendee. There was, of course, no question of a waiver of the provision of the contract for an "ipso facto" forfeiture of the right to purchase. Here the question of a waiver is the primary issue. That such a forfeiture may be waived by the lessor-vendor there can be no doubt. Whether there was a waiver is a question of fact, with the burden of proof resting upon the party asserting or relying upon a waiver. Davis v. Folmar, 203 Ala. 336, 83 So. 60.
Admittedly, the complainants were in default in payment of installments of rent, having been persistently in arrears over a considerable period. They were likewise in default in payment of taxes, the lessor having generally paid the taxes himself. Very clearly, it appears, the lessor generally paid insurance premiums. On the other hand, the evidence tends very strongly to show that, up to the time when the fire occurred and the appellant declared a forfeiture and cancellation of the contract, he treated the appellees with marked leniency. By his own testimony, detailing his transactions with appellees in and about the collection of installment payments, appellant manifested a desire and purpose to have the appellees carry out the purchase agreement, notwithstanding arrearages. He testified to an occasion on which he urged one of the appellees to catch up with the payments in order that they might not lose the property. He testified that he had paid taxes but had charged them to appellees with a view to collecting them back at the conclusion of the contract when he should make deed to them. He accepted installment payments on the lease when they were long past due. The facts and circumstances shown were well calculated to lull appellees into a belief that strict performance of the agreement was not required; and where this is so equity will not permit the lessor to take advantage of forfeiture provisions without notice to the lessee that strict compliance will be required. *508 Shaddix v. Bilbro, 220 Ala. 657, 127 So. 227.
Under the circumstances shown, no such notice having been given by the lessorvendor to the lessees-vendees of his purpose to exact strict compliance with the terms of the contracthis conduct importing the contrarywe conclude that the trial court committed no error in adjudging appellees' right to complete the contract by paying all that was found to be due, and to have a deed to the premises.
We also sustain the ruling below on the question of the insurance. It is well settled in this jurisdiction that "insurance taken by one with an insurable interest in the property, who pays the premiums * * out of his own funds, is a personal indemnity to the insured." Northern Assurance Co. v. Stewart, 228 Ala. 201, 153 So. 243, 245; Montgomery v. Hart, 225 Ala. 471, 144 So. 101; Bell v. Barefield, 219 Ala. 319,122 So. 318; Westchester Fire Ins. Co. v. Green, 223 Ala. 121, 134 So. 881. A clearer statement of this doctrine, however, is thus expressed in the Bell v. Barefield case, supra: "The general rule, sustained by the great weight of authority, is, in the absence of anything in the instrument creating the estate, or of agreement to that effect, between the parties, no duty rests upon the one or the other to insure for the benefit of a remainderman or his cotenant, and insurance taken by one with an insurable interest in the property, who pays the premiums thereon out of his own funds, is a personal indemnity to the insured. * *" (Italics supplied). 219 Ala. 321, 122 So. 319.
Thus, we have declined to follow a contrary view, given effect elsewhere, that one with an interest less than the whole who insures the property for its full value is to be treated as a trustee for the benefit of the owners of the remainder interest. But it is equally clear, from our adjudicated cases, that, in such a case, whether the other joint owners have an interest, in law or equity, in the insurance money, may properly turn upon the equities of the particular case. Miles v. Miles, 211 Ala. 26, 99 So. 187. Whether the insurance was taken for the sole benefit of him who procured it; whether he did in fact pay the premiums out of his own funds; whether by express or implied agreement he took out the insurance for the benefit of the owners of the other interests in the property, such others to contribute to its cost: these questions are to be determined from the evidence in the case and the circumstances of the parties out of which arise "the equities of the particular case."
The insurance policy in force at the time of the loss, as well as all policies previously issued on the property during the existence of the contract between appellant and appellees, contained this recital: "It is hereby understood and agreed that Lillie B. Webster and Annie Bell Simon hold Lease Sale Contract to the above described real property." Such a stipulation or recital in the policy itself would seem to be inconsistent with the idea that the insurance on the full insurable value of the property was for the sole benefit of appellant, in whose name the insurance policy was issued. The evidence shows that a notice or statement was sent to appellees, by the agency through which the insurance was taken, each time the insurance was renewed or reissued. It shows that at least one full annual premium was paid by appellees, thus indicating a willingness on their part to pay others if called upon to do so. Certainly, these facts, in the light of the general course of dealing on the part of appellantinformal, as we have shown were calculated to impress the appellees that they were protected by insurance which they were paying for or were expected to pay for. Nothing to the contrary, nothing that would have tended to inform them that they were not protected, appears. On the whole, therefore, we are unwilling to put the trial court in error in finding that there was an implied contract or agreement between the parties that the insurance was for their joint protection and that the appellees would be charged with the premiums.
*509 In view of the fact that appellees were charged on the accounting with" the full amount of the balance due under the contract, with interest, with all taxes paid by appellant, with all insurance premiums paid by him and, additionally, with all costs of the case in the court below, we are persuaded that appellant has received all he was entitled to receive under his contract, and has no cause to complain. Appellees have obtained merely indemnity for their loss, being charged with the cost of such indemnity. They have still the onus of restoring the property.
The decree is affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER, LAWSON and GOODWYN, JJ., concur.


Court of Appeals
of the State of Georgia

                                                               ATLANTA, November 17, 2017

The Court of Appeals hereby passes the following order

A18D0165. ROGER C. WILSON v. MARATHON INVESTMENT CORP et al. .

     Upon consideration of the Application for Discretionary Appeal, it is ordered that it be

hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of

this order. The Clerk of Superior Court is directed to include a copy of this order in the record

transmitted to the Court of Appeals.

LC NUMBERS:

2010CV187557

                                       Court of Appeals of the State of Georgia
                                            Clerk's Office, Atlanta, November 17, 2017.

                                            I certify that the above is a true extract from the minutes
                                       of the Court of Appeals of Georgia.

                                            Witness my signature and the seal of said court hereto
                                       affixed the day and year last above written.

                                                                          , Clerk.