             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.

                           STATE OF MICHIGAN

                            COURT OF APPEALS

    WA FOOTE MEMORIAL HOSPITAL, doing                                   UNPUBLISHED
    business as ALLEGIANCE HEALTH,                                      February 18, 2020

                 Plaintiff-Appellee,

    v                                                                   Nos. 338168; 340018
                                                                        Jackson Circuit Court
    FARMERS INSURANCE EXCHANGE,                                         LC No. 15-002343-NF

                 Defendant-Appellant,
    and

    MICHIGAN AUTO INSURANCE PLACEMENT
    FACILITY and JOHN DOE INSURANCE
    COMPANY,

                 Defendants.

Before: SAWYER, P.J., and MARKEY and STEPHENS, JJ.

PER CURIAM.

        In 2015, plaintiff filed the current action as a healthcare provider seeking payment of
personal protection insurance (PIP) benefits under the no-fault insurance act, MCL 500.3101 et
seq., for allowable expenses incurred in the treatment of nonparty Jessica Jacobs in 2014.
Following a jury trial and a verdict in plaintiff’s favor, the circuit court entered a judgment against
defendant in the amount of $62,617.34. The trial court also later entered an order for case
evaluation sanctions in plaintiff’s favor in the amount of $70,923.75. Defendant now appeals as
of right.1 Because plaintiff lacks an independent cause of action against defendant for PIP benefits
relating to services provided in 2014, in Docket No. 338168, we vacate the judgment in plaintiff’s

1
 In Docket No. 338168, defendant appeals the judgment in plaintiff’s favor, and in Docket No.
340018, defendant appeals the order awarding sanctions; the appeals have been consolidated by
order of this Court. WA Foote Memorial Hosp v Farmers Ins Exch, unpublished order of the Court
of Appeals, entered October 18, 2017 (Docket Nos. 338168 & 340018).

                                                 -1-
favor, and we remand for entry of judgment in favor of defendant. In the absence of a verdict in
plaintiff’s favor, we also vacate the award of case evaluation sanctions in Docket No. 340018.

        On August 26, 2014, Jacobs deliberately and voluntarily jumped from the front passenger
seat of a moving vehicle while the vehicle was traveling between 45 and 55 miles per hour. After
jumping from the vehicle, Jacobs received medical treatment at Allegiance Health Hospital. She
incurred medical charges relating to her physical injuries in excess of $60,000 for treatment
provided from August 26, 2014, through August 28, 2014, and from September 3, 2014, through
September 4, 2014. Aside from treatment of her physical injuries, as a result of concerns that
Jacobs had attempted suicide when she jumped and that she might harm herself, Jacobs was
involuntarily hospitalized in the mental health unit of the hospital for several days.

        In August 2015, plaintiff filed the current lawsuit. Notably, before trial, the parties entered
into a stipulation, agreeing that “the only issue for trial is whether the injuries Jessica Jacobs
sustained arising out of the August 26, 2014 motor vehicle accident were accidental as defined by
MCL 500.3105.” Following the parties’ proofs, the jury returned a verdict in plaintiff’s favor. As
a result, the trial court entered a judgment against defendant and later awarded case evaluation
sanctions to plaintiff.

        On appeal, defendant argues that the judgment in plaintiff’s favor as well as the order of
case evaluation sanctions should be vacated and the case remanded for entry of judgment in favor
of defendant based on the Michigan Supreme Court’s recent decision in Covenant Med Ctr, Inc v
State Farm Mut Auto Ins Co, 500 Mich 191, 200; 895 NW2d 490 (2017), wherein the Court held
that a healthcare provider, such as plaintiff, “possesses no statutory cause of action against a no-
fault insurer for recovery of PIP benefits.” While acknowledging the Court’s holding in Covenant,
plaintiff argues that Covenant is inapplicable to this case because defendant waived any challenge
to plaintiff’s capacity to file suit by entering into a stipulation regarding the disputed issues for
trial. Alternatively, assuming that Covenant does apply, plaintiff argues that the judgment should
remain intact because plaintiff cured any defect by obtaining an assignment from Jacobs after trial.
At a minimum, plaintiff argues that it should be given the opportunity to amend its complaint to
plead an assignment theory based on Jacobs’s right to benefits. In our judgment, plaintiff’s waiver
and assignment arguments lack merit, and because Covenant applies, defendant is entitled to
judgment in its favor.

       More specifically, under Covenant, as a healthcare provider, plaintiff clearly has no
independent statutory cause of action against defendant for the recovery of PIP benefits for services
provided in 2014.2 Covenant, 500 Mich at 200. We note that the Supreme Court decided Covenant

2
  With the recent enactment of 2019 PA 21, effective June 11, 2019, healthcare providers have
been afforded a direct, statutory cause of action against insurers for payment of overdue benefits
for services provided to an injured person. See MCL 500.3112 (“A health care provider listed in
section 3157 may make a claim and assert a direct cause of action against an insurer, or under the
assigned claims plan under sections 3171 to 3175 to recover overdue benefits payable for charges
for products, services, or accommodations provided to an injured person.”). However, pursuant
to an enacting section of 2019 PA 21, the direct cause of action afforded to healthcare providers

                                                 -2-
on May 25, 2017, after the trial in this case. However, Covenant nevertheless applies to this case
because Covenant applies retroactively. See W A Foote Mem Hosp v Mich Assigned Claims Plan,
934 NW2d 44, 45 (Mich, 2019). In concluding that Covenant controls this case, we also note that
defendant did not raise its Covenant argument in the trial court. Nevertheless, as we have in several
post-Covenant cases, we exercise our discretion to review the Covenant question in this issue
because the question is one of law, and “with regard to cases pending when Covenant was decided,
a defendant should not be faulted for failing to challenge a healthcare provider’s statutory right to
bring a claim because pre-Covenant caselaw would have rendered any such argument futile.”
Bronson Healthcare Group, Inc v Mich Assigned Claims Plan, 323 Mich App 302, 306; 917 NW2d
682 (2018).

        Turning to plaintiff’s waiver argument, contrary to plaintiff’s arguments on appeal,
defendant did not waive its ability to challenge plaintiff’s right to maintain a direct cause of action
by entering into a stipulation regarding the factual issue to be decided at trial. “A stipulation is an
agreement, admission, or concession made by the parties in a legal action with regard to a matter
related to the case.” VHS Huron Valley Sinai Hosp v Sentinel Ins Co, 322 Mich App 707, 716;
916 NW2d 218 (2018) (quotation marks and citation omitted). “This Court will construe a
stipulation using the same principles applicable to a contract,” meaning that unambiguous
language must be enforced as written. Id. By entering into a stipulation, a party may agree to
waive a right. See id. “A waiver is an intentional relinquishment or abandonment of a known
right.” Nexteer Auto Corp v Mando Am Corp, 314 Mich App 391, 395; 886 NW2d 906 (2016).
“The party alleged to have waived a right must have had both knowledge of the existing right and
the intention of forgoing it.” Reed Estate v Reed, 293 Mich App 168, 176; 810 NW2d 284 (2011)
(quotation marks and citation omitted). “[T]]o waive a right, the language of a stipulation must
show an intent to plainly relinquish that right.” Nexteer Auto Corp, 314 Mich App at 395-396.

       In this case, before trial, the parties entered into a stipulation, agreeing to a number of facts
and identifying the disputed factual issue to be resolved at trial. Specifically, the stipulation states:

        1. [Jacobs] sustained bodily injury arising out of a motor vehicle accident that
        occurred on August 26, 2014.

        2. If Jacobs qualifies for no fault benefits under MCL 500.3105 for bodily injury
        she sustained as a result of the August 26, 2014 motor vehicle accident, then
        [defendant] is an insurance carrier in the order of priority responsible to pay those
        benefits.

        3. [Plaintiff] incurred reasonable and customary charges in the amount of
        $61,688.97 for treatment provided to Jacobs . . . .

in MCL 500.3112 “as amended by this amendatory act, applies to products, services, or
accommodations provided after the effective date of this amendatory act,” which is June 11, 2019.
2019 PA 21, enacting § 1 (emphasis added). Accordingly, these recent amendments do not apply
in this case to provide plaintiff a direct cause of action for pursuing benefits for services provided
by plaintiff in 2014. The current case is controlled by Covenant.

                                                  -3-
                                                * * *

        4. That [defendant] received medical bills, itemized statements of charges, and
        medical records from [plaintiff] documenting [plaintiff’s] charges on or before
        March 8, 2016.

        5. That if Jacobs qualifies for no fault benefits under MCL 500.3105 for bodily
        injury she sustained as a result of the August 26, 2014 motor vehicle accident,
        [defendant] is liable to pay [plaintiff] $57,370.74 representing medical charges
        consistent with the agreed “Cofinity Participation Balance.”

        6. That if Jacobs qualifies for no fault benefits under MCL 500.3105 for bodily
        injury she sustained as a result of the August 26, 2014 motor vehicle accident,
        [defendant] is also liable to pay [plaintiff] $6,186.61 representing 12% per annum
        interest under MCL 500.3142 for the period April 8, 2016 through March 1, 2017.

        7. That the only issue for trial is whether the injuries [Jacobs] sustained arising out
        of the August 26, 2014 motor vehicle accident were accidental as defined by MCL
        500.3105.

Fairly read, under the stipulations, the parties agreed that defendant’s liability was contingent on
Jacobs’s qualification for benefits—with the only contested factual issue regarding Jacobs’s
eligibility being whether her injuries were accidental. Notably missing from the stipulation is an
agreement that plaintiff was the proper party to litigate this issue; that plaintiff had standing to
pursue benefits; or “that defendant intended to clearly and unequivocally waive its legal position
with respect to plaintiff’s standing.” See VHS Huron Valley Sinai Hosp, 322 Mich App at 717-
719. In the absence of such a stipulation, we will not infer that defendant intended to abandon all
legal arguments regarding standing based on its agreement that the only factual issue to be litigated
at trial was whether Jacobs’s injuries were accidental. Cf. id.

        The fact that the stipulation does not mention plaintiff’s right to a direct cause of action or
state that plaintiff is the proper party to establish Jacobs’s qualification for benefits is particularly
notable given the procedural posture of the case and the existing state of the law when the
stipulation was signed. Cf. id. at 719-720 (concluding that procedural posture and existing state
of the law pre-Covenant supported determination that the insurer did not waive standing issue).
That is, given the long line of cases from this Court pre-Covenant, which held that a healthcare
provider had a direct cause of action against an insurer, there could be no reasonable dispute that
plaintiff could file a direct cause of action and defendant did not have a reasonable basis for
challenging plaintiff’s standing before trial. See id.; Bronson Healthcare Group, Inc, 323 Mich
App at 306. In these circumstances, to read the stipulation’s silence on plaintiff’s standing to
indicate that defendant was intentionally relinquishing or abandoning a “known right” would be
nonsensical. See Nexteer Auto Corp, 314 Mich App at 395. Indeed, post-Covenant, on analogous
facts, we have previously rejected the assertion that a defendant-insurer waived a Covenant
argument by entering into a stipulation that was silent on the question of the plaintiff-healthcare

                                                  -4-
provider’s standing. See VHS Huron Valley Sinai Hosp, 322 Mich App 717-721.3 Likewise, in
this case, we cannot conclude that defendant clearly and unequivocally waived a legal standing
issue—that could not have been raised given the existing state of the law—merely because
defendant stipulated to the disputed factual issue for trial. See id. Plaintiff’s waiver argument is
without merit, and Covenant controls this case.

         Finally, contrary to plaintiff’s arguments, the postjudgment assignment plaintiff obtained
from Jacobs did not cure the Covenant defects in this case, and a remand to allow plaintiff an
opportunity to add an assignment theory would be futile in light of the one-year-back rule and this
Court’s decision in Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182;
920 NW2d 148 (2018). In particular, although Covenant held that a healthcare provider did not
have a direct cause of action, the Court also specifically stated that its decision was “not intended
to alter an insured’s ability to assign his or her right to past or presently due benefits to a healthcare
provider.” Covenant, 500 Mich at 217 n 40. “It is well established that an assignee stands in
the shoes of an assignor, acquiring the same rights and being subject to the same defenses as the
assignor.” Coventry Parkhomes Condo Ass’n v Fed Nat’l Mtg Ass’n, 298 Mich App 252, 256-
257; 827 NW2d 379 (2012). In the no-fault context, this means that a healthcare provider who
obtains an assignment from an insured individual “possesses whatever right [the insured] would

3
  In contrast to VHS Huron Valley Sinai Hosp, plaintiff asserts that the Michigan Supreme Court
has rejected insurers’ attempts to avoid a stipulation based on Covenant. Plaintiff’s argument is
based on Monaco v Home-Owners Ins Co, 501 Mich 866 (2017), a Supreme Court order containing
no facts, no mention of Covenant, and no reasons for the denial of the motion for reconsideration.
Given the lack of information in this order, it is not binding and it is not dispositive of the issue
before this Court. See Dykes v William Beaumont Hosp, 246 Mich App 471, 483; 633 NW2d 440
(2001). Alternatively, plaintiff relies on Glen Lake-Crystal River Watershed Riparians v Glen
Lake Ass’n, 264 Mich App 523, 529; 695 NW2d 508 (2004), wherein this Court concluded that
the defendant “affirmatively acquiesced to [the] plaintiffs’ right to sue by entering into a
stipulation” agreeing to, among other things, “the issues to be decided at trial.” In these
circumstances, we concluded that the defendant could not challenge the plaintiffs’ standing on
appeal because “[i]t would be unfair to [the] plaintiffs and a waste of judicial resources to hold,
following trial proceedings to which the [defendant] consented, that there was no standing to bring
this action.” Id. Although at first glance there are similarities between Glen and the current case,
the present case is distinguishable because defendant had no reasonable basis for contesting
plaintiff’s standing before trial given the long line of cases from this Court holding that a healthcare
provider had a direct cause of action against an insurer. See VHS Huron Valley Sinai Hosp, 322
Mich App 719-720. In contrast, in Glen, 264 Mich App at 529, when concluding that the defendant
could not pursue its standing argument on appeal, this Court specifically noted that, based on
existing caselaw, the defendant had a “reasonable basis” to assert its standing challenge in the trial
court and yet it failed to raise the issue. Given this key distinction between the current case and
Glen, Glen may be read in harmony with the conclusion that defendant did not waive a right in
this case by failing to make an argument that had no reasonable basis in existing law. Neither
Monaco nor Glen support plaintiff’s position.

                                                   -5-
have to collect past due or presently due benefits from [the insurer].” Prof Rehab Assoc v State
Farm Mut Auto Ins Co, 228 Mich App 167, 177; 577 NW2d 909 (1998).

        In this case, plaintiff obtained an assignment from Jacobs after trial, following the Supreme
Court’s decision in Covenant.4 Specifically, on June 8, 2017, Jacobs signed a document, assigning
to plaintiff her right to no-fault benefits, her right to seek payment of those benefits, and her right
to bring a lawsuit for payment of those benefits. The assignment also stated that if plaintiff had
filed a lawsuit to recover payment of Jacobs’s bills, the assignment “is retroactive to the date
[plaintiff] filed the pending litigation or made the claim.”

        Plaintiff now claims that the assignment cures any Covenant defect or that, at a minimum,
plaintiff should be given the opportunity to amend its complaint to add an assignment theory.
However, as argued by defendant, the flaw in plaintiff’s argument is that Jacobs could only assign
to plaintiff the rights she possessed as of the date of the assignment—namely June 8, 2017. See
Shah, 324 Mich App at 205. In light of the one-year-back rule, MCL 500.3145(2),5 Jacobs’s rights
on June 8, 2017, did not include the ability to pursue the medical expenses sought by plaintiff for
treatment provided in August and September of 2014. See Shah, 324 Mich App at 202-205.
Because Jacobs did not possess rights to recover benefits beyond those allowed by MCL 500.3145,
she could not assign such rights to plaintiff, and thus plaintiff could not obtain the right to recover
benefits for losses incurred more than a year before June 8, 2017. See Shah, 324 Mich App at 202-
205. Moreover, contrary to plaintiff’s attempt to retroactively cure the Covenant defect, the
addition of an assignment theory does not relate back to the commencement of the action. Id.
Accordingly, Jacobs’s assignment—which was ineffective to convey the rights to plaintiff’s
claims—did not retroactively cure the Covenant defect in this case, and the fact remains that
plaintiff’s complaint failed to state a claim on which relief can be granted. See Bronson Healthcare
Group, Inc, 323 Mich App at 305. Further, on the facts of this case, plaintiff need not be given an
opportunity to amend its pleadings to add an assignment theory for recovery of PIP benefits
because any such claim would be futile given that Jacobs’s assignment in June 2017 did not, and
could not, convey the right to obtain benefits for the medical expenses incurred in August and
September 2014.6 See Lane v KinderCare Learning Centers, Inc, 231 Mich App 689, 697; 588

4
 Contrary to defendant’s assertions on appeal, a copy of the assignment is contained in the lower
court file, and we consider it part of our review. See MCR 7.109(A); MCR 7.210(A)(1).
5
  Under MCL 500.3145(2), in an action for PIP benefits, “the claimant may not recover benefits
for any portion of the loss incurred more than 1 year before the date on which the action was
commenced.”
6
  On appeal, plaintiff also offers the cursory assertion that it should be given the opportunity to
amend its complaint to add a contract claim against defendant based on a “cofinity” agreement
between plaintiff and defendant. However, plaintiff does not explain its contract theory in any
detail, and there is nothing in the record to support the bald assertion that defendant could somehow
be liable for Jacobs’s medical expenses based on the cofinity agreement with plaintiff. Given
plaintiff’s insufficient briefing, we consider the issue abandoned. See Dunn v Bennett, 303 Mich
App 767, 775; 846 NW2d 75 (2013).

                                                 -6-
NW2d 715 (1998) (“An amendment is futile if it merely . . . adds allegations that still fail to state
a claim.”).

        In sum, Covenant controls this case. Plaintiff’s waiver arguments are without merit, and
Jacobs’s postjudgment assignment does not alter the applicability of Covenant. We therefore
vacate the judgment in plaintiff’s favor and remand for entry of judgment in favor of defendant in
light of Covenant.7 Having vacated the judgment, we also conclude that plaintiff is not entitled to
case evaluation sanctions. See MCR 2.403(O). Consequently, we also vacate the order for case
evaluation sanctions.

       Vacated and remanded for entry of judgment in favor of defendant. Defendant may tax
costs. We do not retain jurisdiction.

                                                              /s/ David H. Sawyer
                                                              /s/ Jane E. Markey
                                                              /s/ Cynthia Diane Stephens

7
 Given our conclusion that Covenant resolves this case, we need not reach defendant’s additional
arguments on appeal, including the applicability of MCR 2.314 to a plaintiff proceeding on an
assignment theory, the burden of proof under MCL 500.3105(4), and the trial court’s exclusion of
other-acts evidence under MRE 404(b) relating to Jacobs’s intent.

                                                -7-


41 F.Supp.2d 1245 (1998)
INTERCON, INC., an Oklahoma Corporation, Plaintiff,
v.
BELL ATLANTIC INTERNET SOLUTIONS INC., a Delaware Corporation, Defendant.
No. Civ-97-1620-M.
United States District Court, W.D. Oklahoma.
September 29, 1998.
*1246 Emmanuel E. Edem, Thomas A. Wallace, Norman Edem McNaughton & Wallace, Oklahoma City, OK, Sheldon B. Swan, Joseph G. Shannonhouse, IV, Clell I. Cunningham, III, Dunn Swan & Cunningham, Oklahoma City, OK, for plaintiff.
Robert H. Gilliland, Jr., James R. Webb, McAfee & Taft, Oklahoma City, OK, for defendant.

ORDER
MILES-LAGRANGE, District Judge.
Before the Court is defendant's motion to dismiss this action for lack of general or specific personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2).
This action arises out of defendant's unauthorized connection to and continued use of plaintiff's computer services, which enable the transfer of electronic mail from computer to computer via the Internet.
Plaintiff Intercon, Inc. ("ICON") is an Oklahoma corporation with its principal place of business in Oklahoma City. ICON is in the business of providing "dial-up" Internet access service to individual and business subscribers. See Plaintiff's Objection to the Motion to Dismiss for Lack of Personal Jurisdiction, Exhibit A, Affid. of Wes Chew, p. 1-2. Subscribers to ICON's Internet access service are provided access to the World Wide Web, and are able to send and receive electronic mail ("E-Mail") and perform other functions. Id. ICON and an affiliated corporation have been in the business of providing Internet Access Service, including E-Mail capability, since 1994. Id.
Defendant Bell Atlantic Internet Solutions Inc. ("BAIS") is a Delaware corporation with its principal place of business in Reston, Virginia. BAIS is a corporate affiliate of Bell Atlantic Corporation. Bell *1247 Atlantic entities provide local telephone services to residents of certain Northeastern and Mid-Atlantic states. See Declaration of Harry Joseph McMahon, p. 1. Among other things, BAIS provides an Internet access service to individual and business subscribers located in the Northeastern and Mid-Atlantic United States. Id. BAIS' service facilitates the exchange of E-Mail by relaying messages from one computer system to another. Id. at 3.
In their briefs, the parties state the following undisputed facts. In July 1996, BAIS launched its dial-up Internet access service for customers in Mid-Atlantic states, and began offering dial-up service to customers in Northeastern states in August 1996. BAIS tailored its service to restrictions placed on local telephone companies by existing statutory and regulatory limitations, including the provisions of the Telecommunications Act of 1996. Among other limits, BAIS cannot carry telephone transmissions across regional boundaries known as Local Access Transport Areas ("LATAs"). Consequently, BAIS connects its subscribers to the Internet with the help of intermediaries known as Global Service Providers ("GSPs"), like ICON. These GSPS carry transmissions from BAIS customers across LATA boundaries and route them to the Internet. These GSPs carry outgoing E-Mail and incoming mail, orchestrating general Internet traffic and providing technical assistance for customers.
Between August and December 1996, when BAIS subscribers clicked the appropriate icon on their computer screen to send in E-Mail message, the message was transmitted from BAIS to ICON's Oklahoma-based mail exchange system, rather than to ICon CMT's New Jersey-based system. DAIS' software routed its subscribers' E-Mail to ICON's domain name ("icon.net"), rather than to ICon CMT's similar domain name ("iconnet.net").[1]
Difficulties arose with ICON's mail server. According to ICON's affidavits, as many as 12,000 subscribers' E-Mail messages were routed from BAIS to ICON. In late November or December 1996 ICON notified BAIS that unauthorized E-Mail was passing through ICON's mail exchange system. According to BAIS' statement of the facts, BAIS took immediate steps to ensure that the outgoing E-Mail of new customers would not be routed through ICON's server, and BAIS alerted its existing customers to the problem, instructing subscribers to take steps to ensure that their outbound mail would be routed through the proper mail server. However, not all of BAIS' customers took those steps. Finally, on February 20, 1997, BAIS effectively blocked customers from transmitting E-Mail through ICON's mail server.
In support of its motion to dismiss for lack of jurisdiction, BAIS submitted the affidavit of Harry Joseph McMahon, a Vice President for Network Services with BAIS. See Declaration of Harry Joseph McMahon. McMahon states that BAIS' principal place of business is Reston, Virginia; that BAIS has never owned or leased property in Oklahoma, and is not licensed to do business there and maintains no offices or bank accounts there; that BAIS has never sent agents into Oklahoma, has made no effort to solicit business from Oklahoma residents and has never circulated advertising targeting Oklahoma residents; that BAIS conducts no activities in Oklahoma, generates no revenue from Oklahoma and derives no economic benefit from Oklahoma; that BAIS has never sought business in Oklahoma through a local agent, and has never held itself out as doing business in this State.
In Plaintiff's Sur Reply Brief in Opposition to Defendant's Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction, ICON asserts that BAIS purposefully gave ICON's domain name for its Internet access service subscribers as the means of using the E-Mail portion of its service. See Declaration of Harry Joseph McMahan. Plaintiff contends that BAIS *1248 continued to cause the E-Mail to be routed through ICON's mail server in Oklahoma City for more than two months after being first advised of the situation by employees of ICON in late October or early November, 1996. See Affid. Of Wes Chew Paras. 12 & 13. Plaintiff further contends that BAIS had the ability to immediately program its system to prevent the routing of E-Mail to the ICON server but intentionally failed to do so, in an effort to avoid interrupting service to BAIS customers, until February 20, 1997. Plaintiff argues that BAIS' initial and continued use of ICON's E-Mail service constitutes sufficient `minimum contacts' with Oklahoma as the forum state, justifying the Court's exercise of personal jurisdiction over BAIS in the instant case. Plaintiff contends that BAIS purposefully availed itself of the privileges of conducting activities within the forum state when BAIS failed to effectively terminates its subscribers' use of ICON's computer services.

JURISDICTION
Oklahoma's long-arm statute extends to the limits of Due Process Clause. Accordingly, the Court will proceed to analyze the constitutionality of exercising personal jurisdiction under the Due Process Clause. "The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful `contacts, ties or relations.'" OMI Holdings v. Royal Insurance Company of Canada, 149 F.3d 1086, 1090 (10th Cir.1998) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Therefore, a "court may exercise personal jurisdiction over a nonresident defendant only so long as there exist `minimum contacts' between the defendant and the forum state." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The requirement that "minimum contacts" be present protects a defendant, who has no meaningful contact with a state, from the burdens of defending a lawsuit far from home in a forum where the substantive and procedural laws may be quite different from those with which the litigant is familiar. Id. at 292, 100 S.Ct. 559.
The "minimum contacts" standard may be met in two ways: through general or specific personal jurisdiction. A court may exercise general personal jurisdiction over the defendant based on the defendant's general business contacts with the forum state. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 415, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). However, the courts apply a "stringent minimum contacts test, requiring the plaintiff to demonstrate the defendant's `continuous and systematic general business contacts.'" Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir.1996) (quoting Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868). In the alternative, the court may exercise specific jurisdiction over a nonresident defendant "if the defendant has `purposefully directed' his activities at residents of the forum, and the litigation results from alleged injuries that `arise out of or relate to' those activities." Burger King 471 U.S. at 472, 105 S.Ct. 2174 (internal quotations omitted).
"The Plaintiff bears the burden of establishing personal jurisdiction over the defendant." Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1417 (10th Cir.1988). However, the plaintiff need only make a prima facie showing to defeat defendant's motion to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir.1996). The Court resolves all factual disputes in favor of plaintiff. OMI Holdings, Inc., 149 F.3d at 1091.[2]

*1249 GENERAL JURISDICTION

Having carefully reviewed the parties' submissions, the court finds ICON has failed to make a sufficient showing that BAIS had continuous and systematic general business contacts with Oklahoma. Thus, the Court finds no basis for the exercise of general jurisdiction over BAIS.

SPECIFIC PERSONAL JURISDICTION
"Judicial analysis of personal jurisdiction is a `fact-sensitive' inquiry." Scott v. Jones, 984 F.Supp. 37, 42 (D.Me. 1997) (quoting Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir.1995)). To determine whether the court may exercise specific jurisdiction, the court must find that defendant has such minimum contacts with the forum state "that he should reasonably anticipate being haled into court there." World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559. To make such a determination, the Court must decide, first, whether the defendant purposefully directed its activities at residents of the forum, Burger King 471 U.S. at 472, 105 S.Ct. 2174, and second, whether the plaintiff's cause of action arises out of or results from "actions by the defendant himself that create a substantial connection with the forum state." Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). However, a finding of foreseeability, alone, is not dispositive. "Whether a defendant may foresee that a plaintiff may attempt to implead it into an action in a foreign forum is of little relevance in determining whether a defendant has established minimum contacts with that forum." OMI Holdings, Inc., 149 F.3d at 1094. Courts carefully analyze the purposeful availment criteria to ensure "a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. ..." United Electrical Radio & Machine Workers of America (UE) v. 163 Pleasant Street Corp., 987 F.2d 39, 45 (1st Cir.1993) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299, 100 S.Ct. 559 (1980)). "[T]here [must] be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Purposeful availment analysis generally requires "affirmative conduct by the defendant which allows or promotes the transaction of business within the forum state." Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1420 (10th Cir.1988) (quoting Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir.1986)).
If the court finds sufficient minimum contacts, then it must decide whether the exercise of personal jurisdiction over the defendant would offend "traditional notions of fair play and substantial justice." Asahi, 480 U.S. at 113, 107 S.Ct. 1026. To do this, the court employs a reasonableness test analyzing the circumstances surrounding the case, including: (1) the burden on the defendant, (2) the forum state's interest in resolving the dispute, (3) the plaintiff's interest in receiving convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. Id.
Having carefully reviewed the parties' submissions, the Court finds no basis for the exercise of specific jurisdiction because BAIS did not establish sufficient minimum contacts when BAIS inadvertently sent subscribers' E-Mail to ICON's domain name, mistaking ICON's domain name ("icon.net") for that of ICon CMT ("iconnet.net"). Further, BAIS did not establish minimum contacts with ICON or Oklahoma as the forum state when BAIS failed to immediately halt the flow of its subscribers' E-Mail to ICON. While BAIS' selection of ICON's name may not be characterized as random, it *1250 may be viewed as a mistake that inadvertently brought BAIS' business activity into Oklahoma via the Internet or World Wide Web. Neither the inadvertent selection of ICON's domain name nor BAIS' notification of subscribers to the mistake and the subsequent reduction of E-Mail traffic  albeit over a two month period  rises to the level of purposeful availment required for the exercise of specific personal jurisdiction. Consequently, the court will not exercise specific, personal jurisdiction in the case at bar.

CONCLUSION
Defendant's motion to dismiss for lack of personal jurisdiction [doc. no. 12] is GRANTED. This action is dismissed without prejudice.
IT IS SO ORDERED.
NOTES
[1]  The E-Mail messages were nevertheless routed to their intended destinations.
[2]  In the instant case, however, the result would be the same even if the Court resolved factual disputes in favor of defendant.


                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0626n.06

                                           No. 08-2198                                   FILED
                                                                                Sep 02, 2009
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

HARMOND H. SCHAEFER,

       Plaintiff-Appellant,                              ON APPEAL FROM THE UNITED
                                                         STATES DISTRICT COURT FOR THE
v.                                                       EASTERN DISTRICT OF MICHIGAN,
                                                         NORTHERN DIVISION
AXA EQUITABLE LIFE INSURANCE
COMPANY, dba EQUITABLE and DISABILITY                                 OPINION
MANAGEMENT SERVICES, INC.,

       Defendants-Appellees.

Before: KEITH, COLE, and WHITE, Circuit Judges.

       WHITE, CIRCUIT JUDGE. Plaintiff-Appellant, Harmond Schaefer, brought suit against

his former employer, AXA Equitable Life Insurance Company (“Equitable”) and the company that

managed Equitable’s disability insurance policies, Disability Management Services, Inc. (“DMS,”

and collectively, “defendants”). The district court granted defendants’ motion for summary

judgment on the ground that Schaefer’s breach of contract claim was barred by a contractual

provision requiring suit to be brought within three years. We reverse in part and remand for further

proceedings.

                                                 I.

       Beginning in 1974, Harmond Schaefer worked for Equitable in Michigan as a licensed

insurance agent. In 1976, 1979, 1987 and 1988, Schaefer purchased four long-term disability income

                                                 1
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

policies from Equitable. Schaefer sold these policies to himself; they were not provided as a benefit

of his employment with Equitable.1

       All four policies include language regarding the time period for bringing a legal action to

recover on the policy. The 1976 and 1979 policies provide:

       LEGAL ACTIONS. No action at law or in equity shall be brought to recover on this
       policy prior to the expiration of sixty days after written proof of loss has been
       furnished in accordance with the requirements of this policy. No such action shall
       be brought after the expiration of three years after the time written proof of loss is
       required to be furnished.

The 1987 and 1988 policies have substantially the same provision, but worded slightly differently:

       LEGAL ACTION. No legal action may be brought to recover on this policy within
       60 days after written proof of loss has been given as required by this policy. No such
       action may be brought after 3 years from the time written proof of loss is required to
       be given.

The 1976 and 1979 policies define proof of loss as follows:

       PROOF OF LOSS. Written proof of loss must be furnished to the Equitable at its
       Home Office in case of claim for loss for which this policy provides any periodic
       payment contingent upon continuing loss, within ninety days after termination of the
       period for which the Equitable is liable and, in the case of claim for any other loss,
       within ninety days after the date of such loss. Failure to furnish such proof within the
       time required shall not invalidate nor reduce any claim if it was not reasonably
       possible to give proof within such time, provided such proof is furnished as soon as
       reasonably possible and in no event, except in the absence of legal capacity, later than
       one year from the time proof is otherwise required.

       1
         Schaefer was the issuing agent for his own policies, and signed each one as the agent and
as the proposed insured. Although Schaefer’s complaint asserted a claim under ERISA, Schaefer
no longer contends that these policies were related to his employment with Equitable. The district
court dismissed Schaefer’s ERISA claim, and Schaefer does not appeal that portion of the district
court’s order.

                                                  2
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

The 1987 and 1988 policies have a significantly shorter definition for proof of loss, which includes

the word “monthly” as a modifier for the “period for which [Equitable] is liable”:

       PROOF OF LOSS. If the policy provides for periodic payment for a continuing loss,
       written proof of loss satisfactory to us must be given within 90 days of the end of
       each monthly period for which we are liable. For any other loss, such proof must be
       given within 90 days of that loss.

The 1976 and 1979 policies contained the following language regarding time for payment of claims:

       TIME OF PAYMENT OF CLAIMS. Benefits payable under this policy for any loss
       other than loss for which this policy provides any periodic payment will be paid
       immediately upon receipt of the written proof of such loss. Subject to due written
       proof of loss, all accrued benefits for loss for which this policy provides periodic
       payment will be paid monthly during the continuance of the period for which the
       Equitable is liable and any balance remaining unpaid upon the termination of that
       liability will be paid at that time.

The 1987 and 1988 policies stated:

       TIME OF PAYMENT OF CLAIMS. After receiving written proof of loss, we will
       pay monthly all benefits then due you for disability. Any balance that remains unpaid
       when our liability ends will be paid at that time. Benefits for any other loss covered
       by this policy will be paid as soon as we receive proper written proof.

       After suffering a heart attack in January 1995 that reduced his ability to work, Schaefer

applied for benefits under each of the four policies. Equitable approved Schaefer’s claim, and began

to pay him monthly disability benefits. In 1995 and 1996, Schaefer raised two objections with

Equitable: (1) he contended that his “renewal commissions” should be considered deferred

compensation, and not be included in calculating his monthly income; and (2) each of Schaefer’s

policies contained language regarding a cost of living adjustment (COLA), yet Schaefer did not

receive an adjustment for payments under the 1976 and 1979 policies. These two objections would

eventually form the basis for the instant lawsuit.

                                                     3
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

       A.      Renewal Commissions and Service Fees

       In September 1995, Equitable sent a letter to Schaefer requesting verification of his monthly

earnings, stating that his “monthly statements should include 1st year and renewal commissions

received from all carriers and all expenses paid during the month.” Schaefer responded with a fax,

stating his belief that “renewal commissions are not considered earnings income; they are considered

deferred compensation from prior year sales.” On October 30, Equitable responded to Schaefer,

explaining that “it is still our position that we must take into consideration the income earned for

Renewal and services fees when calculating the Pre Disability Monthly Income as well as Current

Monthly Income.” Over the years, Schaefer continued to argue that his renewal commissions should

be excluded from his current monthly and yearly income calculation, and Equitable responded with

letters on September 9, 1996, September 10 and 16, 1997, August 16, 1999, and September 28, 2000,

stating that it considered renewal commissions and service fees to be income. In January 2001,

Disability Management Services (DMS) took over administration of Equitable’s long-term disability

policies, and on July 1, 2004, DMS addressed Schaefer’s concern again, reiterating the answer that

Equitable had provided numerous times before:

       Our review of your file reveals that this issue has been discussed and addressed with
       you since the inception of your file. We note that renewal commissions have always
       been included in both the calculation of your Prior Monthly figures and Current
       Monthly Income figures. If these earnings are included in your Prior Monthly
       Income then they need to be included in your Current Monthly Income. Renewal
       commissions have always been included in these calculations and are considered
       income for ongoing services that you render to your clients.

                                                  4
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

       B.      COLA payments

       On May 20, 1996, Schaefer complained to Equitable that he was only receiving COLA

payments under the policies purchased in 1987 and 1988, and not the 1976 and 1979 policies as well.

A June 19, 1996 letter from Equitable to Schaefer stated:

       The COLA riders for [the 1976 and 1979] Policies . . . are payable for total disability.
       However, the riders allow an index adjustment increased by ½ % of the prior monthly
       earnings for the residual benefits payable. Since you qualified for 100% residual
       benefits for current month you were not entitled to the adjustment.

       On July 3, 2001, Schaefer wrote to DMS, again complaining that he had not been receiving

cost of living benefits under the 1976 and 1979 policies. In its response, DMS stated that it needed

to “determine this benefit from January 24, 1996 to the present.” Two weeks later, in another letter,

DMS stated that it was “in the process determining [sic] your Cost of Living Adjustment Benefit for

each month from January 24, 1996 to the present. Once our review is complete, I will contact you.”

On September 17, 2001, DMS sent a third letter to Schaefer, stating that its “accountant completed

the Cost of Living Adjustment Benefit monthly calculations from January 24, 1996 to August 24,

2001 under the [1976 and 1979] claims. Enclosed are two checks representing payment under the

Cost of Living Adjustment Benefits.” Schaefer contends that he received cost of living benefits on

all four policies through most of 2003.

       However, on April 1, 2004, DMS wrote to Schaefer again, and asserted that it had erred when

it paid him COLA benefits under the 1976 and 1979 policies. It stated:

       Our records indicate you have only claimed a period of total disability for two
       months during your entire claim from January 24, 1995 through March 24, 1995.
       Given this information, you have not been continuously totally disabled for 12

                                                  5
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

       months at any point during your claim and as a result, you are not entitled to receive
       an increase in your Monthly Income. . . .

       As I advised you during our conversations, a review of benefits paid to you each
       month under [the 1976 and 1979 policies] since the onset of disability reveals that
       an error has occurred in the calculation of your residual disability [Cost of Living
       Factor]. As a result, a significant overpayment of $16,833.89 in residual disability
       benefits has been paid to you under these policies. . . . As we discussed, we are not
       seeking reimbursement for this overpayment but need to continue to adjust your
       current payable benefit accordingly.

       On April 24, 2004, Schaefer responded, stating that he received the April 1 letter, and that

it was “nothing but smoke and mirrors to try to get out of paying my Cost of Living Benefits.”

Schaefer argued that his residual disability status in 1995 counted towards the calculation of a 12-

month period of disability required in the 1976 and 1979 policies’ COLA riders.

       On May 7, DMS responded to Schaefer’s letter, asserting the same position it expressed in

its April 1st letter. Schaefer continued to write letters to DMS disputing its interpretation of the

COLA Riders to his 1976 and 1979 policies, and DMS maintained the position it articulated in its

April 1, 2004 letter.

       On November 22, 2006, Schaefer filed suit against Equitable and DMS in Michigan state

court, alleging breach of contract, “conspiracy to wrongfully deny benefits in violation of unfair and

deceptive trade practices statutes,” promissory estoppel, and a violation of ERISA. The defendants

removed the suit to the U.S. District Court for the Eastern District of Michigan, claiming federal

jurisdiction due to the diversity of the parties2 and the ERISA claim. The parties filed cross motions

       2
        Schaefer is a Michigan resident, Equitable is a New York business entity with its principle
place of business in New York, and DMS, a Connecticut corporation, has its principle place of
business in Massachusetts.

                                                  6
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

for summary judgment, and on August 20, 2008, the district court granted defendants’ motion,

finding that Schaefer’s claim for breach of contract was time barred, and dismissing the remaining

claims. Schaefer filed a timely appeal to this court.3

                                                  II.

       This court reviews the district court’s grant of summary judgment de novo. Holloway v.

Brush, 220 F.3d 767, 772 (6th Cir. 2000). Rule 56 of the Federal Rules of Civil Procedure states that

summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” The moving party must inform the district court “of the

basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any’ which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Cartrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The nonmoving party must then “set forth specific

facts showing there is a genuine issue for trial.” United States v. Ninety Three Firearms, 330 F.3d

414, 427 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). “In

considering a motion for summary judgment, the district court must construe all reasonable

inferences in favor of the nonmoving party.” Vill. of Oakwood v. State Bank & Trust Co., 539 F.3d

       3
        On appeal, Schaefer only challenges the district court’s order with regard to his breach of
contract claim. Schaefer does not argue that his claims for promissory estoppel, conspiracy, and
violation of ERISA were erroneously dismissed.

                                                  7
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

373, 377 (2008). A federal court exercising diversity jurisdiction applies the law of the forum state.

Uhl v. Komatsu Forklift Co., Ltd., 512 F.3d 294, 302 (6th Cir. 2008).

                                                  III.

       In their motion for summary judgment, defendants argued that Schaefer’s claims were barred

both by the contractual three-year time limit and by Michigan’s six-year contract statute of

limitations. The district court granted summary judgment to defendants, reasoning that the

contractual three-year time limit is enforceable under Michigan law, that Schaefer’s claims accrued

well over three years before suit was filed, that a new breach of contract was not established each

time Equitable allegedly miscalculated Schaefer’s monthly benefits, and that there was no equitable

tolling, estoppel or waiver. The district court did not address the application of Michigan’s six-year

statute of limitations to Schaefer’s breach of contract claim. The court explained:

               Plaintiff filed his proof of loss in 1995. Moreover, the statements made in
       Plaintiff’s 1995 and 1996 letters demonstrate that he was aware of the fact that
       Defendants disagreed with his interpretation of the policies. For instance, Plaintiff
       raised the classification of renewal commissions in his September 7, 1995 facsimile.
       Additionally, Plaintiff acknowledged the alleged miscalculation with respect to the
       determination of COLA benefits due under the 76 and 79 policies on May 20, 1996.
       These two pieces of correspondence indicate that Plaintiff was aware of these issues
       in 1995 and 1996, soon after the date of loss. In 2006, Plaintiff filed his complaint
       well outside of the three year period to commence legal action.
               The inquiry, thus, shifts to whether a basis exists, as Plaintiff suggests, to
       conclude the time restraints included in the policies are ineffective. Plaintiff
       contends that the limitation period begins to run when each payment is incorrectly
       calculated, analogizing the circumstance to an installment contact. Mich. Comp.
       Laws § 600.5836.[4] Alternatively, Plaintiff asserts that Defendants’ representations

       4
        Mich. Comp. Laws § 600.5836 states: “The claims on an installment contract accrue as each
installment falls due.”

                                                   8
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

        equate to an express waiver, or should serve as a basis for applying the doctrine of
        equitable estoppel. Defendant, on the other hand, disputes both of these contentions.
                                                 ***
        Defendants allegedly miscalculated the amount owed in 1995 and continued to pay
        the incorrect amount. Although Plaintiff maintains that each month Defendants
        recalculated the amount owed under the policies, the dispute focuses on the parties’
        interpretation of the policies — i.e. the classification of renewal commissions and
        COLA benefits under the 76 and 79 policies. The parties’ positions did not change
        from month to month (at least during the three year limitation period), and payment
        under the plan arose from Plaintiff’s single disability. Plaintiff’s action for breach of
        contract accrued when Defendants advanced their interpretation of Plaintiff’s benefits
        under the policies.

        The district court applied the contractual time limit to Schaefer’s claims as if it were a shorter

version of the statute of limitations, without examining the plain language of the provision. The

district court’s consideration of when the cause of action accrued resembles the appropriate inquiry

in applying a traditional statute of limitations defense. The district court did not discuss the specific

contractual language stating that no legal action shall be brought after the expiration of three years

after the time written proof of loss is required to be furnished. By their terms, the policies provide

that the limitations period runs from the time proof of loss is required, and that such proof of loss

is due “within ninety days after termination of the period for which the Equitable is liable,” or, in the

case of the 1987 and 1988 policy, “within 90 days of the end of each monthly period for which

[Equitable is] liable.”

        A.      Contractual three-year time limit for legal actions

        The parties agree that state law controls this dispute, and in Michigan, “[w]hen interpreting

insurance contracts, standard contract laws apply.” McDonald v. Farm Bureau Ins. Co., 747 N.W.

2d 811, 820 (Mich. 2008). In addition, “[t]he Michigan breach of contract statute of limitations is

                                                    9
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

six years. Mich. Comp. Laws § 600.5807(8). But, Michigan courts have held that insurance

contracts may contain shorter statutes of limitations.” Santino v. Provident Life & Acc. Ins. Co., 276

F.3d 772, 776 (6th Cir. 2001).

       Schaefer’s policies stated that “no legal action may be brought after 3 years from the time

written proof of loss is required to be given.” Schaefer’s 1976 and 1979 claims required that “proof

of loss” be furnished to Equitable “within ninety days after termination of the period for which the

Equitable is liable.” Schaefer’s 1987 and 1988 policies required that proof of loss “be given within

90 days of the end of each monthly period for which we are liable.” (Emphasis added.)

       Relying on the contractual language of the 1976 and 1979 policies, Schaefer argues that the

three-year time limit does not begin to run until his period of disability is over, interpreting the

phrase “the period for which the Equitable is liable” to mean the entire period of disability. Schaefer

points to a Third Circuit case, Knoepfler v. Guardian Life Ins. Co. of Am.,438 F.3d 287 (3d Cir.

2006), for support. In Knoepfler, the Third Circuit confronted a similar set of facts: the plaintiff

purchased two disability insurance policies containing a clause that stated: “[i]n no case can an

action be brought against [the insurance company] more than three years after written proof must be

furnished.” Knoepfler, 428 F.3d at 288. The proof of loss clause stated that proof of loss was

required “within 90 days after the end of the period for which we are liable.” The Third Circuit

construed the language “the end of the period for which [the insurer] is liable” to mean “the end of

the entire period of continuous disability for which the insurer is liable.” Id. at 297.

       Importantly, the language in the 1976 and 1979 policies regarding proof of loss is similar to

the language in Knoepfler, while the language in the 1987 and 1988 policies includes the word

                                                  10
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

“monthly.” In Knoepfler, as well as in Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365 (3d

Cir. 1996), the Third Circuit found this distinction important. In Knoepfler, the court discussed its

ruling in Hofkin, which involved policy language identical to that in Knoepfler (and to Schaefer’s

1976 and 1979 policies) stating:

       Applying a plain language analysis, we agreed with the majority view that the
       language “period for which the Company is liable” most plausibly refers to the entire
       period of continuous disability. [Hofkin] at 372-374. We reasoned that the proof of
       loss provision did not contain the word “monthly” before the phrase “period for
       which the Company is liable,” and that the insurer’s obligations with respect to
       payments on a “periodic” or “monthly” basis did not alter the language which
       required proof of loss after the end of the entire period of disability. Id. at 374.
       Morever, “we refused to interpolate by judicial fiat the term ‘monthly’ before ‘period
       for which the company is liable.’” . . . For these reasons, we predicted that the highest
       court in Pennsylvania would adopt the majority approach and interpret the phrase
       “period for which the Company is liable” to mean a continuous period of disability.
       Id. at 375.

Knoepfler 438 F.3d at 293-94. Hofkin asserts that the “majority view” regarding a proof of loss

provision such as the one involved here is to construe the time period to begin running after the

period of disability concludes. Hofkin includes a discussion of cases interpreting identical or similar

provisions and reaching the same result applying New York, Minnesota, North Dakota, Delaware,

Kentucky, Idaho and Arkansas law. Hofkin, 81 F.3d at 372-74.

       Defendants correctly point out, however, that the question before this court is how the

Michigan Supreme Court would construe the provisions of Schaefer’s policies. There is no

Michigan Supreme Court case construing a similar time-limit clause. The Michigan Court of

Appeals, however, addressed language similar to that in Schaefer’s 1976 and 1979 policies in

Selesny v. U.S. Life Ins. Co., No. 236141, 2003 WL 1861028 (Mich. Ct. App., Apr. 8, 2003). The

                                                  11
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

clause at issue in Selesny stated that “[w]ritten proof of loss for benefits that are payable periodically

must be given within 90 days after the termination of a period for which United States Life is liable.

For all other losses, written proof of loss must be given within 90 days after the date of loss.”

Selesny, 2003 WL 1861028, at *4. Selesny argued that the “period for which United States Life is

liable” was ambiguous, as it could be read to mean the entire period of disability, or to mean each

monthly period during which the insured claimed benefits. The Selesny court read the proof of loss

provision along with the “time for payment of claim” provision, which stated that “payment for

losses that are paid periodically will be made each month subject to due written proof of loss.” The

Michigan Court of Appeals found that the policy was not ambiguous, holding that “the provisions,

read together, make clear that an insured must submit a proof of loss within ninety days after a

monthly period for which U.S. Life is liable.” Id. at *5.

        In Young v. Northwestern, No. 201295, 1998 WL 1992774 (Mich. Ct. App., May 8, 1998),

the Michigan Court of Appeals also held that the subject proof-of-loss policy language was not

ambiguous.5 In Young, the court stated “the plain language of the policy is not ambiguous, and we

will not create an ambiguity where none exists. Morever, if this Court were to accept plaintiff’s

unreasonable assertion that the company’s period of liability is synonymous with ‘the end of the

policy,’ there would be virtually no time limitation on seeking retroactive benefits.” Id. at *1.

        5
         The proof of disability policy in Young stated: “Written proof of disability must be given
to the company at its home office. It must be given within ninety days after termination of the period
for which the company is liable.” Young, 1998 WL 1992774, at *1.

                                                   12
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

       Finally, in Korn v. Paul Revere Life Ins. Co., 238 F. App’x 109, 111 (6th Cir. 2007), a panel

of this court referred to the insured’s theory “that because his disability is continuing, the benefits

period has not ended, so he is not yet required to submit any proof of loss” as “plainly absurd.” The

court cited Selesny, and stated:

       [I]n order to obtain benefits under the contract, Mr. Korn must submit proof of loss
       within 90 days of the end of any period (e.g., month) for which he is claiming
       benefits. Thus, for limitations period purposes, the claim accrues and the three-year
       period begins to run 90 days after the end of that benefit period.

Id.

       Thus, there is little reason to believe that the Michigan Supreme Court would follow Hofkin

and similar cases and construe the time-limit clause of the 1976 and 1979 policies to mean that the

three-year time limit begins running after the conclusion of the insured’s disability. Rather, the

construction advanced by the Michigan Court of Appeals in Selesny — that the time period is a

monthly time period, and that this provision is not ambiguous — seems most in line with Michigan

law. Thus, to the extent Schaefer argues that the time-limit provision does not apply because no

claim accrues under the policy until after the termination of Equitable’s liability under the policy,

the district court correctly denied this argument.

       However, the district court’s conclusion that Schaefer’s entire claim is barred by the

contract’s time-limit provision is erroneous. Schaefer argues that if this court finds that the time

limit is enforceable, he is still entitled to maintain an action to recover benefits claimed to be due

within the three years prior to the filing of his lawsuit. Another Michigan Court of Appeals decision,

Monti v. League Life Ins. Co., 391 N.W. 2d 490 (Mich. Ct. App. 1986), involved a breach of contract

                                                  13
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

action by an insured seeking disability payments under a contract containing a three-year time limit

similar to the provision in Schaefer’s policies. Although the plaintiff had failed to file suit within

three years from the date of his disability, the Michigan Court of Appeals stated:

       The plaintiff’s claim would be time barred by the applicable statute of the contract
       but for the nature of plaintiff’s claim. Plaintiff is claiming disability benefits based
       on his permanent and continuing total disability. His disability is ongoing. It is not
       a discrete loss. In that sense, he is seeking to collect on a present injury and not a
       stale claim. . . . Here, plaintiff’s claim is timely . . . since notice of claim for a present
       disability was made within 210 days of that present disability. He would be entitled
       to benefits from the date of his filing notice for the length of his disability.

Id. at 494-495.

       Similarly, in Korn, supra, a case that involved a lawsuit filed in February 2004 regarding a

contract containing a time-limit provision similar to the one at issue here, this court said, “for

limitations period purposes, the claim accrues and the three-year period begins to run 90 days after

the end of that benefit period. Ergo, the three-year limitations period bars a claim for benefits for

any month prior to November 2000.” Korn, 238 F. App’x at 111.

       Schaefer was required to file suit within three years of the time proof of loss was required,

and proof of loss was required within ninety days after the end of the monthly period for which he

was claiming benefits. Schaefer filed suit in November 2006; thus, the contract’s three-year time

limit bars him from recovering benefits for any month prior to August 2003, but does not preclude

him from recovering benefits falling on or after that period.

       B.         Statute of Limitations

       As stated above, the district court did not expressly reach whether Michigan’s six-year statute

of limitations bars Schaefer’s breach of contract claim. While the district court did not specifically

                                                    14
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

address the statute of limitations, it found that Schaefer’s claim had “accrued” in 1995 and 1996,

using an analysis that mirrors the analysis of whether a claim is barred by the statute of limitations.

       Michigan has a six-year statute of limitations for breach of contract actions. Mich. Comp.

Laws § 600.587(8). In Michigan, a breach of contract claim accrues “at the time the wrong upon

which the claim is based was done regardless of the time when damage results.” Mich. Comp. Laws

§ 600.5827.

       In the instant case, the district court found that Schaefer’s “action for breach of contract

accrued when Defendants advanced their interpretation of Plaintiff’s benefits under the policies.”

The district court also found that defendants communicated their interpretation of the policies to

Schaefer in 1995 and 1996, pointing to Schaefer’s September 7, 1995 facsimile raising the

classification of renewal commissions, and his May 20, 1996 letter acknowledging that his payments

under the 1976 and 1979 policies did not include COLA benefits.

       The district court did not, however, address the Michigan decision of Monti, supra, or the

effect of the policy language on the accrual-based analysis. The court’s decision in this regard

appears to conflict with Monti, and Equitable’s effort to distinguish Monti on the basis that Monti’s

underlying claims had not yet been considered by the defendant insurance company is not persuasive.

In support of their argument that the statute of limitations should bar Schaefer’s suit, defendants rely

on two cases from other circuits: Lang v. Continental Assurance Co., 54 F. App’x 72 (3rd Cir.

2002), and Dinerstein v. Paul Revere Life Ins. Co., 173 F.3d 826 (11th Cir. 1999). Both Lang and

Dinerstein involved payment of individual disability policies, and the court in each case found that

despite the periodic nature of payments, a new cause of action did not arise “each time the insurer

                                                  15
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

allegedly refused coverage in bad faith.” Lang, 54 F. App’x at 74. However, Lang and Dinerstein

depart from the generally accepted rule that individual disability policies are payable monthly, and

accordingly, that the right to payment accrues monthly. Everhart v. State Life Ins. Co., 154 F.2d 347,

356 (6th Cir. 1946), Pierce v. Metropolitan Life Ins. Co., 307 F. Supp. 2d 325 (D.N.H. 2004). The

Michigan cases are to the contrary.

       Equitable also relies on Young, Selesny, and Korn, supra. As discussed earlier, in Young, the

Michigan Court of Appeals rejected the argument that the contractual time limit at issue postpones

accrual until after the insurer’s liability terminates, and held that the payments accrued after the

applicable monthly periods. Young, 1998 WL 1992774 at *2. Young did not, however, hold that

all payments under the policy accrue at the time of disability. Id. In fact, the insurer in Young had

made the payments that became due after a proof of loss was belatedly filed. Id. at *1. The Selesny

court rejected a similar claim, and, like the Korn panel, recognized that benefits could be recovered

for periods after a proof of loss was properly submitted. Selesny, 2003 WL 1861028 at *5; Korn,

238 F. App’x at 111.

       A more recent Michigan Court of Appeals case dealing with a claim by pensioners against

the City of Detroit for breach of contract in deducting health-insurance premiums from pension-

benefit payments is consistent with Monti. In Adams v. City of Detroit, 591 N.W.2d 67 (Mich. Ct.

App. 1998), the Michigan Court of Appeals reversed the trial court’s decision that the plaintiffs’

claims were entirely barred by the statute of limitations and, accepting the argument that pension

benefit payments are like installment contract obligations, allowed plaintiffs to proceed as to all

benefits withheld within the six-year statute of limitations.

                                                  16
No. 08-2198
Schaefer v. AXA Equitable Life Ins. Co., et al.

                                                  IV.

       Accordingly, we reverse the decision of the district court. The district court correctly found

that the contractual three-year time limit was enforceable against Schaefer, but incorrectly found this

provision to bar his entire claim. Schaefer may proceed against Equitable, but only for benefits

allegedly owed for monthly periods beginning in August 2003.

                                                  17


                                                            COURT OF
APPEALS
                                                    EIGHTH DISTRICT
OF TEXAS
                                                               EL
PASO, TEXAS

DILLARD DEPARTMENT STORES,
INC.,        )
                                                                              )              No.  08-02-00502-CV
Appellant,                          )
                                                                              )                    Appeal from the
v.                                                                           )
                                                                              )
34th District Court
DAVID GONZALES,                                           )
                                                                              )
of El Paso County, Texas
Appellee.                           )
                                                                              )                   (TC# 95-10608)

MEMORANDUM   OPINION

Pending before the
Court is the Appellant=s  motion to dismiss
this appeal pursuant to Tex.R.App.P. 42.1(a)(2),
which states:
(a) The appellate court may dispose
of an appeal as follows:

                                                              .               .               .

(2)        in accordance
with a motion of appellant to dismiss the appeal or affirm the appealed
judgment or order; but no party may be prevented from seeking any relief to
which it would otherwise be entitled.

Appellant has
complied with the requirements of Rule 42.1(a)(2).  The Court has considered this cause on the
Appellant=s motion
and concludes the motion should be granted and the appeal should be
dismissed.  We therefore dismiss the
appeal.

February
13, 2003
DAVID WELLINGTON
CHEW, Justice

Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.


509 S.W.2d 763 (1974)
BLUE RIDGE BANK, Appellant,
v.
STATE BANKING BOARD, Respondent, Southeast State Bank, Intervenor.
No. KCD 26346.
Missouri Court of Appeals, Kansas City District.
May 6, 1974.
*764 Ilus W. Davis, James E. Cooling, Dietrich, Davis, Burrell, Dicus & Rowlands, Kansas City, for appellant.
Norman O. Sanders, Robert E. Gould, Sheridan, Sanders, Carr, White & Mason, Kansas City, for respondent.
Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ.
SHANGLER, Judge.
The intervenor Southeast State Bank made application under § 362.325, RSMo 1969, V.A.M.S., to the Commissioner of Finance for relocation of its main banking house from 31st and Prospect to U.S. Highway 40 near the Harry Truman Sports Complex in Kansas City, Missouri. The Commissioner after due investigation issued a Certificate of Authority for relocation of the bank. The Blue Ridge Bank, Noland Road Bank, First National Bank of Independence and the Kansas City Chapter of the NAACP appealed the ruling of the Commissioner to the State Banking Board. NAACP did not proceed further. The Board conducted the hearing required by § 361.094, RSMo 1969, V.A.M. S.at which extensive testimony, graphs, charts, maps, expert studies and statistical data were receivedentered findings of fact and conclusions of law and affirmed the decision of the Commissioner. The Blue Ridge Bank, only, sought review in the circuit court of the determination of the Board, and alone appeals the judgment of the circuit court which has affirmed the decision of the Board. The Southeast State Bank, not designated as a party to the appeal, intervened by leave of the circuit court and is here as a respondent.
The respondent Southeast State Bank was established at 3131 Prospect in Kansas City, Missouri, in 1918 and by the end of 1971 had developed capital surplus and undivided profits accounts amounting to approximately $2,500,000. There was evidence that the area in which Southeast is located is among the most densely populated in the city. It is an area, however, in steady decline. The high incidence of crime has been accompanied by marked deterioration of retail business, construction activity, population, income and homes. Thus, although there are 148,000 people in this area, only 50% of Southeast's deposits are derived from the surrounding community. Analysis of the depositors shows that a large proportion of them have abandoned this neighborhood for areas of more growth and stability. Although Southeast has consistently shown a profit in the past, its rate of growth has been substantially less than that of most other banks in the metropolitan area.
The area to which Southeast seeks to relocate is 4.2 miles east of its present site. The proposed location is 2.3 miles from appellant's bank situated at the Blue Ridge Mall Shopping Center. Immediately south of the proposed site is the Harry Truman Sports Complex, while to the north and west is an extensive underground mining area. The general characteristic of the population of that suburban area was described as of medium and medium-high income, and the housing predominantly single-dwellings. There was evidence of recent construction of apartment complexes *765 and expert prediction of significant development of multi-family units in the future.
The voluminous record contains extensive evidence of the parties, much of it countervailing, concerning the demographic characteristics of the proposed relocation area. This evidence, largely statistical, is not susceptible of easy comparison because the experts for the respective parties, in making their studies and conclusions, defined the service area for the proposed location differently. Southeast's expert worked from an arbitrarily chosen, irregularly shaped area determined, roughly, by major geographical features and existing transportation networks, while appellant Blue Ridge Bank, just as arbitrarily, adopted the area encompassed within a circle of 4000 yards radius.[1] Southeast presented evidence of existing and projected population growth and economic expansion and development in the area. On the basis of this data and American Banking Association standards, their expert predicted a potential of $55,000,000 in time deposits, $13,500,000 in savings deposits, and $8,700,000 in demand deposits from residents of the relocation area which, if only modestly penetrated by Southeast, would ensure a successful operation. The experts concluded that this could be accomplished without taking present business from existing banks, and that the solvency of Blue Ridge Bank would not be endangered by the proposed relocation.
The appellant Blue Ridge Bank questioned the underlying reliability of these projections and presented evidence to show that much of this deposit potential was already adequately served by appellant and other banks. The president of appellant Bank testified that five to six million dollars in deposits would find a bank in the area where Southeast sought to relocate more convenient and would be captured by the relocating bank. It was his judgment that the proposed relocation of Southeast would result in the reduced profitability, and eventual insolvency, of the Blue Ridge Bank's operation. There was other expert testimony by appellant that Southeast would probably lose 50% of its present $16,206,000 in deposits by the proposed relocation, and such a depletion coupled with an increase in expenses would result in eventual insolvency. Another expert for the appellant testified, however, that although Blue Ridge Bank would suffer an erosion of profits as a result of the relocation, insolvency would not result.
The relevant Statute [§ 362.325(7)] requires that if an existing bank wishes to change its location, the Commissioner of Finance shall examine
Whether the convenience and needs of the new community wherein the bank desires to [re]locate are such as to justify and warrant the opening of the bank therein and whether the probable volume of business at the new location is sufficient to insure and maintain the solvency of the bank and the solvency of the then existing banks and trust companies at the location, without endangering the safety of any bank or trust company in the locality as a place of deposit of public and private moneys. . . .
The Commissioner of Finance determined that these statutory requirements had been met and issued the relocation authority. On appeal, the State Banking Board found that the convenience and needs of the community at the proposed site warranted the relocation and that the move would not endanger the satefy or solvency of either the Southeast State Bank or of the other banks in the locality, and affirmed the authority for relocation granted by the Commissioner of Finance. The appellant Blue Ridge Bank asserts that these findings are clearly contrary to the overwhelming *766 weight of the evidence and that the determination of the Board should be set aside. Appellant contends also that the Board erred in admitting certain evidence and that the removal of Southeast from an area where there was an admitted need for banking services was an abuse of discretion and in violation of constitutional standards.
We notice first the point in appellant's brief that: "The decision of the State Banking Board is in violation of the Due Process and Equal Protection Clauses of the Missouri and United States Constitution." This point does not explicate how or in what manner the decision of the Board is in violation of constitutional principle or what right of appellant has been infringed, and therefore presents nothing for review. Hilke v. Firemen's Retirement System of St. Louis, 441 S.W.2d 730, 733 [3, 4] (Mo.App.1969). This contention is briefly elaborated to assert that the relocation would deny banking services to citizens presently served by Southeast State Bank and therefore "deprive(s) [such citizens] rights granted to [them] by the Missouri and U.S. Constitutions". The sum of the matter is, however, that appellant Bank has no standing to assert governmental action unconstitutional because it hurts a neighbor, rather, "a litigant himself must be hurt by the unconstitutional exercise of power before he may vex the judicial ear with complaints". State ex rel. Crandall v. McIntosh, 205 Mo. 589, 103 S.W. 1078, 1082 [1] (banc 1907); State ex rel. Toliver v. Board of Education of City of St. Louis, 360 Mo. 671, 230 S.W.2d 724, 730 [8] (1950).
We consider next the contention that inflammatory, prejudicial and hearsay evidence was received by the Board over the objection of appellant. This complaint is differentiated into two particulars: (1) the admission of a survey and map of crime in the Kansas City area generally and of the site of Southeast State Bank's present location particularly and (2) the admission into evidence of the file of the Commissioner of Finance.
The map and survey were hearsay and should not have been received. This evidence was presented by the president of respondent Southeast State Bank from an issue of the Kansas City Star. The witness had not prepared the exhibit, could not say who had, and was otherwise unable to establish its authenticity. For reasons which we expound fully later, the crime rate of the present location of respondent Bank was simply not a material factor to be considered in allowing relocation under § 362.325 and therefore any error in the admission of the exhibit was harmless. Farmers Loan & Trust Co. v. Southern Surety Co., 285 Mo. 621, 226 S. W. 926, 936 [13] (1920). Rulings on evidence immaterial to the issues or not affecting the merits are not ground for reversal. Pyle v. Kansas City Light & Power Co., 246 S.W. 979, 987 [15] (Mo.App. 1922) [reversed on other grounds, 291 Mo. 532, 237 S.W. 1021 (banc 1922)]. Nor is there any showing that this evidence entered into the Board's determination that the statutory criteria for relocation had been met.
The second evidentiary objection relates to the reception in evidence of the file of the Commissioner of Finance. The variegated contents of the file included pleadings, correspondence, the recommendation of the Bank Examiner, the application for relocation submitted by respondent Southeast Bank and materials in support of that request. Appellant objected that neither the Commissioner nor the Bank Examiner was available for cross-examination on the contents of the file. Although appellant's objection impugns no particular content of the file, the point and argument on appeal are based on § 536.070, RSMo 1969, V.A.M.S. which governs the reception of evidence at contested hearings before administrative agencies, and we understand the complaint to be that as to this exhibit appellant was denied the right of *767 cross-examination accorded by subsection [11] of that statute. The lack of focus to appellant's complaint clouds assessment of what prejudice could have resulted from the reception of the exhibit as evidence. We consider the contents of the file: the pleadings were matters of judicial notice and thus, in any event, properly before the Board [§ 536.070(6)]; the charts, graphs and maps of the geographic features and banking economics of the proposed location were virtually all otherwise independently introduced at the hearing and cross-examined upon extensively by appellant; the correspondenceletters of transmittal and advicewere innocuous; the report of the Examiner to the Commissioner [except for his recommendations] was largely cumulative of other evidence received, and since on appeal from an order of the Commissioner the Banking Board is charged with an independent determination of the facts for its decision [§§ 361.094 and 536.090, RSMo 1969, V.A.M.S.], the recommendations of the Examiner are neither binding nor advisory.
In State v. Burton, 334 S.W.2d 75 (Mo. 1970), the Public Service Commission at the close of the hearing ordered its staff to make a further investigation and report, but the hearing was never re-opened for cross-examination of the staff's findings. The court disapproved the procedure but could find no prejudice to the rights of appellant because [l.c. 88]:
[T]he conclusion of the staff was confirmatory of the evidence adduced at the hearing, so the improperly considered report obviously was merely cumulative and did not affect the commission's order, which is amply supported otherwise by substantial evidence contained in the record [citations omitted] as to which appellants had ample opportunity to cross-examine witnesses and test the accuracy of their evidence.
For this same reason, on the facts and argument as appellant presents them, no prejudice appears. Evans v. Farmers Mutual Hail Ins. Co., 240 Mo.App. 748, 217 S.W.2d 705, 711 [9] (1949). Moreover, the Board's order was amply supported by competent and substantial evidence otherwise adduced.
Appellant contends also that the findings of the State Banking Board that the statutory prescriptions of § 362.325(7) for relocation had been metin that the convenience and needs of the community at the proposed site justified the relocation of respondent Southeast State Bank and that the solvency of neither respondent, appellant, nor of the other banks in the area would be endangeredwere clearly contrary to the overwhelming weight of the evidence. It is the sense of appellant's argument that the convenience and needs of the community did not warrant the relocation because the area was already well served by existing banking facilities. This misconceives the rationale of the statute.
The statutory components requiring inquiry by the Commissioner of Finance, upon a request for relocation, into the convenience and needs of the new community and of the solvency of the existing banks were added to the section (then § 7973, R. S.Mo 1939) in 1941.[2] Only one decision since that amendment [Broadway National Bank v. Linwood State Bank, 456 S.W.2d 296 (Mo.1970)] has dealt with a proposed bank relocation under § 362.325(7), but the court was not required to, and did not, define the term "convenience and needs of the new community". The only extensive consideration of that criterion has been in cases dealing with new bank charters under § 362.030(1). Under that section, when a charter for a new bank is requested, the Commissioner must inquire into the same convenience and solvency elements prescribed for relocation by § 362.325. The "convenience and needs" standard was added to both sections, in virtually identical language, by the Banking Act of 1941. This statutory component has been construed *768 by this Court in a manner contrary to appellant's contention in Suburban Bank of Kansas City v. Jackson County State Bank, 330 S.W.2d 183, 187 [2] (Mo.App. 1959):
The purpose [of the clause "convenience and needs of the community" in the banking statute] is not to prevent new banks from entering the field, but rather to insure the existence of a healthy banking system. This is true, even though existing banks have been rendering adequate service.

This assessment of statutory purpose was adopted in Central Bank of Clayton v. State Banking Board, 509 S.W.2d 175 (Mo.App.1974). The opinion establishes authoritatively that the Banking Act of 1941, a sequel to the calamitous bank failures which marked the Great Depression, was enacted to control new entry into the existing banking business by requiring demonstration to a regulatory board that such a facility met a public need and would not impair the solvency of existing banks. The Banking Act of 1941 rejected both state monopoly or regulated private monopoly as cure for banking ills, but reaffirmed the competitive, free-enterprise theory of economy. The court then construed the term "convenience and needs" within this historical matrix, both as to the depository and credit functions of banks:
[W]ith regard to the depository functions performed by banks, the objectives sought to be obtained by enactment of the "convenience and needs of the community" amendment to the bank chartering act are rather narrow. The plain purpose of the amendment is to protect the public against excessive competition in the local banking business and against imprudent banking business practices, where either of these conditions could lead to bank failures or unsafe banking. The goal is a healthy banking system. The amendment does not contemplate preventing new banks from entering a market because existing banks are rendering adequate service. Suburban Bank of Kansas City v. Jackson County State Bank, supra, [Mo.App.] 330 S.W.2d [183] at 187; Stokes, "Public Convenience and Advantage in Applications for New Banks and Branches," 74 Banking Law Journal 921, 929 (1957). The primary protection afforded by the amendment is extended to the public, not to existing banks. (Second emphasis supplied)
[W]ith regard to lending and other credit functions of banks, the purpose of the "convenience and needs of the community" amendment of the bank chartering act is to promote competition in the public interest among banks, to favor bank entry which will stimulate that competition consonant with prudent banking practices and bank safety, and to discourage monopoly in the lending field. The protection afforded by the amendment in this regard is again extended to the public. The goal is to provide the public, where possible, with a reasonable number of local borrowing and credit alternatives so that competition for the public's business, the greatest possible efficiency in the banking business, and economic benefit to the public will result. (Emphasis supplied)
Thus, the legislative desideratum which "convenience and means" is meant to accomplish is the public protection and not the advantage of established banking houses, so that proof that adequate services are already available in the community does not foreclose a grant of authority for another bank to relocate there.
The appellant contends also that the finding of the State Banking Board that the probable volume of business in the proposed location is, and will in the future be, sufficient to insure and maintain the solvency of the Southeast State Bank, appellant and other existing banks in the community [the other prerequisite for relocation under § 362.325(7)] was clearly contrary to the overwhelming weight of *769 the evidence. The parties gave conflicting evidence on this issue, but a resume is neither necessary nor instructive. It is sufficient to say that respondent Southeast State Bank's expert predicted substantial future residential and commercial growth in the relocation area, while it was appellant's evidence that the solvency of Southeast Bank would depend upon deposits already in or destined for Blue Ridge Bank and other banks sited in the area. We are required to view the record in the light most favorable to the findings of the Board [St. Louis County v. State Tax Commission, 406 S.W.2d 644, 649 [5] (Mo. banc 1966)] and determine only whether the administrative action was unlawful, arbitrary, an abuse of discretion, or not supported by competent and substantial evidence upon the whole record. § 536.140, RSMo 1969, V.A.M.S.; Tom Boy, Inc. v. Quinn, 431 S.W.2d 221, 225 [1] (Mo. banc 1968). In view of the testimony of appellant's own expert that its solvency would not be jeopardized by the relocation of Southeast State Bank into the service area, there can hardly be cavil at the finding of the State Banking Board that the statutory solvency requirement had been met.
We have treated the conclusions of the Banking Board on "convenience and needs" and "solvency" as disparate findings in order to facilitate response to appellant's contentions which raise them as independent grounds of error, but these statutory components are only artificially divisible. While, in the absolute sense, it may be irrelevant on the issue of convenience and needs of the new community for a bank relocation that adequate services are already available, if that intrusion threatens the solvency of the existing banks, and thus the public interest in banking safety, the relocation cannot be justified under § 362.325(7). Indeed, the requirement of the statute for a determination by the Commissioner "whether the probable volume of business at the new location is sufficient to insure and maintain the solvency [of the relocated and existing banks in the new community]" does not prescribe an independent finding, but only a consideration implicit in the convenience and needs finding. The import of the identical substantive language of § 362.030(1) [for new bank charters] was explained in Marshfield Community Bank v. State Banking Board, 496 S.W.2d 17 (Mo. App.1973), l.c.21, n. 2:
[I]t could hardly be said that a new bank would serve the convenience and needs of its prospective trade territory if its opening endangered the solvency of the area's established banks or uselessly impeded their opportunities for expanded serviceand especially so if its competitive activities were likely to be conducted at risk of its own solvency and hence at hazard to the public.
It is the final contention of appellant that § 362.325(7), which allows relocation of a bank for the convenience and needs of the community, implies a corollary that relocation shall be denied a bank from a community whose convenience and needs justify its retention, and since it was undisputed that a bank was needed in the densely populated area presently served by Southeast State Bank, the denial of these services to residents of that area was arbitrary, capricious, unreasonable and an abuse of discretion by the Board. The assertion of the corollary is inconsistent with the very language of the statute. When a bank proposes relocation under § 362.325(7), an investigation must be made of the convenience and needs of the relocation community and the effect of the move on bank solvency,
[A]nd, if the commissioner, as a result of the examination, be not satisfied in the particulars mentioned or either of them, he may refuse to issue the certificate applied for. (Emphasis supplied)
The interpolation of § 362.325(7) to imply the corollary would allow the Commissioner and the Board a discretion the statutory language does not permit nor imply by necessity *770 and would create a right in the community of original location which, on the face of the statute, does not appear. Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046, 1051 [7-9] (banc 1939).
The judgment is affirmed.
All concur.
NOTES
[1]  This is the distance within which a then existing bank was permitted to establish a separate banking facility. § 362.107. [This section was repealed by Laws 1972, p. 973, to eliminate any requirement that the adjunct bank be in a designated proximity to the parent bank.]
[2]  Laws 1941, p. 670.