245 Kan. 724 (1989)
783 P.2d 900
RONNIE G. CRAWFORD, Appellee,
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant.
No. 62,718
Supreme Court of Kansas.
Opinion filed December 8, 1989.
John R. Cunningham, of White, O'Connor & Werner, P.A., of Pittsburg, argued the cause and was on the brief for appellant.
Timothy A. Short, of Spigarelli, McLane & Short, of Pittsburg, argued the cause and was on the brief for appellee.
Jack Peggs, of Peggs & Pickler, of Wichita, and Steven Hornbaker, of Harper, Hornbaker & Altenhofen, Chartered, of Junction City, were on the brief for the amicus curiae Kansas Trial Lawyers Association.
The opinion of the court was delivered by
HOLMES, J.:
This is an appeal by the defendant, Prudential Insurance Company of America (Prudential), from a district court *725 judgment that an exclusionary clause in a group insurance policy did not apply to the injuries suffered by the plaintiff, Ronnie G. Crawford. The Court of Appeals found the exclusionary clause did not apply and reversed the district court. Crawford v. Prudential Ins. Co., 13 Kan. App.2d 452, 773 P.2d 678 (1989). We granted review.
Plaintiff Crawford suffered injuries on September 28, 1983, when he fell through the roof on property occupied by Pittsburg Aluminum Recycling, Inc. (Pittsburg). Crawford was assisting A.I. Leonard in repairing the roof for Pittsburg. Pittsburg had contracted with Leonard, an independent contractor, to repair the roof. Crawford agreed to help Leonard and was to be paid by the hour. Pittsburg had no contract or dealings with Crawford. The relationship between Leonard and Crawford is disputed.
Crawford contended that Leonard called him and asked if Crawford wanted to work on the re-roofing and told Crawford he would get $8.00 an hour, although Leonard did not mention who would pay Crawford. At the job site, Leonard instructed him on job duties, and Crawford "assumed" Leonard could fire him. Leonard did not inform Crawford of the details of his contract with Pittsburg.
Leonard contended that Crawford had visited him twice, inquiring whether Leonard knew of any jobs on both occasions. On the second occasion, Leonard informed Crawford of his agreement with Pittsburg to repair the plant roof, told Crawford that he charged Pittsburg $8.00 per hour and that Crawford could get the same amount, and expressed his inclination to reject the job. Crawford responded that he needed the money and stated, "[L]et's go do it." They used Leonard's tools and Leonard drove them to the plant because the tools were in his truck. Both Crawford and Leonard made suggestions concerning working hours and breaks. Leonard did not think he could fire Crawford.
It is undisputed that Leonard submitted a bill to Pittsburg for the entire amount, including Crawford's wages, and Pittsburg gave Leonard a check in that amount. Leonard gave Crawford's wages to Crawford's wife in cash. Neither Pittsburg nor Leonard withheld money for taxes. Other than as employees for the same employer several years before, Crawford and Leonard had not worked together previously. Leonard had no workmen's compensation *726 insurance. Crawford suffered injuries in his fall from the roof of Pittsburg's building and incurred medical bills in the amount of $8,366.80.
Crawford's wife was employed by Ace Electric of Columbus, Kansas. Prudential had issued a group health and accident insurance policy to Ace Electric, and it is undisputed that Crawford, as a member of his wife's family, was an insured under the terms of the policy.
Crawford filed a workmen's compensation claim against Pittsburg and Leonard which, at the time of oral argument before this court, was still pending. Notwithstanding the pending workmen's compensation claim, Crawford filed an action on July 27, 1984, against Prudential seeking to recover his medical expenses. Prudential denied payment, relying upon an exclusionary clause in its policy with Ace Electric which reads:
"Generally Excluded Charges:
(1) Occupational Injury or Disease charges  charges incurred in connection with (a) injury arising out of, or in the course of, any employment for wage or profit or (b) disease covered, with respect to such employment, by any workers' compensation law, occupational disease law or similar legislation."
The district court determined that the exclusion did not apply to Crawford's injuries and granted judgment for $8,366.80, together with prejudgment interest from August 26, 1987, costs, and attorney fees in the amount of $2,788.93. On appeal, the Court of Appeals held the exclusionary clause applied and reversed the judgment of the district court.
The issues as framed by the appellant are:
1. Whether the district court erred in finding coverage by interpreting the policy exclusion as applying only to injuries covered by workers' compensation.
2. Whether the district court erred in granting attorney fees and prejudgment interest considering plaintiff caused any delay and a bona fide dispute on coverage existed.
The parties stipulated as to the evidence in the district court, which consisted primarily of transcripts and depositions from the workmen's compensation case. After the filing of briefs, the district court issued its opinion, which included findings of fact and conclusions of law as follows:

*727 "WHEREUPON, after hearing the evidence and being duly advised by counsel, the Court finds as follows:
"1. That Plaintiff was injured on September 28, 1983, while working on the roof at Pittsburg Aluminum Recycling and incurred $8,366.80 in medical expenses as a result of such injury.
"2. That Plaintiff filed a timely claim for coverage of said medical expenses under Policy No. 45700-010, but Defendant denied such claim on December 27, 1983, relying upon the following policy exclusion:
"(1) Occupational Injury or Disease Charges  charges incurred in connection with (a) injury arising out of, or in the course of, any employment for wage or profit or (b) disease covered, with respect to such employment, by any workmen's compensation law or similar legislation."
"3. That Plaintiff was not an employee of Pittsburg Aluminum Recycling.
"4. That Plaintiff was not an employee of his co-worker A.I. Leonard, with whom Plaintiff was engaged in a joint venture at the time of his injury.
"5. That even if Plaintiff were an employee of said A.I. Leonard, his injury would not be compensable because said A.I. Leonard's payroll was below the statutory minimum under the Kansas Workers' Compensation Act, K.S.A. 44-501 et seq.

"6. That Plaintiff's injury did not `arise out of and in the course of employment' and is not compensable under the Kansas Workers' Compensation Act.
"7. That the exclusion relied upon by Defendant has been previously construed by the Kansas Supreme Court in Beinz, Administratrix v. John Hancock Mut. Life Ins. Co., 195 Kan. 422 (1965).
"8. That said exclusion does not apply unless (a) workers' compensation benefits have been recovered or (b) the injured party has a legal right to recover workers' compensation benefits, regardless of whether or not a claim is made for workers' compensation benefits. See Beinz, supra, at 426.
"9. That the purpose of said exclusion is to prevent a double recovery by the insured.
"10. That the exclusion relied upon by Defendant does not apply since Plaintiff did not recover workers' compensation benefits and does not have a legal right to recover such benefits.
"11. That the rule limiting application of said exclusion is well established under Kansas Law. See Beinz supra; St. Francis Hosp. & School of Nursing, Inc. v. Eckman & United Benefit Life Co., 212 Kan. 131 (1973); and Knoble v. National Carriers, Inc., 212 Kan. 331 (1973).
"12. That where policy provisions have been previously construed by the Court, an insurer has a duty to act in accordance with such existing case law. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 689 (1973).
"13. That in light of the decisions of the Kansas Supreme Court in Beinz, St. Francis, and Knoble, supra, Defendant had no `just cause or excuse' for denying Plaintiff's claim, and therefore Plaintiff should be awarded attorney fees pursuant to K.S.A. 40-256.

*728 "14. That Plaintiff's agreement with his attorneys for a one-third contingent fee is fair and reasonable. See Grayson v. Grayson, 184 Kan. 116 (1959); Russell v. Mackey, 225 Kan. 588 (1979); Ballweg v. Farmers Ins. Co., 228 Kan. 506 (1980).
"NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED BY THE COURT that Plaintiff be and hereby is granted judgment against Defendant under said insurance policy in the sum of $8,366.80 together with interest thereon from August 26, 1987, at ten per cent (10%) per annum until judgment, pursuant to K.S.A. 16-201, and at the judgment rate thereafter, commencing Feb. 12, 1988, in accordance with K.S.A. 1987 Supp. 16-204(e), and for costs in the sum of $55.00.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT that Plaintiff be and hereby is awarded attorney fees in the sum of $2,788.93, pursuant to K.S.A. 40-256.
"IT IS SO ORDERED THIS 30th day of June, 1988."
Prudential has not appealed from the trial court's findings that Crawford was not an employee of either Pittsburg or Leonard; that even if Crawford was an employee of Leonard, his injuries would not be compensable under the workmen's compensation laws; and that Crawford's injuries did not "arise out of and in the course of employment" under the workmen's compensation laws. As these findings have not been appealed, we must accept them as true even though the question of coverage in the workmen's compensation case has never been finally determined in that action. See Palmer v. State, 10 Kan. App.2d 656, Syl. ¶ 1, 707 P.2d 1091, rev. denied 238 Kan. 878 (1985).
The first issue is whether the district court erred in finding that the policy exclusion only applies to injuries covered by workmen's compensation. It appears that the trial court considered the exclusionary clause, previously set forth, in its entirety and concluded that the modifying clause "covered, with respect to such employment, by any workers' compensation law" applied to injury arising under both subparts (a) and (b) of the exclusionary clause. In doing so, the trial court concluded that, unless Crawford's injuries were covered by workmen's compensation the exclusion did not apply. The Court of Appeals, on the other hand, limited its consideration to subpart (a). It found that Crawford fell through the Pittsburg roof while working for wages and suffered injuries which arose out of employment. The court then stated:

*729 "Based on the clear language of the insurance policy [subpart (a) only], Crawford's injury falls under the exception and Prudential should not be required to pay the claim unless the exclusion becomes inoperable for some other reason." 13 Kan. App.2d at 456.
The Court of Appeals found nothing which would make subpart (a) of the exclusionary clause inoperable and determined that the Prudential policy did not cover the injuries suffered by Crawford.
It appears to us that the controlling question before this court is whether the exclusionary clause is ambiguous. In construing the language of an insurance policy, certain general rules and principles apply.
"The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties. The test to be applied in determining this intention is not what the insurer intended the policy to mean, but what a reasonable person in the position of the insured would understand it to mean. When the contract is clear and unambiguous, the words are to be taken and understood in their plain, ordinary, and popular sense, and there is no need for judicial interpretation or the application of rules of liberal construction; the court's function is to enforce the contract according to its terms. Since an insurer prepares its own contracts, it has a duty to make the meaning clear, and if it fails to do so, the insurer, and not the insured, must suffer. Thus, if the terms of a policy are ambiguous or uncertain, conflicting, or susceptible to more than one construction, the construction most favorable to the insured must prevail." Fowler v. United Equitable Ins. Co., 200 Kan. 632, 633-34, 438 P.2d 46 (1968).
"Where an insurer intends to limit or restrict the coverage under its policy, it should use language which clearly reveals its stated purpose." Central Security Mut. Ins. Co. v. De Pinto, 235 Kan. 331, 334, 681 P.2d 15 (1984).
Prudential contends that subparts (a) and (b) of the exclusionary clause should be read and considered as separate exclusions and subpart (a) should be literally applied according to its terms, resulting in no coverage for Crawford. On the other hand, Crawford contends that the exclusionary clause should be read and considered in its entirety, that the modifying clause at the end applies to subpart (a) as well as (b), and that a clear reading of the entire clause will show that it does not apply in this case. There are numerous cases which support both interpretations of identical or similar language.
*730 Crawford and the trial court relied upon our decisions in St. Francis Hospital & School of Nursing, Inc. v. Eckman, 212 Kan. 131, 510 P.2d 175 (1973), and Bienz, Administratrix v. John Hancock Mutual Life Ins. Co., 195 Kan. 422, 407 P.2d 222 (1965). On appeal, Crawford continues to rely primarily on the same two cases.
The Court of Appeals explained and discussed Bienz as follows:
"In Bienz, the insured was killed when his private plane crashed while returning from a business trip. The insured's estate sought to recover death benefits. The insurance company claimed that payment of benefits was excluded because the policy provided that no payment should be made `for any loss of life caused by "injuries arising out of and in the course of employment for wage or profit.'" 195 Kan. at 423. The trial court granted judgment to the insurance company, and the Supreme Court affirmed. 195 Kan. at 423, 429.
"In deciding the case, the court stated that the words "`injuries arising out of and in the course of employment for wage or profit" . . have, by judicial construction, acquired a definite meaning which is generally recognized, and when used in an exception clause in a group insurance policy, were intended to have the same meaning they have in the Workmen's Compensation Act.' 195 Kan. 422, Syl. ¶ 1. The court further stated: `We are of the opinion that the phrase as used in the exclusion clause of the defendant's policy was intended to exclude from the benefits of the policy persons whose claims might be based on injuries compensable under the Workmen's Compensation Act.' (Emphasis added.) 195 Kan. at 426.
"In this case, the trial court extended Bienz by holding that the exclusion does not apply unless workers' compensation benefits have been recovered or the injured party has a legal right to recover workers' compensation benefits. The trial court in effect held that the injury may arise out of, or in the course of, employment for wage or profit, but if workers' compensation is not available for some other reason, the exclusion is not applicable. We disagree, and read Bienz to say only that workers' compensation law should be used to determine whether an injury arises out of and in the course of employment so as to trigger the exception." 13 Kan. App.2d at 454-55.
We agree that the trial court expanded our holding in Bienz.
In St. Francis Hospital, 212 Kan. 131, John Eckman, while working on a job for his employer, fell off a roof and was severely injured. Eckman was hospitalized at St. Francis Hospital and incurred medical expenses in the amount of $10,502.90. Eckman's employer, Harper Trucks, Inc., had workmen's compensation coverage with Globe Insurance Company, which evidently paid $4,492.74 to the hospital. The hospital sued Eckman and recovered *731 a judgment for the difference of $6,010.16. Harper Trucks, Inc., in addition to its workmen's compensation coverage, had a group health and accident policy issued by United Benefit Life Insurance Company. After it had obtained judgment against Eckman, the hospital filed a garnishment action against United Benefit, which "answered that it was neither indebted to Eckman nor did it possess any of his property." 212 Kan. at 132. United Benefit relied upon an exclusionary clause in its policy which read:
"This policy does not cover (a) injuries arising out of or in the course of the employment of the protected person or his dependents or sickness covered by a Workmen's Compensation Act or similar legislation...." 212 Kan. at 132.
In considering the exclusionary clause, this court stated:
"In a letter opinion and in the journal entry the district court found that the exclusionary clause clearly and with no ambiguity relieved United, the garnishee, of any liability or obligation to pay hospital benefits. With this determination we are disposed to agree.
"However, it is contended by the hospital that the exclusionary clause is ambiguous and that under our rule with respect to adhesion contracts including, in particular, contracts of insurance, the clause must be construed strictly against the insurance company which prepared the contract, and in favor of the policyholder. (3 Hatcher's Kansas Digest [Rev. Ed.] Insurance, § 42.) This is, indeed, the rule which has been expressed by this court many times, and we are not prepared to deviate therefrom in the least. But before the rule may be applied in a given case there must be vagueness or uncertainty of meaning in the contract being considered.
"Two ambiguities are said to arise from the language of the exclusionary clause according to the view expressed by the hospital. It contends the clause is subject to criticism on two counts, the first of which is: Does the phrase `covered by a Workmen's Compensation Act' modify sickness alone or does it modify injuries as well? If the phrase qualifies only sickness, and this is the position assumed by United, then every injury arising out of or in the course of a workman's employment is excluded from coverage under the policy, whether or not the injury be one which is covered by workmen's compensation. We are inclined to disagree with United's posture in this regard." 212 Kan. at 132-33.
The court determined that the provision concerning workmen's compensation in the exclusionary clause applied to both injury and disease and that as Eckman was covered, at least in part, by workmen's compensation, the exclusionary clause precluded any liability under the United Benefit policy. The second ambiguity *732 asserted by the hospital pertained to whether the policy covered amounts in excess of the workmen's compensation coverage and is not directly germane to the issues now before us. In the present case, the Court of Appeals did not mention St. Francis Hospital in its opinion.
Crawford contends that, as the Prudential exclusionary clause is similar if not identical to the one in St. Francis Hospital, that case requires that the workmen's compensation provision in the Prudential clause also be found to apply to injury as well as disease. It is asserted that, as the trial court found there was no workmen's compensation coverage and that Crawford had no right to recover such compensation, the exclusionary clause, when read in its entirety, does not apply to the injuries Crawford suffered.
Prudential, on the other hand, asserts that its clause is considerably different from the one considered in St. Francis Hospital and points out that it must be read to provide two separate exclusions, one under subpart (a), which excludes charges incurred in connection with "injury arising out of, or in the course of, any employment for wage or profit," and another under subpart (b) pertaining to disease covered by workmen's compensation, which does not apply to this case. The Court of Appeals apparently agreed with this argument and held that subpart (a), when read alone, clearly applied as Crawford obviously was employed by someone and "it is evident that Crawford fell through the roof while working for wages." 13 Kan. App.2d at 456. The court also found that it was clear the injury arose out of employment, regardless of who the employer might be. The Court of Appeals did not even mention subpart (b). Prudential also argues that, even if the exclusionary clause is considered in its entirety, the modifying clause which refers to workmen's compensation only applies to subpart (b), and the exclusion still applies. If it were clear that subpart (a) must be read separately and without any consideration of subpart (b) and the final modifying clause, we would be inclined to agree with the Court of Appeals. However, we do not find that to be the case.
The same or similar language has been interpreted differently by various courts. Many of the cases turn upon whether the injured person was employed and whether the injury was one arising out of, and in the course of, employment, which are *733 requirements generally applicable to workmen's compensation claims. K.S.A. 1988 Supp. 44-501(a). While it is obvious in the present case that Crawford was injured while working for wages, the district court has also found that he was not employed and was not eligible to recover workmen's compensation benefits.
Some courts, including the Court of Appeals in this case, have held that subpart (a) is complete by itself, clear and unambiguous, and not subject to construction. The courts so holding point out that the subparts are separated by the disjunctive or and clearly must be read and applied separately. Although not cited by Prudential, there are at least four cases which have construed the identical language now before us favorably to Prudential. Brezan v. Prudential Ins. Co. of America, 507 F. Supp. 962 (E.D. Pa. 1981); Prudential Ins. Co. of America v. Bellar, 391 So.2d 737 (Fla. Dist. App. 1980); Wilson v. Prudential Ins. Co. of America, 645 P.2d 521 (Okla. 1982); Wilson v. Prudential Insurance Company of America, 528 P.2d 1135 (Okla. App. 1974). On the other hand, in Montoya v. Travelers Ins. Co., 91 N.M. 667, 579 P.2d 793 (1978), a clause virtually indistinguishable from the Prudential clause was considered in its entirety and the modifying phrase of subpart (b) was also applied to subpart (a). The rationale of the conflicting views will be set forth briefly.
In Brezan, the court, faced with the same exclusionary clause now before us, stated:
"Plaintiff urges the Court to apply the italicized phraseology [covered ... by any workmen's compensation law] concerning the workmen's compensation to not only the word `disease' in subsection `b' but also to the word `injury' in subsection `a'. Accordingly, plaintiff reasons, the proposed intercalary language of the policy would exclude only occupational injuries covered by workmen's compensation laws and, therefore, the insurance policy would not exclude costs which plaintiff incurred in the course of his employment and as a result of a motorcycle accident." 507 F. Supp. at 963-64.
After reviewing rules relating to the interpretation of insurance policies, the court went on to state:
"Courts enforce but do not rewrite agreements into which parties enter. [Citations omitted.] Plaintiff's theory overlooks both these principles and the fact that the two subsections are worded disjunctively. Clearly, the drafters intended to define `occupational injuries' and `occupational diseases' differently. Otherwise, the word `and' would have been used; or the definition *734 of `occupational injury or disease charges' would have been placed together in one definition. The purpose of separate treatment for the two terms can be discerned, and careful examination of the policy exclusions for occupational diseases and injuries unquestionably reveals the intent of the drafters, who in the first subparagraph desired to exclude occupational injury, which can usually be determined as job-related with little difficulty. Hence, the definition is broadly defined. Whether the etiology of a claimant's disease involves employment conditions usually poses a more perplexing problem. [Citation omitted.] Identification of the nexus between the employment and the disease may be elusive. To avoid disputes with claimants as to whether a person's employment caused a disease, the drafters of this contract used more narrowly tailored language to define the term `occupational disease'. Unmistakably, the syntax of this exclusionary clause requires no judicial alteration to comprehend its meaning. Interpolation of the workmen's compensation language into the `occupational injury' portion of the clause would create an ambiguity where none presently exists. Plaintiff's injury occurred during the course of his employment; the exclusionary clause expressly disallows any compensation therefor." 507 F. Supp. at 964-65.
In Montoya, the court explained an opposite conclusion. Albert Montoya, Sr., brought the action to recover for injuries suffered by his son Albert Montoya, Jr., who was injured while working in a gas station for wages, on a part-time basis. Evidently he was not covered by workmen's compensation. The plaintiff and his family were insureds under a group policy issued to plaintiff's employer. The policy included an exclusionary clause similar to the Prudential clause. After setting forth the exclusionary clause, the court stated:
"The trial court found that this exclusionary clause did not apply to the facts in this case. The court's conclusions of law reveal two bases for this determination. In its Conclusion No. 4, the court expresses the view that the exclusionary clause, by its terms, excludes only charges incurred in connection with an injury sustained while doing any act or thing pertaining to any occupation or employment for remuneration, or disease for which benefits are payable in accordance with the provisions of any workmen's compensation or similar law. In its Conclusions Nos. 5 and 6, the court expressed the alternative view that the clause is ambiguous and should therefore, under a well established principle of New Mexico law, be construed liberally in favor of the insured. Conclusion 5 suggests that the clause is ambiguous because it is unclear whether the workmen's compensation proviso applies to both subclauses (a) and (b) or only to subclause (b), and should therefore be interpreted liberally to apply to both (a) and (b) since its purpose is to prevent double recovery by the insured, and not to deprive the insured from recovering under the policy when the charges for medical expenses are not covered by workmen's compensation." 91 N.M. at 668.
*735 The court then pointed to cases which have found similar language to exclude coverage whenever the insured suffered injury while working for profit or remuneration. The court then stated:
"The insurer, following this reasoning, argues that recovery should be denied whenever an insured sustains an injury while working for remuneration whether or not the employee or dependent is covered by workmen's compensation and that the coverage by workmen's compensation is relevant only when a claim is based on disease.
"Conversely, in Rankin v. New York Life Insurance Company, 240 So.2d 758 (La. App. 1970), it was held that a similar exclusionary clause in a hospitalization policy precluded an employee from recovery only if the employee was covered by workmen's compensation or similar legislation since it was that court's view that the purpose of such an exclusion is to prevent double recovery. [Citation omitted.]
"Since there are two inconsistent interpretations possible, we hold that the exclusionary clause at issue is ambiguous. We have previously stated that when an ambiguity exists in an insurance policy we will liberally construe such ambiguity in favor of the insured. [Citation omitted.] Furthermore, we believe, as did the Rankin court, that the purpose of the clause is to prevent double recovery." 91 N.M. at 668.
See General American Life Ins. Co. v. Fisher, 517 So.2d 31 (Fla. Dist. App. 1987); United Benefit Life Ins. Co. v. Glisson, 105 Ga. App. 122, 123 S.E.2d 350 (1961).
It may also be argued, as the Court of Appeals apparently found here, that the language of subpart (a) varies from the required language for workmen's compensation and therefore (a) is not limited by the reference to workmen's compensation in subpart (b). Just as logically it may be argued that the language in the modifying clause in (b) which reads "with respect to such employment" obviously refers to the employment described in (a) and therefore the modifying clause must also be applied to (a). Other interpretations of the exclusionary language are also possible, but need not be explored further. For additional cases and discussion on the same general subject, see Annot., 47 A.L.R.2d 1240; Annot., 40 A.L.R.3d 1012.
Suffice it to say the reported cases are in conflict, the trial judge and the Court of Appeals reached different conclusions and the justices of this court do not agree on the proper interpretation and application of the clause in question. Under such circumstances, the clause is, by definition, ambiguous and must be *736 interpreted in favor of the insured. Fowler v. United Equitable Ins. Co., 200 Kan. at 634. We conclude the trial court was correct in finding the exclusionary clause did not apply in this case even though it did so for the wrong reason, and we affirm the trial court on this issue. Prairie State Bank v. Hoefgen, 245 Kan. 236, Syl. ¶ 3, 777 P.2d 811 (1989).
The next issue asserted by Prudential is that the trial court erred in granting attorney fees to Crawford. K.S.A. 40-256 provides in part:
"Attorney fees in actions on insurance policies; exception. That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201 ... if it appear from the evidence that such company, society or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney's fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs...."
The rules to be applied in determining whether an award of attorney fees under K.S.A. 40-256 is appropriate were outlined in Clark Equip. Co. v. Hartford Accident & Indemnity Co., 227 Kan. 489, 608 P.2d 903 (1980):
"Whether attorney fees are awardable under K.S.A. 40-256 depends on the facts and circumstances of the particular case. Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 517 P.2d 173 (1973); Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P.2d 34 (1969). What constitutes refusal to pay `without just cause or excuse' varies with each case. Koch, Administratrix v. Prudential Ins. Co., 205 Kan. at 565, held the above phrase to mean `frivolous and unfounded,' and that denial of liability must be patently without any reasonable foundation. Attorney fees must be denied when there existed a good faith legal controversy as to liability. Forrester, at 452. If there is a bona fide and reasonable factual ground for refusing to pay a claim, attorney fees are not awardable. Koch, at 565. Denial of payment where not arbitrary, capricious, or in bad faith will not give rise to an award of attorney fees. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 615, 549 P.2d 1354 (1976)." 227 Kan. at 493-94.
In the present case we have already determined that the exclusionary clause is ambiguous, requiring a construction of the policy favorable to Crawford. However, this does not necessarily mean that Prudential "refused without just cause or excuse" to pay the claim. The trial court relied upon Bienz and St. Francis Hospital for its determination that Prudential was liable for attorney *737 fees. As previously discussed, those two cases do not clearly establish liability on Prudential's part.
Here, although we have found the exclusionary clause to be ambiguous, we recognize that a majority of the jurisdictions which have construed the same or similar language have done so in favor of the insurance company and have held the insured could not recover. Under these circumstances a bona fide controversy existed, and the trial court erred in awarding attorney fees pursuant to K.S.A. 40-256. We reverse the trial court on this issue.
The final issue raised by Prudential is the allowance of prejudgment interest for the period from August 26, 1987, until the date of judgment. K.S.A. 16-201 provides:
"Creditors shall be allowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the account and ascertaining the balance; ... for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts."
In the present case there was never any serious dispute as to the amount in controversy, which was $8,366.80. The fact that a good faith controversy existed as to coverage which precludes the allowance of attorney fees does not necessarily preclude the granting of prejudgment interest in a case of this type.
In Friedman v. Alliance Ins. Co., 240 Kan. 229, 729 P.2d 1160 (1986), this court upheld an award of prejudgment interest on an undisputed portion of an insured's claim, despite the denial of attorney fees because of a good faith question of coverage. 240 Kan. at 239. The same result was reached in Harper v. Prudential Ins. Co. of America, 233 Kan. 358, 662 P.2d 1264 (1983). The court rejected an award of attorney fees because of a bona fide question concerning the insurer's failure to pay the claim. Nevertheless, the court found the amount of insured's claim was liquidated and found no error in the trial court's award of interest. 233 Kan. at 372-73.
In Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 736 P.2d 882 (1987), this court recognized that under the facts of the case the allowance or disallowance of prejudgment interest was a matter of judicial discretion subject to being overruled only when there is an abuse of discretion.

*738 "One who asserts the court has abused its discretion bears the burden of showing such abuse of discretion. [Citations omitted.] Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion." 241 Kan. at 248.
This same discretion and standard has been recognized on the similar issue of when prejudgment interest should begin. See Mitchelson v. Travelers Ins. Co., 229 Kan. 567, 629 P.2d 143 (1981). Here the trial court determined that interest should be allowed beginning as of the date of the pretrial conference. Under all of the circumstances of this case, we cannot say that the trial court abused its discretion in awarding prejudgment interest.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is affirmed in part and reversed in part.
SIX, J., not participating.
MILLER, C.J., dissenting:
I respectfully dissent from that portion of the opinion holding that the exclusionary clause of the policy is ambiguous. As the majority opinion points out, the majority of jurisdictions which have considered the clause have held it unambiguous. A unanimous opinion by three distinguished judges of our Court of Appeals so held. That the plaintiff has suffered grievous injuries is undisputed, and one cannot but sympathize with his plight. Those facts, however, do not justify a tortured reading of the clear language of the policy in order to impose liability on the health insurer which specifically excluded coverage for employment-connected injuries such as plaintiff sustained. I would affirm the Court of Appeals on the first issue.
McFARLAND, J., joins the foregoing dissenting opinion.


10-4085-cv
Bank v. Hydra Group LLC

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 29th day
of September, two thousand eleven.

Present:
            ROGER J. MINER,
            PIERRE N. LEVAL,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________

Todd Bank, Individually and on Behalf of All
Others Similarly Situated,

                          Plaintiff-Appellant,

                v.                                                 No.10-4085-cv

Hydra Group LLC,

                  Defendant-Appellee.
_____________________________________

FOR APPELLANT:                   Todd Bank, pro se, Kew Gardens, NY.

FOR APPELLEE:           Stephen L. Fox, Morris & Fox PC, New York, NY.
_____________________________________
        Appeal from a judgment of the United States District Court for the Eastern District of

New York (Gleeson, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED,

ADJUDGED, and DECREED that the judgment of the district court is VACATED and

REMANDED.

        Appellant Todd Bank, an attorney appearing pro se, appeals the district court’s sua

sponte dismissal of his putative class action for lack of subject matter jurisdiction. We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

        We review de novo a district court’s dismissal of a complaint for lack of subject matter

jurisdiction. See Delgado v. Quarantillo, 643 F.3d 52, 54 (2d Cir. 2011) (per curiam). In

determining whether we have subject matter jurisdiction to consider a suit brought as a class

action, we will treat it as such even though the district court has yet to certify the class. See

Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 n.7 (2d Cir. 2000).

        The district court found that it lacked jurisdiction because Bank’s putative class action

did not satisfy the amount in controversy requirement. The Class Action Fairness Act (“CAFA”)

requires a party seeking entrance to federal court to demonstrate that the aggregate amount in

controversy exceeds $5,000,000, exclusive of interest and costs. See 28 U.S.C. § 1332(d)(2)

(2006); Blockbuster, Inc. v. Galeno, 472 F.3d 53, 56 (2d Cir. 2006). Assuming that the general

standards governing the amount of controversy requirement under 28 U.S.C. § 1332(a)(1) apply

coextensively with those standards governing the CAFA, dismissal is warranted on that basis

only if it “appear[s] to a legal certainty that the claim is really for less than the jurisdictional

amount.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); accord

Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (discussing Red

                                                    2
Cab Co., 303 U.S. at 288–89); see also Scherer v. Equitable Life Assurance Soc’y of U.S., 347

F.3d 394, 397 (2d Cir. 2003); Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.

1982). Based on our review of Bank’s complaint and the paucity of analysis by California courts

of Section 17529.5(a)(3) of the California Business & Professional Code, Cal. Bus. & Prof. Code

§ 17529.5(a)(3) (West 2008), under which Bank brings this suit, we cannot say with a “legal

certainty” that the amount in controversy in his class action is less than $5,000,000. See

Tongkook, 14 F.3d at 785 (“Where the damages sought are uncertain, the doubt should be

resolved in favor of the plaintiff’s pleadings.”). We therefore VACATE the district court’s

judgment and REMAND for further proceedings.1

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk

       1
          We express no view as to whether Bank’s complaint should be dismissed on any other
ground, including for the reasons articulated by defendant-appellee in its motion to dismiss, on
which the district court declined to rule.

                                                3


364 U.S. 573 (1961)
NATIONAL LABOR RELATIONS BOARD
v.
RADIO AND TELEVISION BROADCAST ENGINEERS UNION, LOCAL 1212, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO.
No. 69.
Supreme Court of United States.
Argued November 10, 14, 1960.
Decided January 9, 1961.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Stuart Rothman, Norton J. Come and Melvin J. Welles.
Robert Silagi and Louis Sherman argued the cause for respondent. With them on the brief were Joseph B. Robison and Joseph M. Stone.
*574 MR. JUSTICE BLACK delivered the opinion of the Court.
This case, in which the Court of Appeals refused to enforce a cease-and-desist order of the National Labor Relations Board, grew out of a "jurisdictional dispute" over work assignments between the respondent union, composed of television "technicians,"[1] and another union, composed of "stage employees."[2] Both of these unions had collective bargaining agreements in force with the Columbia Broadcasting System and the respondent union was the certified bargaining agent for its members, but neither the certification nor the agreements clearly apportioned between the employees represented by the two unions the work of providing electric lighting for television shows. This led to constant disputes, extending over a number of years, as to the proper assignment of this work, disputes that were particularly acrimonious with reference to "remote lighting," that is, lighting for telecasts away from the home studio. Each union repeatedly urged Columbia to amend its bargaining agreement so as specifically to allocate remote lighting to its members rather than to members of the other union. But, as the Board found, Columbia refused to make such an agreement with either union because "the rival locals had failed to agree on the resolution of this jurisdictional dispute over remote lighting."[3] Thus feeling *575 itself caught "between the devil and the deep blue,"[4] Columbia chose to divide the disputed work between the two unions according to criteria improvised apparently for the sole purpose of maintaining peace between the two. But, in trying to satisfy both of the unions, Columbia has apparently not succeeded in satisfying either. During recent years, it has been forced to contend with work stoppages by each of the two unions when a particular assignment was made in favor of the other.[5]
The precise occasion for the present controversy was the decision of Columbia to assign the lighting work for a major telecast from the Waldorf-Astoria Hotel in New York City to the stage employees. When the technicians' protest of this assignment proved unavailing, they refused to operate the cameras for the program and thus forced its cancellation.[6] This caused Columbia to file the unfair labor practice charge which started these proceedings, claiming a violation of § 8 (b) (4) (D) of the National Labor Relations Act.[7] That section clearly makes it an unfair labor practice for a labor union to induce a strike or *576 a concerted refusal to work in order to compel an employer to assign particular work to employees represented by it rather than to employees represented by another union, unless the employer's assignment is in violation of "an order or certification of the Board determining the bargaining representative for employees performing such work . . . ."[8] Obviously, if § 8 (b) (4) (D) stood alone, what this union did in the absence of a Board order or certification entitling its members to be assigned to these particular jobs would be enough to support a finding of an unfair labor practice in a normal proceeding under § 10 (c) of the Act.[9] But when Congress created this new type of unfair labor practice by enacting § 8 (b) (4) (D) as part of the Taft-Hartley Act in 1947, it also added § 10 (k) to the Act.[10] Section 10 (k), set out below,[11] quite plainly emphasizes the belief of Congress *577 that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed upon unions. Accordingly, § 10 (k) offers strong inducements to quarrelling unions to settle their differences by directing dismissal of unfair labor practice charges upon voluntary adjustment of jurisdictional disputes. And even where no voluntary adjustment is made, "the Board is empowered and directed," by § 10 (k), "to hear and determine the dispute out of which such unfair labor practice shall have arisen," and upon compliance by the disputants with the Board's decision the unfair labor practice charges must be dismissed.
In this case respondent failed to reach a voluntary agreement with the stage employees union so the Board held the § 10 (k) hearing as required to "determine the dispute." The result of this hearing was a decision that the respondent union was not entitled to have the work assigned to its members because it had no right to it under either an outstanding Board order or certification, as provided in § 8 (b) (4) (D), or a collective bargaining agreement.[12] The Board refused to consider other criteria, such as the employer's prior practices and the custom of the industry, and also refused to make an affirmative award of the work between the employees *578 represented by the two competing unions. The respondent union refused to comply with this decision, contending that the Board's conception of its duty to "determine the dispute" was too narrow in that this duty is not at all limited, as the Board would have it, to strictly legal considerations growing out of prior Board orders, certifications or collective bargaining agreements. It urged, instead, that the Board's duty was to make a final determination, binding on both unions, as to which of the two unions' members were entitled to do the remote lighting work, basing its determination on factors deemed important in arbitration proceedings, such as the nature of the work, the practices and customs of this and other companies and of these and other unions, and upon other factors deemed relevant by the Board in the light of its experience in the field of labor relations. On the basis of its decision in the § 10 (k) proceeding and the union's challenge to the validity of that decision, the Board issued an order under § 10 (c) directing the union to cease and desist from striking to compel Columbia to assign remote lighting work to its members. The Court of Appeals for the Second Circuit refused to enforce the cease-and-desist order, accepting the respondent's contention that the Board had failed to make the kind of determination that § 10 (k) requires.[13] The Third[14] and Seventh[15] Circuits have construed § 10 (k) the same way, while the Fifth Circuit[16] has agreed with the Board's narrower conception of its duties. Because of this conflict and the importance of this problem, we granted certiorari.[17]
*579 We agree with the Second, Third and Seventh Circuits that § 10 (k) requires the Board to decide jurisdictional disputes on their merits and conclude that in this case that requirement means that the Board should affirmatively have decided whether the technicians or the stage employees were entitled to the disputed work. The language of § 10 (k), supplementing § 8 (b) (4) (D) as it does, sets up a method adopted by Congress to try to get jurisdictional disputes settled. The words "hear and determine the dispute" convey not only the idea of hearing but also the idea of deciding a controversy. And the clause "the dispute out of which such unfair labor practice shall have arisen" can have no other meaning except a jurisdictional dispute under § 8 (b) (4) (D) which is a dispute between two or more groups of employees over which is entitled to do certain work for an employer. To determine or settle the dispute as between them would normally require a decision that one or the other is entitled to do the work in dispute. Any decision short of that would obviously not be conducive to quieting a quarrel between two groups which, here as in most instances, is of so little interest to the employer that he seems perfectly willing to assign work to either if the other will just let him alone. This language also indicates a congressional purpose to have the Board do something more than merely look at prior Board orders and certifications or a collective bargaining contract to determine whether one or the other union has a clearly defined statutory or contractual right to have the employees it represents perform certain work tasks. For, in the vast majority of cases, such a narrow determination would leave the broader problem of work assignments in the hands of the employer, exactly where it was before the enactment of § 10 (k)with the same old basic jurisdictional dispute likely continuing to vex him, and the rival unions, short of striking, would still be free to adopt other forms of pressure upon the employer. The *580 § 10 (k) hearing would therefore accomplish little but a restoration of the pre-existing situation, a situation already found intolerable by Congress and by all parties concerned. If this newly granted Board power to hear and determine jurisdictional disputes had meant no more than that, Congress certainly would have achieved very little to solve the knotty problem of wasteful work stoppages due to such disputes.
This conclusion reached on the basis of the language of § 10 (k) and § 8 (b) (4) (D) is reinforced by reference to the history of those provisions. Prior to the enactment of the Taft-Hartley Act, labor, business and the public in general had for a long time joined in hopeful efforts to escape the disruptive consequences of jurisdictional disputes and resulting work stoppages. To this end unions had established union tribunals, employers had established employer tribunals, and both had set up joint tribunals to arbitrate such disputes.[18] Each of these efforts had helped some but none had achieved complete success. The result was a continuing and widely expressed dissatisfaction with jurisdictional strikes. As one of the forerunners to these very provisions of the Act, President Truman told the Congress in 1947 that disputes "involving the question of which labor union is entitled to perform a particular task" should be settled, and that if the "rival unions are unable to settle such disputes themselves, provision must be made for peaceful and binding determination of the issues."[19] And the House Committee report on one of the proposals out of which these sections came recognized the necessity of enacting legislation *581 to protect employers from being "the helpless victims of quarrels that do not concern them at all."[20]
The Taft-Hartley Act as originally offered contained only a section making jurisdictional strikes an unfair labor practice. Section 10 (k) came into the measure as the result of an amendment offered by Senator Morse which, in its original form, proposed to supplement this blanket proscription by empowering and directing the Board either "to hear and determine the dispute out of which such unfair labor practice shall have arisen or to appoint an arbitrator to hear and determine such dispute . . . ."[21] That the purpose of this amendment was to set up machinery by which the underlying jurisdictional dispute would be settled is clear and, indeed, even the Board concedes this much. The authority to appoint an arbitrator passed the Senate[22] but was eliminated in conference,[23] leaving it to the Board alone "to hear and determine" the underlying jurisdictional dispute. The Board's position is that this change can be interpreted as an indication that Congress decided against providing for the compulsory determination of jurisdictional disputes. We find this argument unpersuasive, to say the very least. The obvious effect of this change was simply to place the responsibility for compulsory determination of the dispute *582 entirely on the Board, not to eliminate the requirement that there be such a compulsory determination. The Board's view of its powers thus has no more support in the history of § 10 (k) than it has in the language of that section. Both show that the section was designed to provide precisely what the Board has disclaimed the power to providean effective compulsory method of getting rid of what were deemed to be the bad consequences of jurisdictional disputes.
The Board contends, however, that this interpretation of § 10 (k) should be rejected, despite the language and history of that section. In support of this contention, it first points out that § 10 (k) sets forth no standards to guide it in determining jurisdictional disputes on their merits. From this fact, the Board argues that § 8 (b) (4) (D) makes the employer's assignment decisive unless he is at the time acting in violation of a Board order or certification and that the proper interpretation of § 10 (k) must take account of this right of the employer. It is true, of course, that employers normally select and assign their own individual employees according to their best judgment. But here, as in most situations where jurisdictional strikes occur, the employer has contracted with two unions, both of which represent employees capable of doing the particular tasks involved. The result is that the employer has been placed in a situation where he finds it impossible to secure the benefits of stability from either of these contracts, not because he refuses to satisfy the unions, but because the situation is such that he cannot satisfy them. Thus, it is the employer here, probably more than anyone else, who has been and will be damaged by a failure of the Board to make the binding decision that the employer has not been able to make. We therefore are not impressed by the Board's solicitude for the employer's right to do that which he has not been, and most likely will not be, *583 able to do. It is true that this forces the Board to exercise under § 10 (k) powers which are broad and lacking in rigid standards to govern their application. But administrative agencies are frequently given rather loosely defined powers to cope with problems as difficult as those posed by jurisdictional disputes and strikes. It might have been better, as some persuasively argued in Congress, to intrust this matter to arbitrators. But Congress, after discussion and consideration, decided to intrust this decision to the Board. It has had long experience in hearing and disposing of similar labor problems. With this experience and a knowledge of the standards generally used by arbitrators, unions, employers, joint boards and others in wrestling with this problem, we are confident that the Board need not disclaim the power given it for lack of standards. Experience and common sense will supply the grounds for the performance of this job which Congress has assigned the Board.
The Board also contends that respondent's interpretation of § 10 (k) should be avoided because that interpretation completely vitiates the purpose of Congress to encourage the private settlement of jurisdictional disputes. This contention proceeds on the assumption that the parties to a dispute will have no incentive to reach a private settlement if they are permitted to adhere to their respective views until the matter is brought before the Board and then given the same opportunity to prevail which they would have had in a private settlement. Respondent disagrees with this contention and attacks the Board's assumption. We find it unnecessary to resolve this controversy for it turns upon the sort of policy determination that must be regarded as implicitly settled by Congress when it chose to enact § 10 (k). Even if Congress has chosen the wrong way to accomplish its aim, that choice is binding both upon the Board and upon this Court.
*584 The Board's next contention is that respondent's interpretation of § 10 (k) should be rejected because it is inconsistent with other provisions of the Taft-Hartley Act. The first such inconsistency urged is with §§ 8 (a) (3) and 8 (b) (2)[24] of the Act on the ground that the determination of jurisdictional disputes on their merits by the Board might somehow enable unions to compel employers to discriminate in regard to employment in order to encourage union membership. The argument here, which is based upon the fact that § 10 (k), like § 8 (b) (4) (D), extends to jurisdictional disputes between unions and unorganized groups as well as to disputes between two or more unions, appears to be that groups represented by unions would almost always prevail over nonunion groups in such a determination because their claim to the work would probably have more basis in custom and tradition than that of unorganized groups. No such danger is present here, however, for both groups of employees are represented by unions. Moreover, we feel entirely confident that the Board, with its many years of experience in guarding against and redressing violations of §§ 8 (a) (3) and 8 (b) (2), will devise means of discharging its duties under § 10 (k) in a manner entirely harmonious with those sections. A second inconsistency is urged with § 303 (a) (4) of the Taft-Hartley Act,[25] which authorizes suits for damages suffered because of jurisdictional strikes. The argument here is that since § 303 (a) (4) does not permit a union to establish, as a defense to an action for damages under that section, that it is entitled to the work struck for on the basis of such factors as practice or custom, a similar result is required here in order to preserve "the substantive symmetry" between § 303 (a) (4) on the one hand and §§ 8 (b) (4) (D) and *585 10 (k) on the other. This argument ignores the fact that this Court has recognized the separate and distinct nature of these two approaches to the problem of handling jurisdictional strikes.[26] Since we do not require a "substantive symmetry" between the two, we need not and do not decide what effect a decision of the Board under § 10 (k) might have on actions under § 303 (a) (4).
The Board's final contention is that since its construction of § 10 (k) was adopted shortly after the section was added to the Act and has been consistently adhered to since, that construction has itself become a part of the statute by reason of congressional acquiescence. In support of this contention, the Board points out that Congress has long been aware of its construction and yet has not seen fit to adopt proposed amendments which would have changed it. In the ordinary case, this argument might have some weight. But an administrative construction adhered to in the face of consistent rejection by Courts of Appeals is not such an ordinary case. Moreover, the Board had a regulation on this subject from 1947 to 1958 which the Court of Appeals for the Seventh Circuit thought, with some reason, was wholly inconsistent with the Board's present interpretation.[27] With all this uncertainty surrounding the eventual authoritative interpretation of the existing law, the failure of Congress to enact a new law simply will not support the inference which the Board asks us to make.
*586 We conclude therefore that the Board's interpretation of its duty under § 10 (k) is wrong and that under that section it is the Board's responsibility and duty to decide which of two or more employee groups claiming the right to perform certain work tasks is right and then specifically to award such tasks in accordance with its decision. Having failed to meet that responsibility in this case, the Board could not properly proceed under § 10 (c) to adjudicate the unfair labor practice charge. The Court of Appeals was therefore correct in refusing to enforce the order which resulted from that proceeding.
Affirmed.
NOTES
[1]  Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO.
[2]  Theatrical Protective Union No. 1, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO.
[3]  The other major television broadcasting companies have also been forced to contend with this same problem. The record shows that there has been joint bargaining on this point between Columbia, National and American Broadcasting Systems on the one hand and the unions on the other. All the companies refused to allocate the work to either union because the unions did not agree among themselves. Columbia's vice president in charge of labor relations explained the situation in these terms: "All three companies negotiating jointly here took the position that they could not do this. They could not give exclusive jurisdiction because each of them had a conflicting claim from another union." See also National Association of Broadcast Engineers, 105 N. L. R. B. 355.
[4]  This phrase was used by the Hearing Examiner to describe the position of Columbia as explained by its vice president in charge of labor relations.
[5]  See Theatrical Protective Union No. 1, International Alliance of Theatrical Stage Employees, 124 N. L. R. B. 249, for a report of a recent jurisdictional strike against Columbia by the same stage employees' union involved here which resulted from an assignment of remote lighting work favorable to the technicians.
[6]  Respondent, for the purposes of this proceeding only, concedes the correctness of a Board finding to this effect.
[7]  29 U. S. C. § 158 (b) (4) (D).
[8]  Section 8 (b). "It shall be an unfair labor practice for a labor organization or its agents

.....
"(4) . . . to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal . . . to perform any services, where an object thereof is: . . . (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work: . . . "
[9]  29 U. S. C. § 160 (c).
[10]  29 U. S. C. § 160 (k).
[11]  "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless . . . the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed."
[12]  This latter consideration was made necessary because the Board has adopted the position that jurisdictional strikes in support of contract rights do not constitute violations of § 8 (b) (4) (D) despite the fact that the language of that section contains no provision for special treatment of such strikes. See Local 26, International Fur Workers, 90 N. L. R. B. 1379. The Board has explained this position as resting upon the principle that "to fail to hold as controlling . . . the contractual preemption of the work in dispute would be to encourage disregard for observance of binding obligations under collective-bargaining agreements and invite the very jurisdictional disputes Section 8 (b) (4) (D) is intended to prevent." National Association of Broadcast Engineers, supra, n. 3, at 364.
[13]  272 F. 2d 713.
[14]  N. L. R. B. v. United Association of Journeymen, 242 F. 2d 722.
[15]  N. L. R. B. v. United Brotherhood of Carpenters, 261 F. 2d 166.
[16]  N. L. R. B. v. Local 450, International Union of Operating Engineers, 275 F. 2d 413.
[17]  363 U. S. 802.
[18]  For a review and criticism of some of these efforts, see Dunlop, Jurisdictional Disputes, N. Y. U. 2d Ann. Conference on Labor 477, at 494-504.
[19]  93 Cong. Rec. 136.
[20]  H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 23, I Legislative History of the Labor Management Relations Act, 1947, at 314 (hereinafter cited as Leg. Hist.).
[21]  The amendment was contained in a bill (S. 858) offered by Senator Morse, which also contained a number of other proposals. 93 Cong. Rec. 1913, II Leg. Hist. 987.
[22]  I Leg. Hist. 241, 258-259. See also the Senate Committee Report on the bill, S. Rep. No. 105, 80th Cong., 1st Sess., p. 8, I Leg. Hist. 414.
[23]  H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., p. 57, I Leg. Hist. 561.
[24]  29 U. S. C. §§ 158 (a) (3) and 158 (b) (2).
[25]  29 U. S. C. § 187 (a) (4).
[26]  International Longshoremen's Union v. Juneau Spruce Corp., 342 U. S. 237.
[27]  See N. L. R. B. v. United Brotherhood of Carpenters, supra, at 170-172. The Rules and Regulations adopted in 1947 by the Board provided that in § 10 (k) proceedings the Board was "to certify the labor organization or the particular trade, craft, or class of employees, as the case may be, which shall perform the particular work tasks in issue, or to make other disposition of the matter." (Emphasis supplied.) 29 CFR, 1957 Supp., § 102.73. This rule remained in effect until 1958.


Matter of Cain (2018 NY Slip Op 00513)

Matter of Cain

2018 NY Slip Op 00513

Decided on January 25, 2018

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 25, 2018

[*1]In the Matter of ROBERT GAYNOR CAIN, an Attorney.
(Attorney Registration No. 2268019)

Calendar Date: December 18, 2017

Before: McCarthy, J.P., Egan Jr., Mulvey, Aarons and Pritzker,

	 JJ.

Robert Gaynor Cain, South Hero, Vermont, pro se.
Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany, for Attorney Grievance Committee for the Third Judicial Department.

MEMORANDUM AND ORDER
Robert Gaynor Cain was admitted to practice by this Court in 1989 and lists a business address in Burlington, Vermont with the Office of Court Administration. Cain has applied to this Court for leave to resign from the New York bar for nondisciplinary reasons (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.22 [a]). The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) opposes the application, contending that Cain is ineligible for nondisciplinary resignation because, at the time his application was filed with the Court in October 2017, he had not timely fulfilled his attorney registration requirements for the most recent biennial period beginning earlier in 2017 (see Judiciary Law § 468-a; Matter of Lee-Davis, 154 AD3d 1272 [2017]; Matter of Bomba, 146 AD3d 1226, 1226-1227 [2017]; Rules of the Chief Admin of Cts [22 NYCRR] § 118.1).
In reply, Cain requests that his application be deemed filed with the Court, nunc pro tunc, on July 31, 2017 and asks that the failure to actually file on that date be excused due to law office failure (see generally CPLR 2004; Tewari v Tsoutsouras, 75 NY2d 1, 11-12 [1989]). In support of this request, Cain has provided "a detailed and credible explanation" (People's United Bank v Latini Tuxedo Mgt., LLC, 95 AD3d 1285, 1286 [2012] [internal quotation marks and citation omitted]) for his failure to file his application to resign prior to his registration deadline. Specifically, mindful of his obligation to resign prior to his August 2017 registration deadline, Cain completed the requisite form affidavit (see Rules for Attorney Disciplinary Matters [22 NYCRR] part 1240, appendix E) on July 27, 2017 and instructed administrative personnel within his law firm to submit his application. Said personnel misunderstood instructions provided by this Court's staff (see Rules of App Div, 3d Dept [22 NYCRR] § 806.22 [a]) and accordingly failed to file the original application with the Court. Instead, the original application was submitted to AGC, which ultimately forwarded the application to this Court for filing after [*2]discovering Cain's error. Under these circumstances, and mindful of the absence of any prejudice that would flow from our acceptance of Cain's application, we exercise our discretion to deem the application filed, nunc pro tunc, on July 31, 2017. Accordingly, with AGC voicing no other substantive objection to Cain's application, and having determined that he is eligible to resign for nondisciplinary reasons (compare Matter of Tierney, 148 AD3d 1457, 1458 [2017]; Matter of Bomba, 146 AD3d at 1227), we grant the application and accept his resignation
McCarthy, J.P., Egan Jr., Mulvey, Aarons and Pritzker, JJ., concur.
ORDERED that Robert Gaynor Cain's application for permission to resign is granted and his nondisciplinary resignation is accepted; and it is further
ORDERED that Robert Gaynor Cain's name is hereby stricken from the roll of attorneys and counselors-at-law of the State of New York, effective immediately, and until further order of this Court (see generally Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.22 [b]); and it is further
ORDERED that Robert Gaynor Cain is commanded to desist and refrain from the practice of law in any form in the State of New York, either as principal or as agent, clerk or employee of another; and Cain is hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give to another an opinion as to the law or its application, or any advice in relation thereto, or to hold himself out in any way as an attorney and counselor-at-law in this State; and it is further
ORDERED that Robert Gaynor Cain shall, within 30 days of the date of this decision, surrender to the Office of Court Administration any Attorney Secure Pass issued to him.


776 F.2d 1043
Broadwayv.Dorsey
85-6350
United States Court of Appeals,Fourth Circuit.
10/28/85

1
D.Md.

CPC DENIED--DISMISSED