986 F.2d 1426
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Jessie L. ALEXANDER, Plaintiff-Appellant,v.Louis W. SULLIVAN, M.D., Defendant-Appellee.
No. 92-7087.
United States Court of Appeals, Tenth Circuit.
Feb. 5, 1993.

Before TACHA and BALDOCK, Circuit Judges, and BROWN,* Senior District Judge.**
ORDER AND JUDGMENT***
BALDOCK, Circuit Judge.

1
Plaintiff-appellant Jessie L. Alexander appeals from a district court order affirming the Secretary's denial of disability insurance benefits.   Because we find the Secretary's decision to be supported by substantial evidence, and because the questions presented to the vocational expert were proper, we affirm.

2
Alexander, a fifty-four year old woman, complains that she is disabled because of a heart condition and a prior back injury.   She first filed applications for disability insurance benefits and supplemental security income benefits on July 11, 1988.   After an initial hearing and two supplemental hearings, an administrative law judge (ALJ) denied Alexander's applications, finding that she had the residual functional capacity to perform the full range of sedentary work.   The Appeals Council denied Alexander's request for review.

3
Alexander sought judicial review in the district court for the Eastern District of Oklahoma.   The district court affirmed the Secretary's decision, finding substantial evidence to support the conclusion that claimant was not disabled.   On appeal, Alexander argues that the decision is not supported by the evidence and that the questions asked of the vocational expert were improper.

4
Our review of the record is limited to determining whether it contains substantial evidence to support the Secretary's decision.   Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988).  "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."   Hargis v. Sullivan, 945 F.2d 1482, 1486 (10th Cir.1991).   In applying the standard, we may not reweigh the evidence or substitute our judgment for that of the agency.   Id.

5
Here, the ALJ's determination that Alexander is not disabled is well supported by the evidence.   Her medical records demonstrate a complete medical recovery from a myocardial infarction and coronary angioplasty.   Alexander's results on her Thallium stress test were "entirely normal," II R. 390, and her electrocardiogram was normal.   Although Alexander has complained of chest pains intermittently since her heart attack, both her cardiologist and her treating physician have suggested that her chest pain is not cardiac in origin.   II R. 373, 377.

6
The record also contains little, if any, objective medical evidence to support Alexander's claim of disabling back pain.   Diagnosed with a lumbar strain in 1978, she continued to perform "light work" through 1986.   When she was examined in March 1987, the consulting physician found no lumbar spine abnormality, no neurological deficit, and no restrictions as to her function or activity.   II R. 214-15.   Lumbar spine x-rays taken in September 1987 show no abnormalities other than a developmental lumbarization.   II R. 240.   In January 1989, Alexander's treating physician, Dr. Fava, found no muscle weakness, atrophy, spasm, or deformity in the lumbar region, finding only mild tenderness.   II R. 376.

7
Dr. Fava opined that Alexander was not at all impaired in sitting, handling objects, hearing, speaking, or traveling.   He found her to be minimally impaired in standing and moving about, and "moderately impaired" in lifting and carrying objects over five pounds in weight.   II R. 376.   Alexander argues that this opinion precludes the ALJ's finding that she is capable of performing the full range of sedentary work.  20 C.F.R. § 404.1567(a) defines "sedentary work" as follows:

8
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.   Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties.

9
Dr. Fava's opinion, however, is perfectly consistent with the exertional requirements of the sedentary work classification.   He did not state that Alexander is "totally" impaired or "extremely" impaired from lifting and carrying objects over five pounds in weight, but simply that she was "moderately" restricted from doing so.   As the testimony of the vocational expert made clear, sedentary work "involves little or no lifting."   II R. 78.   In fact, the vocational expert was directly asked whether, if the ALJ found that Alexander was moderately impaired in lifting and carrying over five pounds, she would still be qualified for the jobs identified.   The vocational expert reiterated that because such jobs involved little or no lifting, she would be capable of performing them.   II R. 80-81.

10
Alexander also argues that she cannot perform sedentary work because one hand is paralyzed and the other has no grip strength, and because her legs go numb after sitting for thirty minutes.   The ALJ found that Alexander's claims of hand paralysis and leg numbness were incredible.   These credibility determinations are entitled to great deference.   Williams, 844 F.2d at 755.   Alexander's treating physician noted that she was capable of gross and fine manipulation without difficulty and that her grip strength was normal.   II R. 376.   He found no muscle weakness or sensory loss and concluded that Alexander was not impaired in sitting.   Id.  We see no reason to disturb the ALJ's credibility assessment.

11
Alexander argues that the decision is not supported by substantial evidence because the ALJ's hypothetical questions to the vocational expert did not include a complete description of her impairments.  " '[T]estimony elicited by hypothetical questions that do not relate with precision all of a claimant's impairments cannot constitute substantial evidence to support the Secretary's decision.' "   Hargis, 945 F.2d at 1492 (quoting  Ekeland v. Bowen, 899 F.2d 719, 724 (8th Cir.1990)).   In forming a hypothetical, however, the ALJ need only relate impairments if the record contains substantial evidence to support their inclusion.   Ehrhart v. Secretary of Health & Human Servs., 969 F.2d 534, 540 (7th Cir.1992);   see also Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir.1990).   Here, the ALJ rejected Alexander's claims of hand paralysis, lack of grip strength, leg numbness, and disabling back pain.   The ALJ's credibility determinations were well supported.   Therefore, it was proper to limit the hypothetical questions to a listing of those impairments which the ALJ found supported in the record.   Id.

12
The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED.

*
 Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation

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

***
 This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.   10th Cir.R. 36.3


351 A.2d 845 (1976)
NORTHEAST INVESTMENT CO., INC.
v.
LEISURE LIVING COMMUNITIES, INC.
Supreme Judicial Court of Maine.
January 27, 1976.
*847 Bernstein, Shur, Sawyer & Nelson by William W. Willard, Portland, for plaintiff.
Murray, Plumb & Murray by Peter L. Murray, Portland, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
DUFRESNE, Chief Justice.
The plaintiff-appellee, Northeast Investment Co., Inc. (Northeast), by complaint dated August 31, 1973, is seeking from the defendant-appellant, Leisure Living Communities, Inc. (Leisure Living), damages for breach of contract in the amount of $91,666.70 and specific performance of that aspect of the contract under which Northeast claims an option to purchase twenty thousand (20,000) shares of Leisure Living stock. Northeast filed a motion under Rule 4A, M.R.Civ.P. to attach the real estate of Leisure Living in the amount of $100,000.00.[1] On October 30, 1973 a Justice of the Superior Court, after hearing on the motion upon affidavits submitted by both parties, found "that there is a reasonable likelihood that the Plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than $100,000.00," and ordered that "an attachment of the real property may be made against the Defendant's property in the amount of $100,000.00." Following an unsuccessful attempt to have the interlocutory ruling reported to the Law Court, Leisure Living seasonably appealed. We deny the appeal.

I

Appealability of the interlocutory order approving the attachment
The parties agree that the order granting Northeast the right to attach the real estate of Leisure Living in the amount of $100,000.00 is interlocutory in nature, and not a final judgment, order or decree. Indeed, an order permitting or denying an *848 attachment does not conclude either party to the controversy upon any question of law or fact involved in the issues to be tried in the main action and the result of the trial may entirely eliminate the interlocutory matter from the case. A judgment, order or decree is interlocutory and not final which does not fully decide and dispose of the whole cause but leaves some questions for the future consideration and adjudication of the court. See Fidelity & Casualty Company v. Bodwell Granite Company, 1906, 102 Me. 148, 66 A. 314.
The present statute[2] governing the jurisdiction of the Law Court does not specifically provide immediate reviewability on appeal of Superior Court rulings granting or denying attachments as some statutes in other jurisdictions expressly authorize. See Fredericksen v. Harney, 1962, 199 Cal.App.2d 189, 18 Cal.Rptr. 562; State v. District Court of the Tenth Judicial District, 1954, 128 Mont. 526, 278 P.2d 1000; First Trust & Savings Bank v. Randall, 1936, 57 Idaho 126, 63 P.2d 157. Nor does our statute talk in terms of appealability from final judgments. Rule 73, M.R.Civ. P. similarly does not address itself specifically to final judgments, since it provides generally:
"Whenever a judgment of the Superior Court or of a single justice of the Supreme Judicial Court is by law reviewable by the Law Court, such review shall be by appeal in accordance with these rules."
Our Court has, however, as a matter of sound judicial policy, adopted the general rule that cases are not ripe for appellate review before the Law Court unless the appeal is from a "final" judgment, except when otherwise specifically authorized. See Burt Company v. The Burrowes Corporation, 1962, 158 Me. 237, 182 A.2d 481; Hazzard v. Westview Golf Club, Inc., 1966, Me., 217 A.2d 217, 222; Allen v. Cole Realty, Inc., 1974, Me., 325 A.2d 19.
True, the statute expressly allows reviewability of interlocutory orders or rulings by reporting the same to the Law Court when they present, in the opinion of the presiding justice, questions of law of such importance as to require review before any further proceedings are taken in the action. This expansion of the statute was made at the time of the adoption of the new rules of civil procedure in 1959. See Public Laws, 1959, c. 317, s. 69. But, we do not view this statutory accommodation to Rule 72(c), M.R.Civ.P. as a legislative design to provide an exclusive method whereby interlocutory orders or rulings may be reviewed by the Law Court. Rather, the new procedure was intended to be additional to the numerous exceptions to the final judgment rule, which our Court has long recognized in those instances in which the peculiar character of the question involved hardly admits of postponement, if any benefit is to be derived from it by the aggrieved party. See Stevens v. Shaw, 1885, 77 Me. 566, 1 A. 743 (compelling the indorsement of the name and residence of the assignee on the writ); Munsey, Executor v. Groves, 1955, 151 Me. 200, 117 A.2d 64 (whether a special appearance through counsel conferred jurisdiction of the person); Socec v. Maine Turnpike Authority, 1957, 152 Me. 326, 129 A.2d 212 (interlocutory issuewhether the proceeding was in equity or at law with the right to jury trial involved); Northland Industries, *849 Inc. v. Kennebec Mills Corporation, 1965, 161 Me. 455, 214 A.2d 100 (ruling that assignee was not a party in interest because of purportedly invalid assignment); Loyal Erectors, Inc. v. Hamilton & Son, Inc., 1973, Me., 312 A.2d 748 (discharge of trustee); Cranston v. Commercial Chemical Corp., 1974, Me., 324 A.2d 301 (dissolution of attachment of real estate).
In Foisy v. Bishop, 1967, 232 A.2d 797, we reaffirmed the exception to the final judgment rule. There, we held that an appeal from an interlocutory order vacating an attachment of real estate was an exception to the "final judgment" rule and was immediately reviewable on appeal since "great and irreparable loss" might otherwise result.
Thus, this Court has consistently followed the doctrine espoused by the Supreme Court of the United States in Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and known as the collateral order exception to the final judgment rule. It involves decisions
"which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. 337 U.S. at 546, 69 S.Ct. at 1225, 1226.
In Cohen, the interlocutory order at issue was the ruling of the District Court denying the corporate defendant's motion to require the plaintiff to post security in the amount of $125,000. The Court said that, if the issue had to await the final disposition of the merits of the main case, it will then be too late effectively to review the reference order and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably.
In Foisy, this Court cited Swift & Co. Packers v. Compania Colombiana Del Caribe, 1950, 339 U.S. 684, 70 S.Ct. 861, 94 L. Ed. 1206, which involved an order vacating a foreign attachment of a vessel. We note that, by way of dictum, the Swift Court volunteered:
"The situation is quite different where an attachment is upheld pending determination of the principal claim.
* * * * * *
"In such a situation the rights of all the parties can be adequately protected while the litigation on the main claim proceeds."
Although our Court has ruled that an order denying or dissolving an attachment of real estate is immediately reviewable on appeal notwithstanding its interlocutory characteristic, this is the first time we are faced with the issue of immediate appealability of an order allowing such an attachment.
In West v. Zurhorst, 1970, 2 Cir., 425 F.2d 919, the Second Circuit followed the holding in Cushing v. Laird, 1882, 107 U.S. 69, 2 S.Ct. 196, 27 L.Ed. 391 and the dictum in Swift & Co. Packers v. Compania Colombiana Del Caribe, supra, in dismissing for want of jurisdiction an appeal from the denial of defendants' motion to vacate an ex parte order of attachment against their land, on the ground that "[w]hile the grievance created by an improper attachment pendente lite is `important,' [Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 1226, 93 L.Ed. 1528] it is not important enough to make the decision `final.'" (Emphasis in original) The Court viewed the increase in the appellate caseload as sufficient reason against an "expansive reading" of Cohen.
In Chabot v. National Securities and Research Corporation, 1961, 2 Cir., 290 F.2d 657, the same Court had previously stated that an "[a]ttempt at distinction based on the circumstance that in Cohen the order of the District Court had denied security whereas here the order required it, flies in *850 the face of reason." The Chabot Court concluded that, "since the clause as to security is not a provision the alleged breach of which constitutes plaintiffs' claim, the case is still like Cohen in that the orders made `a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.'" See also Phelps v. Burnham, 1964, 2 Cir., 327 F.2d 812.
But, in Pasquarella v. Santos, 1969, 1 Cir., 416 F.2d 436, the First Circuit ruled that an order to post a removal bond was interlocutory and appealable within the Cohen rule.
In McInnes v. McKay, 1928, 127 Me. 110, 141 A. 699, affirmed by McKay v. McInnes, 1929, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975, this Court recognized that
"[p]roperty in legal conception is the total of the rights and powers incident to a thing rather than the thing itself. The legal right to use and derive a profit from land or other things is property. * * *. And the power of disposition at the will of the owner is property. Deprivation does not require actual physical taking of the property or the thing itself. It takes place when the free use and enjoyment of the thing or the power to dispose of it at will are affected."
The McInnes Court agreed that an attachment of real estate deprived one of property, but ruled
"we do not think it is the deprivation of property contemplated by the Constitution. And if it be, it is not a deprivation without `due process of law' . . .."
This concept that the right of an owner of real estate to freedom from attachment is of such insignificance as to be without the scope of the protective guarantees of due process of the Fourteenth Amendment was rejected by a three-judge District Court in Gunter v. Merchants Warren National Bank, 1973, 360 F.Supp. 1085. In Gunter, the Court viewed the effect resulting from an attachment of real estate as a restriction on the power of the owner to alienate his property and a significant deprivation of property within the protection of the Due Process Clause, in that the attachment creates a lien on the property and effectively deprives the owner of his ability to convey a clear title while the attachment remains outstanding. It has a serious potential for substantial harm to the defendant. Thus, notwithstanding McInnes v. McKay, Gunter ruled the prejudgment-attachment-of-real-estate procedures of Chapter 507 of Title 14, M. R.S.A. and of Rule 4A of the Maine Rules of Civil Procedure which permitted the prejudgment attachment of real estate without prior notice and hearing to be violative of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States and hence void and unenforceable. See Hutchison v. Bank of North Carolina, 1975, 392 F.Supp. 888, 894.
Following the Gunter decision, Rule 4A, M.R.Civ.P. was modified by amendment effective August 1, 1973 subjecting real estate attachments to the same prerequisites, including preattachment notice and hearing, which Rule 4A mandated respecting the attachment of personal property.
The right of an owner of real estate to alienate his property freely without the impediment of a real estate attachment has been given such substantial standing that, before the ancillary process of real estate attachment made available in support of the State's legitimate interest in facilitating creditor recovery may be resorted to, the creditor-plaintiff must under the rule carry the burden of persuasion to the court
"that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment."
*851 Such limitations on the right to attach real estate in aid of the prosecution of a lawsuit serve to protect the interests of a defendant against frivolous, unwarranted or false claims.
We, therefore, hold that an order approving a real estate attachment is a decision of such significance as to fall in that "small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corporation, supra.[3]

II

StandardReasonable likelihood of plaintiff's recovery of judgment
Having determined that the approval of an attachment is an interlocutory order which, nevertheless, is immediately appealable to the Law Court, we must now address the issue, whether Rule 4A was properly applied in the instant case. Such, in turn, must preliminarily depend on the quality of showing the Rule compels the plaintiff to make in order to support its entitlement to the requested attachment.
Hence, the immediate issue is, what standard of proof the trial court should apply, when hearing a motion for approval of attachment of real estate, before finding "that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment."
The defendant, Leisure Living, contends that the purpose underlying Rule 4A is to prevent a plaintiff from obtaining potentially onerous prejudgment security by way of attachment "when there is a good faith dispute as to the merits [of a claim] and when the chances are equal or nearly equal that the plaintiff will not ultimately prevail." It opts for a standard pursuant to which the court could not make the prerequisite finding of "reasonable likelihood" of recovery of judgment "if the court's mind is evenly balanced as to which party will ultimately prevail."
Rule 4A was expanded to cover prejudgment real estate attachments for the purpose of fitting into a State policy of long standing due process safeguards of notice and hearing as an accommodation between the State interest in affording security to creditors and minimal protection to debtors against invalid claims and/or the abuse of excessive attachments. The "likelihood of success" standard will keep the process more in syntony with previous State policy than a "preponderance of the evidence" test.
*852 The term "likelihood of success" connotes mere probability of success or a favorable chance of success. See Verhelle v. Eveland, 1957, 347 Mich. 612, 81 N.W.2d 397.
Clearly, the inquiry into the plaintiff's likelihood of success in the main action requisite to support approval of a prejudgment real estate attachment need not take the form of a full adjudication of the rights of the parties. Such adjudication better be left for determination at the time of trial rather than in the preliminary hearing contemplated by Rule 4A.
The federal cases speak similarly of "likelihood of success" in terms of favorable chance of success. If a claim for which security by means of real estate attachment is requested is not of such insubstantial character that its invalidity so clearly appears as to foreclose a reasonable possibility of recovery, then, such a claim would be within the "likelihood of success" standard required by the Rule. See Mitchell v. W. T. Grant Company, 1974, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed. 2d 406, where it is stated:
"On the contrary, it seems apparent that the seller with his own interest in the disputed merchandise would need to establish in any event only the probability that his case will succeed . . . ." (Emphasis ours)
In Bell v. Burson, 1971, 402 U.S. 535, 540, 91 S.Ct. 1586, 1590, 29 L.Ed.2d 90, 96, where factual analogy to the instant case appears, the Court said:
"Since the only purpose of the provisions before us is to obtain security from which to pay any judgments against the licensee resulting from the accident, we hold that procedural due process will be satisfied by an inquiry limited to the determination whether there is a reasonable possibility of judgments in the amounts claimed being rendered against the licensee." (Emphasis added)
In Sniadach v. Family Finance Corp. of Bay View, 1969, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, Justice Harlan in his concurring opinion viewed within due process requirements a pretrial hearing aimed
"at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property or its unrestricted use." (First emphasis ours second in original)

III

Reasonable likelihood of plaintiff's recovery of judgment in the instant case
In order to assess the correctness of the Justice's ruling approving the attachment, we must first consider the pleadings upon which his determination was made. The record reveals that Northeast's motion for allowance of attachment of Leisure Living's real estate in the amount of $100,000.00 was supported in the Court below by the affidavits of George T. Kattar, president of the plaintiff corporation, while the defendant's opposition was formulated through affidavits of Bernard J. Mayer, Jr., the then president of the defendant corporation and John C. Wyman, the defendant's legal representative in a related case pending in the United States District Court for the District of Massachusetts.
The Kattar affidavits expressly purport to be made on personal knowledge pursuant to Rule 4A(h) (footnote 1, supra) and contain the following factual assertions:
On or about February 25, 1970 Mr. Kattar, as president of Northeast, and Mr. J. Allan Bowron, as president of Leisure Living, entered into an oral agreement the breach of which is the subject of the main action. It provided in part for Leisure Living to pay Northeast, or certain other named corporations as might be designated by Mr. Kattar, the sum of fifty thousand *853 ($50,000.00) dollars per year as long as certain loans and notes payable to James Talcott, Inc. remained unpaid. In the deal, Northeast was granted the option to purchase twenty thousand (20,000) shares of Leisure Living stock. The verbal arrangement between the two companies was intended as security in the purchase by Leisure Living of certain lands owned by Sebago Estates, Inc. and Gunstock Acres, Inc. in connection with which the loans and notes payable to James Talcott, Inc. were executed.
Indeed, Northeast undertook to guarantee these Talcott loans and notes for such time as they remained unpaid, and so did Mr. Kattar, individually and for Community Investment Corporation, of which corporation he was president and majority shareholder. In addition thereto, Mr. Kattar promised new guarantees of said loans and notes from Tri-State Development Corporation, American Heritage Properties, Inc., The Second Presidential Corporation and Castle Shores, Inc. Mr. Kattar had a controlling voice in said corporations by reason of his position of president or his ownership of the majority of the stock. The loans and guarantees involved in the agreement were in fact made.
In further consideration of Leisure Living's undertaking, Mr. Kattar individually and for the named corporations, promised to "provide during the life of said guarantees, such consulting services as Leisure Living Communities, Inc. would request from time to time."
Pursuant to their contractual obligations, Mr. Kattar and the named corporations "performed numerous consulting services to Leisure Living Communities, Inc. at their request, including but not limited to, assisting with a zoning problem, the purchase of sixty (60) acres of land desired by Leisure Living Communities, Inc., the preparation of a paper giving many suggestions on how to develop property, and the conducting of several sales conferences with salesman."
Leisure Living, so Mr. Kattar's affidavit states, failed to make the payments of fifty thousand ($50,000.00) dollars per year to Northeast since October 25, 1971 and on July 30, 1971 refused Northeast's request to execute the purchase option of twenty thousand (20,000) shares of Leisure Living stock.
Contrary to the Kattar affidavits which are based solely on personal knowledge of alleged positive facts, the Mayer affidavit is founded "upon personal knowledge and upon information and belief based upon careful inquiry" and accentuates the negative.
It alleges that the affiant has no knowledge of any reference oral agreement, because a careful search of the records and other papers of Leisure Living reveals no such agreement, nor any act or undertaking pursuant thereto. Mr. Mayer further discloses that he bases part of his affidavit on the information received from an unnamed representative of James Talcott, Inc. to the effect that Talcott's records do not show any such act or undertaking of guaranty as claimed by Northeast and that in the opinion of said Talcott representative
"on February 25, 1970 Northeast Investment Co., Inc. was released from any pre-existing guaranty of indebtedness which might have existed and that no new guaranty was entered into by Northeast Investment Co., Inc. on or after that date."
Mr. Mayer's affidavit further concludes that on the basis of his examination of Leisure Living's records and papers,
"it is my understanding and I therefore believe that the indebtedness to James Talcott, Inc. was assumed by a subsidiary of the company, New England Properties, Inc., and was to be repaid over a considerable period of time well in excess of one year."
Mr. Mayer further states he has no knowledge of any consulting services performed *854 by Northeast or Mr. Kattar subsequent to February 25, 1970.
We need not concern ourselves with the Wyman affidavit as it merely confirms, through Mr. Kattar's deposition, that, whatever agreement there was, it contemplated a period of performance well in excess of one year, a fact which the parties do not seriously dispute.
An analysis of the Mayer affidavit discloses that the facts therein alleged which would tend to dispute affirmatively the plaintiff's cause of action, to wit, "that on February 25, 1970 Northeast Investment Co., Inc. was released from any pre-existing guaranty of indebtedness which might have existed and that no new guaranty was entered into by Northeast Investment Co., Inc. on or after that date" were not based on the personal knowledge of the affiant, but are stated to be the opinion of an undisclosed representative of James Talcott, Inc. Mr. Mayer "made oath that the foregoing statements by him made are true to the best of his knowledge and belief."
Under Rule 4A(h), specific facts sufficient to warrant the findings necessary to the approval of the real estate attachment must be set forth "and [they] shall be upon the affiant's own knowledge, information or belief; and, so far as upon information and belief, shall state that he believes this information to be true." (Emphasis supplied). Nowhere, does Mr. Mayer state that he believed the information which he received from the unnamed representative of James Talcott, Inc. to be true. Thus, the Mayer affidavit was deficient in the most important aspect of the facts it purported to present in opposition to the plaintiff's motion for an order permitting the attachment of the defendant's real property, a fact which the Justice below most probably took into consideration in his evaluation of the affidavits upon which he had to make his decision.
But, where the trial justice makes his determination of an issue entirely on documentary evidence and affidavits without receiving any oral testimony from witnesses he can see and hear, an appellate court is then free to make its own findings from the same evidence, without reference to the findings of the single justice. The "clearly erroneous" rule (Rule 52(a), M. R.C.P.), which mandates that findings of fact be not set aside unless clearly erroneous and that due regard be given to the opportunity of the trial court to judge of the credibility of the witnesses, is not applicable in such instances. Allen v. Kent, 1957, 153 Me. 275, 136 A.2d 540; Matthews v. R. T. Allen & Sons, Inc., 1970, Me., 266 A.2d 240; Davis v. Interstate Motor Carriers Agency, 1970, 85 S.D. 101, 178 N.W.2d 204; Keyes v. Keyes, 1932, 51 Idaho 670, 9 P.2d 804; McDermott v. Halliburton, 1930, 220 Ala. 553, 126 So. 854. (Contra: Atkins, Kroll & Co. v. Broadway Lumber Company, 1963, 222 Cal.App.2d 646, 35 Cal.Rptr. 385, 12 A.L.R.3d 880).
We have examined the affidavits submitted to the Court below and, taking into account the positive nature of the plaintiff's affidavits as opposed to the negative aspect of the defendant's counteraffidavits, we are convinced that Northeast has demonstrated a reasonable likelihood of recovery of judgment in its main action, provided it has made a similar showing respecting Leisure Living's affirmative defense of the statute of frauds,[4] which Northeast asserts ineffective by reason of its own part performance of the contract.

*855 IV

The Statute of Frauds
That the reference oral agreement was within the class of contracts on which action was prohibited under 33 M.R.S.A. § 51(5) appears clearly.
The rule to apply in order to determine whether an oral contract comes within the ban of the statute has been stated by this Court in Marshall v. Lowd, 1958, 154 Me. 296, 305-6, 147 A.2d 667, 672:
"[T]he contract . . . is within the statute of frauds if the performance thereof necessarily requires more than one year, or if the manifest intent and purpose of the parties gathered from the words used and the circumstances existing at the time is that more than one year should be taken for its performance."
The agreement called for a $50,000 annual payment, thus inferentially implying that payments were to be made for more than one year. Indeed, the payments were to continue "as long as said loans were unpaid and said liabilities in existence." Mr. Kattar in his deposition stated the agreement was to be in effect for five years. Moreover, we take note of the fact the guaranty related to a rather large real estate development project which, in the normal course of events, would not allow its discharge within one year.
This Court in a somewhat similar case used the following language:
"Mr. Longcope's contract, as appears from his own testimony, required him to act with Mr. Saddlemire during the time that the latter is engaged in carrying into execution vast plans of state-wide vacational, agricultural and industrial development. These ambitious projects certainly require more than a year for completion. The parties so understood and intended. It was, indeed, stated in the contract, as testified to by the plaintiff, that the work undertaken would take `a great many years,' and that `during that time' the plaintiff was to act as Mr. Saddlemire's right-hand man." (Emphasis added)
But, under certain circumstances, part performance of an unwritten contract may authorize a court of equity to compel specific performance by the other party in contradiction to the positive terms of the statute of frauds on the ground of equitable estoppel based on an equitable fraud. This Court said in Woodbury v. Gardner, 1885, 77 Me. 68, at 70 and 71:
"After having induced or knowingly permitted another to perform in part an agreement, on the faith of its full performance by both parties and for which he could not well be compensated except by specific performance, the other shall not insist that the agreement is void.
* * * * * *
In other words, partial performance [to exclude the operation of the statute of frauds] is such a carrying out of the agreement by one party thereto, that fraud would result to him unless the other party be compelled to perform his part of it."
The affidavits in positive terms disclose full performance by Northeast, Mr. Kattar and his interrrelated companies, of the oral contract by the execution and continued maintenance of the guaranty agreements, causing a drop in their borrowing power and the loss in the sales force; they further support the rendering of numerous consulting services to Leisure Living. In partial consideration for the guaranty, Leisure Living orally promised the grant of an option to purchase twenty thousand (20,000) shares of Leisure Living stock, the execution of which was never acted upon by Leisure Living although requested on July 30, 1971.
An oral contract relating to the purchase of corporate stock may be enforced specifically under special circumstances as seem present in the instant case, *856 such as that Leisure Living stock has no readily ascertainable market value, cannot be easily obtained from other sources, and is of special interest to Northeast as one of the interrelated corporations engaged in the development of sizable real estate projects. If Northeast is hampered by the bar of the statute of frauds, such loss certainly could not be compensated for adequately by money damages. See Tewksbury v. Noyes, 1941, 138 Me. 127, 23 A.2d 204.
We conclude that Northeast has demonstrated the reasonable likelihood of recovering judgment in its main action within the requirements of Rule 4A(c) to support the approval of a real estate attachment, even though the contract on which its claim is based was an oral one.

V

The Amount of the Attachment
Rule 4A(c), as a prerequisite to the approval of a real estate attachment, mandates a showing by the plaintiff that there is a reasonable likelihood that it will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment.
The defendant contends that the plaintiff's specific request for judgment in the amount of $91,666.70 in itself demonstrates error on the part of the presiding Justice when he approved a real estate attachment in the amount of $100,000.00. We disagree. The reference ad damnum clearly relates only to the claimed indebtedness in the principal sum. As an incident of a verdict in its favor, the plaintiff would be entitled to interest at the legal rate of six (6%) percent per annum on the unpaid instalments from the time they ought to have been paid until the date the complaint was filed in court (Inhabitants of Town of Norridgewock v. Inhabitants of Town of Hebron, 1957, 152 Me. 280, 128 A.2d 215), and legal interest from that date to the time of entry of judgment also may be recoverable under 14 M.R.S.A. § 1602.[5] A quick computation will disclose a bridging of the gap.
The entry will be
Appeal denied.
All Justices concurring.
NOTES
[1]  Rule 4A. Attachment

"(a) Availability of Attachment. In connection with the commencement of any action under these rules, real estate, goods and chattels and other property may, in the manner and to the extent provided by law, but subject to the requirements of this rule, be attached and held to satisfy the judgment for damages and costs which the plaintiff may recover.
"(c) * * *
No property may be attached unless such attachment for a specified amount is approved by order of the court. Except as provided in subdivision (f) of this rule [ex parte order approving attachment], the order of approval may be entered only after notice to the defendant and hearing and upon a finding by the court that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment.
An action in which attachment of property is sought may be commenced only by filing the complaint with the court, together with a motion for approval of the attachment. The motion shall be supported by affidavit or affidavits meeting the requirements set forth in subdivision (h) of this rule.
* * * * *
"(h) Requirements for Affidavits. Affidavits required by this rule shall set forth specific facts sufficient to warrant the required findings and shall be upon the affiant's own knowledge, information or belief; and, so far as upon information and belief, shall state that he believes this information to be true."
[2]  4 M.R.S.A. § 57. Jurisdiction; . . .

"The following cases only come before the court as a court of law: Cases on appeal from the Superior Court or a single Justice of the Supreme Judicial Court; questions of law arising on reports of cases, including interlocutory orders or rulings of such importance as to require, in the opinion of the justice, review by the law court before any further proceedings in the action; agreed statement of facts; cases presenting a question of law; all questions arising in cases in which equitable relief is sought; motions to dissolve injunctions issued after notice and hearing or continued after a hearing; questions arising on habeas corpus, mandamus and certiorari and questions of state law certified by the federal courts.
* * * * *
. . . ."
[3]  In so deciding, we have not overlooked sections 4606 and 4607 of 14 M.R.S.A., which authorize any defendant, whose interest in real estate is attached on mesne process, to petition the Superior Court for a determination of the value of the defendant's real estate interest attached and for the release of the attachment, pending appeal to the Law Court, upon the giving by the defendant to the plaintiff of a bond, as ordered by the Court, in the appropriate amount and terms as provided in the reference statute. Rule 4A (g) recognizes the viability of this statute, wherein it provides:

"Nothing herein shall be construed to abolish or limit any means for obtaining dissolution, modification or discharge of an attachment that is otherwise available by law."
It is true that the availability of the statutory bond provision was intended to minimize a defendant's exposure to harm when his real estate is attached; nevertheless, the probability of irreparable injury, notwithstanding the stated statutory bond provision, is sufficiently great to justify immediate appellate review of an order approving a real estate attachment. A real estate attachment may critically impair a defendant's ability to participate effectively in judicial proceedings designed to resolve the main dispute between the parties. See Lebowitz v. Forbes Leasing and Finance Corporation, 1972, 3 Cir., 456 F.2d 979.
[4]  33 M.R.S.A. § 51. Writing required;.

"No action shall be maintained in any of the following cases:
* * * * *
(5) Agreement not to be performed within one year. Upon any agreement that is not to be performed within one year from the making thereof;
* * * * *
. . . ."
[5]  14 M.R.S.A. § 1602. Interest on judgments

"In all civil actions, except those actions involving a contract or note which contract or note contains a provision relating to interest, interest shall be assessed from the date on which the complaint is filed in court, provided that if the prevailing party at any time requests and obtains a continuance for a period in excess of 30 days and the losing party at no time requests and obtains a continuance, interest will be assessed from the time of entry of judgment. From and after date of judgment, interest shall be allowed at the rate of 10% per year."


                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 05 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS

                             FOR THE NINTH CIRCUIT

RICHARD L. ALLEY,                                No. 09-15328

               Petitioner-Appellant,             D.C. No. 05-cv-01921-LKK-CMK

  v.
                                                 MEMORANDUM *
TOM L. CAREY,
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,

               Respondents-Appellees.

                   Appeal from the United States District Court
                       for the Eastern District of California
                Lawrence K. Karlton, Senior District Judge, Presiding

                           Submitted November 1, 2010 **
                             San Francisco, California

Before: RYMER and ALARCON, Circuit Judges, and TRAGER, *** District

Judge.

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
         ***
             The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
      Petitioner-Appellant Richard Alley appeals from the district court's

judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We presume the

parties' familiarity with the facts and do not recount them here except as necessary

to explain our decision. Because Alley's habeas petition "arises out of process

issued by a State court," 28 U.S.C. § 2253(c)(1)(A), we do not have jurisdiction

over this appeal until Alley obtains a certificate of appealability ("COA"),

Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Alley does not request a

COA, and his claims do not warrant the issuance of one sua sponte. We, therefore,

dismiss the appeal for lack of jurisdiction.

      When Alley filed his appeal, he was not required to obtain a COA because

his habeas challenged a state administrative decision as opposed to a judicial

decision. White v. Lambert, 370 F.3d 1002, 1010 (9th Cir. 2004), overruled by

Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010) (en banc). Since that

time, we have held that a prisoner seeking review on habeas of an administrative

decision must be issued a COA before this Court has jurisdiction over the appeal.

Hayward, 603 F.3d at 554. Although we may issue a COA sua sponte, id.,

petitioners must still meet the standard set forth in 28 U.S.C. § 2253, which

provides: "A [COA] may issue . . . only if the applicant has made a substantial

showing of the denial of a constitutional right." § 2253(c)(2). A petitioner makes

                                           2
this showing by demonstrating "that reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong." Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

      A "general assessment," Miller-El, 537 U.S. at 336, of Alley's claims

demonstrates that they are meritless. Alley's argument that he has a liberty interest

in immediate release because California abrogated the authority of the Board of

Prison Terms ("Board") to determine his parole eligibility is patently incorrect.

See Cal. Penal Code § 3040. Although California replaced its indeterminate

sentencing regime with a determinate one, some sentences, including those for

Alley's conviction, remained indeterminate and, thus, subject to the Board's

jurisdiction. In re Dannenberg, 104 P.3d 783, 790-91 (Cal. 2005). Therefore,

Alley does not have a liberty interest, protected by federal law, in immediate

release.

      Alley's related assertion — that the California Department of Corrections

and Rehabilitation ("Department") has wrongly denied him good time credit since

1989 — does not implicate a right protected by the Due Process Clause. Assuming

Alley's argument is grounded in fact, the credit the Department denied him would

only have made his minimum eligible parole date earlier. See Cal. Code Regs. tit.

15, § 2400 ("The department will determine the minimum eligible parole date. The

                                          3
length of time a prisoner must serve prior to actual release on parole is determined

by the board."). But Alley has already received at least one parole hearing, after

which the Board found him unsuitable for parole,1 and, as we have indicated, the

decision whether to release him on parole is properly within the Board's purview.

Therefore, to the extent Alley was denied credit, his actual sentence was

unaffected. See Cal. Code Regs. tit. 15, § 2400 ("The department's decisions

[regarding credit] do not affect the Board's decision concerning postconviction

credit pursuant to these rules.").

      Alley's equal protection claim is, likewise, meritless. Alley, like all other

prisoners serving indeterminate sentences for first-degree murder, was sentenced

outside California's determinate sentencing regime and is not comparable to

prisoners serving determinate sentences. Dannenberg, 104 P.3d at 790-91; cf.

Allen v. Woodford, 395 F.3d 979, 1018-19 (9th Cir. 2005) ("[W]e agree with the

California Supreme Court that defendants sentenced under the Determinate

Sentencing Law are not similarly situated to defendants sentenced in the capital

system."). Finally, Alley never demonstrates what effect a 1979 memorandum

      1
        In re Monigold, in which the California Court of Appeals held that the loss
of an earlier minimum eligible parole date equitably estopped the Department from
denying worktime credit, is distinguishable because the petitioner in that case had
not yet received a parole hearing. 253 Cal. Rptr. 120, 121, 123 (Cal. Ct. App.
1988).

                                          4
authored by the San Diego Deputy Attorney General had on the administration of

his sentence. To the extent that this argument is really a recapitulation of his other

two claims, it does not implicate a federal right and rests on incorrect

interpretations of state law. Accordingly, because Alley cannot make the proper

showing for a COA, see Slack, 529 U.S. at 484, we do not have jurisdiction over

his appeal.

      DISMISSED.

                                           5


659 A.2d 662 (1995)
Raymond CIANCI,
v.
NATIONWIDE INSURANCE COMPANY.
No. 94-274-M.P.
Supreme Court of Rhode Island.
June 1, 1995.
*663 Lauren Jones, Robert S. Thurston, Jones Associates, Vincent Indeglia, Providence, for plaintiff.
John Boland, Boyer, Reynolds & DeMarco, Providence, for defendant.

OPINION
LEDERBERG, Justice.
This matter came before the Supreme Court on four questions of law certified to us by the United States District Court for the District of Rhode Island pursuant to Rule 6 of the Supreme Court Rules of Appellate Procedure. At issue is whether the defendant, Nationwide Insurance Company, a workers' compensation insurance carrier, is liable to the plaintiff, Raymond Cianci, an injured employee. The questions certified to this court are as follows:
"1. Does Raymond Cianci, as an employee, have a cause of action pursuant to R.I.G.L. § 9-1-33 against Nationwide Insurance Company, the workers' compensation carrier, for bad faith concerning the manner in which Mr. Cianci's workers' compensation claim was handled?
"2. Does Raymond Cianci, as a third-party to the Nationwide workers' compensation policy, have a cause of action for breach of contract, breach of covenant of good faith and fair dealings, or breach of fiduciary obligation?
"3. Do the exclusivity provisions of the Rhode Island Workers' Compensation Act apply to Nationwide as the workers' compensation carrier for Ray Cianci, Inc.?
"4. Would the intentional tort exception to the exclusivity provisions of the Rhode Island Workers' Compensation Act apply to Nationwide as the workers' compensation carrier for Ray Cianci, Inc.?"
We conclude that this employee cannot pursue any claim against the insurance carrier except as provided in the Rhode Island Workers' Compensation Act. Therefore, we answer questions 1 and 2 in the negative, question 3 in the affirmative, and question 4 in the negative.

Facts and Procedural History
The following background information was derived from the parties' agreed statement of facts and issues certified to this court by order of the United States District Court for Rhode Island.
Raymond Cianci (plaintiff) was the owner and an employee of Ray Cianci, Inc. (employer). *664 Prior to the date of his injury, plaintiff had opted into the Rhode Island Workers' Compensation Act (the act) as a covered employee. Nationwide Insurance Company (defendant) had issued a workers' compensation policy for the employer for the policy period that included the date of plaintiff's accident. On September 19, 1983,[1] plaintiff sustained burns during the course of his employment. While hospitalized, plaintiff received numerous blood transfusions. The defendant did not contest its liability in respect to plaintiff's burns and initiated payment of workers' compensation benefits pursuant to a memorandum of agreement.
In 1989 plaintiff began to experience difficulty with his liver, for which problems he sought coverage from defendant, alleging that his liver injury was caused by the blood transfusions he received during his initial hospitalization. The plaintiff also claimed that the transfusions had caused him to contract hepatitis C. The defendant contested the causal relationship between the blood transfusions and plaintiff's liver damage.
In May 1990, plaintiff filed a petition with the Rhode Island Workers' Compensation Court to amend the description of his injuries to include the "flow-through" or "flow-from" injury to his liver and to order payment for an apparently lifesaving liver transplant. In July 1990, plaintiff underwent a liver transplant, and on November 21, 1991, the Workers' Compensation Court granted plaintiff's petition to amend the description of his injuries and ordered payment of his medical bills related to his liver injury. The defendant did not appeal the decision and paid the benefits pursuant to the Workers' Compensation Court's decision. At the time of certification, plaintiff was still receiving indemnity and medical benefits in accordance with the Rhode Island Workers' Compensation Act.
On June 2, 1993, plaintiff filed a complaint against defendant in the United States District Court for the District of Rhode Island. The plaintiff's complaint alleged breach of contract (count 1), breach of the covenant of good faith and fair dealing (count 2), breach of fiduciary duties (count 3), and intentional infliction of emotional distress (count 5; plaintiff listed no count 4). The defendant filed a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. The motion was referred to the United States Magistrate Judge, who issued a report and a recommendation in favor of dismissal. The plaintiff apparently objected, after which a United States District Court judge ordered the parties to prepare an agreed statement of facts and issues to be certified to this court.
We now address each of the questions presented to this court.

Question 1
"Does Raymond Cianci, as an employee, have a cause of action pursuant to R.I.G.L. § 9-1-33 against Nationwide Insurance Company, the workers' compensation carrier, for bad faith concerning the manner in which Mr. Cianci's workers' compensation claim was handled?"
In other words, does plaintiff have a cause of action pursuant to G.L. 1956 (1985 Reenactment) § 9-1-33, "Insurer's bad faith refusal to pay a claim made under any insurance policy," against defendant for bad faith because of the manner in which defendant dealt with the claim?
The plaintiff first argued that this court must conform its review to the standard of Rule 12(b)(6) of the Federal Rules of Civil Procedure and "assum[e] the allegations of the complaint are true and resolv[e] any doubts in [plaintiff's] favor." Therefore, plaintiff asserted, because he alleged in his complaint that he was an insured under defendant's policy, this court must accept this allegation as true when ruling on the certified questions before us. We disagree.
The procedure by which these questions came before this court, namely, Rule 6 of the Supreme Court Rules of Appellate Procedure, provides for the certification of questions *665 of state law where such questions may be determinative of the cause then pending in the certifying court and where there is no controlling precedent in the prior decisions of this court. Joseph R. Weisberger, Rhode Island Appellate Practice, cmt. 6.1 at 30 (Butterworth 1993). See Berkshire Cablevision of Rhode Island, Inc. v. Burke, 488 A.2d 676, 679 (R.I. 1985). The standard of review for the Federal Rule 12(b)(6) motion is not relevant to the determination of questions of state law and hence does not circumscribe the manner in which this court responds to certified questions. To hold that federal procedural standards must be considered in our determination would seriously interfere with "the salutory effect [offered by Rule 6] of precluding the necessity for federal courts to speculate concerning the proper determination by this court of a question of law not previously decided." Weisberger, cmt. 6.1 at 30. Therefore, we shall address the questions without applying the federal standard of review pertinent to the procedural posture of the case, leaving the certifying court to apply its standard after this court has determined the questions of state law at issue in the case.
The plaintiff next urged that we should answer question 1 in the affirmative, arguing that defendant can be held liable for bad faith toward Cianci as an insured under its workers' compensation policy. Specifically, plaintiff alleged that under G.L. 1956 (1986 Reenactment) § 28-36-5, he, as an employee, was a statutory insured and, as an insured, had a right of action against defendant pursuant to § 9-1-33. We disagree.
The relevant statutes that address this issue are § 28-36-5:
"Every [workers' compensation] policy shall cover the entire liability of the employer under * * * [the Workers' Compensation Act] * * * and shall contain an agreement by the insurer to the effect that the insurer shall be directly and primarily liable to the employee, and, in the event of his death, to his defendants, to pay to him or them the compensation, if any, for which the employer is liable";
and § 9-1-33, "Insurer's bad faith refusal to pay a claim made under any insurance policy":
"(a) Notwithstanding any law to the contrary, an insured under any insurance policy as set out in the general laws or otherwise may bring an action against the insurer issuing said policy, when it is alleged said insurer wrongfully and in bad faith refused to pay or settle a claim made pursuant to the provisions of said policy, or otherwise wrongfully and in bad faith refused to timely perform its obligations under said contract of insurance." (Emphasis added.)
The plaintiff's essential contention was that the first statute made him an insured and the second granted him, as an insured, the ability to sue defendant for its alleged bad-faith refusal to pay his claim. Section 9-1-33, however, does not define an "insured." Because the policy issued by defendant to employer is not in the record before this court, thus precluding our determination of Cianci's rights under the policy (see State Automobile and Casualty Underwriters by Automobile Underwriters v. Hartford Accident and Indemnity Co., 166 N.W.2d 761, 764-65 (Iowa 1969) (holding that an employee is not an "insured" under a policy that specifies employer as insured and had as the purpose of the coverage to protect employer from liability)), we must look to the applicable Rhode Island statutes to ascertain whether plaintiff is an "insured" and as such would be entitled to file a cause of action against defendant pursuant to § 9-1-33.
We note first that § 28-36-5 provides that under the act, every policy must contain an agreement by the insurer that it shall be directly and primarily liable to the employee for the compensation for which the employer is liable. The plain language of the statute merely grants to the employee the ability to pursue the insurer for any funds due to the employee when the employer is liable to the employee. See Mustapha v. Liberty Mutual Insurance Co., 268 F. Supp. 890, 893 (D.R.I. 1967) (Workers' Compensation Act uses "the words `employer' and insurer * * * interchangeably * * * denoting an equating of the two," and citing § 28-36-5). Thus, it is *666 clear that § 28-36-5 equates the liability of an employer and an insurer but does not equate an employee with the employer as insureds.
The plaintiff argued, however, that the Colorado Supreme Court had construed identical language in the Colorado Workers' Compensation Act so as to make such an equation. Travelers Insurance Co. v. Savio, 706 P.2d 1258, 1272 (Colo. 1985). In that case, the court held that one who claims "compensation or benefits may bring an action in tort for bad faith by an insurer." Id. at 1273-74. After quoting a section of the act that made "the insurance carrier * * * directly and primarily liable to the employee," the court stated, "Thus, a covered employee stands in the same position as an insured in a private insurance contract." Id. at 1272. A closer reading of the case, however, discloses differences which preclude such a holding from applying in the instant case. First, the court noted that both the parties and the amici viewed the case as a first-party, direct-coverage claim. Id. at 1272 n. 18. Second, the court never specifically stated that the employee was an insured. Instead, the court spoke of an employee standing "in the same position as an insured in a private insurance contract," id. at 1272, thereby allowing the court to treat the employee's claim as "a first-party case because workers' compensation benefits serve a purpose similar to that served by direct coverage insurance contracts." Id. at 1272 n. 18. The employee was "[c]onceived of as * * * `the insured,'" and thus could claim the benefits for himself, in a common-law first-party claim against the insurer. Id. at 1272.
Section 9-1-33, on the other hand, specifically designates to the "insured" the cause of action against an insurer's bad-faith refusal to pay a claim. It does not permit suits by someone "[c]onceived of as * * * the `insured'" or "stand[ing] in the same position as an insured." 706 P.2d at 1272. Moreover, by examining the relationship of the parties to the insurance contract, we find reinforcement for the premise that an employee is not an "insured" under the Workers' Compensation Act. In 11 George J. Couch, Cyclopedia of Insurance Law, § 44:15 at 205-06 (Anderson 2d ed. 1982), in his section on "Employer's Liability Insurance," Couch makes the following observation:
"The parties to the contract of employer's liability or indemnity insurance are the insurer and the employer.
"When by virtue of a contract provision or statutory direction the injured employee has a direct right of action against the insurer, before or after a determination of the amount to which the employee is entitled, the employee has the status of a third-party beneficiary on the contract, but even then is not a party to the contract of insurance." (Emphasis added.)
And earlier in his treatise, when addressing liability and indemnity-insurance contracts in general, Couch states:
"The parties to the policy of liability or indemnity insurance are the insurer and the insured, the latter being the person for whose benefit the policy is procured  usually the employer, or owner, or other person procuring the policy. * * * Even though the existence of the policy may make it more probable that he will be able to receive payment, the injured person is neither an `insured' nor a `beneficiary' in the technical insurance-contract meaning of those terms." (Emphasis added.) Id., § 44:3 at 187.
We believe that the Legislature, in explicitly restricting the right to sue for a bad-faith refusal to pay a claim to an "insured," intended § 9-1-33 to apply only to those claimants who meet "the technical insurance-contract meaning" of the term. Because plaintiff was not a party to the contract and, therefore, was not an insured under the act, he cannot pursue a claim against defendant under § 9-1-33.
Consequently, we answer the first certified question in the negative.

Question 2
"Does Raymond Cianci, as a third-party to the Nationwide workers' compensation policy, have a cause of action for breach of contract, breach of covenant of good faith and fair dealings, or breach of fiduciary obligation?"
*667 We address first the claims for breach of contract and breach of fiduciary duty.
The plaintiff has maintained that he was a statutory insured and, under the language of defendant's policy, a direct beneficiary able to assert his rights as a party to the contract. We disagree. As noted supra, plaintiff was not a party to this contract and thus is not a statutory insured. In Auclair v. Nationwide Mutual Insurance Co., 505 A.2d 431, 431 (R.I. 1986) (per curiam), this court addressed the relationship between a claimant and the insurer of a third party alleged to be liable and concluded that the relationship between the two entities is an adversarial one. Any obligation to deal in good faith runs only to the insured, id., in this case, the employer. Recognizing that the "claimant is a stranger to the relationship between the insurer and the insured and is not in privity of contract with them," Bean v. Allstate Insurance Co., 285 Md. 572, 575-76, 403 A.2d 793, 795 (Md. Ct. App. 1979), we find no support for the contention that an employee may bring suit against the carrier for bad faith, breach of contract, or breach of fiduciary relationship.
Addressing next the claim of breach of covenant of good faith and fair dealing, we note at the outset that the duty of an insurer to deal fairly and in good faith, implied by law, sounds in contract as well as in tort. Bibeault v. Hanover Insurance Co., 417 A.2d 313, 319 (R.I. 1980); see also Pickett v. Lloyd's, 131 N.J. 457, 470, 621 A.2d 445, 452 (1993) ("[a]n insurance company's breach of the fiduciary obligation imposed by virtue of its policy, by its wrongful failure to settle, `sounds in both tort and contract'"). We shall address the tort implications of defendant's alleged breach of covenant of good faith and fair dealing in our analysis of certified questions 3 and 4 infra. In respect to any contractual aspects of the alleged breach, we hold that the adversarial relationship between the claimant and the insurer, coupled with the fact that plaintiff was not a party to the contract, militates against the viability of any contractual claim of an alleged bad-faith action by defendant. A cause of action on a contractual claim lies with the employer, not the employee, absent an assignment of rights under the contract from employer to plaintiff.
Consequently, we answer the second certified question in the negative.

Questions 3 and 4
"Do the exclusivity provisions of the Rhode Island Workers' Compensation Act apply to Nationwide as the workers' compensation carrier for Ray Cianci, Inc.?
"Would the intentional tort exception to the exclusivity provisions of the Rhode Island Workers' Compensation Act apply to Nationwide as the workers' compensation carrier for Ray Cianci, Inc.?"
These questions relate to the exclusivity provisions of the act, the application of those provisions to defendant as the workers' compensation carrier for the employer, and the issue of whether an exception to the exclusivity provision is provided in the case of intentional torts. Because both of these questions involve the breadth of the exclusivity provisions of the act, we address them together.
In his complaint in Federal District Court, plaintiff alleged the following causes of action: breach of contract, breach of covenant of good faith and fair dealing, breach of fiduciary duties, and the intentional infliction of emotional distress. We have addressed all these issues save whether plaintiff can maintain causes of action against defendant for the torts of breach of covenant of good faith and fair dealing and the intentional infliction of emotional distress.
The defendant has paid benefits to plaintiff since 1983. After defendant contested its liability to pay the costs of plaintiff's liver transplant, the Workers' Compensation Court ordered defendant to pay the medical bills related to the liver injury. The plaintiff asserted in his complaint, however, that defendant's alleged refusal to "promptly, properly, and fully" pay him these benefits caused plaintiff to suffer severe and permanent injuries, emotional distress, and lost wages. The plaintiff argued before this court that defendant's alleged bad-faith "refusal" to pay medical benefits constituted an independent cause of action at common law and further alleged that defendant's "refusal" to pay for *668 his liver transplant constituted an intentional infliction of emotional distress. The plaintiff claimed that these causes of action were not barred by the exclusivity provision of the act because these injuries did not arise out of and in the course of his employment.
General Laws 1956 (1986 Reenactment) § 28-33-1 provides that an employee who receives a personal injury "arising out of and in the course of his employment" shall be paid compensation under the act. Further, G.L. 1956 (1986 Reenactment) § 28-29-17 of the act specifies that the employee waives his common-law rights except in circumstances where he expressly notifies his employer that he wishes to retain these rights, and § 28-29-20 provides:
"The right to compensation for an injury under the [act] * * * and the remedy therefor granted by [the act] * * * shall be in lieu of all rights and remedies as to that injury now existing, either at common law or otherwise against an employer, or its directors, officers, agents or employees; and those rights and remedies shall not accrue to employees entitled to compensation under those chapters while they are in effect."
This court has not heretofore addressed the issue of whether a workers' compensation carrier is entitled to the protection of the immunity provisions of the Workers' Compensation Act. We have, however, previously held that if an employee has not properly reserved his or her common-law rights under the act, he or she is barred from bringing a tort action against his or her employer if workers' compensation benefits are appropriate. Lopes v. G.T.E. Products Corp., 560 A.2d 949, 950 (R.I. 1989); Hornsby v. Southland Corp., 487 A.2d 1069, 1071 (R.I. 1985).
It is the conclusion of this court that the exclusivity provisions of workers' compensation apply to any suit against the employer's workers' compensation carrier as well. Professor Arthur Larson, in his treatise on workers' compensation, begins his examination of the "Exclusiveness of Compensation Remedy" by noting, "Once a workmen's compensation act has become applicable either through compulsion or election, it affords the exclusive remedy for the injury by the employee or his dependents against the employer and insurance carrier." 2A Arthur Larson, The Law of Workmen's Compensation, § 65.11 at 12-1 (1992). In addition, although this court has not addressed the issue under the exclusivity provisions of the Rhode Island act, the issue has been examined in Mustapha, 268 F. Supp. at 895, where the Rhode Island's Workers' Compensation Act was held to preclude an employee from suing the employer's workers' compensation insurance carrier. In that case, the employee had claimed that the insurer negligently performed a safety inspection of the work site. Id. at 892. In holding that the employee's suit against the insurer was proscribed, the court stated,
"[I]t is the court's opinion that the legislature never envisioned that the insurance carrier would be a third-party and it appears to this court that the whole purpose and scheme of the Rhode Island Act would be perverted if this court interpreted the act in any other manner than to conclude that the employer and insurance carrier have been equalized and * * * the better view is to make the compensation insurer immune from tort liability as the employer is and thus not amenable to suit as a third party." Id. at 895.
The court held that the provisions of the act concerning "the right of compensation from the workmen's compensation carrier bars * * * a common law tort action against such workmen's compensation insurance carrier." Id. at 893.
The reasoning in Mustapha was utilized again in Latour v. Commercial Union Insurance Co., 528 F. Supp. 231, 233 (D.R.I. 1981), in which an action was brought by the widows of deceased employees and an employee against the employer's liability and workers' compensation carrier. The court pointed out that although the Rhode Island act did not specifically grant immunity to the compensation insurer, Mustapha had extended the employer's immunity under the act to carriers "because the statute essentially equated employers with their compensation carriers throughout its many provisions." Latour, 528 F. Supp. at 234. The immunity under the *669 act was deemed to extend only to "employers and their workers' compensation insurers" and not to liability insurers. Id.
We have pointed out supra that § 28-36-5 of the act essentially equates the employer and the carrier in respect to the employee. See Mustapha, 268 F. Supp. at 893. Allowing the carrier to be liable in a suit by the employee would destroy the employer's and the carrier's equality, which is consistent throughout the act. It is our considered opinion, therefore, that the exclusivity provisions apply to suits against the carrier as well as against the employer.
The plaintiff argued, however, that the exclusivity provisions of the act did not apply in the instant case because the act itself did not apply. The plaintiff alleged that his injuries in the instant case did not arise out of and in the course of his job duties, and that, therefore, his action was not barred by the exclusivity clause. The relationship between the original work injury, plaintiff claimed, and defendant's subsequent allegedly tortious conduct was too tenuous to be subsumed under the protection of the act.
Quoting Professor Larson at length, plaintiff contended that the alleged tortiously inflicted injury at issue in the instant case should be considered separately from the original injury. Indeed, Larson generally supports plaintiff's proposition concerning the intentional infliction of emotional distress in certain circumstances as being a separate injury from that incurred in connection with the employee's job duties. See generally 2A Larson, § 68.34(b) at XX-XXX-XXX. Larson refers specifically to the case of Stafford v. Westchester Fire Insurance Co., 526 P.2d 37 (Alaska 1974), overruled on other grounds by Cooper v. Argonaut Insurance Companies, 556 P.2d 525 (Alaska 1976), in which the Supreme Court of Alaska held that, under Alaska law, "the insurer was outside the role of a carrier and became a person other than the employer, against whom the employee was entitled to bring a civil action for damages" when the carrier committed an intentional tort. 2A Larson, § 68.34(c) at 13-127. Larson goes on to say, however, that the Stafford case set off a wave of attempted tort actions on the basis of intentional delay in or termination of payments or of medical treatments, and in the great majority of these cases a cause of action was held not to lie. Id. at XX-XXX-XX. Larson noted that a common factor which figured in many of the cases where a cause of action was held not to lie was a statutory administrative penalty for the conduct on which the tort suit was based. Id. at 13-145. Such a penalty is evidence of a legislative intent that the remedy for delay in payments should remain in the workers' compensation system, id., and such is our conclusion in respect to the situation in Rhode Island.
The enactment of G.L. 1956 (1986 Reenactment) § 28-35-17.1 and its enforcement through Rule 2.29 of the Workers' Compensation Court Rules of Practice embody the intention on the part of the Legislature that the forum for resolution of allegations of improper delay of a workers' compensation claim should remain with the Workers' Compensation Court. Both the statute and the rule provide the exclusive remedy and penalty under the act for assessing the costs of delay.
In DiQuinzio v. Panciera Lease Co., 612 A.2d 40, 42 (R.I. 1992), this court discussed the policy and rationale behind the act and noted:
"[U]nder the Rhode Island Workers' Compensation Act an injured employee is ensured timely and certain, though limited, compensation. In exchange he or she gives up the right to pursue an action at law that, although potentially more remunerative, is likely to be protracted and may well be unsuccessful. * * * Workers' compensation benefits are meant as full compensation for any loss or harm that is alleged to have been caused by any entity to which immunity from suit is extended under § 28-29-20."
The Workers' Compensation Act thus provides an efficient mechanism by means of which the employee, the employer, and the carrier can resolve disputes relating to work-related injuries and medical payments in a "timely" manner and pay "certain, though limited, compensation." DiQuinzio, 612 A.2d at 42. An employee covered under the act *670 has no common-law right of action against the insurer because the act expressly addresses such claims and thus immunizes the carrier from liability under any common-law suit.
We have considered plaintiff's state constitutional claim as well and find it to be without merit.
Finally, we turn to the issue of whether there is an intentional tort exception to the exclusivity provisions of the act. This court has previously held that there is no intentional tort exception to the exclusivity provisions of the act. Lopes, 560 A.2d at 951; Coakley v. Aetna Bridge Co., 572 A.2d 295, 296 (R.I. 1990). Because we have held supra that the exclusivity provisions of the act apply to the insurance carrier, it is evident that an intentional tort exception does not apply to the defendant. Consequently, we answer the third certified question in the affirmative and the fourth certified question in the negative.
The papers in this case are remanded to the United States District Court for the District of Rhode Island.
BOURCIER, J., did not participate.
NOTES
[1]  In the parties' "Agreed Statement of Facts and Issues to be Certified to the Rhode Island Supreme Court," the date of the injury is erroneously listed as September 19, 1993, instead of September 19, 1983, This error is evident from the fact that plaintiff began receiving benefits in 1983.


541 U.S. 944
HOWARDv.ZEMMELMAN, JUDGE, COURT OF COMMON PLEAS OF OHIO, LUCAS COUNTY, ET AL.
No. 03-8384.
Supreme Court of United States.
March 22, 2004.

1
Sup. Ct. Ohio. Certiorari denied. Reported below: 99 Ohio St. 3d 1535, 795 N. E. 2d 676.