99 F.3d 1131
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Howard DAVIS, Defendant-Appellant.
No. 95-5525.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 8, 1996.Decided Oct. 25, 1996.

William H. Ehlies II, Greenville, South Carolina, for Appellant.  J. Preston Strom, Jr., United States Attorney, David C. Stephens, Assistant United States Attorney, Greenville, South Carolina, for Appellee.
Before WILKINS and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
OPINION
PER CURIAM:

1
Howard Davis pled guilty to conspiring to distribute and to possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846 (1994), and to using and carrying a firearm during a drug trafficking offense in violation of 18 U.S.C.A. § 924(c) (West Supp.1996).  Davis contends on appeal that (i) the district court made numerous errors in the Rule 11 colloquy, that these errors require per se reversal of his convictions, and that the errors affected his substantial rights and the voluntariness of his plea;  (ii) in light of  Bailey v. United States, --- U.S. ---, 116 S.Ct. 501 (1995), there was not a sufficient factual basis to support his guilty plea for using and carrying a firearm during the commission of a drug trafficking crime;  and (iii) the district court erred in adopting the findings in the presentence report.  We affirm in part and remand in part.

I.

2
Davis first asserts that the district court made numerous omissions during his FED.  R. CRIM.  P. 11 colloquy that affected his substantial rights and rendered his guilty plea involuntary.  The adequacy of a guilty plea generally is reviewed de novo.   United States v. Good, 25 F.3d 218, 219 (4th Cir.1994).  Rule 11 violations, however, are reviewed under a harmless error standard.1  United States v. Goins, 51 F.3d 400, 402 (4th Cir.1995).  Any variance from the Rule 11 require ments which does not affect the substantial rights of the defendant is disregarded.  FED. R. CRIM.  P. 11(h);   United States v. DeFusco, 949 F.2d 114, 117 (4th Cir.1991), cert. denied, 503 U.S. 997 (1992).

3
Davis' claim that the district court made an erroneous statement regarding the mandatory minimum sentence required by § 924(c) is belied by the record.  The court set forth the mandatory sentence of five years on two occasions during the plea colloquy, and Davis stated that he understood the district court's explanation.

4
Next, although the district court failed to inform Davis of the effects of supervised release, Davis was sentenced to a total of 248 months incarceration to be followed by five years of supervised release--far less than the maximum sentence of life imprisonment that the court could have imposed.   See Good, 25 F.3d at 220.   And the effects of supervised release on Davis' ability to travel outside of the United States is, at most, a collateral consequence of a guilty plea.   Cf. Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.)  (noting that court's failure to advise defendant that plea might subject him to deportation is collateral consequence and will not render plea involuntary), cert. denied, 414 U.S. 1005 (1973).

5
Davis also contends that the district court failed to inform him that he could continue in his plea of not guilty, that if he pled guilty he had no right to trial of any kind, and that a guilty plea waived his right to a jury trial.  At the Rule 11 colloquy, the court made it clear that Davis had certain rights in connection with a jury trial, such as the right to a jury trial and the associated rights to counsel, to subpoena witnesses, to cross-examine witnesses, and to testify or not in his own defense.  The transcript of the Rule 11 plea colloquy discloses that Davis was thoroughly informed of all of his options (including the right to proceed with a trial by jury) and that he was capable of understanding what the court stated.  Further, because Davis pled guilty after the jury had been selected to hear his case, he should have known that he had a right to a jury trial.

6
Davis asserts that the court did not require the government to summarize the plea agreement on the record, did not inquire as to whether his plea agreement was the result of prior discussions with the government, and did not announce whether it accepted or rejected the plea agreement.  But at the plea hearing, Davis acknowledged that the he had read and discussed the agreement with his attorney, that his signature appeared on the agreement's last page, and that the plea agreement constituted the entire agreement with the government.  Moreover, the court explicitly accepted Davis' plea.

7
We find that these omissions amount to harmless error because Davis' substantial rights were not affected.   DeFusco, 949 F.2d at 117.   Further, we reject Davis' claim that because of the district court's omissions from the Rule 11 colloquy, his plea was not informed and voluntary.  The district court addressed Davis personally and informed him of the essential elements of the charges against him.   See Henderson v. Morgan, 426 U.S. 637, 644-47 (1976).  The court also discussed with Davis the maximum and mandatory minimum sentences applicable to the charges.   See Manley v. United States, 588 F.2d 79, 81-82 (4th Cir.1978).  Finally, Davis' statement at the Rule 11 hearing that he was neither coerced nor threatened constitutes "strong evidence of the voluntariness of his plea."   DeFusco, 949 F.2d at 119.   Davis' plea, therefore, was informed and voluntary.

II.

8
Next, Davis contends that his § 924(c) conviction should be overturned because the government failed to establish a sufficient factual basis for the plea in light of Bailey v. United States.   While Davis' appeal was pending,2 the Supreme Court held in Bailey that, to sustain a conviction for the "use" of a firearm during and in relation to a drug trafficking offense, the government must show "active employment" of the firearm.   Bailey, 116 S.Ct. at 505.   Because Davis did not contest the validity of his guilty plea in the district court, the issue is reviewed for plain error under FED.  R. CRIM.  P. 52(b).   United States v. Olano, 507 U.S. 725, 732-37 (1993).

9
Even under a plain error standard, it is not possible to determine whether Davis' conviction should stand without further proceedings in the district court.  First, it is unclear whether the factual basis for Davis' guilty plea involved using and carrying firearms during the drug offense.  The government stated only that Davis "had at his disposal firearms, a 357 caliber revolver and also a nine millimeter pistol[,] that [he] used in the drug business to protect the drug organization."  (JA-I at 36).  We therefore remand this portion of the appeal to allow the district court to consider whether the § 924(c) conviction should be vacated or should stand in light of  Bailey.

III.

10
Finally, Davis asserts that the district court erred in accepting the presentence report when the report contained no factual representations regarding the amount of drugs.  Davis does not contest, however, that one kilogram of crack cocaine was attributable to him nor did he object below.  Because Davis did not affirmatively show that the information in the report was unreliable and did not articulate the reasons why its facts were untrue or inaccurate, the district court is " 'free to adopt the findings of the [presentence report] without more specific inquiry or explanation.' "   United States v. Terry, 916 F.2d 157, 162 (4th Cir.1990) (quoting  United States v. Mueller, 902 F.2d 336, 346 (5th Cir.1990)).  We therefore find this claim meritless.

IV.

11
Accordingly, we affirm Davis' conspiracy conviction and sentence and remand the § 924 conviction and sentence to the district court for further proceedings as may be appropriate.  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

12
AFFIRMED IN PART;  REMANDED IN PART.

1
 We have considered the supplemental authorities submitted by Davis and reject his contention that the district court's omissions in the Rule 11 colloquy require a per se reversal rule in accordance with  McCarthy v. United States, 394 U.S. 459 (1969).  Congress amended Rule 11 in 1983 and replaced McCarthy 's "extreme sanction of automatic reversal" with the harmless error standard in Rule 11(h).  FED. R. CRIM.  P. 11 advisory committee's note (1983 amendment)

2
 Bailey applies to cases pending on direct review.   See Griffith v. Kentucky, 479 U.S. 314, 328 (1987)


441 N.W.2d 143 (1989)
232 Neb. 418
MILBANK INSURANCE COMPANY, a Foreign Corporation, Appellee,
v.
Lila L. HENRY et al., Appellants.
No. 86-489.
Supreme Court of Nebraska.
June 9, 1989.
*144 Raymond J. Walowski and J. Patrick Green, Omaha, for appellant Henry.
Daniel P. Chesire and Thomas D. Wulff of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellants Ammoura and Farmers Ins. Exchange.
Alan M. Thelen of Breeling, Welling & Place, Omaha, for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
BOSLAUGH, Justice.
The plaintiff, Milbank Insurance Company, commenced this action in the county court to recover $1,000 which it had paid to the defendant Lila L. Henry under the medical payments coverage of an automobile liability insurance policy which the plaintiff had issued. Henry had been injured in an automobile accident in which an automobile operated by the defendant Housam M. Ammoura had collided with the automobile insured by the plaintiff and operated by Henry. The defendant Farmers Insurance Exchange was the liability insurance carrier for Ammoura.
After the plaintiff had paid Henry, the plaintiff wrote to Farmers to notify it that the plaintiff was subrogated to Henry's cause of action against Ammoura. Farmers wrote back to the plaintiff stating that it did not honor subrogation claims for medical payments coverage in Nebraska. Later, Farmers entered into a settlement with Henry in the amount of $12,000 and took a general release from Henry of all claims arising out of the accident. The plaintiff then commenced this action against Henry, Ammoura, and Farmers to recover the $1,000 that it had paid to Henry.
The county court found in favor of the plaintiff and against all defendants. Upon appeal to the district court, the judgment was affirmed. The defendants have now appealed to this court.
The case was tried upon a stipulation of facts, and the issues are purely questions of law.
The policy which the plaintiff had issued and which insured the automobile that Henry was operating at the time of the accident contained the following provision:
5. OUR RIGHT TO RECOVER PAYMENT
A. If we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do whatever is necessary to enable us to exercise our rights and shall do nothing after loss to prejudice them.
B. If we make a payment under this policy and the person, to or for whom payment is made recovers damages from another, that person shall hold in trust for us the proceeds of the recovery and *145 shall reimburse us to the extent of our payment.
Henry contends that the subrogation clause in the policy issued by the plaintiff is not valid, at least as to payments made under medical payments coverage, for several reasons. Henry argues that it conflicts with the collateral source rule and the common-law rule against the assignment of personal injury claims. Henry concedes that there is a division of authority on the question and that it is probable that the majority of cases hold such clauses to be valid.
We think the better reasoned cases support the rule that such a subrogation clause is valid. Representative of such cases is Travelers Indemnity Co. v. Vaccari, 310 Minn. 97, 99-101, 245 N.W.2d 844, 845-46 (1976), in which the court held:
The insurance policy issued by Travelers provided that Travelers would be subrogated to the rights of any person to the extent of any medical payments made to that person. In National Union Fire Ins. Co. v. Grimes, 278 Minn. 45, 153 N.W.2d 152 (1967), we upheld the validity of this type of subrogation clause as between the insurer and its insured, but specifically reserved ruling on the validity of the subrogation clause as against a third-party tortfeasor. We stated (278 Minn. [at] 49, 153 N.W.2d [at] 155):
"If the present action were one in which plaintiff was attempting to assert a claim for the medical expenses paid by it against the tortfeasor who caused the injuries, the rules forbidding the assignment of claims for personal injuries might be applicable. But this is not such a situation and we need not anticipate it."
We now hold that a subrogation clause of this kind which gives an insurer a right to subrogation against a third-party tortfeasor for medical payments actually made is a valid and enforceable contractual provision. It is well established as a principle of equity that upon payment of a loss an insurer is entitled to pursue those rights which the insured may have against a third party whose negligence or wrongful act caused the loss. Great Northern Oil Co. v. St. Paul Fire & Marine Ins. Co., 291 Minn. 97, 189 N.W. 2d 404 (1971). Applying this principle, the majority of jurisdictions have upheld the validity of insurance provisions which confer on an insurer a right of subrogation against third-party tortfeasors for medical payments actually made to its insured.
We are not persuaded by Dairyland's argument that this type of subrogation clause constitutes an assignment of a cause of action for personal injuries. An insurer's subrogation to its insured's right of recovery against a tortfeasor is distinct from an assignment of a personal action. Subrogation involves the substitution of an insurer by operation of law to the rights of the insured because of the insurer's pre-existing duty to pay the insured for the loss. In contrast, an assignment involves a transfer of a legal claim from an injured party to a volunteer who was under no pre-existing duty to compensate the injured party. Moreover, under subrogation an insurer's recovery is limited to the amount paid to the insured, whereas there is no such limitation on an assignee's recovery. Thus, subrogation simply does not create the same risk of maintenance or champerty as does assignment. See, DeCespedes v. Prudence Mutual Cas. Co., 193 So.2d 224 (Fla.App.1966).
In Alabama Farm Bureau Mut. Cas. Ins. Co. v. Anderson, 48 Ala.App. 172, 175, 263 So.2d 149, 152 (1972), the court noted that Illinois, Minnesota, New York, and Washington have held that "[m]edical payments subrogation merely impresses an equitable lien in favor of the insurer upon the proceeds of any recovery obtained by the insured from the tort-feasor to the extent of its payment." Michigan, Rhode Island, and Wisconsin have held that the right to medical pay subrogation is "based on contract; is not unfair or overreaching; and is accompanied by an appropriately reduced premium." Arkansas, the District of Columbia, Florida, New Jersey, North Carolina, Oregon, Pennsylvania, Tennessee, Utah, and West Virginia hold that a subrogation *146 provision such as the one involved in this case "merely provides for conventional subrogation and does not constitute an assignment."
We conclude that the policy provision was valid and binding on Henry.
The defendants Ammoura and Farmers make much the same arguments. Further, they argue that since the release bars any action by Henry, the plaintiff cannot recover against them. The defendants overlook the fact that the settlement with Henry was made with notice of the plaintiff's subrogation claim.
When the plaintiff paid the medical payments claim to Henry, the plaintiff acquired an interest in Henry's claim against Ammoura under the subrogation clause in its policy. Since Farmers had notice of the plaintiff's subrogation claim, it could not destroy the plaintiff's interest by a settlement with Henry alone. As we said in Beeder v. Fleer, 211 Neb. 294, 299, 318 N.W.2d 708, 711 (1982), a suit involving subrogation resulting from payment of a claim under collision coverage,
After receiving notice from USAA that the appellee's claim for property damage to her automobile had been assigned or subrogated to it, Allstate was under a legal obligation to make payment to USAA and not to the appellee even though the action was pending in the name of the appellee, for the reason that USAA was then the real owner of the property damage claim for damages to appellee's automobile by reason of its subrogated interest.
In Omaha & R.V.R. Co. v. Granite State Fire Ins. Co., 53 Neb. 514, 73 N.W.950 (1898), the insurance company paid $1,000 on a fire loss and took a partial assignment of the owner's cause of action against the railroad. The property owner, Erickson, then sued the railroad for the balance of his loss. After the railroad had settled that suit, the insurance company sued for the amount of the loss it had paid to the property owner, and recovered. In affirming the judgment the court said:
The railroad's answer in the Erickson suit was therefore good, and stated a valid defense; its abandonment of the defense and stipulation for judgment against it amounted then to a waiver of a good defense and a voluntary payment. Knowing, as it then knew, of the rights of the insurance company, it is not protected, by that voluntary payment of Erickson's claim, against a valid claim of the insurance company not included in that settlement. Its action was equivalent to express consent to a splitting of the cause of action, and it can claim no estoppel against the insurance company because it acted with full knowledge of its rights and of its intention to assert them.
Id. at 519-20, 73 N.W. at 951.
In Travelers Indemnity Co. v. Vaccari, 310 Minn. 97, 102-03, 245 N.W.2d 844, 847-48 (1976), the Minnesota Supreme Court held:
In the instant case, Travelers informed both Vaccari and Dairyland of its subrogation interest. Despite notice of this interest, Vaccari and Dairyland settled with Travelers' insured, Mrs. Whaling, without heed to Travelers' claim, and obtained a general release from her. Since, as a general rule, a subrogee is entitled to no greater rights than those which the subroger possesses, the question which then arises is whether the general release executed by Mrs. Whaling extinguished Travelers' subrogation claim.
While this court has previously indicated that "an insured may defeat the insurance company's rights of subrogation by * * * settling with the wrongdoer," we have never directly considered the issue of whether a settlement extinguishes an insurer's subrogation rights when that settlement is procured by a tortfeasor or his liability insurer after notice of the insurer's subrogation claim. The general rule in most jurisdictions is that when a tortfeasor or the tortfeasor's liability insurer, with notice of an insurer's subrogation claim, procures a general release by making a settlement with the insured, the release will not affect the insurer's right of subrogation. Vigilant *147 Ins. Co. v. Bowman, 128 Ga.App. 872, 198 S.E.2d 346 (1973); Transamerica Ins. Co. v. Barnes, 29 Utah 2d 101, 505 P.2d 783 (1972); Hospital Serv. Corp. of Rhode Island v. Pennsylvania Ins. Co., 101 R.I. 708, 227 A.2d 105 (1967). See, generally, Annotation, 92 A.L.R.2d 102. Such a settlement is deemed to be the equivalent of a fraud upon the insurer and thus can have no effect upon the insurer's subrogation rights.
To hold that such a settlement destroys an insurer's subrogation rights would have the practical effect of encouraging a tortfeasor or his liability insurer to disregard notice of an insurer's valid subrogation claim and attempt to procure a general release from the insured. We believe that the tortfeasor and his liability insurer have a duty to act in good faith under such circumstances. Therefore, we hold that where a tortfeasor and his liability insurer willfully disregard notice of the subrogation claim of the injured person's insurer and enter into a separate settlement with the injured person, such a settlement does not defeat his insurer's subrogation rights.
In Mutual Service v. American Family, 140 Wis.2d 555, 561, 410 N.W.2d 582, 584 (1987), an action to recover $2,000 paid under medical payments coverage, the court said:
It is clear from our past cases that an insurer who pays a claim on behalf of its insured, under a policy providing for subrogation, has a cause of action against the tortfeasor and the tortfeasor's insurer for its subrogated interest. See Associated Hospital Service v. Milwaukee Automobile Mutual Insurance Co., 33 Wis.2d 170, 147 N.W.2d 225 (1967). In such a situation, we have characterized the interests of the insurer and the insured as each owning separately a part of the claim against the tortfeasor. Heifetz v. Johnson, 61 Wis.2d 111, 120, 211 N.W.2d 834 (1973); Wilmot v. Racine County, 136 Wis.2d 57, 63-64, 400 N.W.2d 917 (1987).
Because an insured and insurer each own separately part of the claim against the tortfeasor, a settlement or recovery by the insured operates to satisfy only the part of the claim owned by the insured. Because only the part of the claim owned by the insured is satisfied, the part of the claim owned by the insurer remains unsatisfied and may be sued upon by the insurer. Thus, when a tortfeasor's insurer and the injured party enter into a settlement which neither involves the subrogated insurer as a party to the settlement nor provides for the payment of the subrogated insurer's subrogated interest, the tortfeasor fails to satisfy the part of the claim owned by the subrogated insurer.
See, also, Blue Cross v. Fireman's Fund, 140 Wis.2d 544, 411 N.W.2d 133 (1987); Georgia Highway Express Inc. v. United Parcel Service, Inc., 164 Ga.App. 674, 297 S.E.2d 497 (1982); Farm Bureau Mut. Ins. Co. v. Orr, 379 N.W.2d 596 (Minn.App. 1985); Gattorna v. American States Ins. Co., 122 Ill.App.3d 582, 78 Ill.Dec. 91, 461 N.E.2d 675 (1984).
In this case, Farmers and its insured, Ammoura, had notice of the plaintiff's subrogation claim. The settlement with Henry did not destroy the plaintiff's claim, and the judgment must be affirmed.
AFFIRMED.
FAHRNBRUCH, Justice, dissenting.
I respectfully dissent. In my opinion, subrogation clauses make medical pay coverage illusory. I would hold that subrogation clauses are unenforceable for the reason that they are against public policy.
In its opinion, the majority suggests that subrogation clauses are valid "based on contract" reasoning. The majority then upholds a medical pay subrogation clause on the theory that the insured has "bargained" for the clause, and therefore the courts should enforce it.
Realistically, there is no "bargaining" for a contract of insurance. As the U.S. Court of Appeals for the Eighth Circuit has stated:

*148 Insurance contracts are prime examples of "contracts of adhesion" where the customer is required to "adhere" to the standard contract form. Insurers, due to their greater bargaining position, should not be allowed to use this as a wholesale method for controlling applicable law. Consideration should be given all circumstances involved before placing much emphasis on formalistic ritual.
(Citations omitted.) American Service Mutual Insurance Company v. Bottum, 371 F.2d 6, 12 (8th Cir.1967).
In construing insurance contracts, courts must remember
it is also well settled that insurance contracts, as contracts of adhesion, are subject to careful judicial scrutiny to avoid injury to the public. In the consideration of adhesion contracts, the courts have a heightened responsibility to prevent the marketing of policies that provide unrealistic and inadequate coverage.

Any portion of an insurance contract which is violative of public policy is not enforceable.
(Emphasis supplied.) (Citations omitted.) Brown-Spaulding v. Intern. Surplus Lines, 254 Cal.Rptr. 192, 194 (Cal.App.3d 1988).
While a majority of jurisdictions permit insurance carriers to subrogate medical expenses, several jurisdictions have found subrogation clauses to be invalid. See, Harleysville Mutual Insurance Company v. Lea, 2 Ariz.App. 538, 410 P.2d 495 (1966); Travelers Indemnity Company v. Chumbley, 394 S.W.2d 418 (Mo.App.1965); Allstate Ins. Co. v. Druke, 118 Ariz. 301, 576 P.2d 489 (1978); Maxwell v. Allstate Ins. Companies, 102 Nev. 502, 728 P.2d 812 (1986); Allstate Ins. Co. v. Reitler, 628 P.2d 667 (Mont.1981); Wrightsman v. Hardware Dealers Mutual Fire Insurance Company, 113 Ga.App. 306, 147 S.E. 2d 860 (1966); Peller v. Liberty Mut. Fire Ins. Co., 220 Cal.App.2d 610, 34 Cal.Rptr. 41 (1963).
One reason a person buys insurance is to make certain that he is fully compensated for any injuries he receives. Where a medical pay clause in an automobile insurance policy requires that the insurer be reimbursed first from any money the insured receives by way of settlement or verdict from a tort-feasor, the insured may not be fully compensated for his medical expenses, let alone his injuries, pain, suffering, and loss of wages and earning capacity. This is in spite of the fact that there appears to be sufficient insurance to cover medical expenses and attorney fees.
In Nebraska, Neb.Rev.Stat. §§ 60-501 and 60-534 (Reissue 1988) requires liability insurance of only $25,000 for bodily injury or death of one person in one accident, or $50,000 for bodily injury or death of two or more persons in one accident. Assume, for the purpose of argument, that a nonnegligent injured person's automobile insurance policy includes medical coverage on the insured of $15,000. The insured incurs $31,675 in medical expenses and receives that $15,000 policy amount from his insurer. This nonnegligent person then obtains a verdict for $25,000 and collects that amount from the tort-feasor's insurer. The tort-feasor is otherwise judgment-proof. From the $25,000, the injured person must pay his own attorney $8,325 (one-third contingent fee) and must also reimburse his own insurance company $15,000, leaving him with $1,675. Add back the $15,000 the insured received from his own medical pay policy, and the insured nets $16,675. When that amount is deducted from the amount of medical expenses, the insured still owes $15,000 in medical bills. Even if the medical pay insurer paid its share of the attorney fee involved, the insured would still owe $10,000. If we would hold that the reimbursement clause in the insured's medical pay policy is void, the injured insured would net $31,675 and would at least be fully compensated for his medical expenses. As the law now stands, the injured person gains nothing from his medical pay policy, even though he has paid premiums for what could be several years.
Another policy consideration exists for holding a reimbursement clause in a medical pay case invalid. In jury-tried or even *149 bench-tried cases, the trier of fact must determine (1) whether the medical expenses specially pleaded are necessary and (2) if the charges therefore are reasonable. Perhaps the jury decides that some of the medical services provided were not necessary or the cost of them is unreasonable. The jury returns a general verdict. Without an additional lawsuit, how will it be determined what amount the medical pay insurer should be paid from the general verdict? Should the tort-feasor's insurance carrier have to litigate which portion of the general verdict should be paid to the medical pay carrier? No, the tort-feasor's insurance carrier simply claims that it is a stakeholder and pays the amount of the verdict into the court. If the tort-feasor settles with the plaintiff, it does so at its own peril if we hold the reimbursement clause to be valid. The medical pay insurer can hold up the settlement, and we still have a lawsuit. See Hamilton v. Farmers Insurance, 107 Wash.2d 721, 733 P.2d 213 (1987). Hamilton is an underinsured case, but it dramatically reflects how a settlement can be undermined by an injured party's own insurance company. The Washington court did not permit that to happen in Hamilton.
Subrogation clauses make medical pay clauses illusory. The policy owner receives nothing for paying a separate premium for medical expense coverage when a tort-feasor is liable for his damages.
Under the majority opinion adopted today, insurance companies are given the unbridled right to include subrogation clauses in their adhesion contracts of insurance. I fear that it will not be long before the same types of clauses are placed in other types of medical attendance and hospitalization policies.
Public policy requires that insurance companies deliver what has been paid for by the insured and that the insured receives more than illusory coverage.
WHITE and GRANT, JJ., join in this dissent.


234 F.2d 625
Sherwood LESTER, Libelant-Appellant,v.UNITED STATES of America, Respondent-Appellant, and MarineBasin Company, Respondent-Impleaded-Appellee.
No. 269, Docket 23867.
United States Court of Appeals Second Circuit.
Argued March 14, 1956.Decided June 4, 1956.

Louis Bloch, New York City (Edward J. Behrens, Gay & Behrens, New York City, of counsel), for libelant-appellant.
Warren E. Burger, Asst. Atty. Gen., Leonard P. Moore, U.S Atty., Brooklyn, N.Y., Paul A. Sweeney, Leavenworth Colby, John G. Laughlin, Attys., Dept. of Justice, Washington, D.C., for the United States, respondent-appellant.
William S. O'Connor, New York City, for respondent-impleaded-appellee.
Before FRANK, LUMBARD and WATERMAN, Circuit Judges.
WATERMAN, Circuit Judge.

1
Libelant, Sherwood Lester, instituted this proceeding in admiralty against the United States to recover damages for injuries sustained in a fall from the Q-100, a motor yacht owned and operated by the United States Army.  The jurisdiction of the district court rests on the Public Vessels Act, 46 U.S.C.A. § 781 et seq.

2
The accident occurred on July 15, 1947, at a time when the Q-100 was high and dry in the No. 2 dry dock of Marine Basin Co.  On that date the Q-100 was undergoing a general overhaul by Marine Basin preparatory to transfer from service in the New York harbor and adjacent waters to the Great Lakes for the use of the Commanding General and staff of the Fifth Army at Chicago, Illinois.  Libelant, who had had six years' experience working on drydocked vessels, was employed by Marine Basin as an assistant electrician.  On the morning of the day of the accident he boarded the vessel, went to the pilot house and started work on the running light panel.  To determine whether the vessel's running lights were operative, libelant left the pilot house, took three or four steps on the deck aft the pilot house (known as the 'trunk top'), lost his footing and fell overboard to the floor of the dry dock.  The weather was clear, and, as we shall see, the trial court found that the fall was not caused by the presence of oil, grease or other foreign substance on the trunk top.  Thus, libelant, for some unexplained reason fell from an unobstructed and virtually level canvas-covered surface across and past the main deck to the floor of the dry dock below.1  The fifteen-foot fall fractured both his legs, add as a result his left leg is permanently deformed.

3
The libel raised issues as to the negligence of government agents and as to the seaworthiness of the vessel.  The charges of negligence and unseaworthiness were denied by the United States in its answer, and it was affirmatively alleged that libelant's injuries were caused solely by his own negligence.  Pursuant to Admiralty Rule 56, 28 U.S.C.A., the United States petitioned to implead libelant's employer, Marine Basin Co., alleging, inter alia, that Marine Basin had contracted to indemnify and hold harmless the United States against all claims arising or resulting 'from the fault, negligence, wrongful act or omission' of Marine Basin or its employees.

4
Libelant had alleged that his fall from the trunk top roof aft the pilot house was caused by the presence of oil, grease, or other foreign substance.  The trial court found that libelant had failed to prove this charge: 'The libelant's evidence is devoid of demonstration of any oil, grease or other foreign substance which caused him to fall.'  No other causative explanation for the fall was advanced by libelant or found by the trial court.  The court found, however, that if a 24-inch guard rail had been installed on the main deck bulwark cap rail, as originally provided for in Specification 1.15 of the contract of overhaul, libelant could have grasped it as he fell and thus saved himself from the injurious consequences of his fall.  Exonerating libelant of all negligence, the court held that the failure of the United States to install the specified guard rail made the vessel unseaworthy, and awarded libelant $18,000.

5
With respect to the government's claim against Marine Basin for indemnity, the court found that the decision not to install the guard rail called for by Specification 1.15 was made by a government agent, nor by Marine Basin, and that Marine Basin had not been negligent in failing to provide a guard rail or in any other particular.  The court, holding that the contract of indemnity was inapplicable in the absence of negligence on the part of Marine Basin, therefore dismissed the impleading petition.

6
The libelant appeals from the decree on the ground that the recovery is inadequate; and the United States cross-appeals, asserting that the trial court erred in determining that libelant was not contributorily negligent, that the Q-100 was unseaworthy, and that Marine Basin was not obligated to indemnify the United States.  Since we hold, on the basis of the undisputed facts and the facts found by the trial court, that the Q-100 was not unseaworthy, it will be unnecessary for use to consider the questions relating to damages and indemnification.

7
The trial court's conclusion that the Q-100 was unseaworthy because of the absence of a guard rail extending above the bulwark on the main deck was based entirely on the following reasoning: (a) the inclusion of a specification in the contract of overhaul, calling for the installation by Marine Basin of a 24-inch brass guard rail on the main deck bulwark, established that such a guard rail was necessary in order to make the vessel seaworthy; and (b) the absence of such a rail on the day of the accident was due to failure of the United States to adhere to the contract specification and was causally connected to libelant's injuries, since 'the rail as contracted for in the quoted specification would have been available to libelant in the effort to save himself from going overside.'2  With the inferences of fact contained in (b) we have no quarrel, since we are mindful of the broad latitude accorded the trier of fact in determining facts and in drawing inferences as to a causal relation.3  Therefore, we accept the trial court's finding that the decision to abandon the installation of the specified guard rail was made by a government agent, and its causal inference that if the rail had been installed by the time of accident, libelant would have been able to grasp it as he fell from the trunk top above, thus saving himself from the serious consequences of his fall.  But we are unable to agree with the trial court's conclusion that the presence of a specification in an overhaul contract, calling for the installation of certain guard rails, was determinative of the question whether such rails were necessary in order to make the vessel reasonably fit for the purpose for which it was then being used.

8
*      *      *      *      *      *

9
The seaworthiness of a ship, her equipment and appurtenance is a relative concept, dependent in each instance upon the circumstances in which its fitness is drawn in question.  Thus in this case the crucial consideration is whether, in view of all the circumstances attending libelant's fall and the status of the Q-100 at the time, the Q-100 was, in all respects pertinent to the injury, reasonably fit to permit libelant to perform his task aboard the ship with reasonable safety.

10
The trial court erred in disregarding these considerations.  It stated that Specification 1.15 in the overhaul contract between the United States and Marine Basin, calling for the installation of a hand rail, constituted a 'recognition by the Government of the necessity of this element of protection to those on board the vessel, * * *'-- in effect treating the inclusion of this specification as an admission by the United States that the vessel was unseaworthy without such a rail.  We think it likely that the installation of a guard rail was desired because the United States Army thought such an improvement would be useful or necessary for the anticipated service of the Q-100 on the Great Lakes; but it is unnecessary to engage in conjecture concerning what the United States had in mind.  Regardless of the possible past or future unseaworthiness of the Q-100 while in active service in the New York harbor or on the Great Lakes, because of its lack of main deck guard rails, the question involved in this case was whether the Q-100 was unseaworthy, because of the lack of such guard rails, as to those on board the vessel when she was in dry dock undergoing repair.  Improvements undertaken by a shipowner do not constitute an implied admission that, without such improvement, the vessel is structurally defective and unseaworthy, particularly when the question involved is the unseaworthiness of the vessel while in dry dock and with respect to persons who, it is contemplated, will effect the improvement.

11
We do not think that the United States was under any obligation to provide the Q-100 with main deck guard railings against the remote possibility that an experienced dry dock worker such as libelant would fall from the trunk top roof some 18 to 24 inches above the main deck.  Admittedly the absence of such guard railings might constitute unseaworthiness for some of the purposes to which the vessel was to be put;4 but this does not mean that they were necessary to make the vessel seaworthy while it was motionless in a dry dock.  Although the doctrine of seaworthiness has been extended in recent years to shorebased employees such as libelant, who are injured while working on board a vessel in port,5 the measure of liability remains the same as that to seamen at sea: whether the vessel was reasonably fit for the purpose for which she was being used.6  In Hanrahan v. Pacific Transport Co., 2 Cir., 1919, 262 F. 951, certiorari denied 252 U.S. 579, 40 S.Ct. 345, 64 L.Ed. 726, we held that a ship which was in port and fast to a pier was not unseaworthy as to a crewman who had fallen overboard from an upper deck because it lacked hand rails: 'Seaworthiness is a relative term; a vessel may have that quality in part, and yet be wholly unfit for rough water, McLanahan v. Universal Insurance Etc.  Co., 1 Pet. 170, 7 L.Ed. 98; and to say that this ship was unseaworthy because she had no handrail up, while lying alongside a wharf discharging cargo, is merely untrue.'  262 F. at page 952.  See, also, Newport News Shipbuilding & Dry Cock Co. v. Watson, 4 Cir., 1927, 19 F.2d 832; Brick v. Long Island R. Co., 1927, 245 N.Y. 222, 157 N.E. 93.  We think these precedents are authoritative under the circumstances presented here.  The United States provided libelant with a motionless, unobstructed, and virtually level canvas-covered surface from which libelant, an experienced dry-dock worker, could observe whether the running lights were operative.  With the exercise of reasonable care, libelant could have performed this task in safety.

12
We would affirm the decree below if, by application of the proper criteria to the facts as found by the trial court, we were able to find a reasonable basis for a conclusion that the Q-100 was unseaworthy at the time of libelant's fall.  Likewise, we would remand for further findings of fact if any important factual issues had been left undetermined.  However, since it is our view that the facts found by the trial court demonstrate that the trunk top roof of the Q-100 was a reasonably fit place for libelant to perform his task aboard the ship with reasonable safety, the decision below must be reversed.7

13
Reversed and remanded for dismissal of the libel.

14
FRANK, Circuit Judge (dissenting).

15
The trial judge, who saw and heard the witnesses when they testified, found that libellant was not negligent.  This finding must be accepted by us since it is not 'clearly erroneous.'  I agree with my colleagues in accepting the trial judge's conclusion that the absence of the guard rail was causally related to the accident.  I disagree with my colleagues' conclusion that, in the circumstances, the Q-100 was nevertheless seaworthy.

16
The evidence shows that the overhaul contract, made before the accident, specifically called for a guard rail (but that for some reason it was never installed).  My colleagues hold that the judge mistakenly considered this provision of the contract as evidence that the absence of the rail rendered the vessel unseaworthy.  I would agree-- see Wigmore Evidence, Section 283-- if here there were a contract (or plan) to make an improvement after the accident.  But I think that, since the respondent, before the accident, had planned to make this improvement, the judge correctly gave this evidence much weight.

17
My colleagues also say that, even if the vessel without the rail would have been unseaworthy when at sea, the same is not true of the vessel when in dry dock.  This amounts to saying that the rail was essential for seaworthiness when and only when the vessel was in motion and in rough waters.  I cannot agree.  In Krey v. United States, 2 Cir., 123 F.2d 1008, we held the shipowner liable, on account of unseaworthiness, to a seaman injured when he slipped in a shower, despite the fact that the ship was in port.  That here libellant, without negligence, fell from the trunk top, and suffered serious injury from the resultant fall, and that the fall would not have occurred if there had been a rail, serve to show that the vessel was not safe even when motionless.  Nor are my colleagues correct in suggesting that libellant was engaged in the very repairs contemplated by the overhaul contract: He had nothing to do with the work of setting up a rail, for he was an electrical worker.

18
I consider easily distinguishable the cases on which my colleagues rely for their conclusion that the vessel was not unseaworthy.  In Newport News Shipbuilding & Dry Dock Co. v. Watson, 4 Cir., 1927, 19 F.2d 832, 833, the court pointed out that 'the launch in this case was employed in carrying heavy lines or hawsers about the shipyard, and it was equipped with a hand rail around its deck house and a coping around the outer deck a few inches high.  It can readily be seen that a hand railing around the outer deck would greatly interfere with the handling of the heavy lines sought to be carried.'  On the basis of these facts, the court said, 'Within the protected waters of the shipyard, where the launch plied (it did not go on protracted voyages or into rough water), it would seem that the lack of an outer guard rail did not render the launch unseaworthy or unfit for the service in which it was employed.'  In Brick v. Long Island R. Co., 245 N.Y. 222, 157 N.E. 93, 94, there was a guard rail sufficiently close to the point from which the seaman fell so that he could have grasped it, had he been careful: Cardozo, J. stated: 'A boat is not unseaworthy because there are spaces here and there where a seaman, if awkward or inattentive, may find it possible to fall.'  That is not this case.  Here the vessel had no guard rail at all along the main deck, and (to repeat) we must accept the finding that libellant was not negligent.  In Hanrahan v. Pacific Transport Co., 2 Cir., 262 F. 951, the court assumed that the plaintiff was injured by the negligence of the ship's officers in not replacing a guard rail that had been temporarily removed, but the court decided for the ship's owner on the sole basis of the rationale of Hedley v. Pinkney (1894), App.Cas. 222 and Olson v. Oregon Coal & Navigation Co., 9 Cir., 104 F. 574.  Those cases held that, when a ship's equipment is adequate but the equipment is not adequately used because of the negligence of the injured seaman's fellow servants, if the ship is thereby rendered unsafe, the owner is not liable.  We have rejected such rulings; Mollica v. Campania Sud Americana, 2 Cir., 202 F.2d 25; cf. Grillea v. United States, 2 Cir., 232 F.2d 919, on rehearing.

19
The general statements in the cases, on which my colleagues rely, related to facts different from those involved in the instant case.  See Wason v. Sanborn, 45 N.H. 169. 170: 'Whenever a fixed and certain rule can be established, it is immensely important that it should be.  But there is a large class of cases and of questions, where the circumstances admit of so numerous variations, that no rule can be framed comprehensive enough to reach them.  In such cases decisions must be made in the exercise of a sound judgment upon all the circumstances, and such decisions can furnish rules for new cases, only where the same circumstances occur, yet there is a constant striving to treat them as precedents, and to regard the expressions used by the courts in stating the grounds of their decisions, and which are true perhaps in regard to the case in hand, as universally true.'1

1
 A more complete statement of the undisputed facts concerning the Q-100 will help the reader to visualize the circumstances surrounding the libelant's fall.  The Q-100 has an overall length of approximately 60 feet with a beam of 14 feet 6 inches and a draft afloat of about 4 feet.  Her superstructure consists of a cabin extending forward from the cockpit at the stern to approximately 15 feet of the stem.  Above the cabin and roughly at midships is the pilot house, entry to which is had by port and starboard doors opening aft onto the roof of the cabin.  The roof of the cabin, or trunk top, is about 10 feet wide at the entrance to the pilot house and narrows to about 9 feet wide at the cockpit; it is a canvas-covered flush deck with a camber of about 3/4 of an inch.  The main deck consists of port and starboard lateral passageways, approximately 18 inches wide, between the cabin and the bulwarks.  The bulwarks extend about 14 inches above the main deck and are capped by a wooden rail 4 inches high.  The trunk top roof is 18 to 24 inches above the main deck; access to the trunk top roof from the main deck is facilitated by collapsible steps affixed to the port and starboard sides of the cabin.  When in service the trunk top roof of the Q-100 serves as a boat deck for a dinghy or skiff; it also houses the utility box containing propane gas bottles.  On the day of the accident these items of the ship's gear were not in position, and the davits were not in place

2
 In order to demonstrate the complete reliance of the trial court on the above reasoning, the following excerpts are quoted from its memorandum opinion (127 F.Supp. 414):
'Had (Specification 1.15 providing for the installation of main deck bulwark railing) been adhered to prior to July 15, it is reasonable to suppose that the libelant would not have fallen overside.  The very presence in the contract of the quoted specification constitutes such a recognition by the Government of the necessity for this element of protection to those on board the vessel, that there is little room for argument that a business guest properly present on the vessel was not one of those whose safety was within the contempation of the contracting parties.
'* * * the absence of the rail was no casual defect in the Q-100.  On the contrary the Government contracted to provided it, and for failure to adhere to that purpose, which was not an inadvertent oversight, it must respond to this libelant unless it appears from the testimony that the deficient condition was unrelated to Lester's fall.
'The cases relied upon the defeat libelant's cause have been examined * * *.  They all involve absence of a rail on a vessel under circumstances remote in fact from the evidence in this case.  None of course contains any such element as the contractual recognition by the vessel owner of the necessity for installing a rail, the absence of which was causally related to personal injury.
'The word 'necessity' is used because otherwise the quoted specification would not appear in the contract for overhaul. * * *  If the Q-100 had been deemed reasonably fit, etc., the Government would not have been at pains to contract to remedy an obvious deficiency. * * *'

3
 Schulz v. Pennsylvania R. Co., 350 U.S. 882, 76 S.Ct. 134, reversing our decision reported at 2 Cir., 222 F.2d 540; Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Tennant v. Peoria & P.U. Ry. Co., 1944, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520

4
 See Krey v. United States, 2 Cir., 1941, 123 F.2d 1008; Zinnel v. United States Shipping Board, 2 Cir., 1925, 10 F.2d 47

5
 Alaska S.S. Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798; Pope & Talbot, Inc., v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143; Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099

6
 See Boudoin v. Lykes Bros. S.S. Co., Inc., 1955, 348 U.S. 336, 338-340, 75 S.Ct. 382, 99 L.Ed. 354; Manhat v. United States, 2 Cir., 1955, 220 F.2d 143, 147-148; Freitas v. Pacific-Atlantic S.S. Co., 9 Cir., 1955, 218 F.2d 562, 564; Berti v. Compagnie De Navigation Cyprien Fabre, 2 Cir., 1954, 213 F.2d 397, 400; Ondato v. Standard Oil Co., 2 Cir., 1954, 210 F.2d 233-234

7
 Since we hold that the ship was not unseaworthy we do not reach the question of whether the trial court's finding that libelant was not negligent is clearly erroneous

1
 See also Chafee, Simpson and Maloney, Cases on Equity (1951) 1058-1059


903 F.2d 1068
UNITED STATES of America, Plaintiff-Appellant,v.Gary BARANEK, Defendant-Appellee.
No. 88-2088.
United States Court of Appeals,Sixth Circuit.
Argued Oct. 13, 1989.Decided May 24, 1990.

Stephen J. Markman, U.S. Atty.  (argued), Detroit, Mich., Michael Hluchaniuk, Asst. U.S. Atty., Bay City, Mich., Maureen H. Killion, Silvia Voreas, Dept. of Justice, Washington, D.C., for U.S.
Jerome E. Burns (argued), Saginaw, Mich., for Gary Baranek.
Before JONES and GUY, Circuit Judges;  and BERTELSMAN, District Judge.*
RALPH B. GUY, Jr., Circuit Judge.

1
This appeal presents the issue whether a conversation overheard on a telephone that is the subject of a Title III wiretap should be suppressed when, at the time of the interception, the telephone was inadvertently off the hook and not in use.  The district court concluded that the defendant's motion to suppress should be granted.  We disagree and reverse.

I.

2
On March 2, 1988, the district judge entered a Title III1 order authorizing the interception of wire communications over a telephone located at the residence of codefendant Patricia Borch.  During the course of surveillance, agents intercepted a call on March 30, 1988.  At the conclusion of this call, Borch neglected to replace the telephone properly, and the line stayed open.  Surveillance agents were aware of this situation because they heard the recorded warning and beeping that occurs when a telephone is left off the hook.  The telephone remained off the hook for two hours and fifteen minutes.  During this period, monitoring agents "spot-checked" the line and recorded approximately 50 minutes of conversation between Borch and Baranek while they were in Borch's kitchen.  Borch and Baranek were subsequently indicted along with 24 others in a 62-count indictment charging a variety of drug and other offenses.

3
Both Borch and Baranek subsequently filed motions to suppress this intercepted conversation and both motions were granted.2   Borch later pled guilty and the government now appeals the suppression order as it related to Baranek.

II.

4
Since the fact situation presented is obviously unique, it is not surprising that little case authority exists that is directly on point.  The district court, in deciding to suppress, primarily relied on the language of the wiretap statute itself:

5
In Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2520, Congress described a "wire communication" essentially as an "aural transfer ... between the point of origin and the point of reception...."  18 U.S.C. Sec. 2510(1).  An "aural transfer," in turn, is defined as "a transfer containing the human voice at any point between and including the point of origin and the point of reception."    Id. Sec. 2510(18).  Defendant Borch's comments, whether inculpatory or not, clearly "contain the human voice."    See id.    What is not clear, however, is whether the case at bar falls within the requirement of a "transfer ... between the point of origin and the point of reception."    Id. Sec. 2510(1);  see also id. Sec. 2510(18).

6
United States v. Borch, 695 F.Supp. 898, 900 (E.D.Mich.1988) (footnote omitted).  The district judge answered the "transfer" question in the negative and concluded that "the non-telephonic statements of Defendant Borch ... are not 'wire communications' within the statutory framework underlying the Court's authorization order."    Id. at 901-02.    The court then went on to conclude that suppression was required due to the fact that the "interception was not made in conformity with the order of authorization or approval."    18 U.S.C. Sec. 2518(10)(a)(iii).  The district judge also concluded that suppression was mandated by our earlier holding in United States v. George, 465 F.2d 772 (6th Cir.1972) ("[W]iretap evidence secured without regard to the limitation set forth in the authorization order is inadmissible.").

7
The government makes three arguments on appeal in support of its contention that the district court erred.  First, the government contends without much elaboration that the interception was not in violation of the Title III order.  The government concedes, however, that an "oral" communication was intercepted under an order authorizing "wire" interception.

8
Second, the government argues forcefully that even if the interception was technically not "in conformity with the order of authorization," that suppression was not mandated.  In support of this argument, the government stresses the good faith and lack of any wrongful conduct on the part of the surveillance agents, as well as arguing that the district court's heavy reliance on George is misplaced.

9
Third, the government makes a "plain view" argument seeking to carve out by analogy a "plain hearing" exception to the exclusionary provisions of the statute.

10
The defendant, on appeal, essentially relies upon the district court opinion and makes no effort to enlarge upon its reasoning.

III.

11
Before undertaking an analysis of the issues involved, we first note that we are dealing with a highly unusual fact situation which, although capable of repetition, is likely to be a very rare occurrence.  Also, since the circumstances involved are wholly fortuitous, we will not impact or shape future conduct because the government was a wholly passive beneficiary of what happened here.  This is not to suggest that the privacy interests involved somehow become insignificant in this setting but, rather, that whatever we decide in this case will have something less than global impact.3   The entire procedure authorizing the government to intercept wire and oral communications is a creature of statute and perhaps the ultimate solution to the problem presented here will come from Congress.  In the meantime, it falls to us to address the issue.

12
Although we find some merit to all three arguments made by the government as to why suppression is not required,4 we choose to base our holding on the government's "plain view" theory.5   We have several reasons for doing so.  First, although Baranek was quite clearly involved in illegal drug activities, he was the victim of a fortuitous overhearing under circumstances in which he certainly had a subjective expectation of privacy.  When one calls another on the telephone, it is with the explicit knowledge that the other party could allow someone to listen to the call or even record it.  Thus, one takes a calculated risk each time one makes a telephone call.  That cannot be said about a face-to-face communication involving criminal activities made in the privacy of the kitchen of one of the speakers.  Although the government could have sought authorization to plant a listening device in Borch's home rather than to intercept her telephone calls, it did not do so.  The government had probable cause for the telephone intercept;  it may or may not have had probable cause to justify placing a "bug" in the house, which would involve more intrusive procedures.  What constitutes probable cause for one does not necessarily constitute probable cause for the other.  Therefore, when the telephone turns into a "bug," the government is given an advantage not specifically authorized or anticipated by the issuing judicial officer.  More significantly, those on the premises are exposed to a "risk" beyond that contemplated by the authorization, and this, it seems to us, is the problem in trying to squeeze what happened here into the ambit of the authorization.

13
The plain view doctrine, on the other hand, is designed to deal with "inadvertence."    Indeed, an inadvertent discovery is the cornerstone of the entire doctrine.  In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 reh'g denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), the Supreme Court laid down the guiding principles for the application of the plain view doctrine.  The Court in the later case of Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), summarized these principles:

14
First, the police officer must lawfully make an "initial intrusion" or otherwise properly be in a position from which he can view a particular area.  Second, the officer must discover incriminating evidence "inadvertently," which is to say, he may not "know in advance the location of [certain] evidence and intend to seize it," relying on the plain-view doctrine only as a pretext.  Finally, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure.

15
Id. at 737, 103 S.Ct. at 1540-41 (citations omitted) (quoting Coolidge, 403 U.S. at 465-70, 91 S.Ct. at 2037-40).

16
It would seem that what occurred here fits within the rationale as well as the literal language of the Coolidge requirements.  First, there was a properly issued authorization order which clearly makes the "initial intrusion" lawful.  In point of fact, the procedures and safeguards involved in securing a Title III authorization for a wire communications interception exceed those involved in the typical search warrant issuance.

17
Second, the fact that the telephone was left off the hook was certainly inadvertent.  By no stretch of the imagination would the government have contemplated ever securing evidence in the manner that occurred here.

18
Third, it was immediately apparent to the officers that they were hearing evidence related to a crime.  The defendant has not suggested any reason why inadvertent hearing should be on a different constitutional footing than inadvertent viewing, and we can think of none.  Indeed, what occurred here was much closer to being a discovery within the ambit of the "warrant" than the typical inadvertent discovery made in the course of executing a search warrant.

19
Baranek lays claim (in a constitutional sense only) to being an "innocent" victim and not the subject of the surveillance.  This is only partially true, since he is no more "innocent" than anyone who would have called Borch and been picked up on the tape.  Additionally, there is no principled reason for distinguishing this situation from the many other scenarios that can be envisioned under the plain view doctrine.  If, for example, a search warrant seeking stolen proceeds was being executed at the home of a friend of a suspected bank robber, and the officers found the homeowner in possession of unrelated contraband, the plain view doctrine would apply.  Certainly this hypothetical homeowner has a better claim to being a victim of circumstances than does the defendant here.  Of course, neither has any legitimate claim to being a victim at all.  As the Court stated in Coolidge, "As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement."    403 U.S. at 467, 91 S.Ct. at 2039.

20
There is no doubt the government got a lucky break of sorts here and stumbled across the evidence involving Baranek.  There is nothing in the fourth amendment or Title III, however, that demands that law enforcement and the public should lose the right to use this evidence.  Although we concede that where Title III provides greater protection than the fourth amendment a defendant is entitled to the enhanced protection, we do not accept defendant's contention that fourth amendment law is not involved in the resolution of Title III suppression issues.  The Supreme Court has indicated to the contrary:

21
Any lingering doubt is dispelled by the legislative history which, as we have recognized before in another context, declares that Sec. 2515 was not intended "generally to press the scope of the suppression role beyond present search and seizure law."    S.Rep. No. 1097, 90th Cong., 2d Sess., 96 (1968).  See Alderman v. United States, 394 U.S. 165, 175-176 [89 S.Ct. 961, 967-68, 22 L.Ed.2d 176] (1969).

22
Scott v. United States, 436 U.S. 128, 139, 98 S.Ct. 1717, 1724, 56 L.Ed.2d 168 reh'g denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978) (footnote omitted).  Where, as here, we have a case with a factual situation clearly not contemplated by the statute, we find it helpful on the suppression issue (as opposed to the question of whether there was a violation of the authorization order) to look to fourth amendment law.  We note in that regard that government agents are charged with no wrongdoing and that to suppress here would have no impact on the future conduct of law enforcement officials.  In the usual fourth amendment calculus, these are factors that counsel against the necessity of suppression.

23
The decision of the district court granting the defendant's motion to suppress is REVERSED and the case is REMANDED for further proceedings.

24
NATHANIEL R. JONES, Circuit Judge, dissenting.

25
I believe that Title III should be narrowly construed, and that the district court correctly determined that under George suppression was required because the interception was not made in conformity with the authorization.  Therefore, I respectfully dissent.

26
The majority takes an unprecedented leap by extending the plain view exception to include plain hearing under Title III.  The majority can cite to no authority for such an extension.  Moreover, the majority argues that the instant case fits within the Coolidge rationale because there was a properly issued authorization which clearly makes the initial intrusion lawful, and because the agents "inadvertently" overheard Baranek talking to his mother, and inadvertence is at the heart of the plain view exception.  In United States v. Couser, 732 F.2d 1207, 1208-10 (4th Cir.1984), the Fourth Circuit held that suppression was not required for the interception by Government agents of comments made by the defendant to persons in the background while he was conversing on the telephone.  The court impliedly recognized a diminished privacy interest because all of the background conversations intercepted were statements made by an individual with a telephone receiver at his ear.  Id. at 1209.    The court characterized these interceptions as arguably "technical" violations of the authorization order and refused to suppress.  However, the Couser Court did not rely on the plain hearing analogy adopted by the majority today, stating:

27
[W]hether the "plain view" doctrine itself is an exception to the statutory requirements relating to wiretaps, and if so, to what extent, poses a question which need not be reached in the instant case, in view of our conclusion that if the wiretap order in this case does not cover any of the background conversations, it is not the type of statutory violation requiring suppression.

28
Id. at 1210.

29
While it is clear that the agents initially inadvertently overheard Baranek talking to his mother, the conversation lasted for over two hours and the agents managed to record approximately 50 minutes of conversation during spot checks.  At some point this begins to seem less than inadvertent.  Furthermore, I do not believe the initial intrusion was lawful under the authorization order as the majority states because the agents immediately knew they were not listening to a "wire communication" and thus were aware they were operating outside the scope of the authorization.

30
The majority concedes that Baranek had a "subjective expectation of privacy" in a face-to-face conversation with his mother which took place in her home.  The majority also acknowledges that there may or may not have been probable cause to place a "bug" in her home, and that the inadvertent failure of the defendants to properly hang up the telephone in effect operated as a "bug".  Yet, today's decision could mean that if Government agents get lucky breaks and manage, through faulty telephone wiring or overly sensitive electronic surveillance equipment, to hear private face-to-face conversations inside individual homes, courts would not be required to suppress such conversations even though no warrant to search the home or place a "bug" inside had been secured.

*
 Honorable William O. Bertelsman, United States District Court for the Eastern District of Kentucky, sitting by designation

1
 Title III of the Omnibus Crime Control and Safe Streets Act of 1968 governs the use of wiretaps to intercept oral communications

2
 The district court opinion is reported at 695 F.Supp. 898 (E.D.Mich.1988)

3
 We have no idea, for example, if the government needs this evidence to have a viable case against Baranek or whether its primary interest is in the pure legal issues involved

4
 We find, specifically, that the district court read George too broadly.  We believe that George is a decision limited to its facts.  In George the surveillance agents, by their own conduct, violated the express limitations of the Title III order.  In fact, they had never even seen a copy of the order.  Here, the agents did not violate a specific limitation placed within the authorization.  We are not prepared to hold, as did the district judge, that any departure from the order of authorization will result, ipso facto, in suppression

5
 On appeal, the government has elaborated to a considerable degree on the "plain view" argument it made in the district court.  The district court opinion deals with the "plain view" argument only in a footnote


                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 26 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

CHRIS VASQUEZ; ELIZARIO PEREZ,                   No. 13-55112

              Plaintiffs - Appellants,           D.C. No. 2:11-cv-03849-PSG-PJW

  v.
                                                 MEMORANDUM*
COUNTY OF LOS ANGELES; LEROY
BACA, in his individual capacity;
ALFONSO ANDRADE, individual
capacity; JEFFREY RIVERA, individual
capacity; JASON SNYDER, individual
capacity; HERNAN NOEL DELGADO;
JUAN NAVARRO; JOSEPH
GONZALEZ; MAURICIO RODRIGUEZ,

              Defendants - Appellees.

                   Appeal from the United States District Court
                       for the Central District of California
                   Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted February 10, 2015
                              Pasadena, California

Before: KOZINSKI, CHRISTEN, and HURWITZ, Circuit Judges.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Chris Vasquez and Elizario Perez sued several fellow Los Angeles County

Sheriff’s Department deputies, the County of Los Angeles, and the Sheriff of Los

Angeles County, asserting claims under 42 U.S.C. § 1983 and state law. Vasquez

and Perez appeal the summary judgments entered by the district court in favor of

the defendants and the denial of a motion to alter the judgment pursuant to Federal

Rule of Civil Procedure 59(e). We have jurisdiction under 28 U.S.C. § 1291, and

affirm in part, vacate in part, and remand in part.

       1. A plaintiff asserting a § 1983 claim has the burden of proving that a

constitutional deprivation was “committed by a person acting under color of state

law.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). The plaintiffs

failed to provide evidence that the individual deputies acted under color of state

law during an altercation at a holiday party at a private restaurant. Nor is there

evidence that the County placed the plaintiffs in affirmative danger. See Huffman

v. Cnty. of Los Angeles, 147 F.3d 1054, 1059–61 (9th Cir. 1998). Thus, the district

court properly granted summary judgment with respect to the § 1983 claims

against the deputies, the County of Los Angeles, and Sheriff Leroy Baca. Because

an excessive force claim under the Bane Act, Cal. Civ. Code § 52.1, also requires

state action, see Jones v. Kmart Corp., 949 P.2d 941, 943 (Cal. 1998), that claim

fails as well.

                                           2
      2. The district court also did not err in granting summary judgment with

respect to the assault and battery claim against the County. If the defendant

deputies acted within the scope of their employment during the altercation,

workers’ compensation is the plaintiffs’ exclusive remedy. See Fretland v. Cnty.

of Humboldt, 82 Cal. Rptr. 2d 359, 364–66 (Ct. App. 1999).

      3. The district court granted summary judgment on Vasquez’s California

Labor Code § 1102.5 whistleblower retaliation claim for failure to exhaust

administrative remedies. In light of California Labor Code § 244(a), which the

County suggests may have eliminated the requirement for exhaustion, we vacate

the summary judgment on this claim and remand to the district court to consider in

the first instance the effect, if any, of the statute on the § 1102.5 claim. On

remand, the district court may also consider the alternative grounds offered by the

County for dismissal of this claim.

      4. Denial of a Federal Rule of Civil Procedure 59(e) motion is reviewed for

abuse of discretion. Int’l Rehabilitative Scis. Inc. v. Sebelius, 688 F.3d 994, 1000

(9th Cir. 2012). The plaintiffs’ motion was based on a report about jail violence.

The district court did not abuse its discretion in finding that the report contained no

evidence about whether the defendant deputies acted under color of law during the

altercation.

                                           3
AFFIRMED IN PART, VACATED IN PART, REMANDED IN PART.

Costs to Appellees.

                       4


                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 06 2012

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

                            FOR THE NINTH CIRCUIT

GARY DONALD HANNEMAN,                            No. 10-15835

              Petitioner - Appellant,            D.C. No. 3:05-cv-00284-ECR-
                                                 VPC
  v.

ATTORNEY GENERAL OF THE STATE                    MEMORANDUM *
OF NEVADA and ROBERT LEGRAND,
Warden,

              Respondents - Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                 Edward C. Reed, Senior District Judge, Presiding

                     Argued and Submitted November 6, 2012
                            San Francisco, California

Before: FARRIS, FERNANDEZ, and BYBEE, Circuit Judges.

       We are familiar with the record. We do not ignore Hanneman’s arguments

nor do we ignore the sentence now faced by Hanneman. Our charge, though, is to

resolve the legal questions presented.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Hanneman made a confession that justified his conviction and his conviction

justified his sentence. He argues that he was in custody at the time and that he was

not given his Miranda warnings.

      The record provides a detailed analysis of the circumstances surrounding his

interview. We consider whether a reasonable person, under the totality of the

circumstances, would have felt free to end the interrogation and leave. Howes v.

Fields, 132 S. Ct. 1181, 1189 (2012).

      Hanneman voluntarily agreed to the interview, drove his own vehicle to the

site, was not restrained, and was told that he was not under arrest and could leave

at any time.

      The state court applied the totality of the circumstances test and took into

account “the age of the accused, education and intelligence level of the accused,

police advisement of the accused’s constitutional rights, length of detention, nature

of questioning, and use of any physical punishment.” The court ultimately

concluded that Hanneman was not in custody at the time of his pre-Miranda

confession and that this confession was not coerced, determining that he was

“coherent, well educated, . . . not under the influence of any substance affecting his

mental capacities . . . [, and] was also aware of his rights, having taken courses in

law and criminal justice at the University of Nevada.” Id. Hanneman fails to

                                           2
demonstrate that the state court unreasonably applied clearly established Federal

law. The court analyzed all of the circumstances surrounding Hanneman’s

interview and, based on its analysis, concluded that he was not in custody and his

confession was not coerced. Hanneman argues that the officers’ interviewing

tactics–including telling him that they would need to interview fewer children if he

confessed–and his ignorance about his constitutional rights mandate a finding that

his confession was coerced. Neither point is dispositive under the applicable

totality of the circumstances test. Hanneman has failed to meet the AEDPA’s rigid

standard for granting habeas relief: that “fairminded jurists could [not] disagree”

on what the outcome should have been. See Harrington v. Richter, 131 S. Ct. 770,

786 (2011). Similarly, the state courts could properly determine that the advice

Hanneman received while in custody sufficiently informed him of his rights for the

purpose of his second interview.

      Hanneman also fails to show that the state court unreasonably determined

the facts based on the record presented.

      Our inquiry is whether the state court’s decision was so flawed that

Hanneman is entitled to habeas relief. It was not. There was also no unreasonable

application of clearly established federal law.

      We must deny the request for relief.

                                           3
AFFIRMED.

            4