George Raymond Williams, M.D., Orthopaedic Surgery, a Professional Medical, LLC v. Bestcomp, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-478

GEORGE RAYMOND WILLIAMS, M.D., ORTHOPAEDIC SURGERY,
A PROFESSIONAL MEDICAL LLC, ET AL.

VERSUS

BESTCOMP, INC., ET AL.

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 09-C-5242-A
HONORABLE JAMES P. DOHERTY, JR., DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Thomas A. Filo
Cox, Cox, Filo, Camel & Wilson, LLC
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF/APPELLEE:
George Raymond Williams, M.D., Orthopedic Surgery,
A Professional Medical L.L.C.

Patrick C. Morrow
James P. Ryan
Morrow, Morrow, Ryan, Bassett & Haik
324 W. Landry Street
Opelousas, LA 70570
(337) 948-4483
COUNSEL FOR PLAINTIFF/APPELLEE:
George Raymond Williams, M.D., Orthopedic Surgery,
A Professional Medical L.L.C.

Stephen B. Murray, Sr.
Stephen B. Murray, Jr.
Arthur M. Murray
The Murray Law Firm
909 Poydras Street, Suite 2150
New Orleans, LA 70112
(504) 525-8100
COUNSEL FOR PLAINTIFF/APPELLEE:
George Raymond Williams, M.D., Orthopedic Surgery,
A Professional Medical L.L.C.

John S. Bradford
William B. Monk
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
One Lakeside Plaza, Fourth Floor
Lake Charles, LA 70601
(337) 436-9491
COUNSEL FOR PLAINTIFF/APPELLEE:
George Raymond Williams, M.D., Orthopedic Surgery,
A Professional Medical L.L.C.

George D. Fagan
Margaret F. Swetman
Anton L. Hasenkampf
Leake & Anderson. L.L.P.
1100 Poydras Street, Suite 1700
New Orleans, LA 70163
(504) 585-7500
COUNSEL FOR DEFENDANT/APPELLANT:
Chartis Specialty Insurance Company

Michael A. Balascio
Barrasso Usdin Kupperman
909 Poydras Street, 24th Fl
New Orleans, LA 70112
(504) 589-9700
COUNSEL FOR DEFENDANT/APPELLEE:
Darwin Select Insurance Company

Patrick A. McShane, T.A.
Carl E. Hellmers, III
Heather A. McArthur
Frilot LLC
1100 Poydras St., Suite 3700
New Orleans, LA 70163
(504) 599-8000
COUNSEL FOR DEFENDANT/APPELLANT:
Landmark American Insurance Company

Maureen O. Sullivan
Tabitha R. Durbin
Christie Noel
Jean Ann Billeaud
Lewis, Brisbois, Bisgaard & Smith, LLP
100 E. Vermilion, Suite 300
Lafayette, LA 70501
(337) 326-5777
COUNSEL FOR DEFENDANT/APPELLANT:
Illinois National Insurance Company
Westchester Surplus Lines Insurance Company

Christine Lipsey
Jamie D. Seymour
McGlinchey, Stafford, PLLC
301 Main St., 14th Fl
Baton Rouge, LA 70801
(225) 383-3683
COUNSEL FOR DEFENDANT/APPELLEE:
Cinga Health Management, Inc.

Marshall M. Redmon
Phelps, Dunbar
P. O. Box 4412
Baton Rouge, LA 70821-4412
(225) 346-0285
COUNSEL FOR DEFENDANT/APPELLEE:
Indian Harbor Insurance Company

Alex J. Peragine
Peragine & Lorio, LLC
527 E. Boston St., Suite 201
Covington, LA 70433
(985) 292-3500
COUNSEL FOR DEFENDANT/APPELLEE:
Cannon Cochran Management Services, Inc.

James M. White, III
Attorney at Law
P. O. Box 3939
Covington, LA 70434
(985) 778-7000
COUNSEL FOR DEFENDANT/APPELLEE:
CCMSI Holdings, Inc.

Angella H. Myers
Mark Christopher Carver
The Myers Law Group
1100 Poydras St., Ste 2520
New Orleans, LA 70163
(504) 252-9877
COUNSEL FOR DEFENDANT/APPELLEE:
Advantage Health Plans, Inc.
Joseph Bonsignore

Gerald A. Melchiode
Melchiode Marks King, LLC
639 Loyola Ave, Ste 2550
New Orleans, LA 70113
(504) 336-2880
COUNSEL FOR DEFENDANT/APPELLEE:
Hammerman & Gainer, Inc.

Gabriel J. Veninata
Hailey McNamara, Hall, Larmann & Papale, LLP
P. O. Box 8288
Metairie, LA 70011
(504) 836-6500
COUNSEL FOR DEFENDANT/APPELLEE:
Stratacare, LLC

David C. Bach
Attorney at Law
4871 Abelia Drive
Baton Rouge, LA 70808-1903
(225) 803-9661
COUNSEL FOR DEFENDANT/APPELLEE:
Stratacare, LLC

Pablo Gonzalez
Phelps, Dunbar, LLP
365 Canal St., Suite 2000
New Orleans, LA 70130-6534
(504) 566-1311
COUNSEL FOR DEFENDANT/APPELLEE:
Beazley Insurance Company

Ryan M. Goudelocke
Durio, McGoffin, Stagg
P. O. Box 51308
Lafayette, LA 70505-1308
(337) 233-0300
COUNSEL FOR DEFENDANT/APPELLEE:
Hammerman & Gainer, Inc.

Scott T. Winstead
Burleson, LLP
P. O. Box 131599
Spring, TX 77393-1599
COUNSEL FOR DEFENDANT/APPELLEE:
Rehab Review, Inc.

Elizabeth C. Austin
Brown Sims
600 Jefferson St., Suite 800
Lafayette, LA 70501
(337) 424-1240
COUNSEL FOR DEFENDANT/APPELLEE:
Bestcomp, Inc.

Joseph P. Landreneau
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
COUNSEL FOR DEFENDANTS/APPELLEES:
Dauterive, Women's and Children's Hospital
LRPHO

Thomas R. Juneau
The Juneau Firm
P.O. Drawer 51268
Lafayette, LA 70505-1268
(337) 269-0052
SPECIAL MASTER

GREMILLION, Judge.

Defendants/appellants, Chartis Specialty Insurance Company, Darwin Select

Insurance Company, Landmark American Insurance Company, Illinois Union

Insurance Company, and Westchester Surplus Lines Insurance Company, appeal the

class certification in this matter. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL POSTURE

The plaintiffs seeking class certification in this matter, George Raymond

Williams, M.D., Orthopedic Surgery, A Professional Medical L.L.C.; West Louisiana

Health Service, Inc., d/b/a Beauregard Memorial Hospital; Joe Wilson; and Wilson

Chiropractic Center, Inc., all allege that they represent healthcare providers who

rendered treatment to injured employees under the terms of the Louisiana Workers’

Compensation Act. These plaintiffs subscribed to preferred provider organization

(PPO) agreements with Bestcomp, Inc., which was allegedly insured by the defendant

insurers. Plaintiffs allege that Bestcomp discounted their billing in accordance with

the PPO agreements without the notice required by La.R.S. 40:2203.1. These

discounts were determined utilizing software developed by StrataCare, L.L.C. The

plaintiffs were appointed class representatives for purposes of settlement with

StrataCare. The defendants were sued under the Louisiana Direct Action Statute in

their capacities as the insurers of StrataCare.

The trial court heard the plaintiffs’ class certification motion on November 9,

2016. Putative class counsel and class representatives testified. Many exhibits were

offered and filed to support and oppose the motion. Among those exhibits was

Plaintiffs’ Exhibit 4, the corporate deposition of StrataCare, which included a data

disc containing information regarding recommended PPO discounts, presented as a

Microsoft Excel spreadsheet. It has been asserted by both sides that this disc contains

information that may be pertinent to the determination of issues of numerosity and

commonality. However, the defendants objected to the introduction of the disc and

maintain that it may not be properly considered by this court. The nature of the

defendants’ objection was that the data on the disc only showed the PPO discounts

StrataCare recommended and not how many were actually taken.1

The matter was taken under advisement, and, on February 13, 2017, the trial

court issued written reasons. The trial court determined that there were 49,988 claims

to be adjudicated, based upon the information on the disc. Because there was

evidence that no discount that StrataCare’s software recommended was not applied,

the defendants argued that additional evidence of an individual nature would be

required to adjudicate the claims. The trial court rejected this argument, as the

information was readily available and mostly could be gleaned from a relatively small

number of sources. The trial court further found that it would be impractical to join

all potential claimants, given the existence of 49,988 potential claims.

The trial court found that the issue of commonality was satisfied. The common

issue herein, according to the trial court, was whether Bestcomp improperly applied

PPO discounts in reimbursing the class members for treatment of workers’

compensation patients in failing to provide the notice required by La.R.S. 40:2203.1.

The issue, then, in the trial court’s eyes was the same as to all claimants.

The trial court found that there were no conflicting or antagonistic claims

between the class representatives and the other class members, rejecting the

defendants’ argument that the class representatives’ claims were disproportionate to

those of other class members. The defendants also pointed out that Dr. Wilson and

Wilson Chiropractic had already settled their claims. Because the measure of

damages was not in the specific amount of each discount, but rather lies in the

statutory damages imposed for a breach of La.R.S. 40:2203.1, the trial court reasoned,

the difference between claims by the class representatives and the class members did

not create conflicting or antagonistic claims. Citing federal jurisprudence, the trial
1
As the trial court noted, this objection really addresses the weight the data should be
afforded, not its admissibility, as will be discussed below.
2

court ruled that a proposed class representative is not disqualified by virtue of a

previous settlement. And, the trial court noted, these same proposed class

representatives had been appointed to represent the class in the settlement with

StrataCare and served in that capacity without objection or criticism. Accordingly,

the trial court found the class representatives capable of adequately representing the

class in this litigation.

The trial court found that the class was susceptible of being objectively

identified in ascertainable criteria. The StrataCare spreadsheet would serve as a

means of identifying the potential members without the necessity of inquiring into the

merits of each claimant’s claim.

Defendants contended that the StrataCare spreadsheet only indicated the

recommended discounts; thus, the inquiry into whether discounts were actually taken

should predominate over class issues. Further, defendants argued, certain claims

might be preempted by the Emergency Medical Treatment and Labor Act, 42 U.S.C.A.

§ 1395dd. Because this issue addressed the merits of the case, the trial court held that

it should not prevent certification of the class. While this might represent an

individualized issue, the trial court reasoned, it should not predominate over the

common issues of the class. Similarly, the trial court rejected the defendants’

contention that the issue of which class member received proper notification, how

they received it, and the amount of damages that might be owed to each class member

did not predominate over the common issues.

A judgment was signed on March 8, 2017, certifying the following class:

All medical providers who have provided services to workers’
compensation patients as contemplated in La. R.S. 23:1201, et seq., and
whose bills have been discounted after January 1, 2000 pursuant to a
preferred provider organization agreement, as defined in La. R.S.
40:2202, by and through Bestcomp, Inc. and Stratacare.

Defendants then lodged the present appeal. They assert the following assignments of

error:

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1. The District Court erred in failing to conduct a rigorous
analysis to determine whether Plaintiffs carried their burden of proof to
demonstrate that the requirements of Louisiana Code of Civil Procedure
article 591 have been met.

2. The District Court abused its discretion in certifying a class
where Plaintiffs failed to present the requisite admissible evidence that
the purported class claims are “capable of resolution on a class-wide
basis on common evidence.”

3. The District Court erred in finding that common issues
predominate when individualized inquiries will be required to determine
nearly every aspect of Plaintiffs’ claims, including whether any violation
occurred with respect to each and every recommended discount.

4. The District Court erred in determining that class
adjudication is the superior method of adjudication, despite the fact that
the majority of the purported class members have individual claims with
alleged values of at least $200,000 dollars in addition to their claims for
attorneys’ fees.

5. The District Court erred by appointing class representatives
whose claims are not typical of the purported class they seek to represent,
and who do not adequately represent the interests of the purported class
members.

6. The District Court erred in relying on an inadmissible,
unauthenticated, and incomplete summary submission, which was not
“evidence.”

ANALYSIS AND DISCUSSION

The statutory framework for conducting litigation as a class action is provided

in La.Code Civ.P. art. 591. Initially, the party seeking class certification must

establish that the matter meets five criteria:

(1) The class is so numerous that joinder of all members is impracticable
(numerosity);

(2) There are questions of law or fact common to the class (commonality);

(3) The claims or defenses of the representative parties are typical of the
claims or defenses of the class (typicality);

(4) The representative parties will fairly and adequately protect the interests
of the class (adequacy); and,

(5) The class is or may be defined objectively in terms of ascertainable
criteria, such that the court may determine the constituency of the class
for purposes of the conclusiveness of any judgment that may be rendered
in the case. This prerequisite shall not be satisfied if it is necessary for the

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court to inquire into the merits of each potential class member’s cause of
action to determine whether an individual falls within the defined class
(definability).

La.Code Civ.P. art. 591(A).

If all the above criteria are met, the proponent of class certification must then

prove one of four additional criteria:

(1) The prosecution of separate actions by or against individual
members of the class would create a risk of:

(a) Inconsistent or varying adjudications with respect to individual
members of the class which would establish incompatible standards of
conduct for the party opposing the class, or

(b) Adjudications with respect to individual members of the class
which would as a practical matter be dispositive of the interests of the
other members not parties to the adjudications or substantially impair or
impede their ability to protect their interests; or

(2) The party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with respect to
the class as a whole; or

(3) The court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other available
methods for the fair and efficient adjudication of the controversy. The
matters pertinent to these findings include:

(a) The interest of the members of the class in individually
controlling the prosecution or defense of separate actions;

(b) The extent and nature of any litigation concerning the
controversy already commenced by or against members of the class;

(c) The desirability or undesirability of concentrating the litigation
in the particular forum;

(d) The difficulties likely to be encountered in the management of
a class action;

(e) The practical ability of individual class members to pursue their
claims without class certification;

(f) The extent to which the relief plausibly demanded on behalf of
or against the class, including the vindication of such public policies or
legal rights as may be implicated, justifies the costs and burdens of class
litigation; or

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(4) The parties to a settlement request certification under
Subparagraph B(3) for purposes of settlement, even though the
requirements of Subparagraph B(3) might not otherwise be met.

La.Code Civ.P. art. 591(B). These criteria demonstrate the superiority of the class

action procedure over litigation involving each member of the proposed class.

In certifying a class, the trial court’s findings of fact are subject to review under

the manifest error standard. Gunderson v. F.A. Richard & Assocs., Inc., 07-331

(La.App. 3 Cir. 2/27/08), 977 So.2d 1128, writs denied, 08-1063, 08-1072 (La.

9/19/08), 992 So.2d 953. The decision to certify a class lies within the discretion of

the trial court, which should err in favor of maintaining the class action. Id. The

burden of proof lies with the party seeking to certify the class. Id. The party seeking

class certification must prove that the requirements of La.Code Civ.P. art. 591 are in

fact met; the statutory requirements are not formalities of pleading, and the rule that

favors maintaining a class action cannot substitute for actual proof and a rigorous

analysis of that proof. Price v. Martin, 11-853 (La. 12/6/11), 79 So.3d 960.

Essential to the trial court’s findings was the information contained on the data

disc. This disc revealed over 49,000 claims, upon which the trial court found “the

potential for 49,988 claims and the impracticality of joinder of the individual class

members satisfies the numerosity requirement.” Defendants argue that the disc was

never properly admitted into evidence, as it constitutes a summary, as defined in

La.Code Evid. art. 1006, and the underlying documents from which it was generated

were not admitted. Further, Defendants argue that the disc was never properly

authenticated.

Under La.Code Evid. art. 901(A), “The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims.” The article then describes examples, “[b]y way of illustration only,” of

authentication methods that satisfy its requirements. La.Code Evid. art. 901(B)

6

During the certification hearing, Dr. Williams’s office manager, his wife, Monica

Williams, testified about the process of billing and payment. Mrs. Williams compared

the information on the spreadsheet with Explanations of Benefits forms (EOBs) they

received from the compensation insurers. The EOBs always reflected that a

Bestcomp PPO discount was being applied to Dr. Williams’s bill. Mrs. Williams also

compared sample EOBs with the data on the spreadsheet and testified to the

consistency between the EOB data and the spreadsheet data.

Further, Plaintiffs offered the testimony of Ms. Stephanie Lilja, Fee Schedule

Compliance Analyst with StrataCare. The disc was offered without an objection as an

exhibit to that deposition, and Ms. Lilja reasonably authenticated a printout of data

from that disc and testified that she had examined “a majority” of the information on

the disc itself, and it appeared to reflect the Bestcomp discounts recommended by

StrataCare in Louisiana.

We are satisfied that the totality of the testimony regarding the disc sufficiently

demonstrates that it is what Plaintiffs purport it to be, a summary of charges submitted

to Bestcomp for which StrataCare recommended whether to apply PPO discounts and

the amounts of recommended PPO discounts.

But the disc does appear to meet the definition of a “summary” for purposes of

La.Code Evid. art. 1006. By its plain wording, the purpose of the rule is to provide a

practical means of presenting voluminous material to the finder of fact. When the

source documents originate from the opponent of the summary, the article’s

requirement that the proponent of the summary to make the originals or duplicates of

the source documents available to other parties “at a reasonable time and place” is

obviated. Id. Further, there was no evidence presented at the hearing that Defendants

had not been given an opportunity to examine the source documents. Accordingly,

we find that the trial court did not err in admitting, for purposes of the class

certification hearing, the data disc. Assignment of error number six lacks merit.

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We now turn to the effect of the data on the disc in the trial court’s decision to

certify the class. The trial court was impressed by the sheer number of potential

claims. The number of claims, though, is not the issue in determining numerosity; the

number of claimants is. See La.Code Civ.P. art. 591(A)(1). An examination of the

data reveals that there are 618 non-duplicate healthcare provider entries on the

spreadsheet. Of those 618 healthcare providers, 349 had their bills reduced pursuant

to PPO agreements. That means there are 349 potential claimants, and we find this

number easily satisfies the numerosity requirement of La.Code Civ.P. art. 591(A)(1).

Defendants also object to the certification of the class on the basis of a lack of

commonality. They argue that proving breaches of La.R.S. 40:2203.1 will require a

separate trial as to each alleged violation. In support of this contention, Defendants

cite Price, 79 So.3d 960.

In Price, suit was filed on behalf of a putative class against a manufacturer, and

its two successors in ownership, of creosote-treated railroad ties for soil, sediment,

groundwater, and building contamination over a sixty-six-year period. During this

extended period of time, the manufacturing facility changed ownership, and each

owner altered the activities at the plant such that, at unspecified times, the

contaminating activities varied. Only two of the three owners were sued. Testimony

was presented demonstrating that many of the chemicals by which the plaintiffs

alleged their properties were contaminated could have been emitted from sources

other than the defendants’ operation. Further complicating the case was the fact that

the legal standards governing the defendants’ potential liability changed during the

sixty-six-year period. Exemplary damages for the claims would only be available for

actions that occurred from 1984 through 1996, during which time La.Civ.Code art.

2315.3 was in effect. Also, the Clean Air Act, 42 U.S.C.A. §7401-7431, came into

effect during the time that the alleged contamination occurred, and it was amended in

1990; both of these federal legislative actions would affect the liability of the

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defendants. And, each defendant’s conduct would differ in time and in the legal

standards that would govern their actions. Thus, the supreme court held that the issue

of breach of duty could not be proven by common evidence.

Similarly, the plaintiffs were required to show that there was a causal

connection between specific emissions and the damage to their properties. They were

required to prove this using common evidence. The supreme court found that they

could not, because a number of factors beyond the defendants’ control—including the

actions of the plaintiffs themselves—would yield varying test results, thus casting

doubt on the facility as the source of the contaminants.

The facts of Price, 79 So.3d 960, are readily distinguished from those in the

present matter. Only the conduct of StrataCare is at issue in this case. Each member

of the class is alleged to have provided medical care for workers’ compensation

patients and had their bills discounted without notice pursuant to La.R.S. 40:2203.1.

On the other hand, the facts of the present case are similar to Gunderson, 977

So.2d 1128. Gunderson involved different defendants, but the allegations as to the

alleged misconduct were identical; PPO discounts were applied without notice to

discount the bills of health care providers who treated workers’ compensation patients.

The defendants interposed the same arguments in Gunderson as the present

defendants in this matter. 2 This court rejected each of them. The claims involve

liability that is imposed “solely in the failure to timely give notice.” Id. at 1138. The

imposition of penalties under La.R.S. 40:2203.1 in no way relies upon the amount of

the bill that was discounted. The possibility of inconsistent results and considerations

of judicial economy weighed greatly in favor of class treatment, as did the fact that

defending individual suits would prove far more expensive to defendants than class

treatment. The fact that some claimants’ demands are far larger than others’ was not

of great moment. The fact that Wilson Chiropractic had settled its demands is no

2
Defendants have raised one additional argument in this matter, which will be addressed.
9

more an impediment to his class representation as was a similar situation in

Gunderson.

Because the named class representatives “each have less than [sixty-five]

instances of alleged discounts, involving only one or a few patients,” as opposed to

other members of the putative class, for whom the “typical” claim exceeds

$200,000.00, Defendants argue that the class representatives lack the typicality to

adequately represent the class. The typicality “element determines whether a

sufficient relationship exists between the injury to the named plaintiff and the conduct

affecting the class, so that the court may properly attribute a collective nature to the

challenged conduct.” Baker v. PHC-Minden, L.P., 14-2243, p. 21 (La. 5/5/15), 167

So.3d 528, 543. Thus, “A plaintiff’s claim is typical if it arises out of the same event,

practice, or course of conduct giving rise to the claims of the other class members and

those claims arise from the same legal theory.” Id. In the present matter, while the

class representatives’ claims my not be as great as those of other members of the class,

they do arise from the same conduct and recovery is sought under the same legal

theory. The trial court did not manifestly err in finding this element of La.Code Civ.P.

art. 591 satisfied.

Defendants have raised an additional argument not addressed in Gunderson:

imposing a $2,000.00 penalty for each infraction may be constitutionally prohibited

given the relatively minor amounts of some of the discounts. In support of their

proposition, Defendants cite BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 116 S.Ct.

1589 (1996). The Gore case establishes several criteria a court must consider in

determining whether a punitive or exemplary damage award or a fine exceeds the

limits of the Due Process Clause: the scope of the state’s legitimate interest in

deterring certain conduct; whether there existed adequate notice that such conduct

would be penalized and the degree to which it would be penalized; “the degree of

reprehensibility” of the conduct; “the disparity between the harm or potential harm

10

suffered” as a result of the conduct and the penalty imposed; “and the difference

between this remedy and the civil penalties authorized or imposed in comparable

cases.” Id. at 575. We do not see that the resolution of this issue would require any

individualized inquiry, because the evidence proving a violation of the statute is

common to all claims. The state’s interest in deterring the conduct will be the same.

The degree of reprehensibility of the conduct will be the same. There is no difference

between the remedy imposed by La.R.S. 40:2203.1 in one case versus another. The

only inquiry of an even remotely individual nature is the disparity between the harm

or potential harm suffered and the penalty imposed, and we do not view this of a

sufficiently individual nature to warrant not handling this on a class-wide basis.

CONCLUSION

We cannot say the trial court manifestly erred in finding that the requisites for

class certification of La.Code Civ.P. art. 591 were met. We certainly cannot say the

trial court abused its discretion in certifying the class. The judgment of the trial court

certifying the class is affirmed. All costs of this appeal are taxed to

defendants/appellants, Chartis Specialty Insurance Company, Darwin Select Insurance

Company, Landmark American Insurance Company, Illinois Union Insurance

Company, and Westchester Surplus Lines Insurance Company

AFFIRMED.

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