Patricia M. Richardson has appealed a dismissal of her complaint against APAC-Mississippi, Inc. (APAC), on a summary judgment adjudication that one Berg McCandless, doing business as "B P Trucking Co.," was an independent contractor, and not an employee of APAC at the time of the accident over which this action arose. We affirm the summary judgment dismissal on the
ground that McCandless was an independent contractor.
The circuit court did not rule upon a late filed motion of Richardson to amend her complaint to allege a separate ground of liability, and we remand for the court to rule on this motion.
FACTS
Around 10:30 a.m., April 18, 1989, Richardson was emerging on a green light from a parking lot at the intersection of an extension of 18th Avenue North and Highway 45 North, in Columbus, when her vehicle was struck on the left side by a truck driven by Berg (also "Orlanda") McCandless, causing injury to Richardson, including broken bones, a collapsed lung, and various scrapes and bruises.
Richardson filed suit against APAC-Mississippi, Inc. (APAC), on April 28, 1990, in the Circuit Court of Lowndes County, charging APAC with negligence, based solely on the theory of respondeatsuperior. Richardson alleged McCandless was APAC's employee and, as a result, APAC was liable for his negligent acts. She charged McCandless failed to keep a proper lookout, ran a red light, failed to timely apply his brakes, and was speeding.
Richardson alleged, because of her injuries from the accident, she was totally and permanently disabled. She asked for one million dollars ($1,000,000.00) in damages from APAC.
APAC filed its answer on May 25, 1990. Under its third defense, APAC affirmatively alleged that McCandless was not its agent, servant, or employee at any time, although APAC did do business with an independent contractor named Berg McCandless, d/b/a B P Trucking. APAC said it did not know if Berg McCandless and Orlanda McCandless were one and the same. APAC contended it was in no way liable to Richardson for any negligent acts of either Orlanda or Berg McCandless.
On June 25, 1990, APAC filed a motion for summary judgment on the ground McCandless was not its servant, agent, or employee, and that it could not be liable under respondeat superior for his negligence. APAC supported its motion with a brief, copies of the complaint and answer, the affidavit of Max Watson, and a copy of the contract between APAC and Berg McCandless d/b/a B P Trucking.
Watson's affidavit stated he was APAC's safety director and had personal knowledge of the facts set forth in the affidavit. He stated APAC's business was highway construction and APAC produced its own asphalt for its construction projects. He said APAC had never had an employee named Orlanda McCandless, although APAC had a subcontract with Berg McCandless, d/b/a B P Trucking. Berg McCandless was not, nor had ever been, an employee of APAC, Watson stated; and B P was an independent contractor who hauled raw materials to APAC's asphalt plant.
Watson further asserted that the vehicle involved in the accident with Richardson was owned by Berg McCandless, not APAC; McCandless was solely responsible for its upkeep and maintenance, insurance, and operating expenses, and APAC exercised no control over where McCandless obtained his materials, supplies, or equipment for his hauling business, nor the prices he paid for those items. APAC provided no financing for any aspect of McCandless's operation, and did not pay him for mileage.
The affidavit continued that McCandless was solely responsible for hiring his own employees, for whom he paid social security and unemployment taxes as well as withholding their income taxes. McCandless was required by the terms of B P's contract with APAC to furnish his own liability insurance and workers' compensation coverage for his employees. APAC paid no insurance or other benefit for any employee of B P Trucking and, in fact, did not know whether or not McCandless had any other employees.
Watson's affidavit further set forth that APAC merely notified B P where and when any hauling work was available, and B P could choose whether to work or not. APAC did not control how many loads McCandless hauled per day, or how many hours or days he would work. McCandless
chose his own times to work, and also chose his own routes and methods to complete the job, with no instruction whatsoever from APAC. McCandless held B P Trucking out to the public as an independent trucking company, available for public hire. Watson finally stated that McCandless worked for APAC only on an intermittent basis, also working for other companies during the same time period.
Four days later, on June 29, 1990, APAC supplemented its motion with the affidavit of Berg McCandless. McCandless stated that he was the Orlanda McCandless involved in the accident with Richardson and, thus, had personal knowledge of the facts in his affidavit. He said he was a public hauler doing business as B P Trucking on April 18, 1989, when the accident occurred. He further stated that he, and not APAC, owned the truck involved. He said he was hauling raw materials to APAC's asphalt plant on the date of the accident as an independent contractor and was not and had never been an employee of APAC.
He confirmed Watson's statements that he alone was responsible for his truck insurance, upkeep, and operating expenses. He said APAC furnished nothing, such as supplies, equipment, or materials, for his business. Where to purchase his supplies or how much to pay for them were at his discretion, and he said APAC provided no financing of his operations, not even mileage. McCandless stated APAC paid him solely on the basis of the amount he hauled and, if he did not work, he was not paid. APAC retained no control over his working hours, how many loads he hauled, what routes he took, or how many days he worked. He decided all such matters himself.
McCandless stated he held himself out as a public hauler, available for hire by anyone wanting to engage his services. He further supported APAC's allegation that it did not provide personnel to B P, or insurance for any of B P's employees. McCandless said he hired his own people, paid their workers' compensation and unemployment insurance, withheld their taxes, paid social security for those employees, and provided any other benefits.
On July 10, 1990, the circuit judge entered an order setting APAC's motion for summary judgment for hearing on July 31, 1990. A motion for a continuance was filed on July 12, 1990, and another order was entered on August 27, 1990, re-setting hearing for APAC's motion for summary judgment on Friday, September 7, 1990.
Counsel for Richardson, on September 6, 1990, filed an objection to the date of hearing, alleging no notice prior to the setting, and cited prior commitments for September 7, 1990. A subsequent order was entered setting the hearing on APAC's summary judgment motion for 1:30 p.m., September 12, 1990.
At the hearing, Richardson presented a brief in opposition to APAC's motion for summary judgment, as well as three affidavits. Although all three affidavits were dated September 6, 1990, none had been filed with the court nor given to opposing counsel until the hearing on the afternoon of September 12.
First, Richardson presented the affidavit of Bobby Bluitt, a policeman for the City of Columbus, who investigated the accident involving Richardson and McCandless. Bluitt stated McCandless admitted he was at fault and told him "APAC had overloaded him" on the day of the accident. Bluitt further said he had seen APAC's loading area before and "[t]rucks were being loaded by APAC and the truck drivers themselves do not load the trucks. . . ."
An affidavit of Mary Beth Vickers, secretary for Joe O. Sams, Jr., counsel for Richardson, stated she listened to a telephone conversation between Sams and McCandless sometime during December, 1989, at Sams's request. She said McCandless stated he worked for APAC, he went to work when APAC told him to, he left with the rest of APAC's employees, he hauled whatever APAC told him to, he hauled it wherever they told him to take it, and he worked only for APAC. Vickers said McCandless also admitted his fault and said "APAC had overloaded him and that because of the heavy load he was unable to stop the truck in time."
Richardson's final supporting affidavit was from Otis L. Richardson, husband of Patricia Richardson. Richardson stated he met McCandless at the Golden Triangle Regional Medical Center, when McCandless came to check on Mrs. Richardson after the accident. Mr. Richardson said McCandless told him then he worked for APAC. He said McCandless first said his brakes failed, but then later said they would not hold because APAC had overloaded his truck. Otis Richardson also said McCandless said he was "double-covered by both my insurance and by APAC's insurance."
Also on September 12, 1990, Richardson filed a motion for leave to amend her complaint. She attached an amended complaint to that motion, in which she alleged APAC was negligent itself in overloading the truck of McCandless.
The circuit judge entered an order granting APAC's motion for summary judgment on November 14, 1990. In his Findings of Fact and Conclusions of Law, Judge Howard said Richardson did "not allege any negligent acts on the part of APAC" and her action was "based solely on the theory of respondeat superior."
The trial judge also noted the hearing on the motion was originally scheduled for July 31, 1990, but had been "continued on Plaintiff's request to allow Plaintiff additional time for discovery and to respond to APAC's motion." He further stated, "The hearing was reset for September 7, 1990, and was again continued at Plaintiff's request until September 12, 1990."
The circuit judge observed that Richardson "did not timely respond to APAC's motion and did not timely submit affidavits or other probative evidence in support of her assertions." He noted she did submit affidavits on the day of the hearing, and APAC moved to strike those on the ground they were untimely, as well as on various evidentiary grounds. He granted the motion to strike; however, he also noted "even if they had been timely filed and considered, they are conclusory and do not set forth facts which could be admissible at trial and which would create any genuine issue of material fact herein."
The trial court noted affidavits opposing summary judgment motions must be made on personal knowledge, set forth admissible facts, and affirmatively show the affiant is competent to testify as to the matter contained in the affidavit, as mandated by Rule 56(e) of the Mississippi Rules of Civil Procedure. He concluded Richardson's three affidavits failed to meet that standard.
APAC's motion for summary judgment was granted. No mention was made of Richardson's motion for leave to amend her complaint to allege negligence on APAC's part in loading McCandless's truck on the day of the accident. No order is in the record granting or denying the motion to amend.
Richardson now appeals to this Court.
LAW
The circuit judge was correct in striking the opposing affidavits submitted by Richardson because they were not timely filed. Summary Judgment Rule 56(c) states: "The adverse party
prior to the day of the hearing may serve opposing affidavits." M.R.C.P. 56(c) (emphasis added). Rule 6(b) prohibits a trial judge from receiving documents filed after the specified period unless the "failure to act was the result of excusable neglect. . . ." M.R.C.P. 6(b).
1
Our Mississippi Rules of Civil Procedure come from the Federal Rules of Civil Procedure. In Lujan v. Nat'l WildlifeFederation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the United States Supreme Court interpreted Rules 56(c) and 6(b) in a case in which the nonmovant in a motion for summary judgment did not timely file opposing affidavits:
Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed. R.Civ.P. 56(c), and under Rule 6(d), which states more generally that "[w]hen a motion is supported by affidavit, . . . opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings:
"When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. . . ."
This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any post-deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it; it would have had to interpret "cause shown" to mean merely "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect."
Lujan, 497 U.S. at 895-97, 110 S.Ct. at 3192-93, 111 L.Ed.2d at 720-21 (alteration in original) (omissions in original) (footnote omitted).
Richardson gave no reason for a late filing of her affidavits, and under our rules the court had no alternative but to strike them.
DOES THE UNCONTESTED EVIDENCE ADDUCED BY APAC SUPPORT SUMMARY JUDGMENT FINDING THIS WAS AN INDEPENDENT CONTRACTOR RELATIONSHIP?
There are three types of situations in which a party principal may seek to have someone else perform some service for him: (1) principal and agent, (2) master and servant, and (3) independent contractor.
2
We are concerned here with whether this was a master/servant (or employer/employee) relationship or independent contractor. InTexas Co. v. Mills, 171 Miss. 231, 156 So. 866 (1934), we observed:
The words "independent contractor" are used in contrast with the word "servant" and not with the word "agent"; for both an independent contractor and a servant are agents of their principal. Rest. Agency, § 2, comment b; 1 Mechem on Agency (2 Ed.), § 40.
(2) A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
(3) An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." Rest. Agency, § 2, pars. 2 and 3, p. 11.
Id. at 243, 156 So. at 868-69.
See also Wade v. Traxler GravelCo., 232 Miss. 592, 602,
100 So.2d 103, 107 (1958).
Determining which is which can be difficult. As long ago asKisner v. Jackson, 159 Miss. 424, 132 So. 90 (1931), we noted:
There have been many attempts to define precisely what is meant by the term "independent contractor"; but the variations in the wording of these attempts have resulted only in establishing the proposition that it is not possible within the limitations of language to lay down a concise definition that will furnish any universal formula, covering all cases. At last, and in any given case, it gets back to the original proposition whether in fact the contractor was actually independent.
Id. at 427-28, 132 So. at 91.
We then added:
There are several tests to be applied, the weight of each, and whether much or little, rising and falling in the scale as it may or may not be counterbalanced by one or more of the remaining tests, present in the particular case in hand. For this reason these tests cannot be stated in any precise order of importance, but they are as follows: Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor
dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees.
Id. at 428-29, 132 So. at 91.
3
The factors or tests used by courts have not in themselves been sufficiently specific to enable courts to avoid widely disparate results in determining whether an independent contractor or employer/employee relationship existed in particular cases. "It is often a very elusive question whether a person under a given state of facts is an agent [sic]4 or independent contractor."Gulf Refining Co. v. Nations, 167 Miss. 315, 330, 145 So. 327, 332 (1933). We have recently noted the difference between the two "is not a line at all but a twilight zone filled with shades of gray. . . . Not that such a definition is not needed. It is simply beyond our capacity, for not only are we confounded by the `limitations of language'; the underlying realities are even more amorphous and elusive." Fruchter v. Lynch Oil Co.,522 So.2d 195, 199 (Miss. 1988).
The difficulty in applying these tests can be seen where this Court on quite analogous factual situations has reached opposite conclusions. In Kisner, we held a timber hauler an employee; inMcDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315
(1933), he was an independent contractor. See also Hinton v.Pearson, 142 Miss. 50, 107 So. 275 (1926). Again in Wade v.Traxler Gravel, we held the owner of a gravel truck hauling gravel for a gravel company was an employee for workers' compensation purposes. But see Leaf River Forest Products, Inc.v. Harrison, 392 So.2d 1138 (Miss. 1981) (where under similar circumstances, we held it was an independent contractor relationship); Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408
(1951) (same). See also Powell v. Masonite Corp., 214 So.2d 469
(Miss. 1968); Hobbs v. International Paper Co., 203 So.2d 488
(Miss. 1967); Gulf Refining Co. v. Nations, supra; and ShellPetroleum Corp. v. Linham, 163 So. 839 (Miss. 1935) (reached opposite conclusion on whether filling station owner was employee of gasoline distributor).
Finally, while the two cases involve different factual scenarios, W.J. Runyon Son, Inc. v. Davis, 605 So.2d 38
(Miss. 1992), is difficult to reconcile with the majority opinion in Webster v. Mississippi Publishers Corp., 571 So.2d 946
(Miss. 1990). In fact, the opinion in Runyon makes no attempt to do so.
The reason agreement or consistency in the opinions cannot be reached is because the various tests to determine the type of relationship are themselves generalities which can be viewed quite differently, depending upon which judge is applying them.
Finally Kisner and the Restatement (Second) of Agency
(1957) recognize that there may be other factors added to the test in determining the relationship existing between the principal and the person performing service for him. It should be observed that the problem most frequently arises in employment customarily performed by ordinary employees rather than independent contractors. It is conceivable that courts will cease attempting to determine whether a particular relationship is "employer/employee" or "independent contractor," which obviously can never be done with uniform accuracy or satisfaction, and look instead to whether or not a principal employer will under the circumstances of the case be permitted to assert the terms of employment as a defense.
Today we explicitly add another factor in the balancing test, heretofore implicit. When a contract is made between two parties that as between themselves creates an independent contractor relationship and involves employment generally performed under a simple master/servant or employer/employee relationship, it will be upheld as between the parties. When, however, third parties are adversely affected, this Court will carefully scrutinize the contract to see if public policy should permit the transformation of an ordinarily employer/employee relationship into that of an independent contractor. A necessary condition precedent for the application of this factor, however, is that the party challenging the claimed relationship will be adversely affected, and denied an adequate legal remedy. In the absence of this, the right of parties to contract as they please is a constitutionally-protected right. U.S. Const. art. I, § 10; Miss. Const. art. 3, § 16.
Conversely, neither of the parties should be permitted to dispute a contractually-created independent contractor relationship between them when to do so adversely affects an injured third party.
We have in fact used this test. In condemning what would otherwise have been an independent contractor contract inKisner, we said:
Contracts, as written including what may be done under them as written, must be kept within the established public policy of the state. It is not what the employer does under a contract such as this that is determinative of its effect, it is what he may do under it.
Kisner, 159 Miss. at 430, 132 So. at 92. And in
Gulf RefiningCo. v. Nations, we said: "By the terms of the contract it appears that appellant tried to make Wilkins an independent contractor and at the same time retain complete control of the business. This cannot be done under the law."
Gulf RefiningCo., 167 Miss. at 330, 145 So. at 333.
Finally, in Hobbs v. International Paper Co., we observed:
Where persons and firms put worn-out trucks into the possession of penniless persons, to be operated upon the heavy-laden highways of this state under the guise and legal fiction that such operators are independent contractors or timber buyers and sellers, when in fact and truth they are financially unable to buy gasoline or tags with which to operate the trucks, or even food for themselves, without obtaining advance funds, these facts and circumstances are for the jury's consideration, and may be the turning point in their deliberations.
Hobbs, 203 So.2d at 490.
5
____
We turn to consider whether the contract between APAC and McCandless, together with the affidavits of Watson and McCandless, constituted a master-servant or independent contractor relation.
There is no question but that the contract itself, an appendix to this opinion, is that of a principal and independent contractor and not master-servant. Everything a skilled craftsman
could write showing the parties intended an independent contractor relation appears in it. Yet, in determining whether a master-servant or independent contractor relationship existed, especially where third parties are affected, courts are not confined to the terms of the contract, but may look as well to the conduct of the parties. Miss. Employment Sec. Comm'n v.Total Care, Inc., 586 So.2d 834, 838 (Miss. 1991); Leaf RiverForest Products, Inc. v. Harrison, 392 So.2d 1138, 1141 (Miss. 1981); Miss. Employment Sec. Comm'n v. Logan, 248 Miss. 595, 600, 159 So.2d 802, 804 (1964); Miss. Employment Sec. Comm'n v.Heidelberg Hotel Co., 211 Miss. 104, 115, 51 So.2d 47, 51 (1951).
Beyond the contract the affidavits of Watson, safety director for APAC, and McCandless show indisputably that as between themselves they not only intended that their relation be that of principal and independent contractor, not master-servant, but their conduct was that of principal and independent contractor. According to these affidavits, every factor used in determining which of the two relationships existed predominates in favor of a principal and independent contractor relationship. Webster v.Mississippi Publishers Corp., 571 So.2d 946 (Miss. 1990);Hercules Powder Co. v. Westmoreland, 249 Miss. 849,164 So.2d 471 (1964); Kisner v. Jackson, 159 Miss. 424, 132 So. 90, 91 (1931); Restatement (Second) of Agency § 220(2) (1957). If this had been a lawsuit solely between APAC and McCandless, there would be no question but that McCandless was an independent contractor.6
As above noted, however, this Court may also take into account whether there is a disproportionately adverse effect upon the rights of a third party of such magnitude that as a matter of public policy an otherwise independent contract between the parties should be permitted. Looking to this case, it is elementary that vicarious liability is based on a theory of risk allocation. See, W. Page Keeton, et al., Prosser and Keeton onthe Law of Torts § 69 at 500 (5th ed. 1984). When the employer himself has done no wrong, only the employee, vicarious liability provides some person with a deep pocket able to respond in damages. The losses incurred are considered "a required cost of doing business." Prosser, § 69 at 500. Furthermore, the employer is better able to bear these costs than the "innocent injured plaintiff." Id. This is the basis for the respondeatsuperior doctrine, because if the employee and only wrongdoer is fully capable of responding for the full amount of the damages, either himself or with liability insurance, the wrongfully injured plaintiff has a complete remedy at law.
In the absence of depriving an injured third party from having a defendant able to respond fully in damages, as above noted, there is no reason why parties should not be free to contract as they wish. Mississippi Hill Delta Savings Loan Ass'n v. TheValley Bank, 392 So.2d 1126, 1129 (Miss. 1981).
In this case, Richardson never claimed in her opposition brief to summary judgment, nor in her brief on appeal, that McCandless was not financially able to respond fully in damages. Indeed, the struck affidavits stated McCandless told Richardson's husband he had liability insurance, and Richardson apparently entered into some kind of compromise settlement with McCandless and his insurance carrier.7
Until our recent case of W.J. Runyon Son, Inc. v. Davis,605 So.2d 38 (Miss. 1992), we have consistently held on facts as presented in this case that a relationship, such as that between APAC and McCandless, was that of independent contractor. Websterv. Mississippi Publishers Corp., 571 So.2d 946 (Miss. 1990);Fruchter v. Lynch Oil Co., 522 So.2d 195 (Miss. 1988); Kughnv. Rex Drilling Co., 217 Miss. 434, 64 So.2d 582 (1953); Cookv. Wright, 177 Miss. 644, 171 So. 686 (1937).
This case requires us to re-examine our holding in Runyon. InRunyon, Whigham was one of several truck owner-operators hauling asphalt to the job site. The question was whether he was simply an employee of Runyon's, or an independent contractor. If an employee, the contractor, W.J. Runyon Son, Inc., was liable under respondeat superior. We held Whigham was an employee as a matter of law.
There are distinguishing features between Runyon and the casesub judice, however. W.J. Runyon Son, Inc., committed an independent tort which, along with Whigham's negligence, proximately caused the accident. Also, there were more factors suggesting an employee relationship. The accident occurred at the job site where presumably Whigham in unloading and then causing a cloud of dust driving off the site was acting under the directions of Runyon employees.8 On the witness stand Whigham testified, "I was not working for myself. I was hauling for Runyon." Runyon, 605 So.2d at 47. Finally, the contract of employment between Runyon and Whigham was oral, and while testimony showed that most of the ingredients of independent contractor relationships as appear in this case existed between Runyon and Whigham, there were circumstances discrediting the testimony. Id. at 47. Here the record is undisputed.
Nevertheless, while Runyon was correct in its holding that where the facts are undisputed, the type of relationship is a legal one, there were insufficient facts in that case to support its conclusion that Whigham was an employee as a matter of law. On facts as presented in this case, we find as a matter of law that the relationship between APAC and Richardson was that of independent contractor as the circuit court held, and anything stated in Runyon to the contrary to today's holding is expressly overruled.
Clearly the relationship between McCandless, d/b/a B P Trucking, and APAC at the time and place of the accident was that of independent contractor. The circuit court's dismissal of Richardson's complaint based upon a master/servant relationship is, therefore, affirmed.
AFFIRMED ON SUMMARY JUDGMENT DISMISSAL; REMANDED FOR RULINGUPON MOTION TO AMEND.
DAN M. LEE and PRATHER, P.JJ., and PITTMAN, JAMES L. ROBERTS, Jr., and SMITH, JJ., join this opinion.
DAN M. LEE, P.J., specially concurs with separate written opinion joined by JAMES L. ROBERTS, Jr., and SMITH, JJ.
BANKS, J., dissents with separate written opinion joined by SULLIVAN, J., and joined in part by McRAE, J.
McRAE, J., dissents with separate written opinion joined in part by BANKS, J.
[EDITORS' NOTE: APPENDIX IS ELECTRONICALLY NON-TRANSFERRABLE.]
[EDITORS' NOTE: APPENDIX IS ELECTRONICALLY NON-TRANSFERRABLE.]