Culhane v. Principal Life Insurance Company et al

Filing 34

MEMORANDUM AND ORDER - Plaintiff's motion for summary judgment (Filing No. 16 ) is granted. Defendant Prinicipal Life Insurance Company's motion for summary judgment (Filing No. 27 ) is granted. Defendant Wells' Dairy, Inc.'s motion for summary judgment (Filing No. 25 ) is denied. Defendant Wells' Dairy, Inc.'s motion to strike (Filing No. 23 ) is denied as moot. Defendant Principal Life Insurance Company is dismissed as a party defendant. Judgment will ent ered in favor of the plaintiff and against defendant Wells' Dairy in the amount of $10,315.10, plus prejudgment interest at the legal rate from and after September 23, 2008, plus costs and attorney fees in an amount to be later determined b y the court, upon resolution of the fees issue. The plaintiff shall submit his motion for attorney fees within 14 days of the dateof this order; defendant Wells' Dairy shall respond thereto within 7 days thereafter. The plaintiff shall file a bill of costs with the Clerk of Court in accordance with local rules. Ordered by Chief Judge Joseph F. Bataillon. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM J. CULHANE, JR.,
Plaintiff,
v.
PRINCIPAL LIFE INS. CO., and
WELLS’ DAIRY, INC.,
Defendant.

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8:10CV3130

MEMORANDUM AND ORDER

This matter is before the court on the parties’ cross-motions for summary judgment,
Filing Nos. 16, 25, and 27.1 This is an action for judicial review of a benefits determination
under the Employee Retirement Income Security Act (hereinafter, “ERISA”), 29 U.S.C.
§ 1101 et seq. The plaintiff and defendant Wells’ Dairy each move for summary judgment
in their favor based on the administrative record. Defendant Principal Life Ins. Co.
(“Principal”) argues that it is not a proper party defendant to this action. The plaintiff
concedes that Principal is not a proper party defendant and, accordingly, Principal’s motion
for a summary judgment of dismissal will be granted.
I. FACTS
The administrative record has been submitted to the court. See Filing No. 19, Index
of Evid., Attachments 4-7, Ex. 4, Admin. R., Parts 1-4 (Electronic Case Filing (“ECF”)
Header: Doc ## 19-4, 19-5, 19-6, 19-7, Page ID ## 99-404). The uncontroverted evidence
shows defendant Wells’ Dairy, Inc. (hereinafter “Wells’ Dairy”) offers its employees

1
Also pending is defendant W ells’ D airy’s m otion to strike certain docum ents in the adm inistrative
record that relate to settlem ent negotiations, Filing No. 23. Because those docum ents are not relevant to the
issues before the court, the court did not consider them in connection with the resolution of the sum m ary
judgm ent motions. Accordingly, it is not necessary to strike the docum ents and the defendant’s m otion to
strike will be denied as m oot.

healthcare coverage under the “Blue Bunny Salaried Exempt and Non-Exempt Employees
Medical and Prescription Drug Coverage Plan” (“the Plan”). Id., Attachment 4, Ex. 4,
Admin. R., Part 1 (Doc # 19-4) at WD 1.2 Wells’ Dairy is both the Plan sponsor and the
plan administrator. Id., Attachment 5, Ex. 4, Admin. R. Part 2 at WD 81. Wells’ Dairy
operates the Plan on a self-funded basis and has entered into an agreement whereby it
has delegated certain ministerial and non-discretionary duties to Principal. Id. at WD 90110.

Principal acts as a “claims administrator,” defined in the Plan as “any entity

authorized by the Plan administrator to process claims for benefits under the Plan.” Id. at
WD 77. Wells’ Dairy retains “complete discretion to construe or interpret all provisions, to
determine eligibility for benefits, and to determine the type and extent of benefits, if any,
to be provided.” Id., Attachment 4, Admin R. Part 1 at WD 3. The Plan provides that the
decisions of the Plan Administrator are to be “controlling, binding, and final” and the Plan
Administrator “shall be deemed to have exercised its discretion properly unless it is duly
proved that the Plan Administrator has acted arbitrarily and capriciously.” Id.
Under the Plan, Wells’ Dairy pays Comprehensive Medical Benefits for “Covered
Charges,” as described in the Plan’s “Summary of Benefits” section. Id. at WD 35. The
Summary of Benefits section states that benefits are payable for “Medical Expenses.” Id.
at 7. Covered Charges for Medical Expenses are the actual costs charged for “Medically
Necessary Care. . . .” Id. at 35. The Plan defines “Medically Necessary Care” as any
“‘Treatment or Service’ that is prescribed by a Physician and required for the screening,
diagnosis or treatment of a medical condition which is consistent with the diagnosis or

2

Page references are to page num bers at the bottom right corner of the docum ent).
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symptoms, not excessive in scope, duration, intensity, or quantity, the most appropriate
level of services that can safely be provided, and determined by the Plan Administrator or
‘Generally Accepted.’” Id., Attachment 5, Admin. R., Part 2 at WD 86. The plan provides
that “Covered Charges will be the actual cost charged to you or one of your Dependents
for Medically Necessary Care . . . for” several listed procedures including “surgical removal
of impacted teeth on an outpatient basis. Inpatient removal is covered only when a
medical condition (such as hemophilia) requires hospitalization.” Id., Attachment 4, Admin.
R., Part 1 at WD 4, WD 36.
Under the heading “Limitations,” the plan provides “Comprehensive Medical
Covered Charges will not include and no benefits will be paid for: . . . Dental Services and
materials, including dental implants (except as described under Covered Charges).” Id.
at WD 43. The Plan defines “dental services” as follows:
Dental Services means any Treatment or Service provided to
diagnose, prevent, or correct:
periodontal disease (disease of the surrounding and
supplemental tissues of the teeth, including deformities of the bone
surrounding the teeth); and/or
malocclusion (abnormal positioning and/or relationship of the
teeth); and/or
ailments or defects of the teeth and supporting tissue and bone
(excluding appliances used to close an acquired or congenital
opening. However, the term Dental Services will include treatment
performed to replace or restore any natural teeth in conjunction with
the use of any such appliance.)
Id., Attachment 5, Admin. R., Part 2 at WD 80.
The record shows that the plaintiff underwent surgery at Alegent Hospital to remove
a large maxillary cyst (a “left maxillary cyst excision”) pursuant to the recommendation of
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his physician, Dr. Valmont Desa, D.D.S., M.D., an oral and maxillofacial surgeon. Id. at
108. The maxillary cyst occupied nearly the entire left maxillary sinus cavity, from the top
of plaintiffs jaw “to the floor of the orbit” (the left eye socket). Id., Attachment 6, Admin. R.,
Part 3 at 194. Dr. Desa prescribed surgical removal of the cyst and found that the surgery
should be preformed at a hospital with the plaintiff under general anesthesia because of
the “extent” of the “lesion.” Id.
Shortly before the surgery, the plaintiff and his healthcare providers submitted
claims under the Plan for the anticipated charges associated with the surgery to remove
the tumor or cyst. Id., Attachment 5, Admin. R., Part 2 at WD 109-110, 128-29, 133;
Attachment 6, Admin. R., Part 3 at 161. The record indicates that coverage was sought
for the procedure noted as “excision of benign tumor or Cyst of maxilla or zygoma by
enucleation and curettage” and the primary diagnosis was noted as an “odontogenic cyst.”
Id., Attachment 5, Admin. R., Part 2 at WD 109, 112. The claims records that relate to the
predetermination review on September 23, 2008, contain the notation “Case Not Medically
Necessary.” Id. at WD 112. Claims records also include cryptic notations showing benefits
were not available for facility or general anaesthesia for cyst removal, but if tooth 16 were
removed Principal could allow for removal of tooth since impacted but would not allow
facility or general anesthesia because the benefits criteria were not met. Id. at WD 109.
Correspondence on that date to Dr. Desa from Patricia Deharty at Principal states:
The policy or plan does not require a predetermination of benefits for the
above service. However, we have reviewed the information that was
provided. The medical policy or plan limitations exclude coverage for facility
and general anesthesia charges that are related to a non-covered dental
procedure. As a result of our review, we have determined that due to the
policy plan limitation, no benefits will be payable for the above service

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including hospital charges. Please see the Limitations section of your
booklet for more information regarding policy limitation.
Id. at 128. A telephone note in the claims file dated 9/23/08 also indicates that Deharty
spoke to Dr. Desa and:
advised the cyst is [documented] as an odontogenic cyst. In order to
[consider facility/general anesthesia] it must be a [covered dental service]
& then criteria must be met. Advised odontogenic cysts are not [considered
covered dental service]. . . Advised if this is indeed non-odontogenic
cyst—then criteria must be met advised if non-odontogenic cyst—then we
[would] need [documentation] from both [dentist] and treating physician
stating that [Culhane] has a medical condition that [would] create significant
or undue medical risk in the course of delivery of [treatment or] surgery if not
rendered in [hospital or ambulatory surgical facility]. Understood. He will
send in [additional information] after [surgery]. Deharty [R.N.]
Id., Attachment 6, Admin. R., Part 3 at 186-87. Other claims documents in the file show
that Principal also informed the plaintiff “our records indicate that you don’t have dental
coverage. For that reason, we’re unable to pay for dental services.” Id., Attachment 5,
Admin. R., Part 2 at 15; id., Attachment 7, Admin. R., Part 4 at 272.
Because Wells’ Dairy denied coverage for the treatment plaintiff received to remove
the cyst, plaintiff paid $10,315.10 to his medical care providers to satisfy their claims based
on the care provided. Filing No. 19, Attachment 2, Ex. 2 at 1.
The Plan provides that an individual must follow a mandatory administrative appeals
process to challenge the denial of a claim. Id., Ex. 4, Part 1 at 70. The plaintiff appealed
the determination and a telephone memo indicates that Principal requested information on
October 16, 2008. Id., Attachment 7, Admin. R., Part 4 at 276. Claims file records contain
a notation dated October 30, 2008, stating “deny as dental in nature” and “denied due to
dx [diagnosis of ontogenic cyst].” Id.

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The medical records submitted by the plaintiff and his physicians in connection with
the appeal show that a review of an I-CAT scan showed “a large cystic appearing lesion
extending into the maxillary sinus all the way to the orbital floor and into the nasal osteum.”
Id., Attachment 4, Admin. R., Part 1 at WD 176. Records from a consultation with Dr. Desa
indicated that the cyst had “eroded the lateral posterior aspect of the maxilla and has
resorbed teeth #s 14 and 15. Tooth # 16 is mesioangularly impacted high within this
lesion.” Id. During the appeals process, Dr. Desa, an oral/maxillofacial surgeon, submitted
a letter stating that the service being provided was medical, not dental. Id., Attachment 6,
Admin. R., Part 3 at 194. He wrote:
Mr. Culhane had a large cyst invading the left maxillary sinus that essentially
occupied the entire sinus cavity to the floor of the orbit. . . . Despite having
an 'odontologic/tooth based etiology' this is not a dental procedure. A cyst
extending through the entire maxillary sinus to the orbital floor with the
erosions of the bony walls of the maxilla would be considered a medically
necessary procedure and I would request a review by a maxillofacial
surgeon.
Id.
By letter dated January 12, 2009, Principal upheld its initial denial of benefits, stating
that certain requested information had not been received and that the services were “dental
in nature and not covered.” Id., Attachment 7, Admin. R., Part 4 at 297-98. The letter of
January 12, 2009, further provided that plaintiff “may request a voluntary appeal by sending
a request, including additional information” to Wells’ Dairy. Id. On January 23, 2009,
Wells’ Dairy acknowledged that plaintiff’s “Voluntary ERISA appeal [had been] received.”
Id., Attachment 6, Admin. R., Part 3 at 202. On January 30, 2009, March 3, 2009, and
March 4, 2009, Wells’ Dairy requested additional information to complete its second review
of plaintiff’s claim. Id., Attachment 6, Admin. R., Part 3 at 219; Attachment 7, Part 4 at 272,
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301. On three separate occasions, December 1, 2008, January 23, 2009, and March 27,
2009, Dr. Desa provided the requested information to Principal. Id., Attachment 6, Admin.
R., Part 3 at 194, 207, Attachment 7, Admin. R., Part 4 at 232. Dr. Desa again wrote “[t]his
would be a procedure considered covered under medically necessary based on the
location, the size of the lesion and the proximity to vital structures, I would request review
by an oral maxillofacial surgeon if you feel this is not a covered benefit.” Id. Principal’s
January 29, 2009, records indicate that the information requested had been received.
Attachment 6, Admin. R., Part 3 at 206.
Records submitted in the course of the appeal process include a CT scan report that
shows:
A well defined corticated pericoronal radiolucency is seen encroaching upon
the left maxillary sinus. The lesion is nearly filling the sinus with the
exception of crescent shaped residual sinus between the orbital floor and the
roof of the lesion. The lesion is protruding slightly through the left ostium into
the nasal cavity. The anterior lateral, posterior lateral and the posterior walls
of the left maxillary sinus are expanded. The posterio-Iateral wall is 2mm
from the coronoid process. Posterior wall expansion appears lateral to the
lateral pterygoid plate. The expanded cortical plate is thinned and dehiscent
in some areas. The lesion does not invaginate the root of zygoma. The lesion
contains #16 horizontally displaced into the anterior recesses of the left
maxillary sinus. # 14 and # 15 show marked root resorption. The nasal and
orbital contents are within the range of normal on left side. The left
nasolacrimal canal is patent.
Attachment 7, Admin. R., Part 4 at 275. His impression was of a follicular odontogenic
cyst. Id. A surgical pathology review by Dr. Rouse revealed that the plaintiff’s diagnosis
was a “benign cyst with inflamation,” and Dr. Rouse commented: “The histologic features
are those of a benign cyst showing areas of squamous metaplasia and fibrosis, along with
cholesterol cleft formation.” Id. at 277. He noted he “favor[ed] a periapical cyst” and stated
that “[a]t the request of Dr. Desa, this case will be sent to the oral pathology department
7

at the College of Dentistry in Lincoln, NE for a second opinion. Those results will be issued
in an addendum report.”

Id. Dr. Rouse also noted, under “Diagnosis,” a “cyst with

associated tooth/left maxilla.” Id. The referenced addendum report states: “Dentigenerous
cyst.” Id. at 278. The second opinion states “Microscopic impression was fibrocollagenous
cystic structure lined by non keratinized stratified epithelium of varied thickness.” Id.
Medical records also show that findings after surgery showed a skin erosion of anterior
maxillary wall, fracture of wall, and extension of cyst into lateral nasal wall. Id. at 289.
Records of the appeal process show that the information was sent to a consultant
dentist by a nurse reviewer who noted that the diagnosis was a “developmental
odontogenic cyst,” and asked the question “[c]an this surgery and the associated charges
from facility, pathology and anesthesia be covered under the medical plan?” Id. at 264-65.
The consultant responded “[s]ome of pathology is dental, therefore it is a dental service.”
Id. at 265.
Defendant maintained its position that plaintiff is not entitled to benefits because
plaintiff’s surgery was for “Dental Services” and thus, not covered by the Plan. Id. at 267.
In a letter dated March 16, 2009, Principal informed plaintiff that it had reviewed the
additional information, that Principal had completed its review process, and that Plaintiff
“may choose to seek civil action.” Id. at 302. Plaintiff again appealed defendant's decision
on April 6, 2009. Id. at 231. Following that appeal, Principal asked for a “Peer Review” of
Plaintiffs claim on June 1, 2009.” Attachment 6, Admin. R., Part 3 at 224. The review
requested a determination of whether the “cyst removed on 09/25/2008 [would] be
considered a cyst of ‘dental origin.’” Id. at 224-25. The Peer Review Report states that the

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“cyst would be considered a cyst of dental origin.” Id. Thereafter, Wells’ Dairy upheld its
decision to deny plaintiff benefits under the Plan. Id. at 229.
II. LAW
Under ERISA, a plan beneficiary has the right to judicial review of a benefits
determination. See 29 U.S.C. § 1132(a)(1)(B). The first issue to consider in an ERISA
case is the appropriate standard of review. See, e.g., Tillery v. Hoffman Encls., Inc., 280
F.3d 1192, 1197 (8th Cir. 2002). Where a plan gives the administrator discretionary
authority to determine eligibility for benefits, the court reviews the administrator’s decision
for an abuse of discretion. Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir. 1996),
abrogated on other grounds by Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008).
In conducting judicial review under the abuse of discretion standard, the reviewing court
is limited to review of the evidence that was before the plan administrator when the final
decision was made. Oldenburger v. Central States S.E. and S.W. Areas Teamster
Pension Fund, 934 F.2d 171, 174 (8th Cir. 1991); see also King v. Hartford Life and Acc.
Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005) (en banc) (stating that “[w]hen reviewing a
denial of benefits by an administrator who has discretion under an ERISA-regulated plan,
a reviewing court ‘must focus on the evidence available to the plan administrators at the
time of their decision and may not admit new evidence or consider post hoc rationales’”).
Id. (quoting Conley v. Pitney Bowes, 176 F.3d 1044, 1049 (8th Cir. 1999)).
When the entity that administers the plan “both determines whether an employee
is eligible for benefits and pays benefits out of its own pocket,” a conflict of interest exists.
Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 112 (2008). This conflict must be
weighed as a factor in determining whether there is an abuse of discretion. Id. (noting that
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trust law continues to apply a deferential standard of review to the discretionary
decisionmaking of a conflicted trustee, while at the same time requiring the reviewing judge
to take account of the conflict when determining whether the trustee, substantively or
procedurally, has abused his discretion). Under Glenn, courts must analyze the facts of
the case at issue, taking into consideration not only the conflict of interest, but also other
factors that might bear on whether the administrator abused its discretion. Chronister v.
Unum Life Ins. Co. of Am., 563 F.3d 773, 775 (8th Cir. 2009).
The standard requires a court “to determine lawfulness by taking account of several
different, often case-specific, factors, reaching a result by weighing all together.” Id. at
2351 (noting that a conflict of interest should be more important in cases where the insurer
has “a history of biased claims administration”). The conflict “should be given less weight
‘(perhaps to the vanishing point) where the administrator has taken active steps to reduce
potential bias and to promote accuracy, for example, by walling off claims administrators
from those interested in firm finances, or by imposing management checks that penalize
inaccurate decisionmaking irrespective of whom the inaccuracy benefits.’” Khoury v.
Group Health Plan, Inc., 615 F.3d 946, 952 (8th Cir. 2010). A failure to follow claims
procedures is another factor to consider, as is an administrator’s interpretation of a term
that is clearly at odds with the clear language of the plan. Chronister, 563 F.3d at 776.
Although a causal connection between the conflict and the decision might be important in
determining the appropriate level of scrutiny for a plan administrator’s decisionmaking,
such a connection is not required. Glenn, 554 U.S. at 116.
“In sum, an administrator with discretion under a benefit plan must articulate its
reasons for denying benefits when it notifies the participant or beneficiary of an adverse
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decision, and the decision must be supported by both a reasonable interpretation of the
plan and substantial evidence in the materials considered by the administrator.” King v.
Hartford Life and Acc. Ins. Co., 414 F.3d 994, 1000 (8th Cir. 2005) (en banc). Substantial
evidence is “‘more than a scintilla but less than preponderance.’” Khoury, 615 F.3d at 952
(quoting Wakkinen v. UNUM Life Ins. Co. of Am., 531 F.3d 575, 583 (8th Cir. 2008)).
Typically, where a benefit plan gives the administrator discretion to interpret
uncertain terms in the plan, the court’s analysis begins with the consideration of whether
the administrator’s interpretation of the terms is “reasonable.” King, 414 F.3d at 1001.
Five factors guide the court’s analysis of whether an administrator’s interpretation of
uncertain terms in a plan is reasonable: 1) whether the administrator’s interpretation is
consistent with the goals of the plan; 2) whether the interpretation renders any language
in the plan meaningless or internally inconsistent; 3) whether the administrator’s
interpretation conflicts with the substantive or procedural requirements of the ERISA
statute; 4) whether the administrator has interpreted the relevant terms consistently; and
5) whether the interpretation is contrary to the clear language of the plan. Finley v. Special
Agents Mut. Ben. Ass'n, 957 F.2d 617, 621 (8th Cir. 1992).
III. ANALYSIS
The court finds the administrator abused its discretion in denying coverage for the
plaintiff’s claim. The plaintiff’s condition does not fit under the Plan’s own definition of
dental services. The medical evidence submitted to Principal and relied on by Wells’ Dairy
in making its final decision shows that the tumor or cyst was neither periodontal disease,
a malocclusion, or an ailment or defect of the teeth and surrounding tissue and bone. The
growth had invaded the plaintiff’s maxillary sinus up to his eye socket and encroached and
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eventually fractured his nose. Medical evidence supported the conclusion that surgery
was medically necessary and should be performed in a hospital because of the nature and
extent of the lesion. A Board-certified oral and maxillofacial surgeon stated that the
procedure was medical, not dental, and there is no evidence in the record that contradicts
that conclusion. The defendant’s reliance on medical opinions that the tumor was “dental
in origin” is misplaced. The Plan did not exclude coverage for treatment of conditions that
were dental in origin, rather it excluded coverage of dental services defined as treatment
for “an ailment or defect of the teeth and surrounding tissue and bone.” The plaintiff’s
condition became an ailment of his maxillary sinus and nose.
Moreover, the Plan provides a separate, enumerated grant of coverage for
outpatient removal of impacted teeth and inpatient surgical removal when a claimant’s
medical condition required hospitalization. The defendant was provided medical evidence
that the cyst contained an impacted tooth (or teeth) as well as evidence that hospitalization
was required because of the size of the lesion. Accordingly, the court finds the defendant’s
interpretation of the Plan’s terms was not reasonable and the denial decision is not
supported by substantial evidence.
The defendant’s financial conflict of interest as the entity evaluating and paying the
claim is a factor that the court has considered in making this determination. Wells’ Dairy
has an incentive to deny claims since the benefits are paid form its funds. There is no
evidence that the employer had taken any active steps to reduce potential bias or to
promote accuracy of claims determinations. Principal’s referral of the claim to peer-review
does not provide any such insulation from liability because the issue referred to the peerreview physician did not accurately frame the issue. The review was conducted as if the
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Plan’s definition of “dental service” was “dental in origin,” and not an ailment of teeth and
surrounding tissues. Under the Plan definitions, the origin or etiology of the condition was
not relevant. Also, Principal’s reviewing nurse posed a coverage question to a dental
professional, a matter clearly outside the consultant’s expertise.
Moreover, there were several procedural irregularities revealed in the appeals
process. First, Principal repeatedly asked for additional information that it already had.
Over the course of the appellate review, it gave differing rationales for the denial; at one
time acknowledging that coverage would be provided under the “impacted tooth” provision,
but basing the denial on the plaintiff’s ostensible failure to meet “criteria” showing that a
“condition” required inpatient surgery, later basing the denial on the type of tumor and later
settling on the “dental in origin” rationale. The court finds the administrator abused its
discretion in denying health benefits to the plaintiff. Accordingly,
IT IS ORDERED:
1. Plaintiff’s motion for summary judgment (Filing No. 16) is granted.
2. Defendant Prinicipal Life Insurance Company’s motion for summary judgment
(Filing No. 27) is granted.
3. Defendant Wells’ Dairy, Inc.’s motion for summary judgment (Filing No. 25) is
denied.
4. Defendant Wells’ Dairy, Inc.’s motion to strike (Filing No. 23) is denied as moot.
5. Defendant Principal Life Insurance Company is dismissed as a party defendant.
6. Judgment will entered in favor of the plaintiff and against defendant Wells’ Dairy
in the amount of $10,315.10, plus prejudgment interest at the legal rate from and after

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September 23, 2008, plus costs and attorney fees in an amount to be later determined by
the court, upon resolution of the fees issue.
7. The plaintiff shall submit his motion for attorney fees within 14 days of the date
of this order; defendant Wells’ Dairy shall respond thereto within 7 days thereafter.
8. The plaintiff shall file a bill of costs with the Clerk of Court in accordance with
local rules.
DATED this 8th day of August, 2011.
BY THE COURT:

s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
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