Eugene R. YENCHI and Ruth I. Yenchi, Husband and Wife, Appellees v. AMERIPRISE FINANCIAL, INC., Ameriprise Financial Services, Inc., RiverSource Life Insurance Company and Bryan Gregory Holland, Appellants
No. 8 WAP 2016
Supreme Court of Pennsylvania
June 20, 2017
161 A.3d 811
ARGUED: November 1, 2016
Justice Wecht joins this dissenting opinion.
Kenneth Robert Behrend, Esq., Behrend & Ernsberger P.C., for Appellees.
David C. Harrison, Esq., for Pennsylvania Association For Justice, Appellee Amicus Curiae.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE DONOHUE
In this discretionary appeal, we must decide whether a fiduciary duty can arise in a consumer transaction for the purchase of a whole life insurance policy based upon the advice of a financial advisor where the consumer purchasing the policy does not cede decision-making control over the purchase to the financial advisor. We conclude that, consistent with our jurisprudence, no fiduciary duty arises in such a situation. Consequently, we reverse the Superior Court‘s decision to the contrary.
In 1995, Bryan Holland (“Holland“), a financial advisor for IDS Life Insurance Corporation, made an unsolicited telephone contact, a “cold call,” to Eugene and Ruth Yenchi (the
At a subsequent meeting in December 1995, for a fee of $350, Holland presented the Yenchis with a financial management proposal (the “Proposal“). The Proposal contained a notice that it had been prepared by “your American Express financial advisor” (Holland) and that “[a]t your request, your American Express financial advisor can recommend products distributed by American Express Financial Advisors and its affiliates as investment alternatives for existing securities.” Complaint, 11/13/2003, Exhibit 1, at 3. The Proposal offered the Yenchis a number of general recommendations, including that they monitor monthly expenses, consolidate their debt, consider various savings plans, consolidate current life insurance policies into one policy, review long-term care coverage, keep accurate records for tax purposes (medical expenses and charitable contributions), transfer 401(k) funds into mutual funds, and continue estate planning with an attorney and their financial advisor. Id. at 7-8. The Yenchis implemented some of these recommendations, saving money in an investment certificate and opening an IRA account.
With respect to the consolidation of life insurance policies, the Yenchis provided Holland with relevant information regarding their current policies with Met Life (five held by Mr. Yenchi and two by Ms. Yenchi). In January 1996, Holland proposed a whole life insurance policy for Mr. Yenchi with an initial $115,000 death benefit. In June 1996, he proposed a similar policy for Mr. Yenchi with an initial $100,000 death benefit, plus a $25,000 rider for Ms. Yenchi. Mr. Yenchi purchased the latter policy, cashing out his five Met Life policies to make the initial payment. Because Mr. Yenchi also purchased the rider for Ms. Yenchi, she did not need to cash in her existing life insurance policies for a new one. Instead, in
In 2000, the Yenchis had their portfolio independently reviewed. Through this process, they were advised that the 1996 whole life insurance policy Mr. Yenchi had purchased was underfunded, destined to lapse, and that additional premiums beyond those allegedly represented by Holland,1 at substantially high rates increasing over time, would have to be paid. They also learned that Ms. Yenchi‘s 1997 deferred variable annuity would not mature until 2025, when she was eighty-four years old (rather than sixty-five, as had allegedly been represented by Holland).
In April 2001, the Yenchis initiated suit by writ of summons, naming as defendants American Express Financial Services Corporation, American Express Financial Advisors Corporation, IDS Life Insurance Company,2 and Holland (collectively,
By order dated March 21, 2013, the trial court granted summary judgment to Appellants on all claims relating to the 1997 purchase of the deferred variable annuity, and dismissed the claims for bad faith, negligent supervision and breach of fiduciary duty relating to the 1996 purchase of the whole life insurance policy. Of relevance here, with respect to the breach of fiduciary duty claim, the trial court held that no fiduciary relationship was established between the Yenchis and Holland because the Yenchis continued to make their own investment decisions. Trial Court Memorandum, 7/28/2014, at 3. The trial court cited to its own prior decision in Ihnat v. Pover, 146 P.L.J. 299, 303-10 (1999), in which it held that no fiduciary duty arises between an insurance agent and a policyholder unless the policyholder delegates decision-making control to the insurance agent. In applying its Ihnat decision, the trial court rejected the notion that there was any material difference between an insurance agent and a financial advisor. The trial court further indicated that the Yenchis “knew they were dealing with a representative of American Express who was
The case proceeded to trial on the Yenchis’ fraudulent misrepresentation and UTPCPL claims in connection with the purchase of the 1996 whole life insurance policy. At trial, the jury returned a verdict in favor of Appellants on the fraudulent misrepresentation claim and, based upon the same evidentiary record, the trial court found in Appellants’ favor on the UTPCPL claim.4
The Yenchis appealed. Among the issues presented to the Superior Court was the dismissal of the breach of fiduciary duty claim. With respect to this issue, the Superior Court agreed with the Yenchis that the trial court erred in focusing exclusively on the nature of the relationship in question (that of a buyer and seller of insurance) and the Yenchis’ retention of decision-making authority over their investments. Yenchi v. Ameriprise Fin., Inc., 123 A.3d 1071, 1080-81 (Pa. Super. 2015). The Superior Court acknowledged that Pennsylvania appellate courts have always considered the existence of a
Judge Lazarus filed a dissenting opinion, indicating that the “relationship created by a commercial, arm‘s-length transaction” is “not ordinarily confidential by law.” Id. at 1085 (Lazarus, J., dissenting) (citing Wisniski v. Brown & Brown Ins. Co., 906 A.2d 571, 578-79 (Pa. Super. 2006)). Judge Lazarus noted that the Yenchis knew and understood that they were developing a relationship with an American Express employee who sold insurance and financial products and provided fee-based financial planning advice. Id. at 1085. Because the Yenchis made each decision to purchase a product from Holland, as indicated by their signatures authorizing the purchases, they never ceded decision-making authority to him. Id. at 1086.
This Court granted discretionary review to consider whether the Superior Court erred in reversing the decision of the trial court to grant summary judgment in favor of Appellants on the grounds that the Yenchis had not adduced sufficient evidence to establish a prima facie case that a fiduciary
The Yenchis, conversely, argue that the Superior Court did not err, as decisions about the existence of fiduciary relationships are fact-intensive inquiries. The Yenchis contend that Appellants held themselves out as experts in financial and retirement planning matters, and that, by contrast, they had only high school educations and no experience working with a financial advisor. This substantial difference of relevant knowledge, the Yenchis insist, created a question of material fact as to whether their relationship with Holland was one so marked by dependence and inequality that it permitted him to take advantage of them. The Yenchis claim that they reasonably believed and trusted that Holland had prepared the Proposal, and later recommended the purchase of the 1996 whole life insurance policy, with their best interests in mind.
“[S]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221 (2002);
Pa. R.C.P. No. 1035.2(1) . When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d 186, 195 (2007). In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment “where the right to such judgment is clear and free from all doubt.” Id. On appellate review, then an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals.
Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899, 902-03 (2007) (internal citations omitted). To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record. Id. at 903. Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (2010).
A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law.
In their motion for summary judgment, Appellants contended that insufficient evidence existed to create a genuine issue of material fact as to whether a fiduciary relationship existed between the Yenchis and Holland. In response, the Yenchis acknowledged that “[u]nder Pennsylvania law, typically the insurer/insured relationship is viewed as an arm‘s-length relationship and fails to create a fiduciary duty.” Brief in Response to [Appellants‘] Motion for Summary Judgment, 2/6/2013, at 20. Nevertheless, the Yenchis’ contended that “the nature of the insurer/insured relationship changed and a confidential relationship was created because [Appellants] acted as a financial advisor providing investment planning advice for a fee.” Id. In their response to the motion for summary judgment, the Yenchis cited to scant evidence in the summary judgment record in support of this claim. As evidence of their trust in Holland, they referenced their decisions, based upon his advice, to cash out their Met Life policies and to use those proceeds to purchase the 1996 whole life insurance policy and the 1997 deferred variable annuity policy.7 Id. at 8. The Yenchis’ also referenced their lack of sophistication regarding finances or the language used in insurance policies and legal documents, although they did not cite to any particular deposition testimony or other evidence to support this claim.8 Finally, again without citing to any record support (including no evidence that Holland ever actually told them that he was
A fiduciary duty is the highest duty implied by law. Miller v. Keystone Ins. Co., 535 Pa. 531, 636 A.2d 1109, 1116 (1994) (Cappy, J., dissenting). A fiduciary duty requires a party to act with the utmost good faith in furthering and advancing the other person‘s interests, including a duty to disclose all relevant information. See Basile v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1120 (2000); Young v. Kaye, 443 Pa. 335, 279 A.2d 759, 763 (1971) (“When the relationship between persons is one of trust and confidence, the party in whom the trust and confidence are reposed must act with scrupulous fairness and good faith in his dealings with the other and refrain from using his position to the other‘s detriment and his own advantage.“); Sylvester v. Beck, 406 Pa. 607, 178 A.2d 755, 757 (1962); McCown v. Fraser, 327 Pa. 561, 192 A. 674, 676-77 (1937); In re Null‘s Estate, 302 Pa. 64, 153 A. 137 (1930), see also Black‘s Law Dictionary (10th ed. 2014) (defining a fiduciary duty as “a duty to act with the highest degree of honesty and loyalty toward another person and in the best interest of the other person“). This highest duty will be imposed only where the attendant conditions make it
In some types of relationships, a fiduciary duty exists as a matter of law. Principal and agent, trustee and cestui que trust, attorney and client, guardian and ward, and partners are recognized examples. See, e.g., McCown, 327 Pa. at 561, 192 A. at 676-77; Young, 279 A.2d at 763. The unique degree of trust and confidence involved in these relationships typically allows for one party to gain easy access to the property or other valuable resources of the other, thus necessitating appropriate legal protections.
Where no fiduciary duty exists as a matter of law, Pennsylvania courts have nevertheless long recognized the existence of confidential relationships in circumstances where equity compels that we do so. See Darlington‘s Appeal, 5 W.N.C. 529, 86 Pa. 512 (1878). Our courts have found fiduciary duties in circumstances where the relative position of the parties is such that the one has the power and means to take advantage of, or exercise undue influence over, the other. The circumstances in which confidential relationships have been recognized are fact specific and cannot be reduced to a particular set of facts or circumstances. Scott, 316 A.2d at 885. We have explained that a confidential relationship “appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed[.]” Frowen v. Blank, 493 Pa. 137, 425 A.2d 412, 416-17 (1981). In these cases, which have typically been
While cases involving fiduciary relationships are necessarily fact specific, they usually involve some special vulnerability in one person that creates a unique opportunity for another person to take advantage to their benefit. This Court has recognized that while disease or advancing age “do not by themselves create a confidential relationship with another,” such limitations “may support an inference of confidentiality” if they bear on a party‘s “capacity to understand the nature of the transaction in question.” Scott, 316 A.2d at 886. Family relationships or close personal friendships, while also not dispositive of the existence of a confidential relationship, have also often played significant roles in particular determinations. Silver v. Silver, 421 Pa. 533, 219 A.2d 659, 662 (1966) (stating that kinship, while not dispositive, is a factor “which cannot be ignored“).
Where one party lacks the ability to understand the nature and terms of the transaction and simultaneously reposes their complete trust in the other party based upon well-established relationships, this circumstance provides an opportunity for the second party to exercise undue influence over the first and, thus, effectively control the decision-making process to their advantage. In Frowen, for example, the sale of a farm for an unreasonably low price was set aside after recognition of a confidential relationship between, on the one hand, an elderly and infirm eighty-six-year-old widow with little formal education and, on the other, neighbors who had befriended her. Frowen, 425 A.2d at 415-16. Similarly, in Brooks v. Conston, 356 Pa. 69, 51 A.2d 684 (1947), after the
Undue influence resulting in a loss of control has also been found to exist when one party places their complete and unhesitating trust in the other party, and in so doing effectively cedes their decision-making authority to the other party. In Young, for example, an octogenarian (Young) with no knowledge of the intricacies of state and federal tax laws, effectively ceded control of the financial aspects of the corporation he owned to someone (Brooks) he considered to be a close friend and trusted advisor. Young, 279 A.2d at 761. Young routinely signed, unquestioningly, corporate (and individual) income tax returns, corporate financial statements, and other corporate letters and financial documents, all prepared by Brooks. Id. After the IRS issued a deficiency assessment against the corporation, Brooks advised Young that the assessment could be avoided if he transferred all of his shares in the corporation to him (Brooks) “for tax purposes only.” Id. Relying solely on Brooks’ advice, Young signed a certificate transferring all 10,000 shares of the corporation to Brooks, which Brooks then sold to a third party for $50,000. Id. This Court held that the transfer of the stock to Brooks was not an arm‘s-length transaction, as Young‘s overwhelming reliance on Brooks’ tax advice created a situation in which Brooks had a unique opportunity to take advantage of Young. Id. at 763. We accordingly reversed the equity court‘s decision, voided the Young-to-Brooks transaction, and held that Young had a superior claim to the stock than did the third party. Id. at 760.
Conversely, even where special vulnerabilities exist, this Court has not recognized the existence of a confidential relationship if the person continued to act on his or her own behalf and did not succumb to any “overmastering influence” of another. For instance, in Jenne v. Kennedy, 379 Pa. 555, 109 A.2d 307 (1954), this Court refused to void the sale of a house by an eighty-five year old mother to her daughter, concluding that there was not “the slightest shred of testimony that she
The Superior Court, in the case before us, erred in relying on our case law involving undue influence to support its conclusion that a fiduciary relationship can be established without evidence that decision-making power was effectively ceded to another. Yenchi, 123 A.3d at 1080–81. Its view misses the point that the exercise of undue influence, at its core, indicates that an individual so influenced has lost the ability to make an independent decision.
In the present case, the Yenchis do not claim that Appellants’ roles as sellers of insurance or, more generally, as financial advisors, created a fiduciary relationship as a matter of law. The Superior Court did not so hold. Yenchi, 123 A.3d at 1080 (“To be clear, we do not hold that evidence of [Appellants‘] purported positions as financial advisors is sufficient by itself to establish a confidential relationship.“). Moreover, while the Yenchis indicate that they paid a fee for the financial advice received from Holland, they do not contend that this fact alone creates a fiduciary relationship. Answer to Petition for Allowance of Appeal, 12/29/2015, at 9 (“It is understood that a fiduciary relationship does not arise simply because one
We conclude that the Yenchis’ summary judgment evidentiary record falls far short of establishing a fiduciary relationship with Holland. Fiduciary duties do not arise “merely because one party relies on and pays for the specialized skill of the other party.” eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 23 (Pa. Super. 2002). If this were the law in Pennsylvania, “a fiduciary relationship could arise whenever one party had any marginal greater level of skill and expertise in a particular area than another party.” Id.; see generally Greenberg v. Life Ins. Co. of Virginia, 177 F.3d 507, 522 (6th Cir. 1999) (“To hold otherwise would impose fiduciary obligations on the seller of goods or services in the vast multitude of ordinary arm‘s-length transactions simply on the basis that the seller possessed superior knowledge of the product being sold.“).
The superior knowledge or expertise of a party does not impose a fiduciary duty on that party or otherwise convert an arm‘s-length transaction into a confidential relationship. In this regard, the analysis is no different in a consumer transaction than in other fiduciary duty cases decided by this Court. “[T]he critical question is whether the relationship goes beyond mere reliance on superior skill, and into a relationship characterized by ‘overmastering influence’ on one side or ‘weakness, dependence, or trust, justifiably reposed’ on the other side,” which results in the effective ceding of control over decision-making by the party whose property is being taken. eToll, Inc., 811 A.2d at 23 (emphasis in original) (holding that although an advertising company was
The case at bar presents an arm‘s-length consumer transaction in which the Yenchis accepted Holland‘s advice with respect to the purchase of the 1996 whole life insurance policy. The Yenchis made the decision to purchase this policy, but also decided to reject other proffered products and services. While we recognize that the premium structure and payout terms of the 1996 whole life insurance policy were complicated, that fact does not change the character of the transaction in question. The Yenchis purchased an insurance product from a captive financial advisor with whom they had a business relationship for a little more than a year, initiated by a cold-call. The Yenchis’ lack of post-secondary high school educations is not indicative of a weakness, dependence, or trust, justifiably reposed, nor is Holland‘s advanced training sufficient to establish an overmastering influence.
The record here establishes that the Yenchis made the decision to purchase Appellants’ advice and financial products. Reliance on another‘s specialized skill or knowledge in making the purchase, without more, does not create a fiduciary relationship. We acknowledge that the Yenchis may have become comfortable with the Appellants’ expertise before deciding to purchase the 1996 whole life insurance policy, which is to be expected when making a financial decision. It is
The Yenchis never ceded any decision-making authority to Holland. Over the course of the relationship, they followed some of his recommendations and rejected others. Prior to the proposal for the whole life policy at issue, Appellants proposed a different whole life product that the Yenchis did not purchase. As to advice accepted, the Yenchis purchased the 1996 whole life insurance policy and the 1997 deferred variable annuity. They began saving money in an investment certificate and opened an IRA account. On the other hand, they rejected other recommendations, including, in particular, Holland‘s advice in 1998 to increase their life insurance to the $300,000 level, deciding for themselves that the 1996 whole life policy was a sufficient amount of life insurance for their needs.11 The evidence does not establish that the Yenchis were subject to any overmastering influence by Holland. They maintained and exercised decision-making control over their financial matters. No confidential relationship was ever created.
We note that under current law and appropriate facts, consumers have various common law tort remedies (with burdens of proof less stringent than those required in fiduciary duty cases), as well as claims for common law fraud and the statutory relief provided by the current version of the UTPCPL, which provides a remedy for deceptive conduct.
For these reasons, we reverse the order of the Superior Court in part, as it pertains to the issue of fiduciary duty. The balance of the present appeal is dismissed as improvidently granted, and accordingly, the remainder of the Superior Court‘s order remains intact.
Chief Justice Saylor and Justices Baer and Dougherty join the opinion.
Justice Todd files a dissenting opinion in which Justice Wecht joins.
Justice Mundy did not participate in the consideration or decision of this case.
JUSTICE TODD, Dissenting
I dissent because, unlike the majority, I find there are sufficient indicators of a fiduciary relationship between the Yenchis and Appellants to allow the Yenchis to avoid summary
As the majority recognizes, outside of the context of fiduciary duties imposed as a matter of law, the existence of a confidential relationship is, first and foremost, a fact-driven inquiry. See Basile v. H & R Block, Inc., 617 Pa. 212, 52 A.3d 1202, 1210 (2012) (noting “the ‘intensely fact-specific’ nature of this inquiry“); In re Estate of Scott, 455 Pa. 429, 316 A.2d 883, 885 (1974) (“The concept of a confidential relationship cannot be reduced to a catalogue of specific circumstances, invariably falling to the left or right of a definitional line. ... [E]ach case must be analyzed on its own facts.“). Moreover, the majority cites the governing test which we have reiterated for finding a confidential relationship: “[A] confidential relationship ‘appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed.‘” Majority Opinion at 633, 161 A.3d at 820 (quoting Frowen v. Blank, 493 Pa. 137, 425 A.2d 412, 416-17 (1981)). However, in applying those principles, in my view, the majority gives insufficient heed to our admonition that “it is unhelpful to sharply deconstruct the generalized guidance [that definition] attempted to provide.” Basile, 52 A.3d at 1210.
In this area, I would avoid reliance on singular and categorical requirements such as “overmastering influence,” “cedes their decision-making authority“, or “surrender[ing] substantial control.” See Majority Opinion at 634, 635, 636, 638, 161 A.3d at 820, 821, 822, 823. Rather, as we did in Basile, I would emphasize the relational focus in discerning confidential relationships, which, in one formulation, is simply this: the “essence of such a relationship is trust and reliance on one side, and a corresponding opportunity to abuse that trust ... on the other.” Basile, 52 A.3d at 1210 (quoting Estate of Scott, 316 A.2d at 885) (internal quotation marks omitted); see also Frowen, 425 A.2d at 416 (“The general test for determining the existence of [a confidential] relationship is whether it is clear that the parties did not deal on equal terms;” it is “not confined to any specific association of the parties” (internal
Consistent with this view, I reject the majority‘s reliance on our statement in Estate of Scott that “a business transaction may be the basis of a confidential relationship only if one party surrenders substantial control over some portion of his affairs to the other.” Majority Opinion at 638, 161 A.3d at 823 (quoting Estate of Scott, 316 A.2d at 886) (emphasis added). This statement is arguably dicta1 and, regardless, in my view,
On the facts of this case, I conclude they present a closer question than does the majority and, as a result, that summary judgment was improper. I find it significant that, early in their relationship with Appellants, the Yenchis paid $350 for a “Financial Management Proposal,” which was prepared by Bryan Holland, identified on the cover of the proposal as an “American Express financial advisor“, and, on the third-page “Important Message,” identified as “your American Express financial advisor“. Exhibit 1 to Deposition of Eugene Yenchi, 12/2/09 (R.R. at 296a). Except for the cover, each page of the proposal was marked “Confidential.” Id. Critically, the recommendations in the proposal were the basis for the now-complained-of consolidation of the Yenchis’ life insurance policies in 1996. In my view, the fact that the Yenchis paid for financial advice, independent of and prior to any decision to purchase life insurance products from Appellants, suggests that their relationship was not simply an arms-length one between customer and insurance agent, but that, for their money, they reasonably could have expected some measure of fidelity to their interests from their self-proclaimed “advisor.”2
Moreover, there are other indicators of a confidential relationship. In their depositions, the Yenchis repeatedly indicated that they trusted Holland, and relied on his superior expertise. See, e.g., Deposition of Eugene Yenchi, 12/2/09, at 29 (R.R. at 243a) (“Q: How is it that you decided where [your money] should be invested while it was at American Express? A: [Holland] advised me to go into that.“); id. at 119 (R.R. at 265a) (“I trusted Bryan for doing it“); id. at 145 (R.R. at 272a) (“we trusted him that he knew the best“); Deposition of Ruth Yenchi, 12/2/09, at 37 (R.R. at 666a) (“Q: Did you ask any questions about it of anyone, either someone from American
Nevertheless, I recognize there are countervailing indicators as well. In particular, the Yenchis never testified that the fee-based proposal was the basis for their trust in Holland or Appellants, or that Holland ever stated that he was acting in their best interests. Moreover, it appears that their trust in him had its limits, given that, as noted by the majority, they declined to follow his advice at times. See Majority Opinion at 625, 638, 161 A.3d at 815, 823. But, in my view, these conflicting indicators only highlight the factual dispute concerning the existence of a fiduciary relationship. Finally, while I recognize that we have not heretofore found a confidential relationship in a comparable consumer context, I eschew categorical limitations and maintain that our focus should remain on the fact-intensive nature of the inquiry. Accordingly, because I conclude there are outstanding material factual disputes and that summary judgment was inappropriate as a matter of law, I agree with the Superior Court that the trial court‘s order granting summary judgment to Appellants on their fiduciary duty claim should be reversed.
For these reasons, I would affirm the order below.
Justice Wecht joins this dissenting opinion.