source: Caselaw Access Project

author: ASPEN, District Judge:

license: Public Domain

text:
    UNITED STATES of America ex rel. John SHIFLET, Plaintiff, v. Michael LANE, Director, Illinois Department of Corrections, and James Thieret, Warden, Menard Illinois Correctional Center, Defendants.
    No. 85 C 5243.
    United States District Court, N.D. Illinois, E.D.
    Dec. 31, 1985.

      Josette Skelnik, Robinson & Skelnik, Elgin, 111., for plaintiff.
    Terence M. Madsen, Asst. Atty. Gen., Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Petitioner John Shiflet (“Shiflet”) was convicted for the murder of his wife and is now serving a term of life imprisonment following a jury trial in an Illinois state court. The appellate court affirmed his conviction, People v. Shiflet, 125 Ill.App.3d 161, 80 Ill.Dec. 596, 465 N.E.2d 942 (2d Dist.1984), and after being denied leave to appeal to the Illinois Supreme Court, Shiflet petitioned this Court under 28 U.S.C. § 2254 (1982) for a writ of habeas corpus. Shiflet claims that the use of privileged information to obtain a search warrant and the admission of evidence seized as a result of the warrant violated his Sixth and Fourteenth Amendment rights to the effective assistance of counsel and a fair trial. Respondents (“the State”) have filed a motion for summary judgment, and Shiflet has filed a cross-motion for summary judgment. For the following reasons, the Court allows the petitioner’s motion and grants the petition for habeas corpus. Accordingly, the State’s motion for summary judgment is denied.

FACTUAL BACKGROUND

On or about September 30, 1980, petitioner’s wife Rose Shiflet (“Rose”) was murdered. Rose’s body was found early on October 1 along a road approximately three miles from the apartment which she shared with Shiflet. The cause of death was a blow to the head, resulting in extensive bleeding and a consequential loss of oxygen supply to the brain. Shiflet had reported Rose missing on the night of September 30, claiming that she had left the apartment in an anxious state resulting from a personal problem which the two of them had been discussing.

On October 1, Shiflet engaged legal counsel in anticipation that he would be a primary suspect in the investigation of his wife’s murder. He went to Charles Kaeding (“Kaeding”) who agreed to represent him and referred him to John Ylisela (“Ylisela”), a private investigator who often worked for Kaeding and shared office space with him. Attorney Kaeding instructed Ylisela to interview Shiflet and told Shiflet to give Ylisela his full cooperation in divulging the details of the matter for which petitioner was seeking legal advice. At no time did Shiflet consult any other persons regarding his problem, nor did he waive his privilege of confidential communication with his attorney.

That same evening, Ylisela contacted Paul Dungan (“Dungan”) of the DuPage County Sheriff’s Office, whom he had known for six to eight years when they had been fellow police officers. Ylisela explained that he had important information regarding Rose’s death. Dungan and Ylisela met secretly in a parking lot, where Ylisela related to Dungan that Shiflet had killed his wife. Ylisela related in narrative form to Dungan his understanding of how Shiflet had killed his wife and disposed of her body. Despite several inquiries by Dungan, Ylisela refused to disclose the source of his knowledge and claimed he would deny having ever spoken to Dungan if he were asked. Ylisela warned Dungan that “You don’t want to know” the source of the information.

Following this conversation, Dungan falsely informed Sergeant George Weihofen (“Weihofen”) that an unknown informant had provided him with the details of the murder which he actually had learned from Ylisela. Dungan then prepared a police report indicating that he had spoken to an unknown male who would not reveal his identity and whom Dungan had never before seen. His superiors later ordered him to file a second report disclosing the identity of the informant.

Dungan had conversed with Ylisela on two prior occasions earlier that year when they discussed Ylisela’s employment. Ylisela told Dungan that he was an investigator for Hargrave Secret Service, and that he was renting a suite from Charles Kaeding. Further, the record indicates that Dungan knew Kaeding was Shiflet’s lawyer because on October 1 Dungan saw Kaeding at Shiflet’s apartment. Therefore, Dungan actually was well acquainted with Ylisela and was apparently aware that Ylisela shared office space with Shiflet’s attorney when he related the information to his sergeant. Respondents’ Proposed Statement of Agreed Facts at 5, 8.

Ylisela was summoned to the Sheriff’s Office on October 2, 1980. He admitted knowing some members of the police department but denied having given them any information. Although the record does not indicate on what basis Ylisela was requested to come in, it is clear from this incident that the law enforcement officials were concerned that something was wrong. This was confirmed at the very latest on the morning of October 3, when a local attorney apparently affiliated with Kaeding called an assistant state’s attorney and advised him not to question Ylisela on any matter relating to the investigation of Rose’s homicide, warning him that it would be a breach of the attorney-client privilege. The state’s attorney informed Dungan of this conversation, yet Dungan proceeded to procure a search warrant based in substance on the Ylisela information despite this warning. He did include a statement at the end of his complaint for the search warrant disclosing the fact that this warning regarding Ylisela and the attorney-client privilege breach had taken place.

At this point, one search warrant had already been executed authorizing a search of the apartment which Shiflet and Rose shared. The apartment was searched under the authority of this warrant on October 1 at 5:45 p.m., before the Ylisela-Dungan meeting, and a damp pair of jeans and shirt were seized. On the morning of October 2, police officers searched Rose’s car pursuant to another search warrant and seized several items, including a hatchet handle and tarp. After chemical testing, the items taken from the car were found to have traces of blood on them.

However, many important items of evidence were not found until the police searched the Shiflet apartment for a second time on the evening of October 3. Dungan obtained a search warrant authorizing this second search primarily based on information obtained from Ylisela. The police, knowing exactly what to look for based on the information Ylisela disclosed, seized physical evidence strongly linking Shiflet to the crime.

The affidavit provided by Dungan as a basis for this warrant outlined the privileged information received from Ylisela. Ylisela told Dungan that Shiflet had murdered his wife at their apartment on September 30, 1980. He told Dungan all of the details of the crime, including facts regarding the victim’s bleeding and Shiflet’s extensive efforts to clean all traces of blood from the apartment. To a great extent, this information provided police with the knowledge necessary to identify specific items as relevant to the murder investigation during the search on October 3.

Before trial, Shiflet moved unsuccessfully to have the evidence obtained in the October 3 search suppressed on the basis of violations of his Sixth Amendment right to effective assistance of counsel. The trial court denied the motion since there was no affirmative invasion of the attorney-client privilege by the state, in that there was an insufficient showing that the police knew, or should have known, “that there was taking place some process that was or constituted invasion of the attorney-client procedure.” The court also found that there was sufficient information in the affidavit to support probable cause to search the apartment for a second time, although it did not indicate that there would have been probable cause without Ylisela’s statements.

Shiflet also filed a motion in limine to prevent the state from using statements made by him to Ylisela at trial in violation of Shiflet’s privilege and to preclude use of the physical evidence seized in the search pursuant to the Ylisela-based warrant. The court agreed to prohibit introduction of Ylisela’s statements, but again decided the physical evidence was admissible. In its ruling, the court made explicit findings that the attorney-client privilege had not been waived, that there was insufficient evidence to support any claim that the statements made to Ylisela by Shiflet were not privileged because they fell within the crime-fraud exception to the attorney-client privilege and there was no affirmative invasion of the attorney-client privilege by any state official.

Shiflet was tried and convicted by a jury in an Illinois state court. The court sentenced him to imprisonment for the remainder of his natural life, and both the sentence and conviction were affirmed on appeal. The appellate court found that the communications between Shiflet and his attorney or his attorney’s investigator were privileged and affirmed the lower court ruling that the crime-fraud exception did not apply. However, the court also agreed that since the State was not affirmatively involved in violating the privilege, there was no violation of the Sixth and Fourteenth Amendments involved in the use of that privileged information to obtain a warrant. The state appeals court also found that the complaint and affidavit for search warrant, absent the facts supplied by Ylisela, was still sufficient to establish probable cause.

Shiflet’s appeal to the Illinois Supreme Court was denied. Having exhausted his state remedies as required by 28 U.S.C. § 2254(b) (1982), Shiflet filed the present petition for habeas corpus.

PETITIONER’S CLAIM

I. Federal Review of Petitioner’s Claims Is Not Barred By Stone v. Powell

A threshold issue which was raised by the state respondents in their motion for summary judgment is whether this Court is barred from adjudicating this habeas corpus petition under the United States Supreme Court’s holding in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). In Stone v. Powell, the Supreme Court held that a person convicted in state court could not challenge his or her conviction in a federal habeas corpus proceeding on the basis of an unconstitutional search and seizure in violation of the Fourth Amendment so long as the state had already provided a full and fair opportunity to litigate that claim. Id. at 494, 96 S.Ct. at 3052. Simply put, the state’s argument in the present case is that Shiflet’s habeas petition is essentially a Fourth Amendment claim clothed in Sixth Amendment terms. We reject that argument on its face.

The Supreme Court’s holding in Stone v. Powell is narrowly prescribed to cases with Fourth Amendment claims specifically involving purportedly tainted evidence. Here, the evidence which petitioner sought to have excluded at his original trial was a direct outgrowth of information which was arguably obtained in violation of the Sixth Amendment. Although the remedy sought, the suppression of evidence, is similar to that invoked when Fourth Amendment violations have been established, the fundamental right involved is grounded in the Sixth Amendment. Furthermore, when evidence is obtained either directly or indirectly as a result of a Sixth Amendment violation, that evidence may be excluded at trial. Bishop v. Rose, 701 F.2d 1150, 1157 (6th Cir.1983). We strongly disagree with respondents’ assertion that “the alleged denial of effective assistance ... has no independent significance beyond the question of whether the search which is argued to have resulted from the information was lawful or unlawful.” In fact, at the heart of the asserted Sixth Amendment rights here is the fundamental constitutional right to effective assistance of counsel and to a fair trial in a criminal prosecution.

II. Without the Privileged Information Obtained From Ylisela, There Was Insufficient Probable Cause To Justify A Second Search Of Petitioner’s Apartment

A second issue which we now address is whether there were sufficient facts, independent of the information disclosed by Ylisela in the complaint and affidavit for the October 3 search warrant, to establish probable cause to search the petitioner’s apartment for a second time. The significance of this inquiry is that the evidence which petitioner sought to have excluded in the state court might have been admissible even if there was a violation of the Sixth Amendment resulting from Ylisela’s disclosure and the use of that disclosure by the police, since the probable cause would have been derived from an independent source. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); United States ex rel. Owens v. Twomey, 508 F.2d 858, 865-66 (7th Cir.1974).

The state appellate court held that the affidavit and complaint for the search warrant, with all information obtained from Ylisela excised, had sufficient basis for probable cause for a second search of the apartment. People v. Shiflet, 125 Ill.App.3d at 173, 80 Ill.Dec. at 604, 465 N.E.2d at 950. Since probable cause is a legal, not a factual, determination we are permitted to address this question in the context of a Sixth Amendment claim even though the state court made a specific finding on the issue. We disagree with the state appellate court’s determination that probable cause would have been established had Ylisela’s information not appeared in the warrant.

According to the respondents, the affidavit contained “twenty separate allegations” of fact to support a probable cause determination independent of Ylisela’s indiscretions. However, the warrant cannot withstand close constitutional analysis after the Ylisela information is deleted. First of all, many of these facts have absolutely no bearing on the necessity to search the apartment, but merely establish the fact that a crime took place. For example, Paragraph 1 of the non-Ylisela part of the complaint states that a female body was found by a jogger on October 1. Incidentally, this fact is repeated almost exactly in Paragraph 13. Furthermore, the complaint is replete with statements which would be of little relevance or at least would not be enough to establish probable cause, in the absence of the context in which Ylisela’s information put them. For example, in Paragraph 4 it is stated that the victim’s body bore a wound which was consistent with being struck in the head with a hammer. Of course, it had been learned from Ylisela that Shiflet used a hammer to kill his wife, making this factor particularly pertinent in the context of the entire complaint. Moreover, at the time the October 3 search took place, the police had already found an axe handle with blood traces in the trunk of Rose’s car which they thought to be the murder weapon. Also, other facts included in this affidavit were known prior to first search, and did not add anything to justify probable cause for a second search.

Other facts in the affidavit indicated that there were marks consistent with strangulation on the victim’s neck. That fact had little bearing on the investigation absent the knowledge that petitioner had admitted to Ylisela strangling his wife in the process of the murder and certainly did not contribute to a probable cause determination to search the apartment. At that point, it was still assumed that the cause of death was the blow to the head. That was later confirmed by a medical examiner. There were some facts in the affidavit which, if supported by other evidence, might have established probable cause. These facts relate to the observance of scratches on the petitioner’s arms and the observation by two different people that the victim’s nails had been cut very closely when she ordinarily wore them long and well-groomed. However, these facts must be examined on the assumption that there was no knowledge of how the crime took place. In that context, these facts would still not have been able to sustain a probable cause challenge.

Finally, there are a couple of facts stated in the warrant which underscore the lack of probable cause in the absence of Ylisela’s disclosure. In Paragraphs 8, 9 and 15 of the complaint, it is stated that neither blood stains nor a wet spot was observed on the carpet during the course of the October 1 search of the Shiflet apartment and that no blood stained plastic bag had been found. Of course, with the complete knowledge of the crime and its aftermath obtained from Ylisela, the police knew exactly what to look for and ultimately did seize sections of the carpeting and carpet padding in the course of the October 3 search.

We are not convinced that the facts stated in the warrant independent of those obtained from Ylisela were sufficient, without more, to establish the necessary probable cause to procure a search warrant. The law enforcement officials might well have discovered information through legitimate sources which, added to these independent facts, would have supported a probable cause determination at a later time. However, upon careful review of the papers filed in support of the search warrant in question, we disagree with the state appellate court’s determination that there was adequate probable cause for the search even without Ylisela’s disclosure of privileged information.

III. Petitioner Did Not Receive Effective Assistance Of Counsel, And Therefore Did Not Receive A Fair Trial In State Court

A. The Crime-Fraud Exception to the Attorney-Client Privilege Does Not Apply in This Case

The State argues that there is no violation of the Sixth Amendment here because the petitioner sought to cover up his crime when he gave information to Ylisela. The crime-fraud exception to the attorney-client privilege is a principle which amounts to a waiver of that privilege in cases where a client seeks to commit a crime or fraud in his or her disclosures to the attorney. We choose not to disturb the ruling of the state courts on this issue. None of the examples of purported “fraud” cited by the State is, as a matter of law, within the crime-fraud exception. Shiflet was merely seeking legal counseling, and his statements were clearly privileged. The State argues that Shiflet is engaging in an abuse of the habeas corpus process by attempting to have the evidence excluded in this case. On the contrary, the issues raised by Shiflet illustrate important concerns which should be of concern to all those involved in the administration of criminal justice.

Furthermore, the fact that Shiflet’s statements to Ylisela were excluded from use at trial does not eliminate the constitutional violation. The State asserts that none of Shiflet’s rights was violated since the privileged statements were not introduced at trial. This argument has little credence, since it is a well-founded principle that, where there has been a violation of a criminal defendant's Sixth Amendment rights, any evidence either directly or indirectly obtained as a result of the constitutional violation is not admissible. See, e.g., Bishop v. Rose, 701 F.2d 1150, 1157 (6th Cir.1983).

B. When Extremely Prejudicial Disclosure of a Privileged Communication is Made to the Government and the Information Obtained is Used to the Defendant’s Detriment, the Defendant’s Right to Effective Assistance of Counsel has been Violated Despite the Absence of an Intentional Governmental Intrusion.

Having disposed of these preliminary issues, we now turn to the question of whether petitioner Shiflet was tried in violation of his Sixth and Fourteenth Amendment rights to effective assistance of counsel and a fair trial. The Constitution guarantees to each criminal defendant the right “to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI; Maine v. Moulton, — U.S.-,-, 106 S.Ct. 477, 483-84, 88 L.Ed.2d 481 (1985). This right, along with others set forth in the Sixth Amendment, make up what has been broadly denominated as the defendant’s right to a fair trial. Given the complexity of law in modern society, the right to counsel is the sine qua non of the fair trial right for the criminal defendant. Furthermore, it has been well established for many years that this right encompasses the equally important guarantee of the right to the effective assistance of that counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). This standard is absolutely necessary if there is to be any meaning to the Sixth Amendment rights.

Just what constitutes a denial of effective assistance of counsel has been the subject of voluminous litigation since the right was first recognized. Fundamentally, the actual denial of defense counsel in a criminal prosecution is a violation of the Sixth Amendment. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963). Furthermore, the constructive denial of counsel in light of that counsel’s inability to properly represent the defendant is prohibited by the Sixth Amendment. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.

Ineffective assistance claims arise in several different contexts. First, extreme incompetence on the part of the defendant’s attorney can support a claim that the right to counsel has been undermined. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In other cases, affirmative acts of intrusion on the government’s part resulting in disclosure of confidential communications have negated any right to effective counsel that the defendant may ostensibly have had and prejudice to the defendant is presumed. United States v. Levy, 577 F.2d 200, 208 (3d Cir.1978); Coplon v. United States, 191 F.2d 749 (D.C.Cir.1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952). In other instances, a showing of prejudice is necessary to support a defendant’s claim that her Sixth Amendment rights have been violated. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Courts have shied away from bright line rules in this area, preferring a standard by which the actual prejudice to the criminal defendant can be assessed on a case-by-case basis.

We know of no case which presents an issue precisely like the one raised here by Shiflet. While the extent of Sixth Amendment protections with respect to the attorney-client privilege has been evaluated by courts in other contexts, the level of the government’s affirmative actions and the extent of disclosure provided to and used by the government here are unique. Nevertheless, we hold that given the totality of circumstances surrounding this case, Shiflet was tried and convicted in violation of his Sixth and Fourteenth Amendment rights.

In Shiflet’s case, there was never any argument that the prosecution affirmatively planned to surreptitiously obtain information from the defense counsel’s investigator. However, it should also be noted that the government’s behavior upon discovering the violation of Shiflet’s privilege was not “entirely passive” as the respondents have asserted. As indicated in the complaint for the warrant itself, the government officials discovered that the information was privileged after they obtained it. Nevertheless, they went ahead and procured the warrant, largely on the basis of this information. See note 7 supra.

The State in this case argues that no constitutional violation can occur where government officials have not made an affirmative intrusion into the privileged relationship between client and attorney. The line of cases dealing with this issue, at first glance, seems to rely on the distinction between information which was obtained as part of an intentional government plan and that which is obtained without such planning. However, upon closer analysis, these cases merely eschew a bright-line rule which would base a Sixth Amendment violation on the prosecution’s behavior without a further showing of prejudice. Weatherford v. Bursey, 429 U.S. 545, 557-58, 97 S.Ct. 837, 844-45, 51 L.Ed.2d 30 (1977); United States v. Brugman, 655 F.2d 540, 546 (4th Cir.1981). Thus, intentional government intrusion has never been, nor should it be, the only benchmark of a Sixth Amendment claim.

Hence, a finding of intentional intrusion by the State into the attorney-client relationship is not crucial to the Court’s holding today. Where government use of privileged information obtained by windfall causes extreme prejudice to the defendant and renders his right to counsel virtually meaningless, a constitutional problem arises. What happened to Shiflet should not be permitted to happen to any criminal defendant. The extent to which Shiflet was prejudiced in this case as a result of the disclosure of privileged information is of the greatest extremes. Indeed, he was thrust into a virtual twilight zone of criminal procedure when information which he assumed was entitled to the utmost privilege was provided directly to law enforcement officials. As a result of this bizarre turn of events, Shiflet was unable to receive the fair trial to which he was entitled under the Constitution. As one commentator has observed, “if courts simply ensure access to counsel, without recognizing the client’s underlying right to communicate privately with his attorney, they may render ineffective the legal assistance that the Constitution guarantees.” Note, Government Intrusions Into The Defense Camp: Undermining the Right to Counsel, 97 Harv.L.Rev. 1143, 1144 (1984).

The Supreme Court’s decision in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), provides a basic Sixth Amendment analysis with respect to the breach of the attorney-client privilege. In Weatherford, an undercover government agent was arrested along with the defendant. At the defendant’s request, the agent attended two pretrial conferences between defendant and his attorney. The agent obliged the defendant in order to preserve his cover, but he also testified as a witness for the prosecution at the defendant’s trial. After his conviction, the defendant filed an action under 42 U.S.C. § 1983 (1982) on the grounds that in intruding, on the attorney-client relationship the government agent had denied him his right to effective assistance of counsel under the Sixth and Fourteenth Amendments and deprived him of due process under the Fourteenth Amendment. Even though a state law enforcement agent had intruded upon the attorney-client relationship, the Court held that there was no constitutional violation as long as the agent did not reveal strategy or information regarding the pending charges. 429 U.S. at 558, 97 S.Ct. at 845.

Thus, the two most important elements for the purpose of defining Sixth Amendment rights seem to be the level of government intrusion and the extent to which a defendant has been exposed to prejudice resulting from the disclosure of privileged information. The Court in Weatherford merely held that the Fourth Circuit Court of Appeals had applied an incorrect per se rule finding a Sixth Amendment violation solely because privileged information had been overheard by a government agent. In so doing, the Court focused on the lack of prejudice resulting from this intrusion, since none of the information overheard was used in either a direct or indirect manner in the prosecution of the defendant. 429 U.S. at 552, 97 S.Ct. at 842.

On the contrary, in the present case, the privileged information was used to a significant extent by the government. Moreover, the Weatherford Court distinguished its holding from other factual situations when it declared that “this is not a situation where the State’s purpose was to learn what it could about the defendant’s defense plans and the informant was instructed to intrude on the lawyer-client relationship or where the informant has assumed for himself that task and acted accordingly.” Id. at 557, 97 S.Ct. at 844 (emphasis added). Thus, in certain circumstances, the absence of an improperly motivated government intrusion combined with an extremely prejudicial disclosure may constitute a Sixth Amendment violation.

The Weatherford decision, and subsequent interpretation thereof, provide a general framework for analysis of Sixth Amendment claims involving an intrusion into the relationship between client and attorney. It is clear that this Sixth Amendment analysis involves consideration of the factual circumstances, in the totality, which may have resulted in the denial of defendant’s right to a fair trial. It is a consideration of both the extent to which the government has intruded in an affirmative manner upon the defendant’s privileged relationship with his or her attorney, as well as the extent to which the defendant has been prejudiced by disclosure of privileged information. For example, the Fourth Circuit in United States v. Brugman, 655 F.2d 540, 546 (4th Cir.1981), listed several factors which it considered in its Sixth Amendment analysis:

(1) whether the presence of the informant was purposely caused by the government in order to garner confidem tial, privileged information, or whether the presence of the informant was a result of other inadvertent occurrences; (2) whether the government obtained, directly or indirectly, any evidence which was used at trial as a result of the informant’s intrusion; (3) whether any other information gained by the informant’s intrusion was used in any other manner to the substantial detriment of the defendant; and finally, (4) whether the details about trial preparation were learned by the government.

It is factors such as these which courts must weigh in the delicate balancing involved in Sixth Amendment/attorney-client privilege claims.

We thus reject the conclusion that affirmative, planned governmental intrusion on the attorney-client relationship is an absolute prerequisite to a finding that the defendant’s Sixth Amendment rights have been violated. This is consistent with other courts’ analyses, such as the Fourth Circuit in Brugman, which cautioned that:

Our conclusion is not to be deemed a per se rule that it is only the intervention of government agents and their subsequent actions which will warrant a conclusion of violations of a defendant’s Fifth and Sixth Amendment rights under the constitution.

Brugman, 655 F.2d at 546.

Other courts, employing a broad circumstantial analysis, have evaluated prejudicial disclosures where the government officials’ conduct was relatively passive. For example, in a ease where a privileged communication was inadvertently discovered by the police and used at trial, the Sixth Circuit Court of Appeals held that the defendant’s Sixth Amendment rights had been violated. Bishop v. Rose, 701 F.2d 1150, 1157 (6th Cir.1983). The defendant in Bishop was incarcerated in a county jail pending his trial for murder. An escape attempt by his cellmates occurred while defendant was in the jail, though he was not involved in that attempt. When the police searched the jail after the escape attempt, they discovered a written document prepared by defendant at the request of his attorney. The document detailed the events of the alleged murder as defendant recalled them. Defendant promptly notified an employee of the sheriff’s office when he discovered that the document was missing from his cell, and further warned the law enforcement officials that the document was intended to be used by his attorney in preparing his defense. The document was eventually returned, but not before the police made copies and supplied them to the investigating officers. At the defendant’s trial, the prosecutors used a copy of the document to impeach the defendant, who chose to testify in his own behalf. Following his conviction and an unsuccessful attempt to get a new trial through different state procedures, defendant filed a petition for a writ of habeas corpus. The Sixth Circuit affirmed the district court’s granting of the habeas petition on the ground that the use of the privileged document was in violation of defendant’s Sixth Amendment rights. 701 F.2d at 1157. There was no dispute in Bishop that the search of the jail cell after the escape attempt was valid, and that the police officers had the right to be in the cell where they found the document. Furthermore, the document had no markings with respect to its privileged nature nor was it addressed to the defendant’s attorney. Thus, as in the present case, the evidence was received as a windfall without premeditation on the part of the government officials. Nevertheless, the Sixth Circuit found a Sixth Amendment violation under these circumstances since the privileged information was used for the benefit of the prosecution and to the defendant’s substantial detriment, thus establishing the necessary level of prejudice despite the lack of a planned governmental intrusion. Id. at 1156. The similarity to the present case extends to the indirect use of the privileged information as well. In Bishop, the government was prevented from introducing the document at trial, but used it instead to impeach the defendant. Here, Shiflet’s statements were not introduced at trial, but the government used those statements to obtain other evidence which was used in its case.

We also find helpful the analysis of the Illinois Supreme Court in People v. Knippenberg, 66 Ill.2d 276, 6 Ill.Dec. 46, 362 N.E.2d 681 (1977). In that case the defendant, in an appeal from his murder conviction, argued that he was denied a fair trial by the prosecutor’s improper use of a privileged statement which defendant had made to a defense investigator to impeach defendant at trial. The defendant had made statements to an investigator for the Illinois Defender Project who had been engaged by the defendant’s attorney to aid in the defense. The investigator prepared a summary of the interview with defendant which somehow found its way into the hands of the government’s attorneys. It was not clear from the record how this summary was obtained by the prosecutors, but the method of disclosure was not important to the court’s decision that “[w]hat occurred here was violative of the notion of a fair trial and completely offensive to the concept of the effective assistance of counsel. The prejudice to the defendant was grave and inexcusable.” Id. at 285, 6 Ill.Dec. at 50, 362 N.E.2d at 685. In the present case, despite the lack of proof of an intentional intrusion upon Shiflet’s privilege by the government, we find the prejudice to the petitioner equally inexcusable.

The standards for evaluating Sixth Amendment claims where there has been an unauthorized disclosure of information protected by the attorney-client privilege provide for the careful assessment of the level of prejudice to which a defendant has been subjected. In Shiflet’s case that prejudice has been extreme. Although no details regarding Shiflet’s trial strategy were disclosed, fundamental privileged information about the events which took place on the night of Rose Shiflet’s death were provided directly to the police. In any event, tactics are of little help to a criminal defendant when the state has a window to his case. Furthermore, despite the fact that Ylisela was not planted in the defense team by the prosecution, state officials continued to make improper use of information they knew to be privileged at the time they sought the warrant for the October 3 search of Shiflet’s apartment. In this manner, the State was able to obtain critical evidence as a result of the disclosure of the privileged information. Moreover, there can be little doubt that the privileged information was used to the substantial detriment of Shiflet. Direct access to internal information known only to members of Shiflet’s criminal defense team could only have helped the prosecution in all manners as the State’s case was prepared and tried.

The necessity of a constitutional rule protecting defendants from the circumstances that befell John Shiflet is similar to the rationale underlying the attorney-client privilege in general. We cannot agree with the state appellate court’s conclusion that a finding of constitutional infirmity in this case would encourage criminal defendants to sabotage their own cases by having privileged information disclosed. The state appellate court stated that “enlightened defendants may well seek to arrange a similar breach of the privilege to foreclose the production or use of evidence against them” if the Sixth Amendment right prevents the use at trial of information disclosed in violation of the attorney-client privilege. People v. Shiflet, 125 Ill.App.3d 161, 173, 80 Ill.Dec. 596, 604, 465 N.E.2d 942, 950 (2d Dist.1984). Not only is this unlikely in the most practical sense, but also, as a matter of law, this behavior would constitute a waiver of the attorney-client privilege which would render the Sixth Amendment protection useless. On the other hand, if this right is not upheld in the context of factual situations such as these, criminal defendants may be unwilling to make full and candid disclosure to their attorneys of all relevant information necessary for their defense.

This Court’s ruling today should be construed as a mere extrapolation of principles outlined by other federal courts in assessing violations of the Sixth Amendment arising from the breach of the attorney-client privilege. Under the totality of the circumstances in the present case, we find that Shiflet did not receive a fair trial in state court because his counsel’s effectiveness was severely undermined by misconduct on the part of a defense investigator in disclosing privileged information directly to law enforcement officials. The effect of such disclosure was so extreme that the minimal level of state intrusion does not foreclose Shiflet’s constitutional claim. He is entitled to a new trial with the evidence obtained under the authority of the warrant for the second search of the apartment excluded. If within 30 days of this ruling the State does not elect to retry Shiflet, the writ shall issue. It is so ordered.

      . Only facts relevant to the habeas corpus petition are summarized here. These facts are drawn largely from a Proposed Statement of Agreed Facts submitted by the parties. Additional facts can be obtained from the state court record and the state appellate court opinion. People v. Shiflet, 125 Ill.App.3d 161, 80 Ill.Dec. 596, 465 N.E.2d 942 (2d Dist.1984).

      . All dates discussed hereafter in this opinion refer to incidents taking place in 1980 unless otherwise stated.

      . It is unclear how Dungan's superiors knew that he was lying in the first report.

      . The evidence obtained through this search included: a section of carpeting and carpet padding which were determined to have blood stains; a hair dryer bearing a blood stain; a vacuum cleaner bag and its contents, including fingernail clippings; a hammer to which were adhered two hairs and on which positive signs of blood were detected.

      . For example, it was learned that Shiflet struck his wife over the head with a hammer, which had a new handle. The victim struggled, scratching Shiflet’s arm and chest, after which Shiflet strangled her. He then covered her head with a plastic bag. Shiflet cleaned blood stains from the carpet and then used a hair dryer to blow dry the surface. He then clipped and cleaned the victim’s fingernails. The hammer handle, sections of the carpet, fingernail clippings and the hair dryer were all found in the October 3 search.

      . The Sixth Amendment right to counsel in the Constitution is extended to individuals tried in the state courts through the Fourteenth Amendment by incorporation. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799 (1963). Where we refer in this opinion to petitioner’s Sixth Amendment rights, it should be recognized at all times that this principle is being invoked.

      . Respondent’s Proposed Statement of Agreed Facts at 10. We note that an important distinction must be made between the state court’s finding and our holding today. In denying the motion to suppress, the state court finding that there was no affirmative invasion of the attorney-client privilege by the State refers to the plans or intent of governmental officials to obtain information from a privileged source. The trial judge stated that "[i]nvasion I think by its very terms, its very nature, connotes if it doesn’t denote that there must be some affirmative undertaking by the invaders.” (C. 952). We do not and indeed could not, disturb the finding of fact that there was insufficient evidence to indicate that the government planned to intrude on petitioner’s attorney-client privilege. However, once the information was obtained by government officials, it was used by those officials to obtain a warrant even after they were warned that information obtained from Ylisela would be privileged. This is clear from the record, and it is this scenario on which we base our holding that petitioner did not receive effective assistance of counsel.

      . Shiflet also attempted to exclude evidence seized as a result of the two other search warrants, but the issues involved are not relevant here.

      . We note that Shiflet did not pursue any state post-conviction remedies with respect to the issues presented here. However, exhaustion of state post-conviction remedies is not necessary where such an effort would be futile. Where, as here, the issues presented in a habeas corpus petition were raised on direct appeal from the state trial court and rejected by the state appellate court, post-conviction remedies are deemed futile since the appellate court decision would be res judicata as to those issues actually decided. Perry v. Fairman, 702 F.2d 119, 121 (7th Cir.1983); United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1385 (7th Cir.1974); People v. Gaines, 105 Ill.2d 79, 87-88, 85 Ill.Dec. 269, 274, 473 N.E.2d 868, 873 (1984), cert. denied, — U.S. -, 105 S.Ct. 2666, 86 L.Ed.2d 282 (1985).

      . This Court notes a current dispute in the federal courts over whether habeas corpus relief may properly be sought for a Sixth Amendment ineffective assistance of counsel claim where that claim is based solely on counsel’s failure to raise a Fourth Amendment claim at or before trial. Morrison v. Kimmelman, 752 F.2d 918 (3d Cir.), cert. granted, — U.S. -, 106 S.Ct. 59, 88 L.Ed.2d 47 (1985) (habeas relief available); Sallie v. North Carolina, 587 F.2d 636 (4th Cir.1978), cert. denied, 441 U.S. 911, 99 S.Ct. 2009, 60 L.Ed.2d 383 (1979) (habeas relief available); LiPuma v. Commissioner, New York Department of Corrections, 560 F.2d 84 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1977) (habeas relief not available). The Seventh Circuit has not, to this Court’s knowledge, addressed this issue. As discussed above, it is our view that the holding in Stone v. Powell is narrowly limited to claims raised directly under the Fourth Amendment and which implicate the rights guaranteed by that amendment. However, even if the question raised by the Morrison, Sallie and LiPuma cases is ultimately resolved in a manner which would bar habeas relief in situations where counsel has failed to argue a Fourth Amendment claim for the defendant, we do not foresee that such a limitation would preclude relief in the present case. In the case where defense counsel has failed to make a Fourth Amendment claim, at least an argument can be made that an unconstitutional search and seizure is the fundamental focus of the constitutional challenge. However, the Fourth Amendment implications in this case are extremely attenuated from the central concern over whether Shiflet’s counsel was rendered ineffective in a constitutional sense. With this in mind, we proceed with our review of Shiflet’s claim.

      . We note that the state appellate court held that "sufficient facts were known to the officers, without Ylisela’s assistance, to induce them to return to the apartment seeking further evidence of the crime." But what was known to the police is not the relevant inquiry. The relevant inquiry is what was in the warrant aside from the information provided by Ylisela.

      . This belief is exhibited in the affidavit for the first search warrant obtained by Sergeant Weihofen.

      . Furthermore, in terms of pure privilege law, it is unclear that the defendant in Weatherford did not waive his privilege by discussing his case with his attorney in the presence of an unnecessary third party. That point also distinguishes that case from this one since it is clear that an investigator hired by an attorney to work on a defendant’s case is a party necessary to the attorney’s representation, and therefore communications to the investigator are equally privileged as those made to the attorney. People v. Knippenberg, 66 Ill.2d 276, 6 Ill.Dec. 46, 362 N.E.2d 681 (1977).

      . Although the state court in this case made findings that petitioner was not prejudiced by the chain of events resulting in Ylisela’s unauthorized disclosures, we deem those findings, at the very least, as mixed questions of law and fact. Furthermore, since the extent of prejudice to the defendant is an element of his Sixth Amendment claim, the findings we make today with respect to prejudice are well within our authority to interpret and apply the Constitution in habeas corp.tis proceedings.


author: FARNAN, District Judge.

text:
    Dr. William B. DRAGAN, Plaintiff, v. L.D. CAULK CO., DIVISION OF DENTSPLY INTERNATIONAL, INC., Defendants.
    Civ. A. No. 84-707-JJF.
    United States District Court, D. Delaware.
    Dec. 31, 1985.
    Arthur T. Fattibene (argued), Southport, Conn., and Taylor W. Hanavan of Connolly, Bove, Lodge & Hutz, Wilmington, Del., for plaintiff.
    Albert W. Preston, Jr. (argued) of Woodcock, Washburn, Kurtz, Mackiewicz & Norris, Philadelphia, Pa., Edward J. Hanson, Jr. of Dentsply Intern., Inc., and Henry N. Herndon, Jr. of Morris, James, Hitchens & Williams, Wilmington, Del., for defendants.
   OPINION

FARNAN, District Judge.

This patent action consists of two consolidated cases. The first case, Dentsply International, Inc. v. Centrix, Inc., Civil Action No. 84-708, is an action for a declaratory judgment of non-infringement and invalidity of three separate patents, U.S. Patent No. 3,581,399 (hereinafter the ’399 patent); U.S. Patent No. 3,900,954 (hereinafter the ’954 patent); and U.S. Patent No. 4,198,756 (hereinafter the ’756 patent). The second case, Dr. William V. Dragan v. L.D. Caulk Co., Division of Dentsply International, Inc., Civil Action No. 84-707, alleges infringement of the ’756 patent, as well as related claims of unfair competition. Also, Centrix, Inc. (hereinafter “Centrix”), in its Answer and through Counterclaims in Civil Action 84-708, alleges infringement of the ’399 patent along with related claims of unfair competition, trade secret appropriation, impairment of contract, and breach of implied contract.

The matter before the Court is a Motion for Partial Summary Judgment by Dents-ply and Caulk (hereinafter jointly “Dents-ply”) that Claim 10 of the ’399 patent is not infringed by the Caulk “compule”, that Claim 10 of the ’399 patent is invalid, and that the ’756 patent is not infringed by the Caulk compute. The motion also seeks dismissal of Centrix’s Counterclaim Count 1 in 84-708, asserting infringement by Dentsply of Claim 10 of the ’399 patent, Centrix’s counterclaim 6, asserting infringement by Dentsply of the ’756 patent, and Count 1 of 84-707, asserting infringement by Dentsply of the ’756 patent.

DISCUSSION.

Dr. Dragan is the inventor of the three patents at issue in these suits. These patents all relate to dental syringes and disposable tubes or tips used for placing composite resin filling materials in teeth. At issue in this motion is Claim 10 of the ’399 patent, and Claims 1-3 of the ’756 patent.

Standard for Summary Judgment.

Federal Rule of Civil Procedure 56(c) provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In deciding a motion for summary judgment, the District Court does not decide issues of fact, rather, it determines whether any genuine issue of material fact exists. Ness v. Marshall, 660 F.2d 517, 519 (3rd Cir.1981). The moving party has the burden of proving that no genuine issues of material fact exist. Gans v. Mundy, 762 F.2d 338, 341 (3rd Cir.1985). Any factual inferences drawn from the evidence submitted by the parties must be viewed in the light most favorable to the party opposing the motion, and any reasonable inferences in favor of the non-moving party must be made. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3rd Cir.1982); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3rd Cir.1976). Only where the facts are undisputed or “the evidence is so one-sided that it leaves no room for any reasonable differences of opinion as to any material fact,” should the District Court decide the case as a matter of law. Tunis Brothers Co., Inc. v. Ford Motor Co., 763 F.2d 1482, 1489 (3rd Cir.1985).

Non-infringement of Claim 10 of the ’399 patent.

The relevant portions of Claim 10 of the ’399 patent describe:

A carrier for dental material comprising: A plastic transparent body defining a capsule including a reservoir portion having a full open end and a connected discharge tip portion, ...
Said tip end tapering inwardly toward the initially sealed tip end.

Dentsply argues that its Caulk compule cannot infringe Claim 10 as a matter of law because, according to the undisputed facts, it does not have the “plastic transparent body” described in Claim 10. Rather, it alleges that the compule is “opaque”, not “transparent”. Dentsply’s Appendix, D.I. 113A, at A6-A26. Also, Denstply argues that Dr. Dragan has admitted that the com-pule is “opaque”. Dragan Deposition, Dentsply’s Appendix, D.I. 184A, at A207. Thus, Dentsply argues that there is no issue that its compule is “opaque”, and not “transparent”, and thus cannot infringe Claim 10.

Contrary to Denstply’s assertions, however, it appears that Dragan does contend that the Caulk eompule is not completely “opaque”. Dragan Affidavit, Dragan and Centrix’s Appendix, D.I. 175A, at A346. In support of this assertion, Dragan alleges that Dentsply prints warnings to dentists on eompule packages, that the eompule should be shielded from sunlight. Dragan Affidavit, D.I. 175A, Ex. 3, at A349.

Where an accused device embodies every element of the claim at issue, the device is said to “literally infringe” the claim. Fay v. Cordesman, 109 U.S. 408, 420-21, 3 S.Ct. 236, 244-45, 27 L.Ed. 979 (1883); Builders Concrete v. Bremerton Concrete Products, 757 F.2d 255, 257 (Fed.Cir.1985). Although it is a close question, there is in this case a genuine issue of material fact as to whether the Caulk com-pule is in fact “transparent”, and thus literally infringes Claim 10. A fact finder might reasonably infer from the warning Dentsply allegedly prints on its boxes that the Caulk eompule was light-permeable, and not completely “opaque”. Although Denstply has presented other evidence that the Caulk eompule is in fact completely opaque, the Court’s function for purposes of summary judgment is not to weigh competing facts, but merely to decide whether a factual dispute exists. Since the Court must resolve all doubts and draw all inferences in favor of Dr. Dragan and Centrix, summary judgment for Dentsply on the issue of non-infringement of Claim 10 must be denied.

Dentsply also alleges that Dragan and Centrix are estopped, under the doctrine of “file wrapper estoppel”, from asserting a scope of Claim 10 which would cover the Caulk eompule.

The doctrine of “file wrapper estoppel” limits application of the doctrine of equivalents. A device which does not literally infringe a patent claim might still infringe the claim as an equivalent device if it “performs substantially the same function in substantially the same way to obtain the same result”. Graver Tank Co. v. Linde Air Products Co., 339 U.S. 605, 610, 70 S.Ct. 854, 857, 94 L.Ed. 1097 (1950). However, under the doctrine of “file wrapper estoppel”, a patentee is precluded from asserting a claim construction which would include a scope of the claim which the patentee changed during prosecution of his patent, in response to objections by the patent examiner, in order to obtain the patent grant. Thomas & Betts Corp. v. Litton Systems, Inc., 720 F.2d 1572, 1579 (Fed.Cir.1983); Builders Concrete, 757 F.2d at 258. Thus, this doctrine limits a patentee’s reliance on the doctrine of equivalents by preventing him from contending later in an infringement action that his claims should be interpreted as if limitations added during prosecution of the patent were not present, or that claims abandoned were still present. Thomas & Betts Corp., 720 F.2d at 1579.

Dentsply argues that the “transparent” element in Claim 10 was added during prosecution of the patent in order to overcome prior art cited by the patent examiner. Thus, Dentsply argues that Dragan and Caulk are now estopped from claiming a scope of Claim 10 which would include an “opaque” device such as the Caulk com-pule. However, since the Court has found that there is a material issue of fact as to whether the eompule literally infringes Claim 10, the Court need not, for purposes of this motion, reach the issues of infringement by equivalents and file wrapper estoppel. See Builders Concrete, 757 F.2d at 258.

Invalidity of Claim 10.

Dentsply also argues that Claim 10 of the ’399 patent is invalid under the terms of 35 U.S.C. § 102 and § 103 because all of its innumerated elements are found in prior art that was not considered by the patent examiner. Dentsply also alleges that much of this prior art was known to Dr. Dragan prior to his filing of the application for the ’399 patent. Specifically, Dentsply alleges that the “Dent-o-Lux filling tube and filling plier”, the “Coe-Impression material nozzle”, the “Kerr impression syringe”, and the “Mercitan Cream publications”, contained all distinguishing elements of Claim 10, and were not disclosed to the patent office. Dentsply Appendix, D.I. 113A, at A62-A124.

Dragan and Centrix deny that the prior art cited by Dentsply anticipates the ’399 patent, or that Dragan withheld any relevant prior art from the patent office during prosecution of the patent. Thus, whether the prior art cited by Dents-ply in fact contains the distinguishing elements of the '399 patent is clearly a material issue of fact precluding summary judgment.

Non-infringement of the 756 patent.

Dentsply alleges that the following elements from Claim 1 of the ’756 patent are not found in the Caulk compule:

An elongated tubular barrel, said barrel having a front and rear end,
Said front end having an inturned flange defining a front opening,
Said barrel having a side breach opening adjacent said front end, ...
An actuating lever pivotally connected directly to one end of said pistol grip member for movement toward and away from said pistol grip member, ...
Said lever having a cam surface thereon disposed in engagement with said plunger whereby the movement of said lever toward said pistol grip member affects displacement of said plunger toward the protracted position ...

With respect to its allegations that the compule handle does not have “a cam surface” or that he actuating lever is not “pivotally connected directly to one end of said pistol grip member”, Dentsply argues that these limitations were added to Claim 1 specifically to distinguish the Sundholm reference, U.S. Patent No. 3,341,085. Dentsply’s Appendix, D.I. 113A, at A187-A193. It argues that the compules arrangement is equivalent to the Sundholm reference with respect to both of these elements, thus the compule, as a matter of law, cannot infringe the ’756 patent. Dentsply also argues that the compule does not have an inturned flange at the front end of the barrel, as described in Claim 1.

Despite Dentsply’s assertions, it is clear that material issues of fact remain with respect to all of these elements. For instance, whether the compule is in fact equivalent to Sundholm, and whether it in fact has an inturned flange, remains at issue. Thus, summary judgment for Dentsply on the issue of non-infringement of patent ’756 must be denied.

      . In its briefs, Dentsply also argues that the Caulk compule does not have the "tip end tapering inwardly” described in Claim 10. At oral argument, counsel for Dentsply stated that, for purposes of this motion, Dentsply concedes that this element of Claim 10 is present in the com-pule. Therefore, the Court need not address this issue at this time.

      . With the exception of the "tip end tapering inwardly” element, Dentsply has not argued that other elements of Claim 10 are absent from its Caulk eompule.


author: WILLIAM C. LEE, District Judge.

text:
    The MONARCH INSURANCE COMPANY OF OHIO, for itself and as subrogee of Piper Acceptance Corp., Plaintiff, v. David SIEGEL; L & S Equipment, Inc.; Jack Harmon; Pamela Harmon; Ora Ackerman; George Cokinos; and Judy Cokinos, Defendants.
    Civ. No. F 84-81.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Jan. 2, 1986.

      Stephen P. Kenney, Chicago, 111., Thomas M. Kimbrough, Fort Wayne, Ind., for Monarch & Crump Aviation.
    James H. Hanson, Indianapolis, Ind., for George & Judy Cokinos.
    Ralph R. Blume, Fort Wayne, Ind., for Dickens & Co. and Terry Campton.
    Gary M. Cappelli, Fort Wayne, Ind., for Ora & Barbara Ackerman.
    John C. Grimm, Auburn, Ind., for George & Judy Cokinos and Gary & Teri Payne.
    Neil F. Sandler, Frederick A. Beckman, Fort Wayne, Ind., for David Siegel & L & S Equipment.
    John F. Townsend, Jr., Indianapolis, Ind., G. Stanley Hood, Fort Wayne, Ind., for Jack & Pamela Harmon.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on motions for summary judgment filed by the plaintiff (“Monarch”), defendant and third party plaintiff L & S Equipment, Inc. (“L & S”), third party defendant Crump Aviation Underwriters (“Crump”), third party defendants Terry Campton (“Campton”) and Dickens and Company (“Dickens”); and cross motions by defendants and third party defendants Jack and Pamela Harmon (“Harmon”), George and Judy Cokinos (“Cokinos”), and Gary and Teri Payne (“Payne”). For the following reasons, the motions for summary judgment filed by Monarch, Crump, the Harmons, the Cokinoses and the Paynes will be granted, the motion filed by L & S will be granted in part and denied in part, and the motion filed by Campton and Dickens will be denied.

This case arises out of the struggle to determine liability in the aftermath of a plane crash during an attempted landing at the Indianapolis International Airport in February, 1983. Monarch, as named insurer of the aircraft, sued L & S and David Siegel (“Siegel”), the owners of the plane and the insured under the policy, as well as the pilot Ora Ackerman (“Ackerman”) and the passengers of the plane, claiming no liability under the policy. Cross-claims and this set of motions have now followed.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court “can determine whether further exploration of the facts is necessary.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985). The non-moving party’s reasonable allegations are to be accepted as true for purposes of summary judgment. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218-19 (7th Cir.1984). A party may not rest on the mere allegations of the pleadings or the bare contention that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Atchison, Topeka & Santa Fe Railway Co. v. United Transportation Union, 734 F.2d 317 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222 (7th Cir.1983). See generally C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore’s Federal Practice, § 56.15 (2d ed. 1984).

Thus, the moving party must demonstrate the absence of a genuine issue of material fact. Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Assn., 693 F.2d 636, 639 (7th Cir.1982). See also Bishop v. Wood, 426 U.S. 341, 348, 348 n. 11, 96 S.Ct. 2074, 2079, 2079 n. 11, 48 L.Ed.2d 684 (1976).

Based upon these foregoing principles, the facts of this case are as follows. In September, 1982, Siegel and L & S owned a Piper Turbo Seminole aircraft, and carried insurance on the craft. The insurance policy was issued by Global Aviation Insurance. The policy had been obtained through Campton, who worked as an insurance broker for Dickens.

On September 10,1982, Siegel and Camp-ton discussed whether it would be possible for Ackerman to fly the aircraft under the Global policy. Siegel told Campton that Ackerman had logged 250 hours of multiengine flight time. Campton spoke with Global officials, who informed him that, with Ackerman's experience as represented by Siegel, Ackerman could qualify for coverage under the Global policy if he logged five additional hours of instruction on the Piper Turbo Seminole. However, at the time of the September 10, 1982 conversation, Ackerman had logged far fewer hours than Siegel represented. In fact, at the time of the accident in February, 1983, Ackerman had logged only 137 hours as pilot in command of a multi-engine craft. Also at that time, Ackerman had logged a total of 9.4 hours in the Piper Seminole, only 2.4 hours of which were as pilot in command.

In January, 1983, L & S and Siegel went looking for a cheaper aviation insurance policy. They came to Campton, who located a policy issued by Monarch and underwritten by Crump which would fulfill their needs. L & S and Siegel cancelled the Global policy and took out the Monarch policy, and set the effective coverage period as January 25, 1983 to January 25, 1984.

Campton sent Siegel a letter on January 26, 1983, notifying him that he had obtained the Monarch policy and asking Siegel to complete and return an enclosed application. The application indicated that the aircraft covered under the policy would be used for “Private business and pleasure;” the box for “rental” use was not checked off. Siegel signed and returned the application.

The Monarch policy itself contains important restrictions which are relevant here. As to pilot qualifications, the policy required that a pilot have “a minimum of 1,000 total logged flying hours, including at least 250 hours as pilot in command of a multi engine Aircraft,” with not less than 25 hours in the “same make and model aircraft as the insured craft.” These provisions are spelled out in summary form on the application Siegel signed. The policy also included a specific exclusion from coverage for “any operation for which a charge is made,” which is consistent with the fact that the application did not have the “rental” use box checked off.

The Harmons, Paynes, Cokinoses, and Ackerman and his wife all operate Amway distributorships which are independent from, and compete with, each other. In February, 1983, a “Winners Circle Seminar” was held in Memphis, Tennessee at which sales promotion marketing techniques were to be discussed. Therefore, Ackerman, Jack Harmon, Gary Payne and George Cokinos boarded the Piper Seminole for the purpose of flying down to the seminar. Ackerman piloted the plane, and he and the other three passengers agreed to split a $46 per hour charge for using the plane. During an attempted landing at the Indianapolis International Airport, Ackerman’s admitted negligence caused the plane to crash, damaging the plane’s hull and injuring the passengers.

The various motions now before the court are attempts to determine who is liable for the damages caused in the crash. Monarch filed this suit seeking a declaratory judgment that its policy does not cover these damages, both because Ackerman failed to meet the pilot qualification provisions of the policy and because the plane was being used for rental purposes. Monarch’s and Crump’s motion for partial summary judgment address the issue of these policy exclusions, and the court deals with these motions in Part I of this order.

L & S has filed cross-claims against the other defendants, as well as third party claims against Campton and Dickens. The motion for summary judgment filed by L & S seeks to impute the admitted negligence of Ackerman to the passengers in the plane via a theory of common enterprise. This theory views the fact that because the passengers were all going to the same seminar for the same reasons as Ackerman, they engaged in a common enterprise so that negligence by one member of the common effort can be imputed to all. L & S then seeks to impute this imputed negligence of the passengers to their wives via principles of partnership law. The Harmons’, Paynes’ and Cokinoses’ cross-motions for summary judgment seek judgment against L & S on these same two issues. These motions are dealt with in Part II of this order.

Finally, Campton and Dickens seek summary judgment as against L & S and Siegel because the efforts made to secure the Monarch policy were not negligent and that the policy’s provisions exclude coverage. This motion is dealt with in Part III of this order.

I. Insurance Company Liability

The Monarch and Crump motion for partial summary judgment seeks a ruling that no coverage for the February 13, 1983 crash exists because of two coverage defenses concerning pilot qualifications and the use of the aircraft, as well as a determination that neither Campton nor Dickens were agents of Monarch or Crump. The court will consider each of these aspects of the motion separately, beginning with the issue of Campton’s and Dickens’ agency.

A. Campton and Dickens as Monarch’s Agent

An essential part of Siegel and L & S’ defense is that Campton and Dickens were agents of Monarch and Crump, so that certain representations and negligent acts can be attributed to their principals. Monarch, on the other hand, argues that Campton and Dickens were insurance brokers, not its agent, and that if any agency relationship existed, it was between Camp-ton and Siegel.

Under Indiana law, one who represents or procures insurance through several companies is considered to be an insurance broker. Stockberger v. Meridien Mutual Ins. Co., 182 Ind.App. 566, 395 N.E.2d 1272, 1278 (1979); Augustine v. First Fed. Sav. & Loan of Gary, 270 Ind. 238, 384 N.E.2d 1018, 1021 (1979); Automobile Underwriters, Inc. v. Hitch, 169 Ind.App. 453, 349 N.E.2d 271, 276 (1976). The negligence of a broker cannot be imputed to the insurer, Stockberger, 395 N.E.2d at 1278; Hitch, 349 N.E.2d at 276, because the broker is viewed as an “independent contractor” working for the insurer. Hitch, 349 N.E.2d at 276.

It is undisputed that Campton (and hence his employer, Dickens) procured insurance from several companies. Perhaps the best evidence of this comes from Campton’s dealings with Siegel and L & S. Campton first procured a policy from Global and then cancelled that policy in favor of the Monarch policy. Therefore, Campton and Dickens were insurance brokers.

Thus, any negligence by Campton and Dickens cannot be imputed to Monarch. Likewise, any statements made about the ■ Monarch policy would not bind Monarch because Campton and Dickens were not its agents, but rather were independent contractors.

B. Coverage Defenses

Monarch offers two policy exclusions to support its contention that the Monarch policy does not cover the February 13, 1983 accident. The first exclusion relates to pilot qualifications:

Pilots: The coverage afforded by this policy shall not apply unless the aircraft is operated in flight by the following pilots warranted they hold valid and effective pilot and medical certificates with ratings as required by the Federal Aviation Administration for the flight involved: David Siegel and, any private or commercial pilot, with a multi-engine land and instrument rating, with a minimum of 1,000 total logged flying hours, including at least 250 hours as pilot in command of a multi-engine aircraft, of which not less than 25 hours shall have been in the same make and model and aircraft as insured.

When interpreting the provisions of an insurance policy a court cannot extend the coverage delineated by clear and unambiguous language in the insurance contract. Utica Mutual Insurance Co. v. Ueding, 175 Ind.App. 60, 370 N.E.2d 373, 376 (1977), citing Ely v. State Farm Mutual Automobile Insurance Co., 148 Ind.App. 586, 268 N.E.2d 316 (1971). If ambiguities in the interpretation of an insurance policy exist courts will adopt the construction most favorable to the insured, State Farm Fire & Casualty Co. v. Ackerman, 151 Ind.App. 464, 280 N.E.2d 332 (1972), but courts have held that a failure to satisfy the pilot qualification and experience requirements contained in a policy in one or more particulars precludes coverage. See Ideal Mutual Ins. Co. v. Limerick Aviation Co., 550 F.Supp. 437, 441 (E.D.Pa.1982); Disanto v. Enstron Helicopter Corp., 489 F.Supp. 1352, 1365 (E.D.Pa.1980); Master Feeders II, Inc. v. United States Fire Ins. Co., 17 Av.L.Rep. 18,205, 18,206 (10th Cir.1983) (CCH).

There is no dispute that Ackerman did not meet the pilot qualification provision of the Monarch policy; his 137 hours fell far short of the 250 hours required, and his logs showed only 2.4 hours as pilot in command of a Piper Seminole, well below the required 25 hours. Siegel and L & S attempt to claim that this written provision of the policy was altered by Camptons’ representations in September, 1982 that Ackerman could qualify for coverage under the Global policy if he obtained five additional hours of training.

There are several problems with Siegel and L & S’ position. First and foremost, Campton was not Monarch’s or Crump’s agent, as noted above. Thus, whatever Campton may have said about Ackerman’s qualifications does not bind either Monarch or Crump, and cannot alter the clear language of the policy.

Second, the September, 1982 discussions were about coverage under the Global policy. The fact that an official at Global told Campton that Ackerman could qualify for coverage if he received five additional hours of instruction is completely irrelevant to what Ackerman would need to do to qualify under the Monarch policy. Certainly, officials of Global cannot bind Monarch or Crump.

Third, the “five hours of additional instruction” comment made by Campton was based on untrue assumptions about Ackerman’s experience. Siegel (perhaps unwittingly) represented that Ackerman had 250 hours of flight time in a multi-engine aircraft. A careful examination of Campton’s notes, attached to the memorandum in opposition filed by L & S and Siegel, indicates that Campton spoke to Siegel, who told him that Ackerman had “1,350 total hours, 250 multi-engine hours (all of this time in a Gerónimo) 250 retractable gear hours and 0 hours in [the Piper Seminole].” The notes also reveal that Campton spoke to Tom Cañavera at Global, and that “based on the hours reported by David Siegel ... Tom Cañavera said he would be willing to add Ora Ackerman to the policy ... based on the above hours, provided Ora Ackerman received 5 hours of dual instruction ...” (emphasis added). However, the premise behind requiring only five hours of instruction — that Ackerman had 250 hours in a multi-engine plane — was not true. It is doubtful — or at least unclear — that coverage could have been had with the five hours of instructions given the true extent of Ackerman’s experience in multi-engined planes.

Fourth, the application for the Monarch policy which Siegel signed clearly set out the 250 total/25 same model hourly requirements of the policy. Nothing in the application indicated that Ackerman would be covered, and no evidence has been offered to show that such an agreement was orally reached or understood. Siegel and L & S claim that Campton was negligent for failing to warn them that Ackerman would not be covered by the Monarch policy, but because Campton was not Monarch’s agent, this negligence cannot be imputed to Monarch.

Thus, it is clear that the representations concerning coverage for Ackerman under the Global policy do not act to waive or alter the pilot qualification provisions of the Monarch policy. There is no factual dispute that Ackerman did not meet those qualifications, and thus Monarch is entitled to a judgment as a matter of law that the Monarch policy does not cover the February 18, 1983 accident.

The second policy coverage defense relates to the rental use of the Piper Seminole. The Monarch policy was issued for “Pleasure and Business,” defined by the policy as “personal and pleasure use in direct connection with the Insured’s business, excluding any operation for which a charge is made.”

Courts interpreting insurance contracts containing similar language about “charges” for operation of an insured vehicle tend to distinguish between a payment which merely reimburses for direct operating costs and a payment which includes some amount beyond the direct operating expenses. See Pacific Indemnity Co. v. Acel Delivery Service, Inc., 485 F.2d 1169, 1172 (5th Cir.1973), cert. denied, 415 U.S. 921, 94 S.Ct. 1422, 39 L.Ed.2d 476 (1974); Houstin Fire & Casualty Ins. Co. v. Ivens, 338 F.2d 452, 455 (5th Cir.1964); Flagstaff Mortuary, Inc. v. Gamble, 135 Ariz. 474, 662 P.2d 149, 151-52 (Ariz.App.1983); Kohler v. Proprietors Ins. Co., 394 So.2d 463, 464 (Fla.App.1981). Under these cases, mere reimbursements are not “charges,” while payments including an amount beyond direct operating costs are viewed as “charges,” even though there is no “profit” made. Pacific Indemnity, 485 F.2d at 1172.

Here, Ackerman agreed to pay Siegel and L & S $46.00 per hour to use the aircraft, in addition to direct operating costs of gas and oil. Siegel admitted in his deposition that the $46.00 per hour charge was designed to cover things like a maintenance reserve for the plane and the cost of annual inspections, neither of which appear to be “direct” operating expenses like fuel costs. In addition, L & S and Siegel allege in several pleadings that the aircraft was “rented” or “leased” to Ackerman. These admissions clearly establish that the $46.00 per hour fee was a “charge” — that is, a payment beyond direct operating costs— which takes the February 13, 1983 use of the plane outside of the limits of the “Pleasure and Business” use provision of the Monarch policy.

L & S and Siegel respond to this argument in two ways: (1) they claim that the provision at issue “is not mentioned in the binder, [and] the policy was not delivered to L & S until March 14, 1983 (a month after the loss),” apparently believing that they are not bound by a provision of the policy that they did not know existed; and (2) they claim that Campton failed to tell them about the exclusion of rental use. As to the second response, Campion’s failure to warn them cannot be imputed to Monarch because he was not its agent. Even if he was its agent, he would not be required to - recite all conditions in the policy lest they not be enforceable. Such a rule “would not be a reasonable burden to place on insurance companies....” Burns v. Rockford Life Ins. Co., 740 F.2d 542, 544 (7th Cir.1984).

As to the first response, Siegel knew or should have known that the policy did not cover rental use; the rental use box on the application he signed was not checked off. Nor should Siegel and L & S be able to claim coverage under the policy without being bound by all the terms of the policy. The fact that they did not see the policy until March, 1983 does not alter the fact that they made the policy effective from January 25, 1983. An insured cannot pick and choose which policy provisions will apply or when they will apply; Siegel and L & S caused the entire policy to become effective on January 25, 1983.

Thus, Ackerman’s use of the Piper Seminole on February 13, 1983 was a “rental use” of the aircraft, which fell outside of the “Pleasure and Business” limitation of the Monarch policy. Therefore, the Monarch policy does not cover the damages sustained in the February 13, 1983 accident.

The court will therefore grant partial summary judgment to Monarch, declaring that the Monarch policy in question here does not supply coverage over the aircraft accident and that Campton and Dickens were not the agents of Monarch and Crump.

II. Passenger Liability

The cross-motions filed by L & S and the Harmons, the Paynes and the Cokinoses revolve around whether the passengers in the aircraft can have Ackerman’s negligence imputed to them, and then whether this negligence can be imputed to the wives of the passengers and pilot by virtue of partnership law. The court will consider each of these issues in turn.

A. Common Enterprise Liability for the Passengers

L & S argues that Ackerman and the passengers (Jack Harmon, Gary Payne and George Cokinos) were engaged in a “common enterprise” while on the trip to Memphis: they were all going to learn new sales techniques for their separate Amway distributorships, giving them a common business interest in “the profit they hoped to earn from increased sales of Amway merchandise.”

Indiana courts recognize four basic elements to the establishment of a joint or common enterprise for purposes of imputing negligence:

(1) joint control over management and operation of the vehicle over the course and conduct of the trip (the “joint control” element);
(2) community of interest in the object and purpose of the undertaking, with equal right to govern movements and the conduct of each other (the “community interest” element);
(3) the community interest must be pecuniary in nature (the “pecuniary interest” element); and
(4) there must be a contract between the parties, either express or implied.

Lafayette Bank & Trust Co. v. Price, 440 N.E.2d 759, 762-63 (Ind.App.1982); State v. Speidel, 181 Ind.App. 448, 392 N.E.2d 1172, 1178 n. 7 (1979); Serna v. Kiger, 175 Ind.App. 566, 372 N.E.2d 1232 (1978).

The thrust of the cross-motions by the passengers in this case center on the community interest and pecuniary interest elements. The passengers allege that there was no community interest in the trip to Memphis; while Ackerman and the passengers were going for the same reason — to attend the seminar — the passengers were travelling for separate businesses that had no common interest in working together.

Indiana courts view a joint or common venture as “an association of two or more persons to carry out a single business enterprise for profit.” Lafayette Bank, 440 N.E.2d at 762; Beck v. Indiana Surveying Co., 429 N.E.2d 264, 268 (Ind.App,1981). The facts established in the affidavits indicate that Ackerman and the three passengers were not carrying out a single business in travelling to Memphis — in fact, they represented four separate businesses that directly compete against each other for customers of Amway products. If one views the purpose of the flight as wanting to advance Amway businesses, one could hardly think of a more inappropriate factual situation to call a “community interest” than when four direct competitors get together.

Even if the court were to view the common interest as simply wanting to get to Memphis, the common enterprise theory runs into problems with the pecuniary interest element. The Lafayette Bank court quoted and approved of the following language from Prosser:

It is generally agreed that something more is required for a joint enterprise than the mere showing of a contract or agreement to travel together to a destination for a common purpose. Something in the nature of a common business, financial or pecuniary interest in the objective of the journey is said to be essential. In this form the requirement of a mutual interest persists as a minimum in all courts, to the exclusion of all cases in which the parties are casually together for pleasure or independent ends.

W. Prosser, The Law of Torts, § 72, 477-78 (4th ed. 1971). Lafayette Bank, 440 N.E.2d at 763. Thus, the mere desire to get to a common destination lacks a common business or pecuniary interest so that joint liability cannot exist. Ackman v. Bullard, 161 Ind.App. 437, 316 N.E.2d 444, 446-47 (1974). See also Serna v. Kiger, 372 N.E.2d at 1234 (travelling to attend political convention lacks a pecuniary element); Leuck v. Goetz, 151 Ind.App. 528, 280 N.E.2d 847 (1972) (travelling to church social lacks pecuniary interest.

Quite simply, these two elements of a joint or common enterprise claim require that the interest be common (that is, shared) and monetary. To the extent that Ackerman’s interest was common with his passengers — because they wanted to get to Memphis in order to attend the seminar— the interest is not pecuniary or monetary in nature. To the extent Ackerman’s interest and that of his passengers is monetary — to sharpen their marketing skills to make more Amway profits — their interests are not common. Therefore, L & S cannot establish a common enterprise between Ackerman and the passengers, so that Ackerman’s negligence cannot be imputed to the passengers.

B. Liability for the Wives of the Passengers

L & S attempts to make the wives of the passengers liable by taking the negligence of Ackerman as imputed to the passengers and imputing it to the wives via principles of partnership law. The essential premise to this argument, however, is that Ackerman’s negligence can be imputed to the passengers through a common enterprise theory. As the preceding section makes clear, no such imputation of negligence can be made. Therefore, there is no need to analyze the principles of partnership law advanced here as to Pamela Harmon, Teri Payne, and Judy Cokinos.

The claim against Barbara Ackerman, however, is different. The Amway distributorship run by Ackerman and his wife is a partnership under Indiana law, I.C. 23-4-1-6(1). Counsel for Ackerman admitted as much at the October 24, 1985 hearing. Indiana law states that partners are jointly and severally liable, I.C. 23-4-1-15, for a wrongful act of a partner acting in the ordinary course of business. I.C. 23-4-1-13. If Ackerman was negligent while acting in the ordinary course of his Amway business, then Barbara Ackerman is liable as well.

Here, Ackerman was flying the plane in order to go to the sales seminar in Memphis. While counsel argued that the seminar was not sponsored by Amway, it is clear that the techniques to be learned at the seminar would have a direct effect, and were admittedly intended to have an effect, on the Ackerman Amway distributorship. Precisely because Ackerman was negligent while trying to advance his Amway business, the court finds that Ackerman was acting within the ordinary course of his Amway business. Therefore, his partner Barbara Ackerman shares in his liability.

Thus, the court finds that Ackerman’s admitted negligence cannot be imputed to the passengers or their wives because of the lack of a common or joint enterprise. Therefore, the motion filed by L & S must be denied as to the Harmons, Paynes, and Cokinoses, and the cross-motions will be granted. However, the L & S motion will be granted as to Barbara Ackerman, who shares in her husband’s negligence by virtue of their partnership in their Amway distributorship.

III. Insurance Agent Liability

The final motion for summary judgment is brought by Campton and Dickens against Ackerman, L & S and Siegel. Campton and Dickens seek to absolve themselves from liability under the Ackerman and L & S cross-claims on two grounds: (1) that the policy and application were sufficiently clear that Ackerman was not named and did not qualify for coverage, and so the policy’s provisions control; and (2) Campton acted reasonably in procuring the Monarch policy. L & S and Siegel (and presumably Ackerman) oppose the motion on the grounds that Campton was negligent in failing to warn Siegel and L & S that Ackerman was not covered by the Monarch policy.

Indiana courts hold that

[a]n insurance agent or broker who undertakes to procure insurance for another is an agent of the proposed insured, and owes the principal a duty to exercise reasonable care, skill, and good faith diligence in obtaining the insurance ... If the agent undertakes to procure the insurance and through fault and neglect fails to do so, the agent or broker may be liable for breach of contract or for negligent default in the performance of a duty imposed by contract.

Stockberger v. Meridian Mutual Ins. Co., 395 N.E.2d at 1279. A contract to procure insurance can be implied on the basis of prior dealings, id.; Western Assurance Co. v. McAlpin, 23 Ind.App. 220, 55 N.E. 119 (1899), but there is a duty on the part of the insured to provide the agent or broker with the information necessary to implement the policy, as an agent cannot be liable for an insured’s loss due to the insured’s own act or omission. Stockberger, 395 N.E.2d at 1279, citing 3 Couch, Cyclopedia of Insurance Law, § 25:60 (2d ed. 1964), and 72 A.L.R.3d 747 (1976).

Campton and Dickens argue that the insurance contract controls, and that Siegel’s failure to seek to make corrections in either the application or the policy suggests full complicity in the terms of the policy as written. Of course, the language of the application or policy cannot be controlling here; L & S’s position is that the language of the policy should have been different, and Campion's negligence accounts for the fact that the policy reads as it does. The real issue raised by this case is whether Campton fulfilled his duty to Siegel in obtaining the Monarch policy at issue here.

The argument of L & S misses the mark here as well. It argues that Campton and Dickens cannot simply claim contributory negligence for Siegel’s failure to read or correct the policy; however, it has a recognized duty to supply Campton with sufficient information so that the proper policy could be obtained. It claims that Campton has a duty to warn it that Ackerman was not covered, but its argument focuses on the degree of care Campton was required to exercise, which sounds more like the duty of reasonable care recognized in Stockberger.

The real issue here, as the court perceives it, is whether Campton, as the agent of L & S and Siegel, adequately discharged his duty in procuring the Monarch policy given the information that Siegel relayed to him. Cast in such a light, the issue is highly factual, as what Campton procured must be measured against what he was told or knew about.

The assertions of the parties make it clear that there is a factual dispute as to what Campton knew and what Siegel told him prior to the procurement of the Monarch policy. Campton and Dickens claim that Siegel only mentioned Ackerman during the September 10, 1982 conversation about coverage under the Global policy. If this were true, then it would appear that Campton had no special reason to believe that Ackerman should be included in the policy; Siegel may have been shopping around. According to Campion’s phone notes, Siegel told Campton to add Ackerman to the policy, but that was clearly before Ackerman could have taken the five additional hours of instruction. If, as Campton claims, he heard nothing further about Ackerman — for example, that the five hours had been completed — he may well have been justified in leaving Ackerman out of the policy.

Siegel and L & S, on the other hand, contend that substantially more went on with Campton. L & S points to deposition testimony which it claims indicates that Ackerman spoke with Campton about his qualifications and about coverage for Ackerman’s use of the aircraft. It claims Campton knew that Siegel wanted Ackerman to be able to use the plane, and that Campton, as an expert in aviation insurance, knew or should have known about certain aviation industry practices, including the rental of planes. If these facts were true, then Campton knew substantially more about Ackerman’s involvement with Siegel, and perhaps should have known that whatever coverage was obtained or sought under the Global policy would be required in a request for “the same coverage” in the Monarch policy.

These disputed factual assertions leave the court unable to determine, under the principles of Rule 56 of the Federal Rules of Civil Procedure, what Campton knew and what Siegel told him concerning the coverage wanted under the Monarch policy. Therefore, Campton and Dickens’ motion for summary judgment will be denied.

Conclusion

For the reasons set forth above, the motion for partial summary judgment of plaintiff Monarch and third-party defendant Crump, the cross-motions for summary judgment filed by defendants Harmons, the Paynes, and the Cokinoses, are hereby GRANTED. The motion for summary judgment of defendant and third-party plaintiff L & S is hereby GRANTED as to Barbara Ackerman, but DENIED as to the Harmons, Paynes, and Cokinoses. The motion for summary judgment of third-party defendant Campton and Dickens is hereby DENIED.

      . As Campton pointed out in his letter to Siegel which accompanied the application:
      The information contained in the application is required by the insurance carrier as the basis for policy insurance. The description of coverage is, however, necessarily abbrieviated and all coverage is subject to the terms and
      conditions of the policy and endorsements currently in use by the underwriter company. Thus, the application does not control for purposes of determining coverage. However, the consistency between the application and policy strongly suggests that Siegel knew or should have known of these coverage restrictions.

      . L & S has not filed a brief in opposition to Crump’s motion for partial summary judgment, and at the October 24, 1985 hearing on the motions in this case, L & S indicated that summary judgment could be granted as to Crump. The court will therefore grant partial summary judgment as to Crump, and consider this motion only as it relates to Monarch.

      . The application signed by Siegel contained very similar language, clearly stating that any pilot other than Siegel must have "1,000 total logged flying hours, including at least 250 hours as pilot in command of a multi engine aircraft, of which not less than 25 hours shall have been in the same make and model aircraft as insured."

      . At the October 24, 1985 hearing on this motion, L & S and Siegel referred to Proprietors Ins. Co. v. Northwestern Natl. Bk. of Minneapolis, No. C3-85-707 (Minn.Ct.App. Oct. 1, 1985), an opinion which held that an unintentional misrepresentation of the number of hours of flight experience is not a basis for denying coverage to a named insured. The significance of that case is questionable here; Proprietors Ins. Co. involved the application of Minnesota statutes which do not control here, and involved the policy’s coverage of a named insured, whom the insurance company should be aware of, as opposed to coverage under an open pilot provision where the actual amount of experience is determinative of whether a pilot qualifies. After mentioning the case, L & S and Siegel have not argued its applicability to this motion — indeed, the only briefing on the case comes from Monarch. The court concludes that the case is inapposite here.

      . From an economic perspective, the antagonism of these interests is obvious — every dollar of profit earned by an Ackerman Amway sale is one less dollar of profit and one less sale available to the Harmons, Paynes, and Cokinoses. Thus, a trip to hone one’s marketing skills is in effect a trip to learn how to make more profits and therefore make less profits available for one’s competitors.

      . The cases cited by L & S are easily distinguished on this ground. In Keck v. Pozorski, 135 Ind.App. 192, 191 N.E.2d 325 (1963), negligence was imputed because husband and wife were riding to work to enhance the family finances, while in Hake v. Moorhead, 140 Ind. App. 127, 222 N.E.2d 617 (1967), husband and wife were travelling together to deposit funds in a joint bank account earned in a joint business. The key to these cases is that the pecuniary interest was common in the sense of being the same for both passenger and driver. Here, while the passengers’ interest is similar to Ackerman’s in that all want to earn profits, the interest of each passenger is not the same as the interest of Ackerman; in fact, the interest is antagonistic because it is competitive. The California case cited by L & S, Shook v. Beals, 96 Cal.App.2d 963, 217 P.2d 56 (1950), is inapposite in that it applies California law.

      . The cross motions also suggest that the first element — joint control — is absent here. This element, derived from automobile cases, may not be directly applicable here. See Lafayette Bank, 440 N.E.2d at 763. To the extent it does apply, the court notes that Ackerman was the only person who could exercise control over the plane because he was the only pilot on board. That fact suggests it would be impossible for the passengers to have exercised any meaningful control over the management and operation of the plane.