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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gibson v. GEICO General Insurance Company (03/02/2007) sp-6106
Notice: This opinion is subject to correction before publication in the Pacific Reporter. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail firstname.lastname@example.org. THE SUPREME COURT OF THE STATE OF ALASKA
|) Supreme Court No. S- 12109|
|) Superior Court No.|
|v.||) 3AN-04-3508 CI|
|GEICO GENERAL INSURANCE||) O P I N I O N|
|Appellee.||) No. 6106 - March 2, 2007|
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge. Appearances: Michaela Kelley Canterbury, Kelley & Canterbury, LLC, Anchorage, for Appellant. Susan D. Mack, Call Hanson & Kell, P.C., Anchorage, for Appellee. Before: Fabe, Chief Justice, Matthews, Eastaugh, and Bryner, Justices. [Carpeneti, Justice, not participating.] MATTHEWS, Justice. I. INTRODUCTION GEICO refused to pay on Mary Gibsons underinsured motorist policy, claiming that her damages did not exceed $50,000 and therefore were not high enough to trigger her policy. Gibson sued GEICO, and a jury determined that her damages amounted to $68,611. Gibson appeals several of the superior courts determinations, namely: preventing her from deposing two GEICO employees, preventing a GEICO employee from testifying at trial, improperly identifying GEICO to the jury, offsetting the jury verdict, inappropriately calculating attorneys fees and prejudgment interest, and refusing to review the clerks cost determination. Perceiving no error, we affirm. II. FACTS AND PROCEEDINGS Mary Gibson was injured when Mary Kudlacik drove through a stop light and hit Gibsons car. Both Gibson and Kudlacik were covered by GEICO insurance. Gibson offered to settle for Kudlaciks policy limits of $50,000, and this was accepted. Gibson received the $50,000 facial policy limits of Kudlaciks policy, plus $12,747.89 in add-ons for a total of $62,747.89. Gibson informed GEICO that the policy limits settlement would trigger an underinsured motorist (UIM) claim under Gibsons policy. Gibson appears to have requested policy limits under her UIM coverage. GEICO rejected the policy limits demand and declined arbitration. Gibson demanded arbitration, which GEICO again declined. Gibson then filed a complaint against GEICO in superior court requesting (1) recognition of her UIM claim, (2) a court- tried case, (3) damages for her injuries, and (4) attorneys fees, interest, and costs. Gibsons complaint did not allege bad faith on the part of GEICO. GEICO denied the magnitude of Gibsons injuries and asserted that Kudlacik was not an underinsured driver because Gibsons injuries did not exceed the $50,000 policy limits she received under Kudlaciks policy. GEICO demanded a jury trial, which the superior court granted over Gibsons opposition and cross-motion for a court-tried case. The parties proceeded with discovery. Gibson sought to depose two GEICO employees, Sue Smith and Michael Lina. Lina was identified in GEICOs Civil Rule 26(a)(1) initial disclosures as a person likely to have discoverable information, and Smith was listed on GEICOs preliminary witness list. GEICO moved for a protective order pursuant to Civil Rule 26(c) preventing Gibsons attempts to depose its two employees, arguing that Gibsons motive was to harass, annoy and burden GEICO employees by seeking irrelevant and inadmissible testimony. Gibson opposed the protective order motion and moved to compel the depositions. The court heard oral argument on GEICOs motion for a protective order and Gibsons motion to compel. At oral argument, the court decided that the case would look at trial . . . just as any auto injury case would. Here are our medical bills. The jury is not going to know what has been paid up to date, what insurance policy limits are, that there are two carriers. None of that is relevant to their determination, and all of it tends in fact to corrupt their determination, which is . . . what . . . this auto accident is worth . . . . So Im going to deny any discovery which goes beyond what happened in the case . . . . [Plaintiffs attorney can call] plaintiff, occurrence witnesses, doctors, an economist, if he wishes, and then were done. Basically, the court appears to have denied Gibsons motion to compel on the grounds that Smith and Lina did not possess information relevant to the issues before the jury; that is, they possessed no relevant information regarding Gibsons damages. Gibson then subpoenaed Lina to testify at trial. GEICO filed a motion to quash the subpoena based on the courts ruling in response to Gibsons motion to compel Linas deposition. The court issued an order stating that Lina would not testify at trial unless Gibson could demonstrate that he had admissible testimony to offer as to disputed facts. The only facts being disputed, of course, were those surrounding the extent of Gibsons damages. Gibson then sought an order establishing the law of the case. Specifically, Gibson argued that the courts orders impermissibly redacted GEICOs role from the proceedings. GEICO responded that it should not be identified as an underinsured carrier because that would be tantamount to disclosing the underlying settlement, and that the adjusters analysis of the case, terms of the insurance policy, the underlying settlement for policy limits, settlement discussions and the amount of coverage available in the UIM policy are irrelevant to [Gibsons] damages. The court denied Gibsons rule of law motion, stating that the matter had already been argued and explaining that revealing the fact and amount of the insurance settlement had the propensity to suggest to the jury the appropriate range of damages awards. Ultimately, Lina did not testify at trial. The jury found that Gibson had suffered $68,611 in damages as a result of the collision.1 GEICO moved for entry of final judgment, requesting an offset for Gibsons receipt of the $50,000 policy limits settlement from Kudlacik and requesting Rule 82 attorneys fees as the prevailing party. Gibson moved for entry of final judgment on the entire $68,611 award and requested attorneys fees, costs, and prejudgment interest on that amount. Gibson also requested an upward variance from the Rule 82 attorney fee schedule and asserted that GEICO had failed to establish a right to set off Gibsons receipt of the $50,000 policy limits settlement from Kudlacik. GEICO objected to Gibsons request. The court reduced the $68,611 award by $50,000, the principal amount received from Underinsured driver, Mary Kudlacik. The court calculated prejudgment interest and attorneys fees based on the reduced award. Gibson requested costs in the amount of $6,794.35. GEICO objected to a cost bill in excess of $2,717.62 for a variety of reasons. The Chief Deputy Clerk of Court awarded Gibson costs of $3,446.65. Gibson moved for review of the clerks award. The court refused to review the clerks decision because Gibson failed to defend her filing by producing receipts to the clerk or addressing [GEICOs] arguments. Gibson now appeals. III. DISCUSSION A. Did the Superior Court Abuse Its Discretion by Prohibiting Gibson from Deposing Lina and Smith? This court reviews a trial courts discovery rulings for abuse of discretion.2 This court exercises its independent judgment when interpreting a civil rule.3 Gibson argues that the Alaska Rules of Civil Procedure permitted the deposition of Lina and Smith, that deposing them would likely have led to discovery of admissible evidence, and that Gibson was prejudiced by the courts limitations. GEICO argues that Linas and Smiths mental impressions were not relevant or likely to lead to relevant eviden[ce]. Gibson cites Civil Rule 30, which permits a party to depose any person without leave of court. Gibson does not mention Civil Rule 26(b). Civil Rule 26(b)(1) sets the default scope of discovery to any matter, not privileged which is relevant to the subject matter involved in the pending action. Gibson concedes that [t]he only issue of material fact to be litigated at trial was the extent of damages Gibson sustained in the 3/13/01 car wreck. Gibson argues that because Lina and Smith investigated her claims, their testimony is relevant to the issue of damages. GEICO takes the position that the adjustors evaluations of Gibsons damages are irrelevant to Gibsons damages and therefore not within the scope of discovery. The court indicated as much, stating that it would manage this case as a . . . personal injury case to ascertain what the money damages are . . . [not as] a broad based bad faith case where we need to get into manuals and the heads of adjusters. Since Smith and Lina had no personal knowledge about the extent of Gibsons injuries, and insurer bad faith was not an issue, we are not persuaded that the court abused its discretion by determining that the information they could provide at deposition was not relevant to the subject matter involved in the pending action and therefore beyond the scope of discovery.4 Civil Rule 26(b)(2) permits the court to limit the scope of discovery pursuant to a motion for a protective order like the one brought by GEICO. Discovery may be limited because evidence is unreasonably cumulative or duplicative, or . . . obtainable from some other source that is more convenient, less burdensome, or less expensive5 or because the burden or expense of the proposed discovery outweighs its likely benefit, taking into account . . . the importance of the proposed discovery in resolving the issues.6 Even if deposing the claims adjustors might have led to some information on damages, the likely benefit of such information seems small given the availability of medical records and testimony. Gibson does not assert that the adjustors possessed personal knowledge about her damages. Since the relevant information the adjusters had was obtainable from other sources and the bulk of their testimony was likely to be tangential to the issue of damages, a conclusion that the burden of the discovery outweighed its likely benefit would have been within the courts discretion. B. Did the Superior Court Abuse Its Discretion by Ruling that Lina Would Not Testify at Trial? The appropriate standard of review for evidentiary decisions is abuse of discretion.7 The court ruled that Lina would not testify at trial unless Gibson could demonstrate that he had admissible testimony to offer as to disputed facts. Under the courts analysis, Gibsons grounds for subpoenaing Lina to testify did not raise disputed issues of material fact. In Gibsons opposition to GEICOs motion to quash the subpoena of Lina, Gibson stated that Linas testimony was relevant to the facts of the tortfeasors insurance liability amount, the fact of settlement for the liability policy, the terms of the insurance contract between [Gibson] and [GEICO] that is the basis of this lawsuit, the basis of GEICOs denial of [Gibsons] complaint against GEICO, GEICOs investigation to the extent of injuries [Gibson] sustained in the subject car wreck, [Gibsons] credibility and [GEICOs] credibility. Basically, Lina would testify as to the insurance contract and the insurance settlement. Gibson suggests that the court determined that Linas testimony would be inadmissible under Evidence Rule 411, which disallows evidence of insurance to show negligence but not for other purposes. The courts order is more appropriately grounded in Evidence Rule 403, which permits exclusion of relevant evidence where, among other things, its probative value is outweighed by the danger of unfair prejudice. In its order denying Gibsons rule of law motion, the court cited Central Bering Sea Fishermens Assn v. Anderson,8 a wrongful termination and defamation case brought by a former employee of Central Bering Sea. The jury awarded the plaintiff punitive damages on her defamation claim.9 Central Bering Sea appealed, arguing, among other things, that the superior court erred by instructing the jury on the existence and amount of the statutory punitive damages cap.10 This court agreed with Central Bering Sea, holding that [p]utting the caps before the jury carried a substantial risk of suggesting the range of appropriate punitive awards. Moreover, no countervailing benefit could be gained from the instruction.11 The superior court appears to have used Central Bering Sea as legal support for a Rule 403 analysis. The court concluded that evidence of the insurance settlement, like knowledge of the punitive damages cap, had the propensity to suggest the appropriate range of awards. Evidence of the insurance settlement may have been relevant, but its probative value on the issue of damages was slight. As such, any probative value was easily outweighed by the danger of unfair prejudice that might result from suggesting the appropriate range of damages awards. Therefore, evidence of the insurance settlement was inadmissible under Rule 403. Since Lina would be called to testify as to the insurance settlement, and Gibson failed to demonstrate that Lina would be able to testify as to damages, Linas testimony was inadmissible under Rule 403. Gibson also argues that the courts order barring Linas testimony resulted in the jury being unaware of GEICOs identity and role in the case. However, as is discussed in the next section, the jury knew that GEICO was the defendant and Gibson was the plaintiff. Therefore it knew both the identity of GEICO and its adverse relationship with Gibson. C. Was the Superior Courts Framing of the Case Inappropriate? Gibson makes a more general argument that the superior court improperly limited disclosure of relevant facts to the jury. Gibson argues that the insurance contract was the basis of her claim and therefore it was necessary evidence. Gibson argues that because of the courts limitations on the evidence she presented, she was unable to explain to the jury why the parties were even litigating. Gibson seems to claim that the courts rulings amounted to hiding GEICOs identity from the jury and resulted in charades in trial. What she seems to take issue with is the way in which the court framed the case. Gibson cites a number of Florida cases to support her contention that failure to advise the jury of GEICOs role in this case is reversible error. GEICO responds that the Florida cases do not mean that a plaintiff in Florida is entitled to solicit testimony about why the carrier refused to pay policy limits. Gibson relies principally on Lamz v. GEICO General Insurance Co.,12 although she also cites virtually all of Lamzs predecessors and progeny. The Lamzes, the victims of an automobile accident, sued both the driver of the vehicle that injured them and the vehicles owner.13 GEICO, the Lamzes underinsured motorist carrier, was also joined as a defendant.14 The trial court denied the Lamzes request to specifically refer to GEICO as a UIM carrier, reasoning that reference to GEICO as the Lamzes insurance company was sufficient to alert the jury to the position of the parties.15 The Supreme Court of Florida disagreed, concluding: Identifying the insurance company as merely a plaintiffs insurer without clarifying the full capacity in which it is being sued does not make the jury fully aware of the underinsured carriers posture in the litigation. . . . We have made it clear that the jury should know who the parties are, and in this case, the jury was not fully apprised of Geicos specific party status. Gibson argues that the jury was unaware of GEICOs posture in the litigation reviewed here because the jury did not know that GEICO was Gibsons UIM carrier. Lamz and the related cases Gibson cites can be distinguished on the ground that they involved more than two parties. Because there were multiple defendants in Lamz, and because GEICO was identified as the Lamzes insurance carrier, the relationship between GEICO and the other defendants was not clear. The jury might have thought GEICO, as the Lamzes insurer, had an interest in maximizing the liability of the driver and owner of the vehicle that collided with the Lamzes. In that case GEICOs interests would have been aligned with the Lamzes for the purposes of determining the liability of the tortfeasor. But since GEICO was the Lamzes UIM carrier, GEICO actually had an interest in minimizing the liability of the other defendants and therefore had interests that were entirely adverse to the Lamzes. The extent of the adversity between parties seems to be what the Supreme Court of Florida meant by the underinsured carriers posture. The charades in trial to which Gibson refers occur when the interests of the parties are not clear and the jury might not realize that the insurance companys interests are aligned with their co- defendants. In this case, there is little chance of such confusion. GEICO was the sole defendant. The only disputed issue was the extent of Gibsons damages. It was apparent to the jury that GEICO was trying to minimize Gibsons damages. There is no reasonable possibility that the jury was led to believe that GEICO and Gibson were not completely adverse parties. Thus the Florida courts reasoning in Lamz is not applicable in Gibsons case. D. Did the Superior Court Abuse Its Discretion by Reducing the Jury Verdict? This court reviews the superior courts setoff decision de novo.17 Gibson argues that the superior court improperly reduced the jury verdict by $50,000. Gibson relies on AS 09.17.070, a statutory version of the collateral source rule that allows judges, in certain circumstances, to reduce awards to reflect unsubrogated payments from collateral sources. But AS 09.17.070 does not apply to this situation since payments from a tortfeasors insurance company are not considered collateral payments.18 Gibson agrees that UIM coverage may not duplicate amounts payable under bodily injury coverage. However, Gibson asserts that GEICO failed to show that the amount awarded by the jury duplicates the $50,000 paid by Kudlacik. Gibson argues that the jury verdict of $68,611 does not contain all of Gibsons past medical expenses, past wage loss, and future damages and that there was no double recovery because these uncompensated measures of damages by the jury were included in the funds received from the tortfeaser. Gibson asserts that the offset lacked a factual basis. The factual basis for a reduction of the jury award was established by Gibsons claim. The thrust of a UIM claim is that the insured suffered some quantifiable amount of damages and that the tortfeasors insurance covered only a portion of those damages. The reason Gibson sued GEICO was to establish that the entire amount of her damages exceeded the $50,000 payment she had already received. Since the whole point of the trial was to determine the entire amount of damages, it was necessary to reduce the ultimate jury award by $50,000. The special verdict form indicates that the jury determined the damages suffered by plaintiff . . . as a legal result of the March 13, 2001 automobile collision[.] The jury was required to enter dollar amounts in each of the following categories: past medical expenses, future medical expenses, past wage loss, future wage loss, past pain and suffering, future pain and suffering, past emotional distress, future emotional distress, past loss of enjoyment of life, future loss of enjoyment of life, past inconvenience, and future inconvenience. It is unclear exactly what Gibson believes the jury might have overlooked given this comprehensive itemization of all damages from the accident. E. Did the Superior Court Abuse Its Discretion by Calculating Prejudgment Interest Based on the Reduced Amount? Gibson argues that the superior court should have calculated prejudgment interest based on the jurys finding of total past damages of $64,161. Prejudgment interest is awarded to compensate prevailing plaintiffs for the time value of money. When Gibson received the $50,000 settlement, she received add-ons that included prejudgment interest, compensating her for the difference in value between the $50,000 in damage at the time of the accident and the $50,000 she received at the time of settlement. Since Gibson actually received the $50,000 and was awarded prejudgment interest, she has already been compensated for any loss in value of that portion of her damages that was caused by the passage of time. In any case, GEICO as the UIM carrier was only liable for damages in excess of $50,000. Prejudgment interest was awarded on the excess. We see no error. F. Did the Superior Court Abuse Its Discretion by Calculating Attorneys Fees Based on the Reduced Amount? An award of attorneys fees is reviewed for abuse of discretion and will not be overturned unless manifestly unreasonable, arbitrary or designed for a purpose other than justly deserved compensation.19 Gibson argues that the superior court should have calculated attorneys fees based on the jurys verdict of $68,611 rather than the $18,611 that remained after the superior court reduced the verdict by $50,000. Gibson relies primarily on the language of the collateral source statute, AS 09.17.070, and Falconer v. Adams.20 GEICO argues that the insurance contract limited attorneys fees in UIM cases to the limit of liability of [UIM] coverage. GEICO also argues that Alaska case law requires attorneys fees to be based on net, not gross recovery. In Falconer this court was called upon to interpret AS 09.17.070, which, as we have stated above, does not apply.21 Thus this argument fails. Gibson also argues that the superior courts award of attorneys fees was an abuse of discretion. Gibson does not allege bad faith and seems to argue that an upward variance would have been reasonable, not that denial of the upward variance was an abuse of discretion. Gibson focuses her argument on GEICOs refusal to arbitrate. Gibson reasons that arbitration keeps costs down and that [w]hen an insurer forces an expensive forum upon its insured, the costs and risks of implementing that expensive forum should be completely borne by the insurer. Gibson is probably right that arbitration would have been a less expensive way to resolve this case UIM claims often are arbitrated. Moreover, it is possible that GEICO litigated this case influenced by considerations apart from the case at bar a ground warranting an adjustment in scheduled fees.22 But this is only hinted at by Gibson, and it is countered by GEICO, which notes that it made an offer of judgment that was only slightly below the jury verdict. On balance, while enhanced fees might have been reasonable, we are unable to conclude that it was an abuse of discretion for the court to refuse to award them. G. Did the Superior Court Abuse Its Discretion by Not Reviewing the Clerks Cost Determination? This court reviews a trial courts cost determination for an abuse of discretion; demonstrating an abuse of discretion requires a showing that the award was arbitrary, capricious, manifestly unreasonable, or improperly motivated. 23 Gibson argues that the superior court was manifestly unreasonable in upholding without a hearing the clerks reduction of her costs. Gibson filed a cost statement, GEICO objected to the amount of costs, and Gibson did not respond to GEICOs objections. After reviewing [Gibsons] cost statement and [GEICOs] opposition, the clerk reduced Gibsons requested cost award. Gibson then filed a motion to review the cost bill, which the court denied, stating: [Gibson] did not defend her filing by producing receipts to the clerk or addressing [GEICOs] arguments . . . . Because she denied the clerk this data, the court will not now review [the clerks denial] de novo at this time. Gibsons argument is that the denying of her motion for review of the cost award because she failed to produce receipts to the clerk was error because a party does not have to provide receipts to the clerk unless the clerk specifically requests receipts. But Civil Rule 79(d)(2) states: The clerk may deny costs requested by the prevailing party on grounds that . . . (2) the party failed to provide . . . adequate supporting documentation following a request by the clerk or another party[.] (Emphasis added.) GEICO specifically requested additional supporting documentation. Gibson did not respond with the documentation GEICO requested. The clerks denial thus was justified under the rule. Gibson also challenges several specific cost awards. Gibson appears to believe that GEICOs failure to respond to this section of her opening brief means that GEICO concedes that Gibsons arguments to this Court require remand to the trial court. That assertion is without merit. An appellees failure to respond to a particular argument is not a concession as to its validity.24 Gibson argues that the clerk improperly denied Linas subpoena fee on the grounds that the subpoena costs were not necessarily incurred in the action. GEICO requested that process server fees be reduced to $225 (the amount for five subpoenas including mileage) unless Gibson provided an itemized receipt. Gibson did not provide an itemized receipt. Therefore, the clerk did not reduce the fees because the costs were not necessarily incurred, but because Gibson failed to provide adequate supporting documentation following a request by GEICO. As noted above, this ground for denying costs is explicitly allowed under Rule 79(d)(2). Gibson also argues that it was plain error for the clerk to reduce fees to $225 rather than award her $270 (the amount for six subpoenas including mileage). Because GEICO agreed to an award of $225, and because Gibson failed to provide adequate supporting documentation following a request by GEICO, the reduction was not clearly erroneous. IV. CONCLUSION The superior court did not abuse its discretion by denying Gibsons motion to compel depositions of Smith and Lina or by quashing Gibsons subpoena of Lina. The superior court did not err in failing to advise the jury of GEICOs status as Gibsons UIM carrier because there was no chance of confusion about the posture of the parties. The superior court properly reduced the jury verdict by the amount of Gibsons previous settlement and properly calculated attorneys fees and prejudgment interest based on the reduced amount. The superior court did not abuse its discretion by refusing to review the cost award. The superior courts judgment is AFFIRMED. _______________________________ 1 Shortly before trial GEICO made an offer of judgment under Civil Rule 68 to settle the case for $15,000 plus prejudgment interest, costs, and attorneys fees. Gibson did not accept this offer. 2 Fletcher v. S. Peninsula Hosp., 71 P.3d 833, 844 (Alaska 2003). 3 S.S.M. v. State, Dept of Health & Soc. Servs., Div. of Family & Youth Servs., 3 P.3d 342, 344 (Alaska 2000). 4 Alaska R. Civ. P. 26(b)(1). 5 Alaska R. Civ. P. 26(b)(2)(I). 6 Alaska R. Civ. P. 26(b)(2)(iii). 7 Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994). 8 54 P.3d 271 (Alaska 2002). 9 Id. at 279. 10 Id. at 280-81. 11 Id. at 281 (footnotes omitted). 12 803 So. 2d 593 (Fla. 2001). 13 Id. at 594. 14 Id. 15 Id. 16 Id. at 595-96 (emphasis added). 17 Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002). 18 Chenega Corp. v. Exxon Corp., 991 P.2d 769, 790 (Alaska 1999) (In general, a court will not reduce a tortfeasors liability to a victim when the victim receives compensation from a collateral source. On the other hand, payments made to the victim from non-collateral sources such as the tortfeasors insurance company or a joint tortfeasor reduce the tortfeasors liability.) (footnotes omitted). 19 Fairbanks Builders, Inc. v. Sandstrom Plumbing & Heating, Inc., 555 P.2d 964, 966-67 (Alaska 1976) (footnotes omitted). 20 974 P.2d 406 (Alaska 1999). 21 Id. at 411; see supra note 18 and accompanying text. 22 Civil Rule 82(b)(3)(J) provides: The court may vary an attorneys fee award calculated under subparagraph (b)(1) or (2) of this rule if, upon consideration of the factors listed below, the court determines a variation is warranted: . . . (J) the extent to which the fees incurred by the prevailing party suggest that they had been influenced by considerations apart from the case at bar, such as a desire to discourage claims by others against the prevailing party or its insurer[.] 23 Sourdough Dev. Servs., Inc. v. Riley, 85 P.3d 463, 466 (Alaska 2004) (quoting Fernandes v. Portwine, 56 P.3d 1, 4-5 (Alaska 2002)). 24 In fact an appellees brief is not mandatory in the sense that an appeal will be resolved against an appellee if it does not file a brief. This court has denied relief to appellants in a number of cases in which no appellees brief was filed. See, e.g., Municipality of Anchorage v. Suzuki, 41 P.3d 147 (Alaska 2002); Riddell v. Edwards, 32 P.3d 4 (Alaska 2001); Calvo v. Calhoon, 559 P.2d 111 (Alaska 1977).
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