Valls et al v. Allstate Insurance Company
ORDER granting 24 Motion to Dismiss. The Defendants motion to dismiss is GRANTED. Count I is DISMISSED without prejudice. Counts II, III, and IV are DISMSSED. The Clerk of Court is directed to close the case. Signed by Judge Victor A. Bolden on 9/27/2017. (Giammatteo, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILLIAM A. VALLS,
CHRISTINE C. VALLS,
No. 3:16-cv-01310 (VAB)
ALLSTATE INSURANCE COMPANY,
RULING AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
This is one of many “crumbling concrete” cases currently pending in the District of
Connecticut. William and Christine Valls (“Vallses”) originally filed this action in state court,
seeking a declaratory judgment against Allstate Insurance Company (“Allstate”). After
Defendant removed to this Court, Plaintiffs amended their Complaint to include four counts: (1)
a declaratory judgment that Plaintiffs are entitled to coverage for damage to their home; (2) a
breach of contract claim for Defendant’s denial of coverage; (3) breach of the implied covenant
of good faith and fair dealing claim in relation to Defendant’s handling of the insurance claim;
and (4) unfair and deceptive practices claims under the Connecticut Unfair Insurance Practices
Act (CUIPA) and the Connecticut Unfair Trade Practices Act (CUTPA).
Defendant now moves to dismiss the Amended Complaint in its entirety. The motion will
be GRANTED for the reasons stated below.
Factual and Procedural Background
In 1998, four years after it was built, the Vallses bought their home on 67 Zeya Drive in
Conventry, Connecticut. Amend. Compl., ECF No. 21 at ¶ 5. Since 2002, Allstate Insurance
Company has provided them with a Homeowners Policy and they, in turn, paid the premiums
necessary to maintain this insurance coverage. Id. at ¶ 6-7.
The policy at issue provided for coverage of “sudden and accidental direct physical loss”
to a covered building or part of a covered building. Deluxe Home Policy Declarations, Amend.
Compl., Ex. A, ECF No. 21-1 at 6. However, the policy also limited that coverage with several
exclusions or exceptions. It did not cover losses caused by the “wear and tear, aging, marring,
scratching, deterioration, inherent vice or latent defect.” Id. at 7. The policy excluded coverage
for “faulty, inadequate or defective . . . materials used in repair, construction, renovation or
remodeling,” as well as damage caused by the “freezing, thawing, pressure, or weight of water or
ice. Id. at 8. The policy also did not cover collapse, except as defined in the “Additional
Protection” section. Id. at 8. This additional collapse provision provides coverage for the “entire
collapse of a covered building structure” or part of a structure, provided it is “sudden and
accidental physical loss” and the result of one of several enumerated causes. Id. at 15.
In October 2015, however, the Vallses began to notice a “series of horizontal and
vertical cracks” throughout the basement walls of the property. Amend. Compl. at ¶ 9. After
consulting with contractors and engineers, they discovered that the concrete had cracked due to a
chemical compound in the concrete that had begun to rust, expand, and subsequently breakdown.
Id. at ¶ 11-12. “At some point between the date on which the basement walls were poured and
the month of October, 2015,” Plaintiffs allege, “the basement walls suffered a substantial
impairment to their structural integrity” and were now at danger of falling in. Id. at § 14.
Plaintiffs allege that there is no way to reverse the deterioration and that, when it continues, the
entire home will eventually fall into the basement. Id. at 13, 16.
Plaintiffs informed Allstate and Allstate dispatched an adjuster and engineer. Allstate,
however, did not originally issue a decision in the matter and the Vallses filed for a declaratory
judgment in Connecticut Superior Court. See generally Notice of Removal, ECF No. 1. Allstate
removed the case to this Court. Id.
On August 1, 2016, Allstate denied the Vallses’ claim and stated that “there is no
coverage for your claimed loss under any Allstate policy.” Amend. Compl., Ex. B at 2. Allstate
noted that they had sent a structural engineer to the property, who identified the presence of
pyrrhotite, a material that expands when it reacts with water and air. Id. The engineer also
determined that the deterioration was minor at that time. Id. Allstate stated that the “foundational
cracking at the Property is not ‘sudden and accidental direct physical loss” and concluded that
the property did not “collapse” within the scope of protection. Id. at 4.
After the denial, the Vallses amended their complaint. They now allege four claims. First,
they still seek a declaratory judgment as to Allstate’s liability under the Homeowners Policy for
collapse of the home. Second, they also now allege that Allstate breached their contract when
they denied them coverage. Third, they further allege that Allstate violated the implied covenants
of good faith and fair dealing, which contracting parties owe to each other. Finally, they allege
that Allstate’s participation in an industry-wide group violates two Connecticut statutes,
Connecticut Unfair Insurance Practices Act (CUTPA), Conn. Gen. State. § 42-110a, et seq., and
the Connecticut Unfair Trade Practices Act (CUIPA). Conn. Gen. Stat. § 38a-816(6)(F).
Allstate now moves to dismiss the Complaint in its entirety for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6).
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) requires the dismissal of any claim that fails “to
state a claim upon which relief can be granted.” In reviewing a complaint under Rule 12(b)(6),
the court applies “a ‘plausibility standard’” guided by “two working principles.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). First, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. Second, to survive a motion to
dismiss, the complaint must state a plausible claim for relief. Id. at 679. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. at 678. Instead, a plaintiff must allege facts that
nudge their claims across the line from conceivable to plausible . . . .” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Determining whether the complaint states a plausible claim
for relief is “a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal,
556 U.S. at 679).
When evaluating a 12(b)(6) motion, the court must accept all factual allegations in the
complaint as true and draw all possible inferences from those allegations in favor of the plaintiff.
See York v. Ass'n of the Bar of the City of New York, 286 F.3d 122, 125 (2d Cir.), cert. denied,
537 U.S. 1089 (2002). The proper consideration is not whether the plaintiff ultimately will
prevail, but whether the plaintiff has stated a claim upon which relief may be granted such that
he should be entitled to offer evidence to support his claim. See id. (citation omitted). Courts
considering motions to dismiss under Rule 12(b)(6) generally “must limit [their] analysis to the
four corners of the complaint,” though they may also consider documents that are “incorporated
in the complaint by reference.” Kermanshah v. Kermanshah, 580 F.Supp.2d 247, 258 (S.D.N.Y.
Allstate’s putative liability hinges on whether or not they breached the contract: that is,
whether the loss from the Homeowners Policy issued to the Vallses covers the deteriorating
concrete in their basement. Because we determine that Allstate is not in breach, we dismiss that
claim along with the claims for breach of implied covenants and the claims under CUTPA and
Breach of Contract
We begin with the breach of contract claim – Count II in the Amended Complaint – as its
resolution will inform the resolution of the other claims alleged. As pleaded, the Vallses allege
that Allstate breached their contractual obligation by denying coverage, despite policy language
specifying that “the entire collapse of a building structure” would be covered under certain
conditions. Amend. Compl. at ¶¶ 31, 33.
Under Connecticut law, the terms of an insurance policy are “construed according to the
general rules of contract construction.” Liberty Mutual Insurance Co. v. Lone Star Industries,
Inc., 290 Conn. 767, 795 (2009) (internal quotations and citations omitted). While contracts are
strictly construed in favor of the insured, “the mere fact that the parties advance different
interpretations of the language in question does not necessitate a conclusion that the language is
ambiguous.” Id. at 796. “The court must conclude that the language should be construed in favor
of the insured unless it has ‘a high degree of certainty’ that the policy language clearly and
unambiguously excludes the claim.” Id. (quoting Kelly v. Figueiredo, 223 Conn. 31, 37 (1992)).
Allstate asserts that the “progressive deterioration, caused by the cracking of basement
walls due to defective materials is not covered under the plain and unambiguous terms of the
Allstate Policy.” Def. Mem. in Support (“Def. Mem.”), ECF No. 24-1 at 7. Allstate asserts three
justifications for denying the claim. First, as a general matter, Allstate argues that the policy only
covers “sudden and accidental direct physical loss.” Id. A “progressive deterioration” therefore
would not qualify as sudden. Second, Allstate argues the claim falls within policy exclusions for
“the settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations, walls,
floors, roofs, or ceilings.” Id. at 7-8. Third, the company argues that the loss would be excluded
under provisions related to defective construction, construction materials, rust, or corrosion. Id.
The Vallses do not address Allstate’s arguments directly,1 but instead argue their loss is
covered under a provision of the policy labelled “Collapse.” Pl. Opp. Mem., ECF No. 25 at 7.
They argue that the terms of the collapse provision are “ambiguous and, therefore, must be
construed against Allstate and in favor of coverage.” Id. at 3.
“Sudden and Accidental Direct Physical Loss”
As a threshold matter, the policy states that Allstate covers “sudden and accidental direct
physical loss” to a covered property. Deluxe Home Policy Declarations, Amend. Compl., Ex. A,
ECF No. 21-1 at 6. Allstate cites Buell Industries, Inc. v. Greater New York Mutual Insurance
Co., 259 Conn. 527 (2002) to argue that the meaning of the term is well-settled in Connecticut
Buell addressed a clause in an insurance policy covering environmental claims, which
included an “‘sudden and accidental’ exception to the pollution exclusion contained in the
defendants’ insurance policies.” Id. at 529. The Connecticut Supreme Court noted that
“Connecticut trial courts uniformly have interpreted the term ‘sudden’ to require a temporally
The Vallses instead address the “sudden and accidental” term within the context of the collapse
provision rather than by itself.
abrupt release of pollutants.” Id. at 536-37. The court rejected the plaintiff’s definition of sudden
as “only unexpected,” instead defining the term as “temporally dependent,” requiring “the
release [of pollution] occur in a rapid or abrupt manner.” Id. at 541, 543. Therefore, the Court
concluded that “[t]he ‘sudden and accidental’ exception was added, it seems to us, to allow
coverage for such discharges, not, as the plaintiff would have it, for unexpected, continuous or
repeated events, but if they happen to occur abruptly.” Id. at 544.
This Court has repeatedly applied Buell’s definition to identical policy language and
similar factual circumstances at issue in this case. See, e.g. Adams v. Allstate Insurance Co., No.
3:16-CV-1360 (JBA), 2017 WL 3763837 (D. Conn. 2017) (applying Buell and dismissing all
claims, including breach of contract, against Allstate in concrete case); Clough v. Allstate
Insurance Co., No. 3:17-CV-140 (JBA), 2017 WL 3763841 (D. Conn. 2017) (same); Miller v.
Allstate Insurance Co., No. 3:16-CV-2059 (JBA), 2017 WL 3763425 (D. Conn. 2017) (same).
Those decisions are persuasive. Like in those cases, plaintiffs here have only alleged their
walls “suffered a substantial impairment to their structural integrity” and “it is only a question of
time until the basement walls of the plaintiffs’ home will fall in due to the exterior pressure from
the surrounding soil.” Amend. Compl. at ¶¶ 14, 15. The Vallses therefore allege a “progressive
deterioration” and “[w]ithout any plausible allegation of suddenness” they fail to plausibly allege
coverage unless they can argue another provision applies. Miller, 2017 WL 3763425 at *3.2 They
seek to do so within the “Collapse” provisions.
The “Collapse Provision”
As noted above Defendant has offered two other provisions of the policy that might exclude
coverage for the claimed loss. Plaintiffs do not address these provisions and the Court need not
address them here, given Plaintiff’s failure to allege that any provision does bring the loss within
coverage of the policy.
The Vallses’ policy provides for coverage of “(a) the entire collapse of a covered
building structure; (b) the entire collapse of part of a covered building structure; and (c) direct
physical loss to covered property caused by (a) or (b) above.” Deluxe Home Policy Declarations,
Amend. Compl., Ex. A, ECF No. 21-1 at 15 (emphasis in original). However, for the collapse to
be covered it must be “a sudden and accidental direct physical loss caused by one or more of the
a) A loss we cover under [Section I, Coverage C]
b) Hidden decay of the building structure
f) Defective methods or materials used in construction, repair, remodeling or renovation.”
Id. The policy further excludes coverage for the “settling, cracking, shrinking, bulging or
The Vallses allege that “the basement walls of the plaintiffs’ homes are in a state of
collapse, which collapse was the result of a covered cause.” Amend. Compl. at ¶ 20. They argue
that, first, Allstate has not defined the term “collapse” and, therefore, the loss is within the
meaning of the term under Connecticut law. Pl. Opp. Mem. at 7 (citing Beach v. Middlesex
Mutual Assurance Co., 205 Conn. 246, 252 (1987)). They also argue that the modifying
language “sudden and accidental physical loss” conflicts with the Connecticut Supreme Court’s
definition of “collapse” and the fact that the policy explicitly mentions slow moving causes such
as hidden decay.
This argument is unpersuasive. It is true that “collapse,” by itself may be ambiguous, and
that the Connecticut Supreme Court’s definition of “substantial impairment” could therefore
apply. Beach, 205 Conn. at 253. This Court has, on numerous occasions, allowed concrete claims
to proceed to summary judgment when the term “collapse” has been without qualification in the
policy. See, e.g., Metsack v. Liberty Mut. Fire Ins. Co., 2015 WL 5797016 (D. Conn. Sept. 30,
2015); Gabriel v. Liberty Mut. Fire Ins. Co., 2015 WL 5684063 (D. Conn. Sept. 28, 2015); Belz
v. Peerless Ins. Co., 46 F. Supp. 3d 157 (D. Conn. 2014); Karas v. Liberty Ins. Corp., 33 F.
Supp. 3d 110 (D. Conn. 2014); accord. Agosti v. Merrimack Mut. Fire Ins. Co., No. 3:16-CV01686 (SRU), 2017 WL 3710786, at *4 (D. Conn. Aug. 28, 2017) (“For the reasons stated by the
Connecticut Supreme Court in Beach v. Middlesex Mutual Assurance Co., and subsequently
followed by many judges of this court, I conclude that the term ‘collapse,’ standing alone, ‘is
sufficiently ambiguous to include coverage for any substantial impairment of the structural
integrity of a building.’) (quoting Beach, 205 Conn. at 252).
The Vallses’ policy, however, explicitly requires that any collapse be “a sudden and
accidental direct physical loss” and a “complete collapse.” As addressed above, they have not
alleged a sudden collapse. See, e.g. Adams, 2017 WL 3763837 at *4 (finding that plaintiffs had
failed to allege a sudden collapse); Manseau v. Allstate Insurance Co., No. 3:16-CV-1231
(MPS), 2017 WL 3821791, at *5 (D. Conn. Aug. 31, 2017) (“Regardless of whether the loss is
characterized as a collapse or a chemical reaction, Plaintiffs fail to allege that any loss occurred
suddenly, that is, temporally abruptly, as required for coverage to apply.”). Nor have they alleged
a “complete collapse.” See Agosti, 2017 WL 3710786, at *7 (“Under the present policy, I agree
that ‘the term “entire collapse” is susceptible of only one reasonable interpretation,’ namely, an
Plaintiffs argue that reading a temporal requirement into the “collapse” provision would
contradict the Connecticut Supreme Court’s definition in Beach and the requirement that
collapse comes from hidden decay, insect damage or other slow moving processes.3 Pl. Opp.
Mem. at 8. The Court disagrees.
First, it is not inconsistent for the cause of the collapse to be slow moving, while the
collapse itself be sudden or complete. Adams, 2017 WL 3763837, at *4 (“Under the terms of the
Policy, a process of hidden decay does not trigger coverage until a sudden collapse occurs.”)
Second, the temporal requirement helps clarify “collapse,” rendering the combined term
unambiguous. See Agosti, 2017 WL 3710786, at *4 (noting that while the term collapse might be
ambiguous, the term “entire collapse” was not); see also Firestine v. Poverman, 388 F. Supp.
948, 951 (D. Conn. 1975) (noting rule of interpretation requiring an insurance policy to “be
construed as a whole, and all of its relevant provisions are to be considered in connection with
one another.”); Associated Community Bancorp, Inc. v. The Travelers Companies, Inc., No.
3:09-cv-1357 (JCH), 2010 WL 1416842, at *8 (D. Conn. Apr. 8, 2010) (rejecting plaintiff’s
argument that a phrase was ambiguous because it had been modified by additional language).
While such a collapse may happen in the future, Plaintiffs have not alleged that such a
sudden collapse has occurred yet. Therefore, the “collapse” provision does not yet apply. Count
II of the Amended Complaint must be dismissed.
Counts III: Breach of Implied Covenants
The Vallses also allege that Allstate has violated the implied covenant of good faith and
fair dealing. While each contract imposes a duty of good faith and fair dealing on the parties,
Connecticut law requires a breach of contract in order to plead bad faith. See, e.g. Capstone
The same logic applies to the policy’s exclusion under the collapse provision for “settling,
cracking, shrinking, bulging or expansion.” If these conditions cause a collapse they may be
within the meaning of the policy; until then coverage is precluded. See Agosti, 2017 WL
3710786 at *4 (noting that the same provision related to cracking, shrinking, bulging or
expansion would not necessarily bar coverage if a collapse had occurred).
Bldg. Corp. v. American Motorists Insurance Co., 308 Conn. 760, 798 (2013)(concluding that
“bad faith is not actionable apart from a wrongful denial of a benefit under [an insurance]
policy.”). Because Plaintiffs have not plead a plausible claim for breach of contract, their claim
for breach of the implied covenant of good faith and fair dealing also fails. See, e.g., Manseau,
2017 WL 3821791, at *5 (dismissing breach of implied covenant claim in concrete case after
court dismissed breach of contract claim); Agosti, 2017 WL 3710786 at *8 (same). Count III of
the Amended Complaint therefore must be dismissed.
Count IV: Claims Under CUTPA/CUIPA
Plaintiff further alleges violations of the CUTPA and CUIPA. These claims also fail.
“To succeed on such a CUTPA claim, a plaintiff must show that the defendant engaged in
an act prohibited by CUIPA's substantive provisions, and that the act proximately caused the
harm alleged.” Belz v. Peerless Ins. Co., 46 F. Supp. 3d 157, 165 (D. Conn. 2014). “The
requirement that the insurer settle when the insured's liability is ‘reasonably clear’ means that the
existence of liability has to be substantially certain.” Tucker v. AIG, No. 3:09-cv-1499 (CSH)
2015 WL 403195, at *27 & n.48 (D. Conn. Jan. 28, 2015).
Plaintiffs allege that the defendant participated with other insurance companies in the
Insurance Services Office, Inc. (ISO), “a cooperative organization formed and controlled by its
participants for the purpose, among others, of collecting data on the type of claims made, the
policy provisions cited for the basis of each claim, the geographic areas in which the claimed
damage has occurred, and the actions taken by insurers in response to such claims.” Amend
Compl. at ¶ 47. Plaintiffs allege that through the ISO, the defendant knew how others insurers
responded to claims and “gave the insured a knowingly false and misleading reason for
the denial of coverage.” Id. at ¶ 53.
Given that this Court has now concluded there is no liability for Allstate, it was not
“reasonably clear” that liability would have existed. Count IV of the Amended Complaint
therefore is dismissed.
Count I: Declaratory Judgment
The Vallses have also sought a declaratory judgment against Allstate. Amend Compl. ¶¶
8-28. The Amended Complaint appears to incorporate language from the original state court
filing, as it alleges “the plaintiffs fully expect that the defendant will deny coverage for their
claim.” Id. at ¶ 25. However, the Amended Complaint then acknowledges that Allstate denied
coverage on August 1, 2016. Id. at ¶ 30.
28 U.S.C. § 2201 provides that federal courts with jurisdiction over a case “may declare
the rights and other legal relations of any interested party seeking such declaration, whether or
not further relief is or could be sought. Any such declaration shall have the force and effect of a
final judgment or decree and shall be reviewable as such.”
The Declaratory Judgment Act, of course, is still limited by the other constraints of
Article III jurisdiction: there must be a case or controversy that is justiciable. U.S. Const., Art. III
§ 2; see, also, Dow Jones & Co. v. Harrods, Ltd., 237 F. Supp. 2d 394, 406 (S.D.N.Y. 2002),
aff'd, 346 F.3d 357 (2d Cir. 2003) (“As a threshold issue, DJA actions are justiciable only in
cases in which an “actual controversy” exists. The relevant inquiry for this prerequisite is
coextensive with the analysis applicable to the “case or controversy” standard embodied in
Article III of the United States Constitution.”).
As part of this limitation, the Court must therefore determine whether the declaratory
judgment action is ripe for review. See, e.g. Reno v. Catholic Social. Services, Inc., 509 U.S. 43,
58 & n. 18 (1993) (noting that, because ripeness is “drawn both from Article III limitations on
judicial power and from prudential reasons for refusing to exercise jurisdiction” the court could
raise it sua sponte). “The difference between an abstract question and a ‘controversy’
contemplated by the Declaratory Judgment is necessarily one of degree” and the courts have
generally avoided drawing a bright line rule. Maryland Casualty Co. v. Pacific Coal & Oil Co.,
312 U.S. 270, 273 (1941).
The Second Circuit therefore requires that “[t]he standard for ripeness in a declaratory
judgment action is that “there is a substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”
Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 388 (2d Cir. 2005) (quoting
Maryland Casualty Company, 312 U.S. at 273). District courts must ask: “(1) whether the
judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2)
whether a judgment would finalize the controversy and offer relief from uncertainty.” Duane
Reade, 411 F.3d at 389.
The mere fact that liability is contingent on an event—here, the “entire collapse” of the
home—does not mean that the declaratory judgment action is unripe. As the Second Circuit has
noted, “litigation over insurance coverage has become the paradigm for asserting jurisdiction
despite ‘future contingencies that will determine whether a controversy ever actually becomes
real.’” Associated Indemnification Corp. v. Fairchild Industries, Inc., 961 F.2d 32, 35 (2d Cir.
1992). “That the liability may be contingent does not necessarily defeat jurisdiction of a
declaratory judgment action. . . . Rather, courts should focus on “the practical likelihood that the
contingencies will occur . . . .” Id. See also Federal Insurance Co. v. Safenet, Inc., 758 F.Supp.2d
251, 262 (S.D.N.Y. 2010) (collecting cases).
The party seeking the declaratory judgment, however, bears the burden of demonstrating
that the case is ripe for adjudication. E.R. Squibb & Sons v. Lloyd’s & Co., 241 F.3d 154, 177 (2d
Cir. 2001) (“A party seeking a declaratory judgment bears the burden of proving that the district
court has jurisdiction.”); Federal Insurance Co., 758 F.Supp.2d at 261. As addressed above, the
Amended Complaint is internally consistent, both seeking a declaratory judgment in anticipation
of the denial of the claim and noting that claim’s denial. Compare Amend Compl. at ¶ 25 with id.
at ¶ 30. To the extent that Plaintiffs seek a limited declaration as to their rights in respect to their
original insurance claim, that action is now mooted by the dismissal of their breach of contract
To the extent that the Plaintiffs seek a more global statement of Allstate’s liabilities with
respect to an eventual “entire collapse,” they have yet to meet their burden as to whether such a
collapse is “of sufficient immediacy and reality” to warrant a declaratory judgment. Therefore,
the declaratory judgment claim will be dismissed without prejudice.
Therefore, for the reasons state above the Defendant’s motion to dismiss is GRANTED.
Count One is DISMISSED without prejudice. Counts II, III, and IV are DISMSSED. The Clerk
of Court is directed to close the case.
SO ORDERED at Bridgeport, Connecticut, this 27th day of September 2017.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge
This seems to be in keeping with the Plaintiff’s arguments, which treat breach of contract and
the declaratory judgment action as the same. Pl. Opp. Mem. at 5 & n.1.
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