Kawamoto v. Fireman's Fund Insurance Company of Hawaii, Inc. et al
Filing
63
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT 38 . Signed by JUDGE ALAN C KAY on 03/21/2013. (eps) -- The Court DENIES AIC's motion for partial summary judgment. Kawamoto's tort claims are based on AIC's deni als or delays of benefit payments after October 19, 2009, and therefore are not barred by the applicable statute of limitations. The Court also finds that the DCD's May 11, 2011 finding is not entitled to preclusive effect in this litigation. Th ese findings are made WITHOUT PREJUDICE. " CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROSS KAWAMOTO,
)
) Civ. No. 12-00109 ACK-KSC
Plaintiff,
)
)
v.
)
)
ASSOCIATED INDEMNITY
)
CORPORATION, JOHN DOES 1-10,
)
JANE DOES 1-10, DOE CORPORATIONS )
1-10, DOE PARTNERSHIPS 1-10, DOE )
NON-PROFIT ORGANIZATIONS 1-10,
)
AND DOE GOVERNMENTAL AGENCIES
)
1-10,
)
)
Defendants.
)
)
ORDER DENYING MOTION FOR
PARTIAL SUMMARY JUDGMENT
The Court hereby DENIES WITHOUT PREJUDICE Defendant
Associated Indemnity Corporation’s (“AIC’s”) motion for partial
summary judgment. Counsel for Plaintiff Ross Kawamoto clarified
at the hearing on the motion that Kawamoto’s tort claims are
based only on AIC’s conduct after October 19, 2009. AIC’s
arguments regarding the statute of limitations are therefore
moot. The Court also finds that the May 11, 2011 administrative
decision on Kawamoto’s workers’ compensation claims is not
entitled to preclusive effect in this litigation. This finding is
also made WITHOUT PREJUDICE.
FACTUAL & PROCEDURAL BACKGROUND1/
Plaintiff Ross Kawamoto claims that he was injured on
March 27, 2004 in a workers’ compensation incident at the store
where he then worked. (Defendant’s Concise Statement of Facts
(“Def. CSF”) ¶ C.5.) At that time, Defendant Associated Indemnity
Corporation (“AIC”) was the workers’ compensation carrier for the
store. (Id. ¶ C.6.)
Sometime after the incident, Kawamoto attempted to
claim workers’ compensation for shoulder injuries he sustained
during the incident. On January 23, 2006, AIC’s counsel sent a
letter to Kawamoto’s doctor, with a copy to Kawamoto’s attorney,
denying Kawamoto’s claim for treatment for his shoulders. (Def.
CSF ¶ D.)2/
On May 23, 2006, the Disability Compensation Division
(“DCD”) of Hawai’i’s Department of Labor & Industrial Relations
denied Kawamoto’s claim for treatment for his shoulders, finding
that he had not injured his shoulders in the March 27, 2004
incident. (Plaintiff’s Concise Statement of Facts (“Pl. CSF”)
¶ 1.) Kawamoto appealed the DCD’s decision to the state Labor &
Industrial Relations Appeals Board (“LIRAB”), which on July 7,
1/
The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings
2/
It appears that Kawamoto sustained various other injuries
during the incident and claimed other workers’ compensation
benefits, some of which he received and some of which he did not.
Only the benefits related to his bilateral shoulder injuries
appear to be at issue here.
2
2008, concluded that Kawamoto did injure his shoulders during the
2004 incident and was entitled to reasonable and necessary
medical care for the shoulder injuries. (Pl. CSF ¶ 3.) AIC
appealed that decision to the state Intermediate Court of Appeals
which, on October 19, 2009, affirmed LIRAB’s opinion. (Pl. CSF
¶ 4.)
On May 11, 2011, the DCD found that AIC3/ had not paid
Kawamoto’s benefits in a timely manner, and assessed a penalty
against AIC of 20% of Kawamoto’s claimed benefits, under Hawaii
Revised Statutes § 386-92. (Pl. CSF Ex. 6 at 10.) The DCD also
found:
The employer’s testimony indicates that their
position on non-payment of temporary total
disability benefits was unreasonable, in
light of the [LIRAB] and ICA’s decisions,
which determined, in part, that the bilateral
shoulder was a compensable component of the
3/27/2004 injury.
(Id. at 10-11; see id. at 13.) The DCD therefore awarded Kawamoto
attorneys’ costs for the evidentiary hearing, under Hawaii
Revised Statutes § 386-93. (Id. at 14.)
3/
Kawamoto in his administrative actions named as defendant
AIC’s parent company, Fireman’s Fund Insurance Co. (See Pl. CSF
Ex. 6; Doc. No. 4 (AIC’s Corporate Disclosure Statement).) In
this action, Kawamoto’s original complaint named as defendant
“Fireman’s Fund Insurance Co. of Hawaii.” (See Doc. No. 1, Ex 2.)
AIC in response repeatedly noted that the defendant was “more
appropriately identified” as AIC (see Doc. Nos. 1, 4), and
ultimately stipulated to allow Kawamoto to amend his complaint to
substitute AIC as the defendant (see Doc. No. 12). AIC apparently
does not dispute that it was the real party in interest during
the administrative proceedings and indeed summarizes the history
of the administrative proceedings as though it were the named
defendant. (See Def. Supp. at 1-6.)
3
Kawamoto filed this action in state court on October
18, 2011. (See Doc. No. 1, Ex. 1.) He filed a First Amended
Complaint in this Court on May 30, 2012. (Doc. No. 13
(“Compl.”).) In that complaint, he asserted claims for:
(1) breach of contract; (2) bad faith denial of benefits; and
(3) intentional and/or negligent infliction of emotional
distress. (Id. at 1-5.) He also requested punitive damages. (Id.
at 6.) AIC subsequently removed the action to this Court. (See
Doc. No. 1.)
On November 1, 2012, AIC moved for summary judgment on
Kawamoto’s second and third claims and his request for punitive
damages, on the ground that these claims were brought after the
applicable statute of limitations had expired. (Doc. No. 38.)
AIC’s motion is supported by a Concise Statement of Facts and
various exhibits. (Doc. No. 39.) Kawamoto filed an opposition to
the motion on February 8, 2013. (Doc. No. 52.) The Opposition was
supported by a Concise Statement of Facts and various exhibits.
(Doc. No. 53.) On February 15, 2013, AIC filed a Reply in support
of its motion. (Doc. No. 54.)
The Court held a hearing on AIC’s motion on March 4,
2013. (Doc. No. 57.) At the hearing, the Court requested
supplemental briefing from the parties regarding whether the
DCD’s May 11, 2011 finding that AIC acted unreasonably should
have preclusive effect in this action. The parties filed their
supplemental briefs on March 11, 2013. (Doc. Nos. 59 (“Pl.
Supp.”) & 60 (“Def. Supp.”).)
4
LEGAL STANDARD
A party may move for summary judgment on any claim or
defense - or part of a claim or defense - under Federal Rule of
Civil Procedure (“Rule”) 56. Summary judgment “should be granted
‘if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.’” Maxwell v. Cnty. of San Diego, 697 F.3d 941, 947 (9th
Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). Under Rule 56, a
“party asserting that a fact cannot be or is genuinely disputed
must support the assertion,” either by “citing to particular
parts of materials in the record” or by “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
The substantive law determines which facts are
material; “only disputes over facts that might affect the outcome
of the suit under the governing law properly preclude the entry
of summary judgment.” Nat’l Ass’n of Optometrists & Opticians v.
Harris, 682 F.3d 1144, 1147 (9th Cir. 2012). “The mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of
material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007)
(citation omitted).
5
A genuine issue of material fact exists if “a
reasonable jury could return a verdict for the nonmoving party.”
United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986)). Conversely, “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Scott, 550 U.S. at
380.
The moving party has the burden of persuading the court
as to the absence of a genuine issue of material fact. Avalos v.
Baca, 596 F.3d 583, 587 (9th Cir. 2010).
DISCUSSION
The parties do not dispute that the two-year statute of
limitations under Hawai’i Revised Statutes § 657-7 applies to the
claims at issue in this motion. The Court will address the
application of that statute of limitations to each claim in turn.
The Court will then discuss whether the DCD’s May 11, 2011
decision that AIC’s “position on non-payment of temporary total
disability benefits was unreasonable” (see Pl. CSF Ex. 6 at 10)
operates as collateral estoppel in this action.
I.
Statute of Limitations Arguments
A.
Bad Faith Claim
1.
Nature of the Claim
The Hawai’i Supreme Court first recognized the tort of
insurer bad faith in the first-party insurance context in 1996
when it decided Best Place, Inc. v. Penn America Ins. Co., 920
6
P.2d 334, 341 (Haw. 1996). Several months later, the court
extended this cause of action to an employee seeking payment for
workers’ compensation benefits from an insurer. Hough v. Pac.
Ins. Co., 927 P.2d 858, 869–70 (Haw. 1996). An insurer may face
liability for “bad faith” denial of benefits and payments “if it
fails to deal fairly and in good faith with its insured by
refusing, without proper cause, to compensate its insured for a
loss covered by the policy.” Best Place, 920 P.2d at 347
(citation omitted). The Hawai’i Supreme Court has noted, however,
that conduct based on a reasonable interpretation of the
insurance contract does not constitute bad faith. Id. at 347. An
erroneous decision not to pay a claim for benefits does not by
itself justify an award of compensatory damages. Id.
2.
Accrual of Kawamoto’s Claim
AIC’s motion was premised on the argument that
Kawamoto’s bad faith claim accrued, and the statute of
limitations began to run, on January 23, 2006, when AIC first
sent a letter denying Kawamoto’s request for treatment for his
shoulder injuries. (See Def. CSF Ex. D.)4/ Kawamoto’s Complaint
did not give the date(s) of the benefit denials or delays upon
which Kawamoto’s claims are based. (See Compl. ¶¶ 10, 11, 15.)
Kawamoto’s counsel clarified at the hearing on the motion,
however, that Kawamoto’s claim is based on AIC’s denials or
4/
Kawamoto raises various evidentiary objections to the
letter. Given, however, that his claim for shoulder treatment was
adjudicated by the DCD on May 23, 2006 (Pl. CSF Ex. 1), he cannot
dispute that at least as of May 23, 2006 he knew that AIC had
denied the claim.
7
delays of benefits after the final appellate opinion on the
administrative decision was issued on October 19, 2009. (See Pl.
CSF ¶ 5.) These alleged actions clearly fall within the two-year
statute of limitations.5/
B.
Emotional Distress Claims
Kawamoto’s claims for negligent and intentional
infliction of emotional distress are also governed by the twoyear statute of limitations in Hawai’i Revised Statutes § 657-7.
Caraang v. PNC Mortg., 795 F. Supp. 2d 1098, 1121 (D. Haw. 2011).
5/
In light of counsel’s clarification, the Court need not
rule on the purported conflict between this Court’s determination
in Taylor v. Standard Insurance Co., 28 F. Supp. 2d 488 (D. Haw.
1997) and the Hawai’i Intermediate Court of Appeals’ dicta in Jou
v. National Interstate Insurance Co., 157 P.3d 561, 568 n.4 (Haw.
Ct. App. 2007). The Court notes, however, that it stands by its
determination in Taylor. Taylor and Jou agree (1) that a bad
faith claim, unlike the underlying workers’ compensation claim,
is not under the exclusive original jurisdiction of the DCD, but
(2) that whether the claimant was entitled to the disputed
benefit is a “predicate issue” that must be decided by the DCD
before the bad faith claim can be adjudicated. Taylor, 28 F.
Supp. 2d at 591-92; Jou, 157 P.3d at 567. Given these two
premises, this Court held that a plaintiff’s bad faith claim
would not accrue until he won an administrative decision that he
was entitled to the underlying benefit. Taylor, 28 F. Supp. 2d at
592. The Jou court, on the other hand, suggested in dicta that a
trial court should stay proceedings on the bad faith claim while
the predicate issue was being decided through the administrative
process. 157 P.3d at 567. Crucially, the Jou court never
addressed when or whether the plaintiff’s claim accrued; it
merely assumed that it had. The Jou court’s suggested system
would require every workers’ compensation claimant to file a bad
faith claim in court every time he was denied any benefit, just
in case the DCD later determined that he was actually entitled to
that benefit. Such a system would be contrary to public policy
and contrary to the Supreme Court of Hawai’i’s repeated
admonishment that every denial of insurance benefits is not
necessarily in bad faith. Hough, 927 F.2d at 870 (quoting Best
Place, 920 P.2d at 347). It would also circumvent the purpose of
the Hawai’i Workers’ Compensation Act. For all these reasons, the
Court stands by its reasoning in Taylor.
8
The claims accrued “when the plaintiff knew or should have known
of the causal connection between the defendant’s action and the
damage done.” Id. (citation omitted). In this case, again, while
Kawamoto’s Complaint did not give specific dates, Kawamoto’s
counsel at the hearing clarified that these claims are based on
AIC’s wrongful denial or delay of benefits after the Intermediate
Court of Appeals’ ruling on October 19, 2009. (See Pl. CSF ¶ 5.)
Those acts are within the two-year statute of limitations.
C.
Request for Punitive Damages
Punitive damages is not a separate tort claim, but
rather a request for relief as to the plaintiff’s other claims.
Since Kawamoto’s tort claims survive summary judgment, his
request for punitive damages also survives.
II.
Collateral Estoppel
The Ninth Circuit has held that:
When a state agency acts in a judicial
capacity to resolve disputed issues of fact
and law properly before it, and when the
parties have had adequate opportunity to
litigate those issues, federal courts must
give the state agency’s fact-finding and
legal determinations the same preclusive
effect to which they would be entitled in
that state’s courts.
Olson v. Morris, 188 F.3d 1083, 1086 (9th Cir. 1999); see Santos
v. Dep’t of Transp., 646 P.2d 962 (Haw. 1982); see Jacobs v. CBS
Broad., Inc., 291 F.3d 1173, 1177 (9th Cir. 2002) (noting that a
federal court sitting in diversity applies the collateral
estoppel rules of the forum state). Here, the DCD found that
AIC’s “position on non-payment of temporary total disability
9
benefits was unreasonable.” (Pl. CSF Ex. 6 at 11.) The Hawaii
Supreme Court has held that “[a]n unreasonable delay in payment
of benefits will warrant recovery for compensatory damages” on a
bad faith claim. Best Place, 920 P.3d at 347. The Court must
therefore decide whether, under Hawaii law, the DCD’s finding is
entitled to preclusive effect in this litigation.6/
Hawaii’s test for collateral estoppel bars relitigation
of an issue where:
(1) the issue decided in the prior
adjudication is identical to the one
presented in the action in question;
(2) there is a final judgment on the merits;
(3) the issue decided in the prior
adjudication was essential to the final
judgment; and (4) the party against whom
collateral estoppel is asserted was a party
or in privity with a party to the prior
adjudication . . . .
Dorrance v. Lee, 976 P.2d 904, 910 (Haw. 1999).
Here, there appears to be no dispute that the last
three elements of the collateral estoppel test are met. The
parties apparently agree that AIC was either a party to the
6/
It is proper for a federal court to raise the issue of
collateral estoppel sua sponte, as long as the parties are given
the opportunity to address the issue before the court rules. See
Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1055 n.6
(9th Cir. 2005); see, e.g., Favish v. Office of Indep. Counsel,
217 F.3d 1168, 1171 (9th Cir. 2000). Here, the Court raised the
issue sua sponte at the hearing on AIC’s motion to dismiss, and
requested supplemental briefing from the parties on the issue.
(See Doc. No. 57.) Counsel agreed at the hearing that seven days
would be sufficient to prepare briefing on the issue, and both
parties filed timely supplemental briefs (see Doc. Nos. 59 & 60).
10
administrative proceedings or in privity with that party.7/ They
do not dispute that the DCD’s May 11, 2011 decision as to AIC’s
unreasonableness was “on the merits” and “final.” See Malahoff v.
Saito, 140 P.3d 401, 427 (Haw. 2006) (“[W]here a party does not
appeal a final administrative decision, that decision becomes
final and res judicata.” (citation omitted)).8/ And there appears
to be no question that the DCD’s finding of unreasonableness was
“essential” to its award of costs under Hawai’i Revised Statutes
§ 386-93, which allows for such an award only if the adjudicating
body finds that the workers’ compensation proceedings “have been
brought, prosecuted, or defended without reasonable ground.” Haw.
Rev. Stat. § 386-93 (emphasis added). The parties dispute,
however, whether the issue decided by the DCD was “identical” to
the one before the Court.
On its face, the issue is not identical. The Supreme
Court of Hawai’i noted when establishing the bad faith cause of
action that “[a]n unreasonable delay in payment of benefits will
warrant recovery for compensatory damages” under its test. Best
Place, 920 P.2d at 347. The DCD, on the other hand, awarded costs
7/
As noted above, AIC summarizes the administrative
proceedings as though it were the named defendant (see Def. Supp.
at 1-6) even though the named defendant was Fireman’s Fund
Insurance Co. (see Pl. CSF Ex. 6). Regardless, AIC is a whollyowned subsidiary of Fireman’s Fund Insurance Co. (See Doc. No. 4
(Def.’s Corporate Disclosure Statement).)
8/
Counsel at the motion hearing noted that Kawamoto has
appealed the May 2011 decision as to other issues. AIC has not,
however, appealed the finding of unreasonableness and award of
attorneys’ costs or the award of 20% of Kawamoto’s delayed
benefits under Hawai’i Revised Statutes § 386-92.
11
under a statute which allows such awards where the proceedings
“have been . . . defended without reasonable ground.” Haw. Rev.
Stat. § 386-93. In other words, the DCD found that AIC’s defense
was unreasonable, not its delay in payment of benefits.
The relationship under Hawaii state law between a bad
faith tort claim and the reasonableness standard of
section 386-93 is far from clear. Although section 386-93 has
been in existence (with minor changes) since 1915, no case has
addressed how to interpret the phrase “without reasonable
ground,” and the legislative history of the provision gives no
guidance. Indeed, in 2012 debates on a bill to reword the section
to clarify that an award may include attorneys’ fees,9/ several
state legislators worried that the phrase “without reasonable
ground” was too vague. Rep. Ching stated “unreasonable is a vague
and arbitrary standard. No two people may agree on what
constitutes a[n] ‘unreasonable’ action.” 26 H. Journal 814 (Haw.
2012). Rep. Souki noted “‘unreasonable’ can be identified in many
different ways.” Id. Rep. Marumoto noted “this is a problem
because the word unreasonable can be determined [sic]. It could
be arbitrary. It could be capricious, and no two people will
consider it the same way.” Id. at 815. The section nonetheless
9/
The bill was introduced to abrogate the Intermediate
Court of Appeals’ unpublished disposition in Kelly v. Metal-Weld
Specialties, Inc., 192 P.3d 613 (Haw. Ct. App. 2008), which found
that awards under section 386-93 could not include attorneys’
fees. See 26 H. Journal 814 (Haw. 2012). The Kelly opinion did
not illuminate what constitutes “reasonableness” under
section 386-93.
12
passed without further explanation or interpretation of its
standard.
Although no case discusses the relationship between the
bad faith tort claim and section 386-93, the Hawaii Supreme Court
has addressed the relationship between the bad faith tort claim
and section 386-92 (which awards twenty percent of the delayed
benefits where an insurer has delayed or failed to pay benefits
for more than a set period of time).10/ See Hough, 927 P.2d at
867-69. In Hough, the state supreme court noted that the DCD has
no jurisdiction over bad faith tort claims. Id. at 867. The court
found “no indication . . . that the administrative penalties
[under section 386-92] were intended by the legislature to
abrogate common law rights to bring an action in tort.” Id. at
868. It quoted approvingly the Supreme Court of Nevada’s
observation that “although administrative fines may have some
deterrent effect . . . , they do not purport to address the
plight of the injured worker who may suffer great deprivation as
a result of the tortious denial or delay of his or her benefits.”
Id. (quoting Falline v. GNLV Corp., 823 P.2d 888, 894 (Nev.
1991)). Finally, the Hawaii Supreme Court noted that “the
arbitrary amount of the penalty . . . does not bear any
particularized relationship to the injury suffered as a result of
the insurer’s acts.” Hough, 927 P.2d at 868-69. The Hough court
concluded that the statutes authorizing the administrative
10/
The DCD also granted an award to Kawamoto under section
386-92. (See Pl. CSF Ex. 6 at 10.)
13
penalties did not preclude an employee from pursuing his bad
faith tort claim in court. Id. at 869.
The Court finds Hough’s reasoning applicable here.
Applying collateral estoppel in cases such as Kawamoto’s would
effectively cause bad faith claims to be litigated in full before
the DCD, since the parties could expect the DCD’s decision to
preclude either the prosecution or the defense of the bad faith
tort claim in court. That result is not consonant with either
Hawaii’s workers’ compensation scheme or the state supreme
court’s holding that the courts, not the DCD, have jurisdiction
over bad faith claims. See Hough, 927 P.2d at 867.
The Court notes three other factors which weigh against
applying collateral estoppel here. First, the DCD’s May 2011
finding was limited to AIC’s position as to particular temporary
total disability benefits. (See Pl. CSF Ex. 6 at 14.) It is not
at all clear that Kawamoto’s claims before this Court are based
on AIC’s non-payment or delay only of those temporary total
disability benefits. Neither the Complaint nor the parties’
briefs (either on summary judgment or on the collateral estoppel
issue) are clear on this point, and the Court cannot discern it
from the various administrative decisions submitted as exhibits,
which deal with many different benefits claimed by Kawamoto.
Second, the Court notes that any award of punitive
damages to Kawamoto must be proved by clear and convincing
evidence. Best Place, 920 P.3d at 348. The DCD’s decision was
reached under a lower evidentiary standard. Judicial economy
14
would not be served by applying collateral estoppel here, since
the alleged wrongfulness of AIC’s conduct will need to be
litigated regardless, in order to determine whether Kawamoto is
entitled to punitive damages.
Third, the Court notes that the Hawaii Supreme Court
has suggested that collateral estoppel may not apply where “the
party sought to be precluded . . . did not have an adequate . . .
incentive to obtain full and fair adjudication in the initial
action.” Kaho’ohanohano v. Dep’t of Human Servs., 178 P.3d 538,
579-81 (Haw. 2008); cf. Parklane Hosiery Co. v. Shore, 439 U.S.
322, 330 (1979) (“If a defendant in the first action is sued for
small or nominal damages, he may have little incentive to defend
vigorously, particularly if future suits are not foreseeable.”).
In this case, the amount in dispute before the DCD was far
smaller than the amount at issue before this Court, and AIC did
not have notice that the DCD’s finding might later preclude AIC’s
defense before this Court, since the issue has never been
addressed before.
In sum, the Court finds that the DCD’s determination is
not entitled to preclusive effect in this litigation. The Court
makes this finding without prejudice.
CONCLUSION
For the foregoing reasons, the Court DENIES AIC’s
motion for partial summary judgment. Kawamoto’s tort claims are
based on AIC’s denials or delays of benefit payments after
October 19, 2009, and therefore are not barred by the applicable
15
statute of limitations. The Court also finds that the DCD’s May
11, 2011 finding is not entitled to preclusive effect in this
litigation. These findings are made WITHOUT PREJUDICE.
IT IS SO ORDERED.
DATED: Honolulu, Hawai’i, March 21, 2013
________________________________
Alan C. Kay
Sr. United States District Judge
Kawamoto v. Associated Indem. Corp., Civ. No. 12-0109 ACK-KSC, Order Denying
Motion for Partial Summary Judgment
16
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