Allied World Surplus Lines Insurance Company v. Hawaii Medical Service Association
Filing
49
ORDER GRANTING DEFENDANT HAWAII MEDICAL SERVICE ASSOCIATION'S MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT (ECF NO. 32 ) re 48 - Signed by JUDGE HELEN GILLMOR on 9/27/2017. (emt, )CERT IFICATE 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
ALLIED WORLD SURPLUS LINES
INSURANCE COMPANY F/K/A DARWIN
SELECT INSURANCE COMPANY and
ALLIED WORLD SPECIALTY
INSURANCE COMPANY F/K/A/ DARWIN
NATIONAL ASSURANCE COMPANY,
Plaintiffs,
vs.
HAWAII MEDICAL SERVICE
ASSOCIATION D/B/A BLUE CROSS
AND BLUE SHIELD OF HAWAII
Defendant.
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Civ. No. 17-00156 HG-RLP
ORDER GRANTING DEFENDANT HAWAII MEDICAL SERVICE ASSOCIATION’S
MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR DECLARATORY
JUDGMENT (ECF No. 32)
Plaintiffs Allied World Surplus Lines Insurance Company and
Allied World Specialty Insurance Company filed a Complaint
seeking a declaratory judgment in a coverage dispute against
Defendant Hawaii Medical Service Association.
The Complaint seeks a declaration that neither of the two
insurance policies issued by the Plaintiffs to the Defendant
cover the defense of the multidistrict litigation cases currently
pending in the United States District Court for the Northern
District of Alabama.
Plaintiffs are not parties to the
multidistrict litigation.
1
Defendant Hawaii Medical Service Association filed a Motion
to Dismiss for lack of subject-matter jurisdiction and failure to
state a claim. Defendant argues in the alternative that
Plaintiffs’ request is premature and should be dismissed, or
stayed, pursuant to the Court’s discretion over declaratory
judgment actions.
GRANTED.
Defendant’s Motion to Dismiss (ECF No. 32) is
Plaintiffs have failed to establish subject-matter
jurisdiction.
PROCEDURAL HISTORY
On April 5, 2017, Plaintiffs filed a COMPLAINT.
(ECF No.
1).
On May 22, 2017, Defendant filed DEFENDANT HAWAII MEDICAL
SERVICE ASSOCIATION’S MOTION TO DISMISS COMPLAINT FOR DECLARATORY
JUDGMENT FILED ON APRIL 5, 2017.
(ECF No. 27).
On June 5, 2017, Plaintiffs filed a FIRST AMENDED COMPLAINT.
(ECF No. 30).
On June 7, 2017, the Court filed STIPULATION REGARDING
HEARING ON DEFENDANT’S MOTION TO DISMISS THE COMPLAINT FOR
DECLARATORY JUDGMENT AND ORDER.
(ECF No. 31).
Pursuant to the
Stipulation, Defendants withdrew their Motion to Dismiss the
Complaint for Declaratory Judgment without prejudice.
On June 21, 2017, Defendant filed DEFENDANT HAWAII MEDICAL
SERVICE ASSOCIATION’S MOTION TO DISMISS FIRST AMENDED COMPLAINT
2
FOR DECLARATORY JUDGMENT FILED ON June 21, 2017.
(ECF No. 32).
On July 5, 2017, Plaintiffs filed PLAINTIFFS’
MEMORANDUM IN OPPOSITION TO HAWAII MEDICAL SERVICE ASSOCIATION’S
MOTION TO DISMISS FOR FIRST AMENDED COMPLAINT FOR DECLARATORY
JUDGMENT FILED JUNE 21, 2017.
(ECF No. 35).
On July 19, 2017, Defendant filed DEFENDANT HAWAII MEDICAL
SERVICE ASSOCIATION’S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT
OF [32] DEFENDANT’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR
DECLARATORY JUDGMENT.
(ECF No. 37).
On July 20, 2017, Defendant filed NOTICE OF ERRATA TO HMSA’S
REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO DISMISS
FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT FILED ON JUNE 5,
2017.
(ECF No. 38).
On August 4, 2017, Defendant filed NOTICE OF UNCITED
AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED
COMPLAINT FOR DECLARATORY RELIEF.
(ECF No. 39).
On August 16, 2017, Plaintiffs filed PLAINTIFF’S OBJECTION
TO DEFENDANT’S NOTICE OF UNCITED AUTHORITIES IN SUPPORT OF ITS
MOTION TO DISMISS.
(ECF No. 40).
On August 22, 2017, Defendant filed DEFENDANT HAWAII MEDICAL
SERVICE ASSOCIATION’S RESPONSE TO PLAINTIFF’S OBJECTION TO NOTICE
OF UNCITED AUTHORITIES IN SUPPORT OF THE MOTION TO DISMISS.
No. 41).
On September 19, 2017, the Court held a hearing on
3
(ECF
Defendant’s motion to dismiss.
The Court rendered a ruling
granting Defendant’s Motion to Dismiss and Dismissing without
Prejudice Plaintiffs’ Fist Amended Complaint.
(ECF No. 48).
The
Court stated a written order would be filed at a later date.
(Id.)
This written order sets forth the Court’s basis for the
grant of Defendant’s Motion to Dismiss.
BACKGROUND
Plaintiffs Allied World Surplus Lines Insurance Company and
and Allied World Specialty Insurance Company (collectively
hereafter “Allied World”) issued the two insurance policies that
are the subject of this action to the Hawaii Medical Service
Association (hereafter “HMSA”).
(First Amended Complaint at ¶¶
29, 39, ECF No. 30).
Plaintiff Allied World Surplus Lines Insurance Company,
formerly known as Darwin Select Insurance Company, issued the
Managed Care Organization Errors and Omissions Liability
Insurance Policy (hereafter “E&O Policy”).
(Id. at ¶ 29).
Plaintiff Allied World Specialty Insurance Company, formerly
known as Darwin National Assurance Company, issued the Healthcare
Organizations Directors and Officers Liability Insurance Policy
(hereafter “D&O Policy”).
(Id. at ¶ 39).
In 2012, a number of antitrust class action lawsuits were
filed by providers and subscribers against multiple Blue Cross
4
Blue Shield entities or members plans and the Blue Cross Blue
Shield Association.
(Id. at ¶¶ 9-10).
The cases were
consolidated and transferred by the Judicial Panel on
Multidistrict Litigation to the United States District Court for
the Northern District of Alabama as In Re: Blue Cross Blue Shield
Antitrust Litigation, Mater File No 2:13-cv-20000-RDP (hereafter
“MDL Litigation”).
Litigation.
(Id.).
(Id. at ¶ 14).
MDL Litigation.
HMSA is a defendant in the MDL
Plaintiffs are not parties in the
(Id. at ¶ 9).
In the case before the Court here, the First Amended
Complaint contains two requests for declaratory relief against
Defendant HMSA.
(Id. at ¶¶ 58-63, ECF No. 30).
Count I
Count I requests a declaration that the E&O Policy does not
cover expenses relating to the MDL Litigation.
(Id. at ¶ 59).
Count II
Count II requests a declaration that the D&O Policy does not
cover expenses relating to the MDL Litigation. (Id. at ¶ 62).
Both the D&O Policy and E&O Policy (collectively hereinafter
“the Policies”) contain a clause requiring that the parties
engage in alternative dispute resolution prior to filing suit.
(Id. Ex. 5 at Endorsement 17, Subsection 10, Ex. 6 at Endorsement
7).
The Policies provide:
5
“(1) non-binding mediation administered by the American
Arbitration Association, in which the [parties] shall
try in good faith to settle the dispute by mediation
under or in accordance with its then-prevailing
Commercial Mediation Rules; or (2) arbitration
submitted to the American Arbitration Association under
or in accordance with its then-prevailing Commercial
Arbitration Rules.”
(Id.)
If mediation is the type of alternative dispute resolution
chosen, “either party shall have the right to commence a judicial
proceeding; provided, however, that no such judicial proceeding
shall be commenced until the mediation shall have been terminated
and at least 120 days shall have elapsed from the date of the
termination of the mediation.”
(Id.)
Plaintiffs’ position is that the conditions precedent to
filing suit contained in the Policies have been satisfied.
at ¶ 54).
(Id.
The First Amended Complaint alleges that “HMSA and
Allied World voluntarily engaged in several non-binding mediation
sessions in 2016 in a good faith effort to settle this dispute,
the last of which was held on September 12-13, 2016."
(Id.)
Plaintiffs allege that the mediation was unsuccessful, no further
coverage mediation sessions have been scheduled, and the
mediation process has been terminated.
(Id.)
Defendant’s position is that the parties have not satisfied
the conditions precedent to filing suit.
Dismiss at p. 4, ECF No. 32).
(Defendant’s Motion to
HMSA has submitted an affidavit
6
stating that the mediation has not concluded and was not
administered by the American Arbitration Association.
(Affidavit
of Nicholas Insua at ¶¶ 2-5, attached to Defendant’s Motion to
Dismiss, ECF No. 32-2).
The MDL Litigation was referred to Judge
Layn Phillips for mediation.
(Id.; Joint Rule 16 Conference
Information Report, attached to Defendant’s Reply Memorandum, ECF
No. 37-6).
The Blue Cross Blue Shield companies and their
insurers also agreed to mediate the coverage issues with Judge
Phillips, and his company, Phillips ADR.
(Id.)
The parties to
the case before the court here agree that mediation caucuses
concerning insurance coverage took place in February of 2016, in
May of 2016, and again in September of 2016.
(Defendant’s Motion
to Dismiss, ECF No. 32).
STANDARD OF REVIEW
A plaintiff has the burden of proving that subject-matter
jurisdiction does in fact exist.
Thornhill Publ’g Co., Inc. v.
Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
Federal Rule of Civil Procedure 12(b)(1) requires that a
case must be dismissed for lack of subject-matter jurisdiction
when the Court lacks a constitutional or statutory basis to
adjudicate the controversy.
Fed. R. Civ. P. 12(b)(1); Leeson v.
Transamerica Disability Income Plan, 671 F.3d 969, 975 (9th Cir.
2012).
7
A challenge to the Court’s subject-matter jurisdiction may
be “facial or factual.”
Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004).
In a facial attack, the party
challenging jurisdiction argues that the allegations contained in
a complaint are insufficient “on their face” to invoke federal
jurisdiction.
Id.
A facial challenge, therefore, mirrors a
traditional motion to dismiss analysis.
The Court must take all
allegations contained in the pleading “to be true and draw all
reasonable inferences in [its] favor.”
Wolfe v. Strankman, 392
F.3d 358, 362 (9th Cir. 2004).
In a factual attack, the party challenging jurisdiction
argues that the facts in the case, notwithstanding the
allegations in the complaint, divest the Court of subject-matter
jurisdiction.
2000).
See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.
No presumptive truthfulness attaches to the complaint’s
allegations.
Id.
The party challenging jurisdiction presents
“affidavits or other evidence properly brought before the court”
indicating that subject-matter jurisdiction is lacking.
Savage
v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir.
2003).
The burden then shifts to “the party opposing the motion
[to] furnish affidavits or other evidence to satisfy its burden
of establishing subject-matter jurisdiction.”
Id.; Colwell v.
Dep’t of Health and Human Serv., 558 F.3d 1112, 1121 (9th Cir.
2009).
Failure to present suitable evidence establishing
8
subject-matter jurisdiction necessitates dismissal.
Moore v.
Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 895 (9th Cir.
2011).
Defendant mounts a factual attack on Plaintiffs’ Complaint.
Plaintiffs must furnish evidence to establish subject-matter
jurisdiction to avoid dismissal.
ANALYSIS
Article III, section 2 of the United States Constitution,
limits this Court's subject matter jurisdiction to deciding
“cases” or “controversies.”
737, 750 (1984).
See, e.g., Allen v. Wright, 468 U.S.
No case or controversy exists if a case is not
yet ripe for adjudication, see, e.g., Thomas v. Anchorage Equal
Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir.2000) (en banc),
consequently a federal court lacks subject matter jurisdiction in
such a case.
See, e.g., St. Clair v. City of Chico, 880 F.2d
199, 201 (9th Cir.1989) (“Whether a claim is ripe for
adjudication goes to a court's subject matter jurisdiction under
the case or controversy clause of article III of the federal
Constitution.”).
Defendant HMSA’s Motion to Dismiss is filed pursuant to Fed.
R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.
Defendant’s motion factually attacks Plaintiffs’ Amended
Complaint under Rule 12(b)(1).
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In a factual attack, Defendant is allowed to present
“affidavits or other evidence properly brought before the court”
indicating that subject-matter jurisdiction is lacking.
343 F.3d at 1039 n.2 (9th Cir. 2003).
Savage,
The burden then shifts to
“the party opposing the motion [to] furnish affidavits or other
evidence to satisfy its burden of establishing subject-matter
jurisdiction.”
Id.; Colwell, 558 F.3d at 1121.
Failure to
present suitable evidence establishing subject-matter
jurisdiction necessitates dismissal.
Moore, 657 F.3d at 895.
HMSA argues that this Court lacks subject-matter
jurisdiction because Plaintiff's case is not yet ripe as the
parties have failed to engage in a condition precedent to
litigation.
(See Defendant’s Motion to Dismiss at pp. 9-12, ECF
No. 32).
I. Hawaii Law Applies
The Court must resolve which state’s law applies in order
to determine if the conditions precedent to litigation in the
Policies have been met and the matter is ripe for review.
Policies do not contain choice of law provisions.
The
In a diversity
case, a federal court ordinarily must apply the choice of law
rule of the state in which it sits.
DeRoburt v. Gannett Co.,
Inc., 83 F.R.D. 574, 576 (D.Haw.1979); Lemen v. Allstate Ins.
Co., 938 F.Supp. 640, 643 (D.Haw.1995).
10
Hawaii courts resolve conflict of law issues by deciding
which state has the strongest interest in seeing its law applied
to a particular case. Lewis v. Lewis, 748 P.2d 1362 (1988);
Peters v. Peters, 634 P.2d 586 (1981).
The Hawaii Supreme Court discussed its choice of law
jurisprudence in Mikelson v. United Serv. Auto. Ass'n, 111 P.3d
601 (2005). The Mikelson court observed the following:
This court has moved away from the traditional and
rigid conflict-of-laws rules in favor of the modern
trend towards a more flexible approach looking to the
state with the most significant relationship to the
parties and subject matter. This flexible approach
places primary emphasis on deciding which state would
have the strongest interest in seeing its laws applied
to the particular case. Hence, this court has said that
the interests of the states and applicable public
policy reasons should determine whether Hawai'i law or
another state's law should apply. The preferred
analysis ... would be an assessment of the interests
and policy factors involved with a purpose of arriving
at a desirable result in each situation.
Mikelson, 111 P.3d at 607 (citations, brackets, and
quotation marks omitted); see Del Monte Fresh Produce (Hawaii),
Inc. v. Fireman's Fund Ins. Co., 183 P.3d 734, 742 (Haw.2007).
Review of the Policies demonstrates that Hawaii is the state
with the most significant interest in having its laws applied.
Defendant HMSA is a company organized and existing under the laws
of the State of Hawaii with its principal place of business in
Hawaii.
(First Amended Complaint at ¶ 4, ECF No. 30).
Polices both insure HMSA.
(Id. at ¶¶29-33, 39-50).
11
The
II. The ADR Provisions are Conditions Precedent to Litigation
Hawaii law follows the Second Restatement of Contracts,
which defines a “condition precedent” as “an event, not certain
to occur, which must occur, unless its non-occurrence is excused,
before performance under a contract becomes due.” Brown v. KFC
Nat'l Mgmt. Co., 921 P.2d 146, 166 (1996) (quoting Restatement
(Second) of Contracts § 224 (1981)).
The Policies issued to Defendant by Plaintiffs both contain
a condition precedent to filling suit.
They state: “no . . .
judicial proceeding shall be commenced until . . . mediation
shall have been terminated and at least 120 days shall have
elapsed from the date of the termination.”
(First Amended
Complaint, Ex. 5 at Endorsement 17, Subsection 10, Ex. 6 at
Endorsement 7, ECF No. 30).
The Policies require mediation be
“administered by the American Arbitration Association, in which
the [parties] shall try in good faith to settle the dispute by
mediation under or in accordance with its then-prevailing
Commercial Mediation Rules.”
(Id.)
Subject-matter jurisdiction exists if the parties have
fulfilled the conditions precedent to litigation contained in the
Policies.
Plaintiffs must furnish evidence to show that the
parties complied with the ADR Provisions, or that Defendant
waived strict compliance.
12
III. Plaintiffs Have Failed to Show Defendants Engaged in
Arbitration Administered by the American Arbitration
Association, or that Defendants Waived Strict Compliance
with the ADR Provisions.
In Hawaii, a waiver may be found by express statement or
agreement or implied by acts and conduct from which an intention
to waive may be reasonably inferred.
See Coon v. City & Cty. of
Honolulu, 47 P.3d 348, 376–77 (2002)(citations omitted).
Waiver
is generally defined as an “intentional relinquishment of a known
right, a voluntary relinquishment of rights, and the
relinquishment or refusal to use a right.”
Id.
To constitute a
waiver, there must have existed a right claimed to have been
waived and the waiving party must have had knowledge, actual or
constructive, of the existence of such a right at the time of the
purported waiver.
Id.
The question of whether a valid waiver
exists is generally a question of fact, but when the facts are
undisputed it may become a question of law.
Id.
Defendant has provided affidavits which state that the
Parties did not comply with the ADR Provisions in Policies.
(Affidavit of Nicholas Insua at ¶¶ 2-6, attached to Defendant’s
Motion to Dismiss, ECF No. 32-2).
HMSA’s affidavit states that
the mediation was not administered by the American Arbitration
Association.
(Id.)
The MDL Litigation was referred to Judge
Layn Phillips for mediation.
(Id.; Joint Rule 16 Conference
Information Report, attached to Defendant’s Reply Memorandum, ECF
13
No. 37-6).
The Blue Cross Blue Shield companies and their
insurers also agreed to mediate the coverage issues with Judge
Phillips, and his company, Phillips ADR.
(Id.)
The parties to
the case before the Court here agree that mediation caucuses
concerning insurance coverage took place in February of 2016, in
May of 2016, and again in September of 2016.
(Defendant’s Motion
to Dismiss, ECF No. 32).
Defendant’s affidavits factually attacking Plaintiffs’
assertion of subject-matter jurisdiction shift the burden to
Plaintiffs to furnish evidence to establish subject-matter
jurisdiction. Savage, 343 F.3d at 1039 n.2; Colwell, 558 F.3d at
1121.
Failure to present suitable evidence establishing subject-
matter jurisdiction necessitates dismissal.
895.
Moore, 657 F.3d at
Plaintiffs have only put forth allegations that Defendants
have waived strict compliance.
(Fist Amended Complaint at ¶¶ 54-
55, ECF No. 30; Plaintiffs Opposition at 3, pp. 8-11, ECF No.
35). Allied World has failed to furnish evidence that establishes
that the parties engaged in mediation consistent with the terms
of the Policies, or that HMSA has waived strict compliance with
the ADR Provisions.
Brown v. Bank of Am., N.A., 660 F. App'x
506, 508 (9th Cir. 2016).
Plaintiff received notice on May 22, 2017, that Defendant
took the position that the initial complaint must be dismissed
for failure to satisfy conditions precedent to litigation.
14
(Defendant’s Initial Motion to Dismiss, pp. 4-10, ECF No. 27).
Plaintiff filed an Amended Complaint which failed to address the
issues raised in Defendant’s initial Motion to Dismiss.
Amended Complaint, ECF No. 30).
(First
Plaintiffs’ Amended Complaint
contained only conclusory allegations that the conditions
precedent to litigation had been satisfied.
(Id. at ¶ 54).
Pursuant to Defendant’s initial Motion to Dismiss, the parties
stipulated to allow Defendant to withdraw their initial motion to
dismiss without prejudice.
(ECF No. 31).
In the stipulation,
HMSA contended that the Amended Complaint did not address the
issues raised in the initial Motion to Dismiss.
(Id. at 3).
Defendant raised the same issue in the subsequent Motion to
Dismiss because Plaintiffs failed to address the issue.
to Dismiss, pp. 5-12, ECF No. 32).
(Motion
HMSA attacked Plaintiff’s
non-specific allegations in their Motion to Dismiss with
evidence.
(Affidavit of Nicholas Insua at ¶¶ 2-6, attached to
Defendant’s Motion to Dismiss, ECF No. 32-2).
Plaintiffs again
failed to dispute Defendant’s evidence in their Opposition with
evidence of their own. (Plaintiffs’ Opposition, ECF No. 35).
IV.
Plaintiffs Have Failed to Show that the Mediation has been
Terminated.
Even if waiver is found, the Policies require that
“mediation shall have been terminated and at least 120 days shall
15
have elapsed from the date of the termination” before filing
suit.
(First Amended Complaint, Ex. 5 at Endorsement 17,
Subsection 10, Ex. 6 at Endorsement 7, ECF No. 30).
Defendants
have submitted an affidavit stating that the coverage mediation
sessions with Judge Phillips have not been terminated.
(Affidavit of Nicholas Insua at ¶ 6, attached to Defendant’s
Motion to Dismiss, ECF No. 32-2).
Plaintiffs have the burden to submit evidence to rebut
Defendant’s evidence.
F.3d at 1121.
Savage, 343 F.3d at 1039 n.2; Colwell, 558
Plaintiffs rely only on conclusory statements in
their complaint and opposition.
(Fist Amended Complaint at ¶¶
54-55, ECF No. 30; Plaintiffs Opposition at p. 3, pp. 11-12, ECF
No. 35).
Plaintiffs have not provided evidence to support their
bald assertion of termination.
Brown, 660 F. App'x at 508.
It
should be a simple matter for Plaintiffs to secure a letter from
Judge Layn Phillips stating that the mediation has been
terminated. Yet, Plaintiffs ask this Court to inquire into the
substance of the mediation in order to independently determine
that the mediation has ended.
Plaintiffs have failed to carry
their burden to show the mediation has been terminated and that
the matter was ripe for the filing of the litigation.
Plaintiffs must provide evidence to establish subject-matter
jurisdiction.
The Court lacks jurisdiction so it is not
appropriate to reach the other issues raised in the briefing.
16
(Defendant’s Motion to Dismiss at pp. 12-19, ECF No. 32).
Defendants Motion to Dismiss Plaintiffs’ Complaint is GRANTED.
CONCLUSION
Defendant’s Motion to Dismiss (ECF No. 32) is GRANTED.
Plaintiffs’ First Amended Complaint (ECF No. 30) is DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, September 27, 2017.
___________________________________
Helen Gillmor
United States District Judge
Allied World Surplus Lines Insurance Company F/K/A Darwin Select
Insurance Company and Allied World Specialty Insurance Company
F/K/A Darwin National Assurance Company v. Hawaii Medical Service
Association D/B/A Blue Cross and Blue Shield of Hawaii; Civ. No.
17-00156 HG-RLP; ORDER GRANTING DEFENDANT HAWAII MEDICAL SERVICE
ASSOCIATION’S MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR
DECLARATORY JUDGMENT (ECF No. 32)
17
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