TRUSTGARD INSURANCE COMPANY v. OLD NATIONAL WEALTH MANAGEMENT et al
ORDER - For the foregoing reasons, the Court GRANTS Trustgard's Motion for Summary Judgment, [Filing No. 53 ], to the extent that its policy precludes coverage for claims brought by the Estate of Ms. Ecker and L.O.E. against the Estate of Mr. Samson. The Court asks the presiding Magistrate Judge to confer with the parties to discuss a resolution of the remaining claim or establish a timeline for trial (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Judge Jane Magnus-Stinson on 2/24/2017. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
TRUSTGARD INSURANCE COMPANY,
OLD NATIONAL WEALTH
MANAGEMENT, As personal representative
of the Estate of George Scott Samson,
THE ESTATE OF KELLY ANN ECKER, By )
its personal representative, Patricia Leturgez,
PATRICIA ANN LETURGEZ, As co-guardian )
JERRALD ANTHONY LETURGEZ, As co)
guardian of L.O.E.,
L.O.E. by his natural parent and next best
friend, William Ecker,
In the early morning hours of October 5, 2014, George Scott Samson shot and killed Kelly
Ann Ecker in front of her son L.O.E. Mr. Samson then killed himself. He and Ms. Ecker had
participated in a wedding ceremony the previous day, and the post-ceremony reception took place
at Mr. Samson’s home, where the shooting occurred. Plaintiff Trustgard Insurance Company
(“Trustgard”) was the homeowner’s insurer for Mr. Samson. Trustgard initiated this litigation
seeking declaratory judgment against Defendants Old National Wealth Management, as personal
representative of the Estate of George Scott Samson, (the “Estate of Mr. Samson”), the Estate of
Kelly Ann Ecker, (the “Estate of Ms. Ecker”), Patricia Leturgez and Jerrald Anthony Leturgez as
Co-Guardians of L.O.E., and L.O.E. by his natural parent and next friend, William Ecker. 1 [Filing
No. 1; Filing No. 7.] Trustgard argues that the insurance policy it issued to Mr. Samson does not
provide any coverage in connection with the death of Ms. Ecker or L.O.E.’s alleged injuries.
[Filing No. 7 at 9.] Trustgard has filed a Motion for Summary Judgment, [Filing No. 53], and the
Estate of Ms. Ecker and L.O.E., by his natural parent and next best friend, (collectively
“Defendants”) oppose that motion, [Filing No. 60; Filing No. 63].
STANDARD OF REVIEW
A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear,
whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the
asserted fact by citing to particular parts of the record, including depositions, documents, or
affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the
materials cited do not establish the absence or presence of a genuine dispute or that the adverse
party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B).
Affidavits or declarations must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R.
Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion
can result in the movant’s fact being considered undisputed, and potentially in the grant of
summary judgment. Fed. R. Civ. P. 56(e).
Although different parties have appeared and filed on behalf of L.O.E., the Court will hereinafter
refer to this defendant solely as “L.O.E.”
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In
other words, while there may be facts that are in dispute, summary judgment is appropriate if those
facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.
2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On summary judgment, a party must show the Court what evidence it has that would
convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d
892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th
Cir. 2009). The Court views the record in the light most favorable to the non-moving party and
draws all reasonable inferences in that party’s favor. Darst v. Interstate Brands Corp., 512 F.3d
903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder. O’Leary v. Accretive Health, Inc., 657
F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P.
56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that
they are not required to scour every inch of the record for evidence that is potentially relevant to
the summary judgment motion before them,” Johnson, 325 F.3d at 898. Any doubt as to the
existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension
Plan, 614 F.3d 684, 691 (7th Cir. 2010).
Before discussing the merits of the case, the Court will first address an evidentiary issue
that Trustgard raises. Trustgard argues that this Court should strike the affidavit of Brian S. Joseph,
M.D., because it claims it is inadmissible. [Filing No. 75 at 4.]
Dr. Joseph is a psychiatrist who was retained by the Estate of Ms. Ecker and L.O.E. to
provide a forensic determination of the mental state of Mr. Samson “during the time leading up to
and including his death . . . .” [Filing No. 60-2 at 1-2.] Dr. Joseph concluded that “in [his] opinion
to a reasonable medical certainty, [Mr.] Samson was suffering from an Adjustment Disorder with
a Disturbance of Conduct . . . .” when he shot Ms. Ecker. [Filing No. 62-7 at 7-8 (original
emphasis).] In evaluating Mr. Samson’s behavior, Dr. Joseph stated in relevant part the following:
7.1. [Mr.] Samson was increasingly possessive over [Ms. Ecker] through their
relationship and was a very controlling individual who could not understand any
kind of resistance and saw all hesitancy as defiance.
7.2. Following the last of their wedding guests to leave the residence – except [Ms.
Schafer], [Mr.] Samson’s parents and L.O.E. – his new wife, [Ms. Ecker], likely
informed [Mr.] Samson that she was not, in fact, married to him, and would
not sign the marriage certificate, or in some other way notified him that she
wanted to end the relationship and leave him. This would have been [Mr.]
Samson’s acute stressor.
7.3. This information – however [Ms. Ecker] expressed it to him – enraged him to
the point that he was in a crisis state of mind and could not control his emotions.
[Mr.] Samson was overcome with rage and could not control his impulse to kill
7.4. At the time that he broke into the door of [L.O.E.]’s bedroom and emptied his
gun into [Ms. Ecker] in front of her son, [Mr.] Samson could not control his actions;
and in that moment, he had no moral compass and was temporarily insane to a
reasonable degree of medical certainty. [Mr.] Samson was going to kill her; the
logical or moral compass part of his brain was not functioning. A sane killer would
have no need to empty the entire magazine into his victim. The part of his brain that
told [Mr.] Samson what was right or wrong was turned off, i.e., he did not have the
ability to appreciate what was right or what was wrong. He was overcome with
rage. In other words, [Mr.] Samson was unable at that moment to conform his
behavior to societal norms.
7.5. After the act, he experienced a release of the emotions, which is evidenced by
the way he walked away from the scene.
7.6. Upon the release of his emotions, his logical brain partially came back to realize
that his life is “over”; and upon short reflection that he had no alternative for any
kind of future contentment and peace of mind and would only face consequences
for his actions. Thus, his demeanor changed, and he began to rush to commit
suicide, saying “It’s too late.” Adjustment disorders are associated with an
increased risk of suicide.
7. 7. It [is] evident from the facts that his impulse was one that could not be
controlled, since [Mr.] Samson responded to this uncontrolled impulse by ending
his own life. Had [Mr.] Samson been able to control his impulse to kill [Ms. Ecker]
in reaction to her communication of her intent to leave him, another scenario of
facts would have taken place. The whole scenario of events is a part of the
maladaptive behavior, which in this case, resulted in an overwhelming sense of
hopelessness leading to the final suicide of [Mr.] Samson.
[Filing No. 62-7 at 8-9 (emphasis added).]
In their respective responses, Defendants rely heavily on Dr. Joseph’s findings and claim
that Dr. Joseph’s affidavit is admissible and establishes that there is a genuine issue concerning
whether Mr. Samson was insane at the time he shot Ms. Ecker. [Filing No. 60 at 11; Filing No.
62-7; Filing No. 63 at 9-10.]
According to Trustgard, Dr. Joseph relies in part on Ms. Schafer’s testimony, which it
claims is inadmissible hearsay. [Filing No. 75 at 4.] Trustgard discusses the applicable statutes
and case law that provides what must be included in expert testimony to be admissible, and claims
that here, “Dr. Joseph is attempting to conduct a psychological autopsy regarding a deceased
person,” and that “he is improperly attempting to provide a conclusion about [Mr.] Samson’s
mental state at the time [Mr.] Samson shot Ms. Ecker, despite having never examined [Mr.]
Samson.” [Filing No. 75 at 7-9.] It further argues that even if it were to accept Ms. Schafer’s
testimony as true, “there is no evidence whatsoever that Ms. Ecker actually told [Mr.] Samson she
would not sign the marriage certificate and that was why he ‘snapped.’” [Filing No. 75 at 9.]
Trustgard argues that given the absence of any evidence to support a critical assumption, Dr.
Joseph’s opinion is not the product of reliable principles and methods. [Filing No. 75 at 11.]
In surreply, Defendants argue that whether Ms. Schafer’s statements lack credibility “is an
issue for the finder of fact . . . .” [Filing No. 76 at 4.] Moreover, Defendants argue that Dr. Joseph’s
opinion relies on first-hand observations of Ms. Schafer, George C. Samson (Mr. Samson’s father)
(“George”), and the law enforcement officers. [Filing No. 76 at 4-5.] Defendants claim that based
on this “it can be reasonably inferred that [Mr.] Samson discovered [Ms. Ecker’s] intent to not
become legally married to him and that this discovery, or discovery of [her] intent to otherwise
terminate their relationship, . . . was the acute stressor that led to [Mr.] Samson’s Adjustment
Disorder with a Disturbance of Conduct.” [Filing No. 76 at 5.] Defendants contend that the cases
that Trustgard cites are distinguishable, and that Dr. Joseph’s psychological analysis determined
that Mr. Samson suffered from a mental disorder that prevented him from conforming to societal
norms. [Filing No. 76 at 6-7.]
Trustgard bears the burden of proving that an insurance coverage exclusion applies, but it
is settled law that a person is presumed sane until proven otherwise. W. Am. Ins. Co. of the Ohio
Cas. Grp. of Ins. Companies v. McGhee, 530 N.E.2d 110, 112 (Ind. Ct. App. 1988). 2 Here, the
Defendants have the burden of proving Mr. Samson’s insanity by a preponderance of the evidence.
Id. “Proof of legal insanity . . . requires some evidence tending to prove that the actor was unable
to conform his behavior to societal norms.” Id. (citation omitted). “The insanity defense concerns
the defendant’s mental state at the time of the crime.” Galloway v. State, 938 N.E.2d 699, 714
(Ind. Ct. App. 2010). Indiana recognizes “‘temporary insanity,’” which “allows for the possibility
As a federal court sitting in diversity, the Court applies state substantive law and federal
procedural law. Ritchie v. Glidden Co., 242 F.3d 713, 720 (7th Cir. 2001).
that a defendant will be legally insane at the time of the crime, but [of sound mind] immediately
before and [ ] after the crime.” Id.
The affidavit of Dr. Joseph is the exclusive evidence Defendants have proffered to prove
Mr. Samson’s insanity. When a party files an affidavit to be considered at the summary judgment
stage, the “affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56. “[A]lthough personal
knowledge may include reasonable inferences, those inferences must be “‘grounded in observation
or other first-hand personal experience. They must not be flights of fancy, speculations, hunches,
intuitions, or rumors about matters remote from that experience.’” Payne v. Pauley, 337 F.3d 767,
772 (7th Cir. 2003) (citing Visser v. Packer Eng’g Assoc., 924 F.2d 655, 659 (7th Cir. 1991)).
With regard to the admission of expert testimony into evidence, Dr. Joseph’s affidavit may
be admissible if it meets the following criteria:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702. In addition, the particular instant facts or data upon which an expert bases an
opinion or inference must be “of a type reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject.” Fed. R. Evid. 703.
Having reviewed and considered Dr. Joseph’s affidavit, the Court finds his testimony
speculative and not reliable. Here, Dr. Joseph indicates that he relied upon the autopsy reports of
Mr. Samson and Ms. Ecker, some medical records, and the testimony of several witnesses,
including Ms. Schafer, George, Deidra Cory Samson, and Sgt. Fitzgerald, to assist in his analysis.
[Filing No. 62-7 at 2.] He then discusses the events as he imagines they occurred prior to the
incident and shortly thereafter.
Any reliability of Dr. Joseph’s affidavit evaporates, however, when he completely
speculates that the “acute stressor” that enraged Mr. Samson was when Ms. Ecker likely notified
Mr. Samson that she did not intend to marry him or intended to leave him. This statement is utterly
speculative and not supported by any evidence. There is no testimony from any witness with
personal knowledge that Ms. Ecker (or someone else) that night told Mr. Samson about Ms.
Ecker’s intentions, or that any such conversation was the acute stressor for Mr. Samson. “It is
critical under Rule 702 that there be a link between the facts or data the expert has worked with
and the conclusion the expert’s testimony is intended to support.” United States v. Mamah, 332
F.3d 475, 478 (7th Cir. 2003) (holding that the district court did not err in excluding expert
testimony regarding the defendant’s (a Ghanaian immigrant) susceptibility to FBI interrogation
tactics, because there was no “empirical link between [the experts’] research and the opinion that
[the defendant] likely gave a false confession”); see, e.g., United States v. Bradbury, 2015 WL
4627018 (N.D. Ind. 2015) (the district court limiting the expert’s testimony at trial “to opine as to
the general behavioral patterns of Facebook users,” but not about the defendant’s “behavioral
patterns on Facebook, much less his intent behind one specific post, based on only one post”).
Because the factual premise upon which Dr. Joseph’s testimony is based is non-existent, the
opinion on which it is based – namely that Mr. Samson suffered from Adjustment Disorder with a
Disturbance of Conduct such that he could not control his actions and went temporarily insane
when he shot Ms. Ecker – is inadmissible. Accordingly, the Court strikes Dr. Joseph’s affidavit
because it is unreliable.
STATEMENT OF FACTS
The following statement of facts was evaluated pursuant to the standards set forth above,
that is, they are either undisputed or presented in the light most favorable to Defendants.
A. Mr. Samson’s and Ms. Ecker’s Relationship
Mr. Samson and Ms. Ecker began dating in 2013. [Filing No. 60-1 at 2.] According to
Ms. Ecker’s friend, Cherise Schafer, Mr. Samson and Ms. Ecker dated for about a year and a half,
and during that time, Mr. Samson was possessive, controlling, and aggressive toward Ms. Ecker.
[Filing No. 60-1 at 4-5.] Over time, Ms. Ecker began to lose confidence in herself as a result of
the abusive relationship. [Filing No. 60-1 at 5.]
Ms. Schafer testified regarding many aspects of Mr. Samson’s and Ms. Ecker’s relationship
that she either witnessed or learned about from Ms. Ecker. 3 She stated that when Ms. Ecker and
Mr. Samson would break up, he had a pattern of stalking her and repeatedly calling or texting her
to demand that she come back to him. [Filing No. 60-1 at 3; Filing No. 60-1 at 11-12.] Ms. Ecker
never stood up to Mr. Samson, and would instead avoid him or agree with him in order to “pacify”
him. [Filing No. 60-1 at 8; Filing No. 60-1 at 19.] Ms. Schafer stated that Mr. Samson belittled
Ms. Ecker by calling her names and insulting her on several occasions. [Filing No. 60-1 at 19-20.]
She indicated that Mr. Samson was also controlling of Ms. Ecker’s physical appearance. [Filing
No. 60-1 at 18.]
Ms. Schafer stated that on one occasion, Mr. Samson demanded to come over to Ms.
Ecker’s home, and Ms. Ecker asked Ms. Schafer if she could also come over. [Filing No. 60-1 at
In its reply, Trustgard raises several objections regarding Ms. Schafer’s testimony indicating that
much of it is “inadmissible hearsay, speculation, or opinion.” [Filing No. 75 at 2-4.] Because at
this stage of the litigation the Court must view the record in the light most favorable to the
nonmoving party, the Court will consider Ms. Schafer’s testimony. In any event, the Court
ultimately rules in favor of Trustgard notwithstanding Ms. Schafer’s testimony.
3.] Ms. Schafer said that Ms. Ecker told her that she did not want her to leave that night because
Mr. Samson “[was] going to want to have sex with [her]” but that she did not want to. [Filing No.
60-1 at 3.] According to Ms. Schafer, Mr. Samson expected Ms. Ecker to have sex with him every
time he saw her. [Filing No. 60-1 at 7.] Ms. Schafer stated that Mr. Samson felt that L.O.E., Ms.
Ecker’s son, was an intrusion in their relationship. [Filing No. 60-1 at 4-5.]
Ms. Schafer testified that Mr. Samson would bother Ms. Ecker at Union Hospital, her place
of employment, in front of her coworkers. [Filing No. 60-1 at 13-14.] She indicated that Mr.
Samson would sit at Ms. Ecker’s work station, eat lunch, and prevent her from caring for her
patients. [Filing No. 60-1 at 14.] She stated that Ms. Ecker told her that during the work holiday
party in 2013, Mr. Samson became intoxicated, groped Ms. Ecker, and insulted her in front of her
co-workers. [Filing No. 60-1 at 9-10.] Ms. Schafer further stated that after they had broken up,
Mr. Samson begged her to come back to him and proposed to Ms. Ecker in front of her co-workers.
[Filing No. 60-1 at 15-16.] Ms. Ecker accepted the ring. [Filing No. 60-1 at 16.]
B. The Wedding Ceremony
Prior to the wedding ceremony, Mr. Samson and Ms. Ecker signed an application for
marriage license. [Filing No. 7-5 at 6.] Ms. Schafer testified that Ms. Ecker did not intend to go
through with the marriage. [Filing No. 60-2 at 16-17.] Ms. Ecker had secretly made plans to move
out of Mr. Samson’s residence at a later date. [Filing No. 62-3 at 13-14.] Ms. Ecker rented a
house the week before the wedding, and a man that she previously dated rented a U-Haul for her.
[Filing No. 60-2 at 16-17.]
On October 4, 2014, the date of the wedding ceremony, Ms. Schafer said that Ms. Ecker
confessed to her that “she was marrying him that day because she was afraid not to” and that she
was scared about what could happen if she did not marry him. [Filing No. 60-1 at 5-6.] Ms. Ecker
had Ms. Schafer hold on to the marriage certificate after the ceremony because Ms. Ecker did not
want Mr. Samson to see it. [Filing No. 60-1 at 22.] Ms. Schafer later gave it back to Ms. Ecker.
[Filing No. 60-1 at 22.] Ms. Ecker did not let Mr. Samson know about her intent not to sign the
marriage certificate. [Filing No. 60-1 at 22.]
Mr. Samson and Ms. Ecker hosted the post-ceremony reception at Mr. Samson’s residence
in Terre Haute, Indiana. [Filing No. 60-1 at 24.] Ms. Schafer was Ms. Ecker’s only friend to
attend the reception. [Filing No. 60-1 at 24.] She claimed that Mr. Samson appeared to be angry
with Ms. Ecker and did not speak to her. [Filing No. 60-1 at 24-27.] Ms. Schafer remained at the
residence that night, and in the early morning of October 5, 2014, she said she woke up to find Mr.
Samson leaning over her and screaming and cursing at her to get out of the house. [Filing No. 601 at 29.] She further stated that Mr. Samson looked “terrifyingly angry,” that “his posture was
very threatening,” and that he looked “like he could attack [her] at any second because he was so
angry that [she] was at his house.” [Filing No. 60-1 at 29.]
Ms. Schafer claims that Ms. Ecker looked “terrified” and “scared to death.” [Filing No.
60-1 at 31.] Ms. Schafer claimed that she asked Ms. Ecker at least twice to come with her, but that
Ms. Ecker shook her head no. [Filing No. 60-1 at 32.] She noted that Mr. Samson was more
enraged that morning than he had been the night before. [Filing No. 60-1 at 33.]
C. The Shooting
Mr. Samson’s father, George, also observed Mr. Samson’s behavior the morning of
October 5, 2014. [Filing No. 60-3 at 2.] George and his wife (Mr. Samson’s mother) were in the
bedroom next to L.O.E.’s bedroom. [Filing No. 60-3 at 2; Filing No. 60-3 at 4.] George said that
he heard Mr. Samson and Ms. Ecker arguing. He stated that Ms. Ecker went into L.O.E.’s room
and made a phone call saying, “Hurry, he is trying to shoot me.” [Filing No. 60-3 at 7.] George
then observed Mr. Samson break down L.O.E.’s door. [Filing No. 60-3 at 8.] George claimed that
in his opinion, Mr. Samson seemed to be “out of his mind.” [Filing No. 60-3 at 9.] He heard Mr.
Samson discharge seven gunshots in the room and then saw Mr. Samson slowly walk out of the
room and down the hall with the gun in his hand. [Filing No. 60-3 at 13.] Mr. Samson went to
the basement where he shot and killed himself. [Filing No. 60-4 at 3-4.]
Sergeant Kristopher Fitzgerald testified that he collected the casings of nine bullets from a
.40 caliber Glock handgun in the room where Mr. Samson shot Ms. Ecker. [Filing No. 53-4 at 23; Filing No. 60-4 at 2; Filing No. 60-4 at 5.] Mr. Samson used the Glock to kill Ms. Ecker, which
has a nine-cartridge capacity magazine, and the Glock was empty. [Filing No. 53-4 at 7.] Ms.
Ecker was hit by three bullets. [Filing No. 53-5 at 2.] Mr. Samson used a .45 semiautomatic
handgun to kill himself. [Filing No. 60-4 at 3-5; Filing No. 60-4 at 7-8.] Per Sgt. Fitzgerald’s
experience, when he investigates an accidental shooting, it usually involves one bullet being fired.
[Filing No. 53-4 at 7.]
The marriage license expired without any marriage certificate ever having been filed with
the Vigo County Clerk. [Filing No. 62-6 at 1-2.]
D. State Court Claims
On March 11, 2015, the Estate of Ms. Ecker and L.O.E. filed a Complaint in Vigo Superior
Court against the Estate of Mr. Samson for the death of Ms. Ecker. [Filing No. 7-2.] Ms. Ecker
and L.O.E. filed an Amended Complaint on April 17, 2015, where they alleged that Ms. Ecker
died as a result of gunshot wounds from “the intentional act and or negligence of George Scott
Samson . . . .” [Filing No. 7-4 at 1.] L.O.E. alleged that “as a result of the defendant’s intentional
act and/or negligence, . . . [L.O.E.] has suffered the loss of love, companionship and support, [has]
incurred costs associated with funeral and burial, and costs associated with the administration of
the estate, including reasonable attorneys’ fees . . . .” [Filing No. 7-4 at 3.] 4
On June 9, 2015, L.O.E. filed an Amended Complaint for Damages, which alleged that Mr.
Samson intentionally shot and killed Ms. Ecker in front of L.O.E., and that he negligently,
intentionally, or recklessly caused L.O.E. to suffer emotional distress. [Filing No. 7-5 at 1-3.]
E. Mr. Samson’s Insurance Policy
Mr. Samson purchased a homeowner insurance policy (number TH1472837-00) from
Grange Insurance/Trustgard. [Filing No. 7-1 at 1.] Trustgard claims that there are certain
provisions of the policy that preclude coverage for claims brought by the Estate of Ms. Ecker and
L.O.E. against the Estate of Mr. Samson.
The pertinent definitions of the policy are as follows:
1. “You” and “your” refer to the Named Insured, which includes the individual
named on the Declarations Page or that person’s spouse if a resident of the same
2. “We”, “us” and “our” refer to Trustgard Insurance Company.
3. “Bodily injury” means bodily harm, sickness or disease, including required
care, loss of services, and resulting death.
6. “Insured person” means:
b. your relatives residing in your household; and
c. any other person under the age of 21 residing in your household who is in
your care or the care of a resident relative.
The Amended Complaint also sought punitive damages. [Filing No. 7-4 at 3-4.] In the current
litigation, Trustgard argues that punitive damages are not insurable under Indiana law, [Filing No.
54 at 17], but the Estate of Ms. Ecker and L.O.E. did not address this argument in their respective
responses. Thus, the Court finds that Trustgard is entitled to summary judgment and a declaration
that it is not obligated to cover any claim for punitive damages against Mr. Samson’s estate.
9. “Occurrence” means an accident, including continuous or repeated exposure
to substantially the same general harmful conditions, which results in bodily
injury or property damage during the policy period.
13. “Resident” means a person related to you by blood, marriage or adoption,
includes wards and foster children, and whose principal residence is at the
location shown on the Declarations Page. If a court has adjudicated that one
parent is the custodial parent, that adjudication shall be conclusive with respect
to the minor child’s principal residence.
[Filing No. 7-1 at 36-37 (emphasis omitted).] Under Coverage E – Personal Liability Protection,
(“Coverage E”), the policy states that it will cover as follows:
We will pay all sums, up to our limit of liability shown on the Declarations Page
for this coverage, arising out of any one loss for which an insured person becomes
legally obligated to pay as damages because of bodily injury or property damage,
caused by an occurrence covered by this policy. Damages include prejudgment
interest awarded against the insured person.
If a claim is made or suit is brought against the insured person for damages because
of bodily injury or property damage caused by an occurrence to which this coverage
applies, we will defend the insured person at our expense, using lawyers of our
choice. We are not obligated to pay any claim or judgment or to defend after we
have paid an amount equal to the limit of our liability shown on the Declarations
Page for this coverage. We may investigate or settle any claim or suit as we think
[Filing No. 7-1 at 54 (emphasis omitted).] Under Coverage F – Medical Payments to Others,
(“Coverage F”), the policy states that it will cover as follows:
A. We will pay the reasonable expenses incurred, up to our limit of liability shown
on the Declarations Page for this coverage, for necessary medical, surgical, x-ray
and dental services, prosthetic devices, eyeglasses, hearing aids, pharmaceuticals,
ambulance, hospital, licensed nursing and funeral services. These expenses must be
incurred within three years from the date of an accident causing bodily injury
covered by this policy.
Each person who sustains bodily injury is entitled to this protection when that
1. on an insured premises with the permission of an insured person; or
2. elsewhere, if the bodily injury:
a. arises out of a condition in the insured premises or the adjoining ways;
b. is caused by the activities of an insured person or residence employee· in
the course of employment by an insured person;
c. is caused by an animal owned by or in the care of an insured person; or
d. is sustained by a residence employee arising out of and in the course of
employment by an insured person.
B. We do not cover injury to:
1. insured persons; or
2. any other person, except a residence employee, who resides regularly on any
part of an insured premises.
[Filing No. 7-1 at 54 (emphasis omitted).] There are three exclusions to Coverage E and F under
the Personal Liability Protection Exclusions section at issue in this case. [Filing No. 7-1 at 57;
Filing No. 7-1 at 59.] The first exclusion, (“Exclusion 6), states that it does not cover the following:
6. Bodily injury or property damage caused by the willful, malicious, or
intentional act of any person, including any claims alleging negligent
supervision, negligent entrustment, or negligent failure to control against any
insured person arising out of the willful, malicious, or intentional act.
[Filing No. 7-1 at 57 (emphasis omitted).] The second exclusion, (“Exclusion 8”), excludes
coverage of the following:
8. Bodily injury or property damage expected or intended by any insured person.
This includes bodily injury or property damage:
a. caused intentionally by or at the direction of an insured person; or
b. which results from any occurrence caused by an intentional act of any
insured person where the results are reasonably foreseeable.
[Filing No. 7-1 at 57 (emphasis omitted).] The third exclusion, (“Exclusion 18”), excludes
coverage of the following:
18. Bodily injury or property damage arising from a criminal act or omission which
is committed by, or at the direction of an insured person. This exclusion applies
regardless of whether the insured person is actually charged with, or convicted
of a crime.
[Filing No. 7-1 at 59 (emphasis omitted).] There is one exclusion to Coverage E under the Personal
Liability Protection Exclusions section at issue in this case, (“Resident Relative Exclusion”),
which indicates that the policy will not cover the following:
6. Bodily injury to:
b. your relatives residing in your household; and
c. any other person under the age of 21 residing in your household who is in
your care or the care of a resident relative.
[Filing No. 7-1 at 59 (emphasis omitted).]
Lastly, under the “Homeowners Amendatory
Endorsement – Indiana,” the policy in relevant part provides the following:
If a claim is made or suit is brought against the insured person for damages because
of bodily injury or property damage caused by an occurrence to which this coverage
applies, we will defend the insured person at our expense, using lawyers of our
choice. Upon issuance of a reservation of rights letter to any party, we reserve the
right to recover from any party to whom we have provided a defense any defense
costs incurred by us should a court of competent jurisdiction conclude that we had
no duty to provide a defense to that party. The reservation of rights letter will give
notice of the coverage issues and our right to recover defense costs. Recoverable
defense costs include only those attorney fees and costs associated with the defense
of the party to whom the reservation of rights letter was issued. We are not obligated
to pay any claim or judgment or to defend after we have paid an amount equal to
the limit of our liability shown on the Declarations Page for this coverage. We may
investigate or settle any claim or suit as we think appropriate.
[Filing No. 7-1 at 25 (emphasis omitted).]
F. The Federal Claim
Trustgard filed the underlying cause of action for declaratory judgment asking the Court to
declare that there is no coverage for, no duty to defend, and no duty to indemnify the Estate of Mr.
Samson in relation to the state court claims brought by the Estate of Ms. Ecker and L.O.E. against
the Estate of Mr. Samson for the death of Ms. Ecker and any alleged injuries to L.O.E. [Filing No.
1 at 7-8.] Trustgard has now filed a motion for summary judgment, [Filing No. 53], and
Defendants oppose that motion, [Filing No. 60; Filing No. 63]. The motion is now ripe for the
Trustgard argues that the Resident Relative Exclusion and Exclusions 6, 8, and 18 of the
policy exclude coverage for claims brought by the Estate of Ms. Ecker and L.O.E. [Filing No. 54
at 11-16.] Defendants in their respective responses claim that disputes of material fact exist
regarding whether Ms. Ecker and Mr. Samson were married and whether Mr. Samson was
temporarily insane during the shooting such that his conduct was neither intentional nor criminal.
[Filing No. 60 at 8-12; Filing No. 63 at 8-13.]
A. Insurance Policy Interpretation
When the Court exercises diversity jurisdiction over an action, it is “obliged to apply state
law to the substantive issues in the case.” Lodholtz v. York Risk Servs. Grp., Inc., 778 F.3d 635,
639 (7th Cir. 2015) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The parties do not
dispute that Indiana law governs this action. Accordingly, this Court must “apply the law that
would be applied by the Indiana Supreme Court.” Lodholtz, 778 F.3d at 639. “If the Indiana
Supreme Court has not spoken on the issue, [the Court] generally treat[s] decisions by the state’s
intermediate appellate courts as authoritative, unless there is a compelling reason to think that the
state supreme court would decide the issue differently.” Id.
The Indiana Supreme Court has summarized the well-established standards for interpreting
insurance policies in Indiana as follows:
Interpretation of an insurance policy presents a question of law that is particularly
suitable for summary judgment. It is well settled that where there is ambiguity,
insurance policies are to be construed strictly against the insurer and the policy
language is viewed from the standpoint of the insured. This is especially true where
the language in question purports to exclude coverage. Insurers are free to limit the
coverage of their policies, but such limitations must be clearly expressed to be
enforceable. Where provisions limiting coverage are not clearly and plainly
expressed, the policy will be construed most favorably to the insured, to further the
policy’s basic purpose of indemnity. Where ambiguity exists not because of
extrinsic facts but by reason of the language used, the ambiguous terms will be
construed in favor of the insured for purposes of summary judgment.
State Auto. Mut. Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845, 848 (Ind. 2012) (citations and quotations
omitted). Additionally, the Court will “construe the insurance policy as a whole and consider all
of the provisions of the contract and not just the individual words, phrases, or paragraphs.” West
Bend Mut. Ins. Co. v. U.S. Fid. & Guar. Co., 598 F.3d 918, 921 (7th Cir. 2010) (applying Indiana
law). Words are given their ordinary meaning, though where ambiguity exists the policy is read
“strictly against the insurer.” Id.
B. Policy Exclusions
1. Resident Relative Exclusion
Trustgard argues that the Resident Relative Exclusion precludes coverage for the claims
brought by Ms. Ecker and L.O.E. [Filing No. 54 at 16.] It claims that Mr. Samson and Ms. Ecker
were married right before Mr. Samson killed Ms. Ecker and that L.O.E., who was under 21 years
old at the time, lived in the residence with his mother at the time of her death. [Filing No. 54 at
Defendants in their respective briefs argue that Ms. Ecker and Mr. Samson were not legally
married because Ms. Ecker went through with the ceremony under duress, and because the
marriage license and certificates were not signed by the Officiant, Ms. Ecker, and Mr. Samson.
[Filing No. 60 at 8-9; Filing No. 63 at 11-13.]
In reply, Trustgard claims that “Ms. Schafer’s testimony that Ms. Ecker did not willingly
undergo the marriage ceremony . . . [but] did so under duress, constitutes inadmissible opinion and
hearsay.” [Filing No. 75 at 3.] It further claims that her “testimony that Ms. Ecker told Ms. Schafer
that Ms. Ecker was marrying [Mr.] Samson [ ] because she was afraid not to, and that Ms. Ecker
was afraid of what would happen if she did not marry him to the point that she intended on going
through the ceremony and never signing the marriage license constitutes, inadmissible hearsay
under FRE 804.” [Filing No. 75 at 3-4.] Moreover, Trustgard claims that “Ms. Schafer’s
testimony that she held onto the marriage certificate after the ceremony was over because Ms.
Ecker did not want [Mr.] Samson to see it constitutes inadmissible opinion testimony.” [Filing
No. 75 at 4.]
Defendants filed a joint surreply where they argue that Ms. Schafer’s testimony regarding
Ms. Ecker’s intent to go through with the ceremony because of her fear of Mr. Samson “is
admissible to prove that she was in fear at the time and that [she] inten[ded] to refrain from signing
the marriage certificate.” [Filing No. 76 at 3.] Defendants further state that Ms. Schafer’s
statements regarding the fact that she held on to the marriage certificate and her reason for doing
so are based on her personal observations of Ms. Ecker. [Filing No. 76 at 3.] Moreover,
Defendants argue that Ms. Schafer’s statements are offered not for the truth of the matter asserted,
but to prove that Ms. Ecker “only went through with the marriage ceremony out of fear/under
duress, and never intended to become legally married.” [Filing No. 76 at 3.]
Parties who intend to marry must present a license to a person authorized to solemnize
marriages. Ind. Code § 31-11-4-13. The individual who solemnized the marriage must then
complete the original and duplicate marriage certificates, give the original certificate to the
individuals who married each other, and file the duplicate certificate and the license with the clerk
of the circuit court no later than thirty days after the date of the marriage. Ind. Code § 31-11-416.
Defendants have presented facts that call into question whether Mr. Samson and Ms. Ecker
were legally married. First, there is no record at Vigo Superior Court of the marriage license and
marriage certificate ever being filed. The only procedural mechanism under Indiana law to
recognize a marriage if the individual who solemnized the marriage does not file the marriage
license and certificates is if either party files a declaratory judgment with the court in order to
recognize their marriage. See Ind. Code 31-11-4-17. This would not be possible, given that Mr.
Samson and Ms. Ecker are deceased. Ms. Schafer also testified that Ms. Ecker never intended to
go through with the marriage and that she went through with the wedding ceremony under duress.
Trustgard does not respond to Defendants’ interpretation of the statutes, but merely challenges Ms.
Schafer’s testimony as inadmissible, and claims that Mr. Samson and Ms. Ecker were married
because they went through with the wedding ceremony. While the Court does not take the position
that Mr. Samson and Ms. Ecker were not married, it is possible that a fact-finder could ultimately
determine that Ms. Ecker did not marry Mr. Samson given Ms. Schafer’s testimony and the fact
that the marriage license and certificate were not filed. Therefore, viewing the record in the light
most favorable to Defendants, the Court finds that a material dispute exists regarding whether Mr.
Samson and Ms. Ecker were married.
This dispute is significant because the Resident Relative Exclusion excludes coverage for
bodily injury to the insured or the insured’s relatives, which includes the spouse, and anyone under
the age of 21 who resides in the household and is in the insured’s care. Since there is a dispute
regarding whether Mr. Samson married Ms. Ecker, the Court cannot conclude as a matter of law
that the Resident Relative Exclusion excludes coverage for bodily injury to Ms. Ecker or L.O.E.,
and summary judgment is denied on this issue.
2. Exclusions 6 and 8
Trustgard argues that Exclusion 6 “excludes coverage for bodily injury or property damage
caused by the willful, malicious, or intentional act of any person” and that Exclusion 8 “bars
coverage for bodily injury or property damage expected or intended by any insured person.”
[Filing No. 54 at 11.] Trustgard argues that the exclusions apply because this case does not involve
an accidental shooting, and Mr. Samson fired the gun multiple times at Ms. Ecker with the intent
to cause injury. [Filing No. 54 at 13.] It argues that L.O.E.’s “emotional distress derives from
[Mr.] Samson’s intentional shooting of Ms. Ecker” and that such a claim is also excluded. [Filing
No. 54 at 13.]
In response, the Estate of Ms. Ecker argues that Dr. Joseph diagnosed Mr. Samson with
Adjustment Disorder with Disturbance of Conduct at the time of the shooting, that he was
temporarily insane when he shot Ms. Ecker, and that therefore his shooting was not intentional.
[Filing No. 60 at 11.] L.O.E. in his response raises similar arguments and claims that “there is a
genuine issue of material fact as to whether [Mr.] Samson was legally capable at the time he shot
[Ms.] Ecker of forming the requisite mental state that would make Exclusions [6 and 8] applicable
to [Mr.] Samson’s actions giving rise to L.O.E.’s claims.” [Filing No. 63 at 10-11.]
In reply, Trustgard argues that it has demonstrated that Dr. Joseph’s affidavit is insufficient
to show that Mr. Samson was insane at the time of the shooting. [Filing No. 75 at 12.] It states
that even if Mr. Samson jolted back to sanity after the killing, “simply because an act is committed
in the heat of passion does not render it unintentional.” [Filing No. 75 at 11.] It claims that no
other evidence contradicts the conclusion that Mr. Samson intentionally shot Ms. Ecker. [Filing
No. 75 at 12.]
Exclusion 6 bars coverage to any person against the insured person arising out of an
intentional act, and Exclusion 8 bars coverage for bodily injury or property damage caused
intentionally by the insured person. [Filing No. 7-1 at 57.] Here, the only evidence that Defendants
rely upon to demonstrate that Mr. Samson’s shooting was not intentional is Dr. Joseph’s affidavit.
The Court has determined above that Dr. Joseph’s opinion testimony attesting to the fact that Mr.
Samson was temporarily insane at the time of the shooting is inadmissible. Other than the affidavit,
Defendants have not set forth any other evidence that would call into question whether Mr.
Samson’s act was intentional.
Trustgard cites to persuasive legal authority under Indiana law that describes when a
person’s act is considered “intentional” under the terms of an insurance policy exclusion. See
Allstate Insurance Co. v. Herman, 551 N.E.2d 844, 845 (Ind. 1990) (holding that a policy that
excluded coverage for intentional acts did not cover a person who was shot by the insured when
the insured deliberately fired four shots into a crowd, although he did not intend to shoot the
person); Home Ins. Co. v. Neilsen, 332 N.E.2d 240, 244 (Ind. Ct. App. 1975) (holding that a policy
that excluded coverage for bodily injury caused by an intentional act excluded coverage to the
individual who was intentionally struck by his neighbor’s fist even though the neighbor did not
intend to inflict injury); State Farm Fire & Cas. Co. v. Henderson, 2002 WL 1354719, at *3 (S.D.
Ind. 2002) (finding that the insured’s “volitional acts of pointing the weapon at [the decedent] and
pulling the trigger are not accidents and, therefore, are not covered under the policy.”). Moreover,
according to Herman, intentional “‘refers [ ] to the volitional performance of an act with an intent
to cause injury, although not necessarily the precise injury or severity of damage that in fact
occurs.’” 551 N.E.2d at 845 (citation omitted).
Here, George heard Mr. Samson and Ms. Ecker arguing prior to the incident. He then
testified that Ms. Ecker entered L.O.E.’s room and made a phone call saying Mr. Samson was
going to shoot her. George then observed his son, Mr. Samson, break down the door to L.O.E.’s
room and heard several gunshots. Sgt. Fitzgerald testified that Mr. Samson fired nine gunshots,
and it was later confirmed that three of them struck Ms. Ecker, killing her. Sgt. Fitzgerald further
stated that when he investigates an accidental shooting, it usually involves one bullet being fired.
After shooting Ms. Ecker, George then observed Mr. Samson walk out of the room with the gun
in his hand and make his way to the basement. Based on the circumstances of the case, the Court
concludes that it is undisputed that Mr. Samson intended to shoot Ms. Ecker, even if he arguably
did not intend to kill her or felt complete remorse for his actions. Moreover, because L.O.E.’s
claim for emotional distress derives from Mr. Samson’s act, coverage for L.O.E.’s claims is also
barred. Thus, as a matter of law, the Court finds that Exclusions 6 and 8 exclude coverage for the
claims brought by the Estate of Ms. Ecker and L.O.E. against the Estate of Mr. Samson.
3. Exclusion 18
Trustgard claims that Exclusion 18 excludes coverage for bodily injury or property damage
because Mr. Samson committed a criminal act. [Filing No. 54 at 14.] Trustgard argues that
Exclusion 18 bars coverage for claims brought by the Estate of Ms. Ecker and L.O.E. because it
excludes recovery for “bodily injury or property damage arising from a criminal act or omission
which is committed by, or at the direction of an insured person,” regardless of “whether the person
is actually charged with, or convicted of a crime.” [Filing No. 54 at 14.] It claims that “[Mr.]
Samson shot and killed Ms. Ecker at close range,” which constitutes murder, voluntary
manslaughter, or reckless homicide. [Filing No. 54 at 15.]
In response, the Estate of Ms. Ecker again argues that the “testimonial record and Dr.
Joseph’s interpretation of the same shows that [Mr.] Samson was insane in the criminal context as
well as the insurance context.” [Filing No. 60 at 11-12.] L.O.E. responds that although Indiana
has not addressed the issue of whether the insanity defense also applies to exclusions for criminal
acts, he claims that it applies to cooperation clauses. [Filing No. 63 at 9.] L.O.E. further argues
that assuming the criminal standard of insanity applies in the context of insurance policies, a
genuine issue exists as to whether Mr. Samson was temporarily insane at the time of Ms. Ecker’s
shooting. [Filing No. 63 at 9-10.]
Trustgard replies, as before, that it has demonstrated that Dr. Joseph’s affidavit is
insufficient to show that Mr. Samson was insane. [Filing No. 12.] It states that a “conviction for
voluntary manslaughter (heat of passion killing) requires the state to prove knowing or intentional
killing,” and that the “[i]ntent to kill under the statute . . . can be proved by an inference drawn
from the circumstances surrounding the act.” [Filing No. 75 at 11.] It further claims that no other
evidence disputes that Mr. Samson intentionally shot Ms. Ecker which excludes coverage pursuant
Exclusion 18. [Filing No. 75 at 12.]
As noted, Exclusion 18 precludes recovery for bodily injury or property damage that arises
from a criminal act committed by the insured person. [Filing No. 7-1 at 57.] As Trustgard points
out, if Mr. Samson would not have killed himself, he could have been charged with a number of
crimes, ranging from murder to voluntary manslaughter to criminal recklessness. 5 Defendants’
sole rejoinder is reliance on a temporary insanity defense based on Dr. Joseph’s affidavit. As
noted, the Court has found Dr. Joseph’s affidavit attesting to Mr. Samson’s alleged insanity
inadmissible. Additionally, “[s]imply because an act is committed in the heat of passion . . . does
not render it unintentional. Indiana requires the state to prove a knowing or intentional killing . . .
. Intent to kill under this statute . . . can be proved by an inference drawn from the circumstances
surrounding the act.” Miles, 730 F. Supp. at 1472 (citing Rowan v. Owens, 752 F.2d 1186 (7th
Cir. 1984)). Thus, even if Mr. Samson committed the act out of anger without intending to kill
In Indiana, a person commits murder when he or she “knowingly or intentionally kills another
human being . . . .” Ind. Code § 35-42-1-1. A person commits voluntary manslaughter when he
or she “knowingly or intentionally . . . kills another human being . . . while acting under sudden
heat . . . .” Ind. Code 35-42-1-3. Lastly, “[a] person who recklessly kills another human being
commits reckless homicide . . . .” Ind. Code § 35-42-1-5.
Ms. Ecker and immediately felt remorse for killing her, the circumstances surrounding the incident
as described by his father and Sgt. Fitzgerald indicate that Mr. Samson knowingly and intentionally
pointed the gun and fired nine shots at Ms. Ecker which constitutes a crime under several Indiana
statutes. Defendants have provided no other evidence to contradict this conclusion. Accordingly,
the Court finds that Exclusion 18 also excludes coverage for the claims brought by the Estate of
Ms. Ecker and L.O.E. against the Estate of Mr. Samson.
C. Remaining Claim
In the Amended Complaint, Trustgard seeks a declaration that it “has no duty to defend
[t]he Estate of [Mr.] Samson and the lawsuits filed by [t]he Estate of [Ms.] Ecker and L.O.E. and
Trustgard is entitled to recover defense costs and fees from the Estate of [Mr.] Samson . . . .”
[Filing No. 7 at 8.] Trustgard does not brief these claims in its motion for summary judgment. It
solely focuses on the fact that its policy precludes coverage for the claims from the Estate of Ms.
Ecker and L.O.E. against the Estate of Mr. Samson. 6 Therefore, the issues of whether Trustgard
has a duty to defend the Estate of Mr. Samson from the claims brought by the Estate of Ms. Ecker
and L.O.E., and whether it can recover costs and fees from the Estate of Mr. Samson remain.
For the foregoing reasons, the Court GRANTS Trustgard’s Motion for Summary
Judgment, [Filing No. 53], to the extent that its policy precludes coverage for claims brought by
the Estate of Ms. Ecker and L.O.E. against the Estate of Mr. Samson. The Court asks the presiding
In the Amended Complaint, Trustgard also seeks a declaration that it “has no duty to indemnify
[t]he Estate of [Mr.] Samson for any liability it may have for bodily injury or death or punitive
damages arising from the October 5, 2014 incident . . . .” [Filing No. 7 at 8.] Although Trustgard
does not brief this claim in its motion for summary judgment, the fact that the Court finds that the
policy precludes coverage for claims brought by the Estate of Ms. Ecker and L.O.E. against the
Estate of Mr. Samson indicates that Trustgard has no duty to indemnify the Estate of Mr. Samson.
Magistrate Judge to confer with the parties to discuss a resolution of the remaining claim or
establish a timeline for trial.
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Mark Douglas Hassler
HUNT HASSLER & LORENZ, LLP
Jacob H. Miller
HUNT HASSLER LORENZ KONDRAS LLP
Tricia Rose Tanoos
MODESITT LAW FIRM, P.C.
Charles Schroeder Smith
SCHULTZ & POGUE LLP
Thomas R. Schultz
SCHULTZ & POGUE LLP
William W. Drummy
WILKINSON GOELLER MODESITT WILKINSON & DRUMMY
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