Lincoln Benefit Life v. Wilson
MEMORANDUM AND ORDER - This case is removed from the court's trial docket during the week of July 27, 2015, and trial is continued until further order of the court. On or before August 3, 2015, Wilson shall file a copy of the complete recor d in the case of Stephen Carb as Trustee of Lollytogs, Inc. Trust v. Lincoln Benefit Life Company, Inc., Case No. 09cv2980, in the United States District Court for the Southern District of New York. Also on or before August 3, 2015, Wilson shall f ile a supplemental brief discussing whether, under the doctrine of collateral estoppel, the judgment and jury findings in the New York litigation preclude LBL from proving any essential element of its claims or require a finding in favor of Wilson on his counterclaim. On or before August 31, 2015, LBL shall file a responsive brief and may file supplemental evidence. On or before September 14, 2015, Wilson may file a reply. The parties' motions for summary judgment (Filing Nos. 97 , 98 ) will be ripe for decision on and after September 15, 2015. Ordered by Senior Judge Richard G. Kopf. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINCOLN BENEFIT LIFE,
JAMES W. WILSON,
Plaintiff, Lincoln Benefit Life (“LBL”), is a life insurance company. Defendant,
James W. Wilson, is an insurance broker. LBL sues Wilson to recover approximately
$15 million in damages, claiming a right to indemnity or contribution at common law
(count I), breach of contract (count II), and negligence (count III). LBL also seeks to
obtain a declaratory judgment that no additional commissions are owed to Wilson
(count IV). Wilson counterclaims to recover approximately $2.7 million in damages,
alleging a single claim for breach of contract for nonpayment of commissions.
In 1999, Wilson was retained by shareholders of Lollytogs, Inc., to procure
insurance on the life of one of the company’s co-founders, Samuel Gindi, in order to
fund a buyout of Gindi’s interest in Lollytogs upon his death. The shareholders
wanted to replace an existing policy that had been issued by a company other than
LBL. Wilson entered into a special agent’s agreement with LBL, which then issued
two term policies with 10-year level premium periods. After 10 years the premiums
would escalate, but the term policies allowed for conversion to permanent insurance
“[p]rior to the earlier of the policy anniversary next following the insured’s seventieth
birthday or the end of this level premium period.” Gindi was 75 years old when the
term policies were issued.
In 2000, the shareholders questioned Wilson about the convertibility of the term
policies, and he in turn questioned LBL. A faxed response from LBL indicated that
“[t]his policy will have conversion privileges up to the term of the policy.” In 2003,
after Wilson again contacted LBL to inquire about the policies’ conversion rights,
LBL took the position that the policies were not convertible due to Gindi’s advanced
age. However, because of the “misinformation” that was provided in the 2000 fax,
LBL offered to convert the policies within 30 days. LBL subsequently issued five
universal life insurance policies for a “free look” period, but they were not accepted
by the Lollytogs shareholders. LBL then reinstated the two term polices.
In 2007, the Lollytogs shareholders notified LBL that they intended to convert
the two term policies before the end of their 10-year level premium periods in 2009.
LBL responded that although an exception had been granted in 2003, “these policies
no longer have a conversion privilege due to the age of the insured.”
In 2009, the Lollytogs shareholders filed suit for breach of contract against
LBL in the United States District Court for the Southern District of New York. Annual
premiums were ordered paid into escrow while the case was pending. Gindi died in
2012. In 2013, after the jury returned a verdict in favor of the Lollytogs shareholders,
the court entered a judgment that required LBL to pay a death benefit of $29 million
(the total amount of two the term policies) and that directed the escrow agent to pay
LBL approximately $7.3 million for premiums due during 2009-2012.
LBL now seeks to collect from Wilson the difference between the $7.3 million
premium amount that was determined by the jury and the amount it otherwise would
have received as premium payments under the two term policies. Wilson meanwhile
seeks to collect from LBL the amount of additional commissions he would have
earned if LBL had allowed conversion of the term policies in 2009.
LBL and Wilson have filed cross-motions for summary judgment on each
other’s claims. Wilson also seeks summary judgment on his claim, with the amount
of damages to be determined later. LBL has not moved for summary judgment on its
claims for money damages and declaratory relief. Because a complete record of the
New York litigation is not in evidence, and because the potentially case-dispositive
question of collateral estoppel (or issue preclusion) has not been adequately briefed,
the court will defer ruling on the pending motions and will postpone trial in order to
permit supplementation of the record and additional briefing.
“The court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). A material fact is one that “might affect the
outcome of the suit under the governing law,” and a genuine issue of material fact
exists when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
determining whether a genuine issue of material fact exists, the evidence is to be taken
in the light most favorable to the nonmoving party, Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970), and the court must not weigh evidence or make credibility
determinations, Anderson, 477 U.S. at 249. However, the nonmoving party “may not
rest upon mere allegation or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial.” Id. at 256.
“A mere scintilla of evidence is insufficient to defeat summary judgment and
if a nonmoving party who has the burden of persuasion at trial does not present
sufficient evidence as to any element of the cause of action, then summary judgment
is appropriate.” Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir.
2010) (internal quotation marks and citations omitted). “‘Where 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.’” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th
Cir. 2011) (en banc) (quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)).
A. LBL’s Claims
In support of his motion for summary judgment, Wilson argues: (1) LBL’s
claims for breach of contract and negligence fail as a matter of law because (a) the
duties he allegedly breached were owed to the Lollytogs shareholders, not LBL, and
(b) the jury’s verdict in the New York litigation conclusively establishes that LBL’s
injury resulted solely from its own actions, and not because of any prior breach of the
special agent’s agreement or negligence on his part; and (2) LBL’s claim for
contribution or indemnity fails as a matter of law because of “the doctrine of
acquiescence.” Responding to the first argument, LBL argues: (1) Wilson’s reliance
upon the doctrine of res judicata is misplaced; (2) proximate cause is a question of fact
to be determined by the jury; and (3) LBL’s conduct was not an intervening cause. In
reply, Wilson argues that collateral estoppel applies even if res judicata does not. With
respect to Wilson’s second argument, LBL contends it only attempted to rectify a bad
situation created by Wilson.
1. Breach of Contract or Negligence
In September 1999, LBL appointed Wilson to sell insurance products pursuant
to a “Special Agent’s Agreement – Appointment” (Filing No 102 (LBL’s statement
of material facts), ¶ 12; Filing No. 103-4). The appointment was made at Wilson’s
request, in connection with his shopping for life insurance for Samuel Gindi (Filing
No. 102, ¶ 12; Filing No. 105 (Wilson’s statement of material facts), ¶ 6). The special
agent’s agreement generally provided that Wilson was to “solicit applications for the
policies of insurance and annuity contracts written by LBL” and to “submit such
applications received to LBL” (Filing No. 102, ¶ 14; Filing No. 103-4, at CM/ECF p.
3). LBL contends Wilson breached the following provisions of the special agent’s
In addition to the requirement that you comply with the rules and
regulations of LBL pertaining to underwriting practices, acceptance of
risks, delivery of policies, and all other areas of LBL’s business, you are
Comply with LBL’s policies and procedures concerning the
replacement of life insurance policies and annuity policies. A
replacement occurs whenever an existing life insurance policy or
annuity is terminated, converted, or otherwise changed in value.
For any transaction involving a replacement, LBL requires you to:
recommend the replacement of an existing policy only
when replacement is in the best interest of the customer;
Adhere to LBL’s rules and regulations concerning ethical market
conduct, which require that you:
carefully evaluate the insurance needs and financial
objectives of your clients, and use sales tools (e.g., policy
illustrations and sales brochures) to determine that the
insurance or annuity you are proposing meets these needs;
Limitation of Authority – You shall not exercise any authority on behalf
of LBL other than expressly conferred by this Agreement. Specifically,
but not in limitation of the foregoing, you shall have no authority on
behalf of LBL to:
Make, alter, or discharge any contract.
Waive or modify any terms, conditions, or limitations of
(Filing No. 103-4, at CM/ECF pp. 3-4).
LBL alleges that “Wilson’s conduct in procuring the policies constituted a
breach of the contract with Lincoln Benefit because Wilson did not ‘carefully evaluate
the insurance needs and financial objectives of [Lollytogs],’ and improperly
‘determine[d] that the [proposed] insurance ... [met] these needs’” (Filing No. 1-3
(complaint), ¶ 60)1 and “because Wilson recommended replacement of an existing
policy with the Lincoln Benefit policies when it was not ‘in the best interest of the
customer’” (Filing No. 1-3, ¶ 62).2 Similarly, it is alleged that “Wilson acted
negligently in failing to evaluate the needs and financial objectives of Gindi” (Filing
No. 1-3, ¶ 67). LBL also alleges that Wilson acted negligently “in failing to properly
review the terms of the life insurance products he sold” (Filing No. 1-3). Finally, LBL
alleges that “Wilson ‘modif[ied] terms, conditions, or limitations of [the] polic[ies]’”
by his “assurances and representations to Gindi and/or Sutton3 regarding the
conversion rights available” (Filing No. 1-3, ¶¶ 64, 65) and “acted negligently in
misrepresenting and/or failing to clarify the rights and obligations of Lincoln Benefit,
Gindi, and/or Lollytogs both prior to and after the issuance of the policies” (Filing No.
1-3, ¶ 69).
As an initial matter, Wilson argues that “each of the alleged violations, whether
based upon a contractual agreement or common law, focus on what Wilson should
have done vis a vis his client’s, Lollytogs, insurance needs and objectives,” and that
“[n]owhere is it articulated as to the harm or damage to [LBL]” (Filing No. 101, at
CM/ECF p. 22). LBL has not responded to this argument except to state (in a
More specifically, LBL alleges that “[h]ad Wilson ‘carefully evaluate[d] the
insurance needs and financial objectives of [Gindi],’ and properly ‘determine[d] that
the [proposed] insurance . . . [met] these needs,’ Wilson would not have sold the
policies to Lollytogs because Gindi’s age at the time of issuance rendered the policies
ineligible for conversion”(Filing No. 1-3, ¶ 61).
LBL alleges that “[t]he absence of Gindi’s ability to exercise conversion rights
based on his age at the time of the policies’ issuance was not in the ‘best interest’ of
Gindi or Lollytogs” (Filing No. 1-3, ¶ 63).
Richard Sutton was Lollytogs’ CEO.
footnote) that LBL’s complaint “clearly avers that ‘[a]s a result of Wilson’s conduct,
Lincoln Benefit has incurred damages in excess of $15 million because it has not
received premium commensurate with the risk it covered’” (Filing No. 119, at
CM/ECF p. 15). The risk LBL covered, as conclusively determined in the New York
litigation, was insuring the life of a 75-year-old man for a 10-year level premium
period and granting him the right to convert the term policies to permanent insurance
before the expiration of such 10-year period, which was precisely the coverage the
Lollytogs shareholders expected to receive.4
It is further alleged, however, that Wilson exceeded his authority and breached
the special agent’s agreement by modifying the terms, conditions, or limitations of the
life insurance policies he sold to the Lollytogs shareholders. “It is the duty of an agent
of limited authority to adhere faithfully to the instructions of his principal, and if he
exceeds, violates, or neglects them, and loss results to his principal as a natural and
ordinary consequence, he is liable therefor.” League v. Vanice, 374 N.W.2d 849, 857
(Neb. 1985) (quoting Winchell v. National Bank of Commerce Trust & Sav. Assn., 152
N.W.2d 2, 5 (Neb. 1967).5 Whether this claim sounds in contract or tort need not be
decided at this time.6 Nor is it necessary to decide now whether Wilson’s alleged
Although the parties disagree about the meaning and significance of the jury’s
findings, there is no genuine dispute that, in the words of the presiding judge, “[t]he
jury handed [the Lollytogs shareholders] a resounding victory” (Filing No. 113-1, at
CM/ECF p. 4).
The special agent’s agreement provides that it “shall be governed by and
construed according to the laws of the State of Nebraska” (Filing No. 103-4, at
CM/ECF p. 4). The parties are in agreement that Nebraska substantive law applies in
In Lesiak v. Central Valley Ag Co-op., Inc., 808 N.W.2d 67, 83 (Neb. 2012),
the Nebraska Supreme Court announced the following qualification to the judicially
created economic loss doctrine:
Generally speaking, the doctrine limits a party’s ability to recover for
economic losses (or commercial losses), unaccompanied by personal
failure to review the policy language and to clarify coverage is actionable negligence,
since Wilson’s only other contention is that the New York litigation precludes LBL
from claiming that its injury resulted from Wilson’s alleged acts or omissions.
2. Res Judicata or Collateral Estoppel
In support of his motion for partial summary judgment, Wilson advances this
Lincoln Benefit’s claims against Defendant all stem from allegations that
Defendant failed to properly ascertain the terms and conditions contained
in the term policies that were sold to Lollytogs. Specifically, it is alleged
that there was no basis for Defendant to conclude that the term policies
sold to Lollytogs were eligible for conversion because the individual
whose life was being insured, Samuel Gindi, was over the age of 70.
Putting aside the fact that Defendant was at all times under the belief that
Plaintiff, because of its desire to collect premiums for the two life
insurance policies totaling $29 million, had waived any age limitation
with respect to conversion, there came a time, after the polices were
initially delivered, that Defendant, following Plaintiff’s own procedure,
sought clarification from Plaintiff as to whether the term policies in fact
had conversion rights. In a fax dated July 13, 2000, that became the
critical piece of evidence in the Prior Action and which serves as
Plaintiff’s death knell herein, Lincoln Benefit wrote back to Defendant
and informed him, per Lincoln Benefit’s Vice President of Customer
Service, Mr. Stan Shelly, that the term policies in fact were convertible.
Because the jury in the Prior Action concluded that this fax, amongst
other conduct engaged in by Plaintiff, estopped Lincoln Benefit from
denying that the Subject Policies had conversion rights, Plaintiff herein
cannot establish any proximate cause to the alleged breaches it claims
stemmed from Defendant’s conduct – conduct all taking place prior to
injury or damage to other property, allowing recovery only under
contract law. But we expressly restrict the doctrine’s application to
where economic losses are (1) caused by a defective product or (2)
caused by an alleged breach of a contractual duty, where no tort duty
exists independent of the contract itself.
Plaintiff’s fax to Defendant declaring what the Policyholder’s rights
were with respect to the Subject Policies.
(Filing No. 101, at CM/ECF pp. 8-9).
LBL counters that “[t]he underlying action, in which Wilson was not even a
party, is not dispositive of Lincoln Benefit’s rights against Wilson, nor does the
underlying action somehow bar Lincoln Benefit from pursuing Wilson for the
damages it has incurred as a result of Wilson’s misconduct” (Filing No. 119, at
CM/ECF p. 7). In support of its claims, LBL contends “[t]he facts demonstrate that
Wilson – not Lincoln Benefit – caused the harm here because Wilson misinformed the
policyholders concerning the features of the subject policies” and “Lincoln Benefit’s
subsequent conduct, which was indisputably precipitated by Wilson, does not
somehow absolve Wilson of liability for the misinformation and confusion that he
originally caused” (Filing No. 119, at CM/ECF p. 7). LBL denies that it is “seeking
to relitigate the conversion rights available under the Policies,” but generally argues
that “[t]o the extent Wilson seeks to characterize Lincoln Benefit’s conduct as a
superseding or intervening cause of the damages incurred by Lincoln Benefit, this
necessarily involves the application of law to fact, which is left to the factfinder”
(Filing No. 119, at CM/ECF pp. 17-18).
Wilson argues that LBL’s damage claim is barred by the doctrine of res judicata
(claim preclusion). LBL responds that the doctrine is inapplicable because Wilson was
not a party to the New York litigation or in privity with the plaintiff in that action.
Without conceding the point, Wilson replies with an alternative argument that
collateral estoppel (issue preclusion) applies.7 Both parties wrongly assume that
Nebraska law will determine the preclusive effect of the New York litigation.
In his answer, Wilson alleges both res judicata and collateral estoppel as
affirmative defenses (Filing No. 17, ¶¶ 86-94).
“In a diversity case like this, [the Eighth Circuit] appl[ies] state substantive law
in deciding whether to apply collateral estoppel or issue preclusion, see Austin v.
Super Valu Stores, Inc., 31 F.3d 615, 617 (8th Cir.1994), ‘giving a ... judgment
preclusive effect if a court in that state would do so,’ In re Scarborough, 171 F.3d
638, 641 (8th Cir. 1999).” Ideker v. PPG Industries, Inc., __ F.3d __, 2015 WL
3621382, *2 (8th Cir. June 11, 2015). “This rule applies even when the original
judgment is that of another federal court sitting in diversity.” Id. (quoting Liberty Mut.
Ins. Co. v. FAG Bearings Corp., 335 F.3d 752, 758 (8th Cir. 2003). The same is true
with respect to res judicata or claim preclusion. See Austin, 31 F.3d, at 617-18.
“[A] federal court exercising diversity jurisdiction in forum II [is required] to
give to the judgment of a federal court exercising diversity jurisdiction in forum I the
same full faith and credit that a state court in forum II would be obliged to give the
judgment of a state court in forum I, at least in the absence of an overriding federal
interest.” Id., at 618 (quoting Semler v. Psychiatric Institute of Washington, D.C., Inc.,
575 F.2d 922, 927 (D.C. Cir. 1978)). That is to say, “[t]he ‘res judicata [or collateral
estoppel] effect of the first forum’s judgment is governed by first forum’s law,” in this
case [New York] law.” St. Paul Fire and Marine Ins. Co. v. Compaq Computer Corp.,
457 F.3d 766, 770 (8th Cir. 2006) (quoting Austin, 31 F.3d, at 618); see also Hillary
v. Trans World Airlines, Inc., 123 F.3d 1041, 1043 (8th Cir. 1997) (applying state law
while noting that “the majority of circuits have held that the res judicata effect of a
federal court judgment in a diversity action is a matter of federal law”).
“In New York, res judicata, or claim preclusion, bars successive litigation based
upon the same transaction or series of connected transactions if: (i) there is a judgment
on the merits rendered by a court of competent jurisdiction, and (ii) the party against
whom the doctrine is invoked was a party to the previous action [or proceeding], or
in privity with a party who was.” Starla D. v. Jeremy E., 994 N.Y.S.2d 702, 703
(N.Y.A.D. 3 Dept. 2014) (quoting People ex rel. Spitzer v. Applied Card Sys., Inc.,
894 N.E.2d 1, 12 (N.Y. 2008)). “Similarly, collateral estoppel, or issue preclusion,
‘precludes a party from relitigating in a subsequent action or proceeding an issue
raised in a prior action or proceeding and decided against that party or those in
privity.’” MLCFC 2007-9 ACR Master SPE, LLC v. Camp Waubeeka, LLC, 999
N.Y.S.2d 202, 206 (N.Y.A.D. 3 Dept. 2014) (quoting Weston v. Cornell Univ., 983
N.Y.S.2d 353, 355 (N.Y.A.D. 3 Dept. 2014)).
“Res judicata applies only to previous litigation between the same parties or
others in privity.” Spano v. Novello, 788 N.Y.S.2d 205, 209 (N.Y.A.D. 3 Dept. 2004).
“[P]ersons in privity include those whose interests are represented by a party to the
previous action and those ‘[whose] own rights or obligations in the subsequent
proceeding are conditioned in one way or another on, or derivative of, the rights of
the party to the prior litigation.’” Bayer v. City of New York, 983 N.Y.S.2d 61, 63
(N.Y.A.D. 2 Dept. 2014) (quoting D’Arata v. New York Cent. Mut. Fire Ins. Co., 564
N.E.2d 634, 637 (N.Y. 1990)). “Generally, to establish privity the connection between
the parties must be such that the interests of the nonparty can be said to have been
represented in the prior proceeding.” Lynch v. National Prescription Adm’rs, Inc., __
F.3d __, 2015 WL 3395937, *3 (8th Cir. May 27, 2015) (applying New York law and
quoting Green v. Santa Fe Indus., Inc., 514 N.E.2d 105, 108 (N.Y. 1987)). The
doctrine of res judicata is inapplicable in this case, where Wilson’s potential liability
to LBL actually stems from the prior litigation in which the Lollytogs shareholders
prevailed on their breach of claim against LBL. In other words, Wilson is not in
privity with the shareholders.
Such lack of privity does not prevent Wilson from relying on the collateral
estoppel doctrine, but he must establish that “the identical issue was necessarily
decided in the prior action and is determinative in the present action.” JBGR, LLC v.
Chicago Title Ins. Co., __ N.Y.S.3d __, 2015 WL 2388360, *2 (N.Y.A.D. 2 Dept.
May 20, 2015). “The determination of an issue of law or fact will not be given
preclusive effect unless ‘the issue [was] material to the first action or proceeding and
essential to the decision rendered therein.’” Gadani v. DeBrino Caulking Associates,
Inc., 926 N.Y.S.2d 724, 727 (N.Y.A.D. 3 Dept. 2011) (quoting Ryan v. New York Tel.
Co., 467 N.E.2d 487, 490 (N.Y. 1984)). “Whether collateral estoppel applies presents
a question of law turning on both an identity of issue and a full and fair opportunity
to litigate that issue in the prior proceeding.” Hoopes v. Bruno, 513 N.Y.S.2d 301, 302
(N.Y.A.D. 3 Dept. 1987); Claim of Guimarales, 503 N.E.2d 113, 115 (N.Y. 1986).
“The party asserting collateral estoppel has the burden of establishing ‘identity
of the issue, while the opponent must demonstrate the absence of a full and fair
opportunity to litigate.’” Gadani, 926 N.Y.S.2d at 727 (quoting Jeffreys v. Griffin, 801
N.E.2d 404 (N.Y. 2003)). “In considering whether the opponent of collateral estoppel
had a full and fair opportunity to litigate an issue, [the court] must consider ‘the
realities of the [prior] litigation, including the context and other circumstances which
... may have had the practical effect of discouraging or deterring a party from fully
litigating the determination which is now asserted against’ it.” Id. (quoting Ryan, 467
N.E.2d at 491).
“The normal way to invoke the estoppel of a prior adjudication is to produce
the judgment and the pleading on which it was based. ‘It is, of course, the judgment
which is the bar.’” Bronxville Palmer, Limited v. State, 223 N.E.2d 887, 889 (N.Y.
1966) (quoting Ripley v. Storer, 132 N.E.2d 87, 90 (N.Y. 1956)). “It is ‘a final
judgment upon the merits which is competent as evidence and conclusive in a
subsequent action between the same parties or their privies.’” Id. (quoting Rudd v.
Cornell, 63 N.E. 823, 828 (N.Y. 1902)). However, “where the judgment and the
pleadings do not conclusively show that what was adjudicated embraces the new
litigation, it may be necessary to look beyond the judgment roll, at the testimony, the
charge to the jury and the record of contentions made and determined.” Id. “Although
... the judgment roll is conclusive evidence, the charge to the jury is competent ‘to
show the precise issues therein decided.’” Id.
“If the issue previously tried can be determined from the record alone without
extrinsic evidence it is a question of law for the court. When it is necessary to show
the matter tried and determined in the prior action by extrinsic evidence, it becomes
a question of fact for the jury. If the record is silent or ambiguous as to the points at
issue and determined by the judgment, parol evidence is competent to identify same
and necessary to insure the effect of the judgment as an estoppel.” Berkowitz v.
Equitable Life Assur. Soc. of U.S., 21 N.Y.S.2d 206, 208 (N.Y. Sup. 1940).
The evidence shows that the Lollytogs shareholders alleged in their action
against LBL that “[p]ursuant to the terms of the [two term life insurance] policies,
upon reaching the age of seventy or the end of the level premium period whichever
is earlier, the owner of the policy is permitted to convert the subject policies from a
Term Life Policy into a Flexible Premium Adjustable Life Plan or a Whole Life Plan
then sold by [LBL]”; that “[n]otwithstanding the language contained in the subject
policies, these policies were tendered to Gindi when he was seventy-five years old,
effectively making it a contractual impossibility for him to exercise these conversion
rights at the age of seventy as set forth under the terms of the contracts”; that “[LBL]
was fully aware of Gindi’s age at the time when the subject policies were negotiated,
agreed to and issued”; that “[n]otwithstanding the fact that Gindi was over seventy
years of age at the time when the policies were issued, on or about July 13, 2000,
[LBL] sent a written communication ... confirming the right of conversion during the
level premium period”; that “[o]n or about February 26, 2003, [LBL] acknowledged
these representations in a written communication but sought to change the terms and
conditions contained in the policies by only honoring the right of conversion if
exercised within the next thirty days from the date of the letter”; and that the Lollytogs
shareholders “refused to accept any such modification of the conversion rights set
forth within the subject policies ...” (Filing No. 107-2 (amended complaint filed in
Stephen Carb as Trustee of Lollytogs, Inc. Trust v. Lincoln Benefit Life Company,
Inc., Case No. 09cv2980, in the United States District Court for the Southern District
of New York), ¶¶ 38, 41-45). As to each the term life insurance policies, the
shareholders asserted claims for (1) a declaratory judgment requiring LBL to allow
conversion of the policy effective as of 2009, (2) breach of contract based on LBL’s
failure to convert the policy in 2009, and (3) reformation of the policy to provide a
right of conversion (Filing No. 107-2). The declaratory judgment claims were ordered
dismissed prior to trial as being subsumed within the breach of contract claims (Filing
No. 113-2, at CM/ECF pp. 3-5).
A complete copy of the final jury instructions is not in evidence,8 but an
unsigned verdict sheet shows that the jury made the following specific “Findings
Regarding the Term Policies”:
Did Plaintiff prove by a preponderance of the evidence that the
Plaintiff had the right to convert the Term Policies to whole or
universal life policies at the time the Term Conversions were sold
Based upon the law of estoppel as I have charged you, is
Defendant estopped from denying that these policies have
conversion rights based upon its conduct?
Did Plaintiff prove by a preponderance of the evidence that the
July 13, 2000 Fax modified the subject Term Policies and gave
Plaintiff the right to convert the Term Policies to whole or
universal life insurance policies through the end of the level
Based upon the law of waiver as I have charged you, did
Defendant relinquish any right it had to deny Plaintiff the right to
convert the policies?
In replying, Wilson has filed a portion of the trial transcript recording part of
a final jury instruction conference (Filing No. 130-1).
Did Defendant prove by a preponderance of the evidence that
Plaintiff accepted Defendant’s one time, limited offer to convert
the subject Term Policies to whole or universal life policies by the
February 26, 2003 letter?
Write in the amount due to Lincoln in unpaid premiums:
Did Plaintiff prove by a preponderance of the evidence that
Defendant breached the contract by failing to pay the Death
Benefit ($29 million)?
(Filing No. 108-4).9
LBL does not challenge the authenticity of the verdict sheet, but argues in its
reply brief that the jury’s findings are inadmissible hearsay. The findings are not
hearsay because they are not offered to prove the truth of the matter asserted; rather,
they are offered to prove what was decided in the case. See Fed. R. Evid. 801(c)(2).
If it is determined that collateral estoppel applies, the result of the prior litigation will
be admissible in evidence at trial. See 2 McCormick on Evidence § 298 (7th ed.)
(“Where the doctrines of res judicata, collateral estoppel, or claim or issue preclusion
make the determinations in the first case binding in the second, a judgment in the first
case is not only admissible in the second, but it is conclusive against the party as a
matter of substantive law.”); CompuCom Systems, Inc. v. Getronics Finance Holdings
B.V., Civ. No. 09-173-SLR, 2012 WL 5845619, *1 (D.Del. 2012) (“Under Delaware
law, prior findings and judgments generally either come in under collateral estoppel,
as conclusive proof, or they do not come in at all, as hearsay.”) (internal quotes and
citations omitted). “[I]f the doctrine of collateral estoppel precludes consideration of
a factual issue, that issue is not a fact to be determin[ed] at trial and, thus, the rules of
evidence do not apply to that issue.” Mugno v. Casale, Nos. CIV.A. 96-6228, CIV.A.
96-6229, 1997 WL 152793, *6 (E.D.Pa. Mar. 28, 1997). Cf. 18 Wright and Miller,
Federal Practice & Procedure § 4416 (2d ed.) (“[I]t has long been settled that
preclusion ordinarily is an all-or-nothing thing. The prior determination either
On April 22, 2013, United States District Judge Andrew L. Carter entered a
“Final Order After Trial By Jury,” stating that the jury had returned a verdict as
THE JURY FOUND, that Plaintiff G INVESTORS HOLDING
LLC (“G Investors”)10 had a right to convert the Term Policies to
whole or universal life policies at the time the Term Policies were
sold in l999;
THE JURY FURTHER FOUND, that the July 13, 2000 Fax
modified the subject Term Policies and gave G Investors the right
to convert the Term Policies to whole or universal life insurance
policies through the end of the level premium periods;
THE JURY FURTHER FOUND, that Defendant LINCOLN
BENEFIT LIFE COMPANY, INC. (“Lincoln”) is estopped from
denying that these policies have conversion rights based upon its
THE JURY FURTHER FOUND, that Lincoln relinquished any
right it had to deny Plaintiff the right to convert the policies;
THE JURY FURTHER FOUND, that G Investors did not accept
Lincoln’s one time, limited offer to convert the subject Term
Policies to whole or universal life policies by the February 26,
THE JURY FURTHER FOUND, that Lincoln breached its
contract with G Investors to pay the Death Benefit[.]
(Filing No. 113-6). Judge Carter found that the $29 million death benefit was due and
owing to the plaintiff, and he directed the clerk of the court to enter a judgment in
precludes any further dispute about the matter, or it is irrelevant and cannot be
admitted even as some evidence bearing on the matter.”) (footnotes omitted).
It appears G Investors was the successor in interest to Lollytogs, Inc. Trust,
and was substituted for the trustee as plaintiff sometime before trial.
favor of the plaintiff for such amount, plus interest; he also ordered that the judgment
provide for the release of $7,309,370 from the escrow account for premium payments
to LBL (Filing No. 113-6). Judgment was entered on April 30, 2013 (Filing No. 1086). There is no evidence that an appeal was taken, although LBL did file a post-trial
motion that was denied by Judge Carter on November 5, 2013 (Filing No. 113-1).
Wilson argues that “[s]ince the jury found against Lincoln Benefit and
determined that the Subject Policies, as sold in 1999, had conversion rights, a
judgment has already been reached on the merits that the Subject Policies had
conversion rights” (Filing No. 101, at CM/ECF p. 27), and that, because of such
finding, LBL “is barred from claiming that [Wilson’s] conduct was the proximate
cause for the jury’s verdict in the Prior Action” (Filing No. 101, at CM/ECF p. 26).
LBL responds (in a footnote) that “[t]o the extent Wilson seeks to bind the parties
herein to the findings made by the jury in the Prior Action, Wilson cannot prevail
because the jury found that the Policies were convertible when issued, which, in
light of the Policies’ written terms, could have only been based on Wilson’s
misrepresentations to Lollytogs” (Filing No. 119, at CM/ECF p.20). LBL further
contends that “[n]either the July 13, 2000 fax, nor any subsequent representation by
Lincoln Benefit that the Policies had conversion rights were an intervening cause
because they ... were necessarily dependent upon Wilson’s original misrepresentations
regarding the conversion features at the time of sale” (Filing No. 119, at CM/ECF p.
Wilson’s argument presupposes that the policy language allowing conversion
“[p]rior to the earlier of the policy anniversary next following the insured’s seventieth
birthday or the end of [a 10-year] level premium period” is ambiguous, because the
insured was already 75 years old when the policies were issued, and that the jury’s
first finding was made for the purpose of interpreting this language. LBL’s argument,
on the other hand, suggests that a misrepresentation claim was submitted to the jury,
based on false statements Wilson allegedly made to the Lollytogs shareholders while
acting as LBL’s agent.
There is evidence to support Wilson’s argument. The jury was instructed that
“plaintiff and defendant agree that they entered into two enforceable written contracts
for term life insurance in 1999” and that it was required to decide, first of all,
“whether under the term policies, plaintiff had a right of conversion when the policies
were issued” (Filing No. 130-1, at CM/ECF p. 2).11 The jury was also told that
“[i]nsurance contracts should be construed according to their plain meaning and
should be enforced according to their terms,” but that “if you cannot determine what
the policies require after you have reviewed all of the relevant evidence, then the law
allows that if you find both of these competing interpretations to be reasonable, the
policy provision is ambiguous and must be construed in favor of the insured plaintiff
and strictly against the drafter defendant” (Filing No. 130-1, at CM/ECF pp. 2, 4).12
As stated previously, the actual jury instructions are not in evidence; there is
only an incomplete transcript of a conference at which the court read instructions
outside the presence of the jury and the parties were permitted to make objections. The
final instructions were marked as a court exhibit and delivered to the jury, but were
not read in open court (see Filing No. 130-1).
Also, the judge previously assigned to the case, the Honorable Richard M.
Berman, stated in an order entered on October 13, 2011, denying in part a motion for
summary judgment filed by LBL, that:
Material questions of fact exist as to whether the Policies’
conversion provisions ... applied to the Insured, who was past his
seventieth birthday at the time of the execution of the Policies. These
material issues pertain to the following:
(1) The meaning and intent of the language used in the Policies,
i.e., whether, under the provisions, the Insured had conversion privileges
up to the level premium period.
(2) What was the meaning and intent of the July 13, 2000 fax sent
by a Lincoln customer service agent which stated that the Insured would
“have conversion privileges up to the term(s) of the [P]olic[ies]?”
Although the Lollytogs shareholders’ pleadings in the New York litigation do
not allege a misrepresentation claim (see Filing No. 104-8), and the jury does not
appear to have been told that the Lollytogs shareholders were claiming to have been
misled by Wilson, the jury did make a finding that LBL was estopped from denying
that the term policies had conversion privileges. The jury was instructed:
Estoppel. Plaintiff contends that defendant is obligated to provide
plaintiff with conversion rights because plaintiff detrimentally relied and
acted upon defendant’s affirmative representations concerning the
existence of conversion rights under the policies....
In the context of insurance, estoppel may preclude an insurer from
asserting what may be an otherwise legitimate policy defense if an
insurer or its agent misrepresents, even though innocently, coverage of
the insurance contract to an insured, and the insured can show he
reasonably relied on this information has now been prejudiced by the
If you find plaintiff reasonably and detrimentally relied on
defendant’s affirmative representations concerning the existence of
conversion rights under the policies through the entire 10-year-levelpremium period, you must decide that defendant cannot now claim that
no such conversion rights existed under the policies.
(Filing No. 103-1, at CM/ECF p. 5).
Wilson contends the jury’s finding of estoppel was made solely with reference
to LBL’s conduct subsequent to the issuance of the policies, but the instruction set out
above specifically refers to misrepresentations made by “an insurer or its agent” and
(Filing No. 113-2, at CM/ECF pp. 3-4) (emphasis supplied) (citations to record and
legal authorities omitted).
is not limited as to time. LBL also notes that the plaintiff’s attorney13 stated during his
closing argument that coverage was bound “orally” and “on a handshake,” and that
until receiving the written policy at a later date “[t]he insured thinks the coverage is
what Jim Wilson sold him” (Filing No. 121-2, at CM/ECF p. 26).14
Wilson argues that he did not have any authority to modify the terms of the
written policies. He notes that the term policies each provide:
Only our officers have authority to change this contract. No agent may
do this. A change must be written.
(Filing No. 106-6, at CM/ECF p. 11; Filing No. 106-7, at CM/ECF p. 11). He also
notes that the special agent’s agreement states he has no authority to “[w]aive or
modify any terms, conditions, or limitations of any policy” (Filing No. 103-4, at
CM/ECF p. 4).
Under Florida law,15 however, “[t]he terms of an insurance policy do not
preclude an action against the insurer or its agent where the agent misrepresents the
The same attorney represents Wilson in the present litigation. Although LBL
intimates that counsel’s statements in the prior litigation constitute “admissions” by
Wilson, this is not the case. See, e.g., Lechoslaw v. Bank of America, N.A., 618 F.3d
49, 57 (1st Cir. 2010) (admissions made in court filings by attorney while representing
bank were not admissible against second bank which was represented by the same
attorney in the litigation).
Wilson states in an affidavit that although coverage was bound in October
and November 1999, he did not receive the policies until January 2000, at which time
he forwarded them to the Lollytogs shareholders (Filing No. 106-1, at CM/ECF p.
114, ¶¶ 10-11). In an earlier affidavit, Wilson states he received the policies on
December 1, 1999 (Filing no. 106-1, at CM/ECF p. 114, ¶ 5).
Judge Berman stated in his order denying LBL’s motion for summary
judgment that “the parties agreed at oral arguments that Florida substantive law
appl[ied]” to the New York litigation (Filing No. 113-2, at CM/ECF p. 3).
coverage of the insurance contract and the insured reasonably relies on the
misrepresentation to his detriment.” Gallon v. Geico General Ins. Co., 150 So.3d 252,
255 (Fla.App. 2 Dist. 2014) (quoting Martin v. Principal Mut. Life Ins. Co., 557 So.2d
128, 129 (Fla. 3d DCA 1990). In addition, “the liability of a principal for the acts of
its agent is not limited to what is expressly authorized. A principal also may be
responsible for the acts of its agent if these acts lie within the apparent authority of the
agent, unless the circumstances are such as to put one on inquiry.” Security Union
Title Ins. Co. v. Citibank, Fla., 715 So.2d 973, 974-75 (Fla.App. 1 Dist. 1998).
As reflected by the second finding on the verdict sheet, the jury was only asked
to determine whether the July 13, 2000 fax modified the policies. The jury was
instructed to decide “[w]hether the term policies were modified by subsequent
agreement or conduct by the parties” (Filing No. 130-1, at CM/ECF p. 2) (emphasis
supplied). Specifically, the instruction referred to the July 13, 2000 fax and informed
the jury that “[i]f you find that Stan Shelley authorized a change to the policies and/or
that Lydia Trevino [the sender of the fax] was acting on behalf of Stan Shelley with
either actual authority or apparent authority, you must decide that one of defendant’s
officers authorized a modification of the policies and consequently that the policies
at issue were modified to provide for conversion rights through the entire 10-yearlevel-premium period” (Filing No. 130-1, at CM/ECF p. 3).
The jury’s fourth finding, that LBL relinquished any right it had to deny the
plaintiff’s right to convert the policies, does not appear to have been made with
reference to any conduct on Wilson’s part. The jury was instructed that “[p]laintiff
contends that defendant is obligated to provide plaintiff with conversion rights
because defendant engaged in at least three separate affirmative acts16 in which it
waived any right it might have had to deny plaintiff’s conversion of the life insurance
policies at issue” (Filing No. 130-1, at CM/ECF p. 5).
The “three separate affirmative acts” of alleged waiver are not identified in
In summary, while it is possible the jury in the New York litigation concluded
that the Lollytogs shareholders were entitled to rely upon representations made by
Wilson, as LBL’s agent, thereby estopping LBL from denying that the policies had
conversion rights, the jury seems to have construed the policy language in a manner
which is entirely consistent with those representations. The jury also found that LBL
subsequently modified the terms of the policies and waived any right it had to deny
that the policies were convertible.
While the court is inclined to rule as a matter of law that LBL is collaterally
estopped from proving its breach of contract and negligence claims, the evidence
which has been presented regarding the New York litigation is incomplete. Also,
considering that Wilson did not even argue collateral estoppel until filing his reply,
the court is concerned that LBL has not been given a reasonable opportunity to
The Federal Rules of Civil Procedure provide that “[i]f a party fails to properly
support an assertion of fact, or fails to properly address another party’s assertion of
fact as required by Rule 56(c), the court may ... give an opportunity to properly
support of address the fact ....” Fed. R. Civ. P. 56(e)(1). Pursuant to this authority, or,
alternatively, Federal Rule of Evidence 104,17 the court will require Wilson to file a
complete record of the New York litigation, and a supplemental briefing schedule will
be established for the limited purpose of permitting the parties to address further the
question of collateral estoppel. Additional relevant evidence may also be filed by
Wilson and LBL.
“The court must decide any preliminary question about whether ... evidence
is admissible. In so deciding, the court is not bound by evidence rules, except those
on privilege.” Fed. R. Evid. 104(a). “When the relevance of evidence depends on
whether a fact exists, proof must be introduced sufficient to support a finding that the
fact does exist.” Fed. R. Evid. 104(b). “The court must conduct any hearing on a
preliminary question so that the jury cannot hear it if ... justice so requires.” Fed. R.
3. Indemnity or Contribution
LBL alleges that “[i]n the [New York] litigation, Lollytogs claimed that, after
communicating the importance of conversion rights in prospective policies, Wilson
made assurances and representations to Gindi and/or Sutton concerning the
convertible nature of the policies” and that “[t]he assurances and misrepresentations
were false, misleading, and negligent” (Filing No. 1-3, ¶¶ 50, 51). LBL claims it “is
entitled to common law indemnity/contribution from Wilson for his wrongful conduct
in connection with the sale and procurement of the policies” (Filing No. 1-3, ¶ 53).
Under Nebraska law “[a] party has a claim for indemnification if it pays a
common liability that, as between itself and another party, is altogether the
responsibility of the other party.” United General Title Insurance Company v. Malone,
858 N.W.2d 196, 212-13 (Neb. 2015). “In contrast, a claim for contribution arises
when a party has paid more than its fair share of a common liability that is allocated
in some proportion between itself and another party.” Id., at 213.
“[T]hose entitled to indemnity are generally free from personal fault while those
entitled to contribution are not.” Downey v. Western Community College Area, 808
N.W.2d 839, 853 (Neb. 2012). “Generally, the party seeking indemnification must
have been free of any wrongdoing, and its liability is vicariously imposed.” Id.
“Contribution is defined as a sharing of the cost of an injury as opposed to a
complete shifting of the cost from one to another, which is indemnification.” Malone,
858 N.W.2d, at 212. “The prerequisites to a claim for contribution are that the party
seeking contribution and the party from whom it is sought share a common liability
and that the party seeking contribution has discharged more than his fair share of the
common liability.” Id. “In other words, a common liability to the same person must
exist in order for there to be contribution.”citing Estate of Powell v. Montange, 765
N.W.2d 496, 500 (Neb. 2009).
From the pleadings, it appears LBL is claiming that its liability to the Lollytogs
shareholders was vicariously imposed. That is to say, LBL is asserting a claim for
indemnity rather than contribution.
Wilson argues that LBL does not have a right to indemnity under the special
agent’s agreement, which only requires him to “indemnify LBL against any liability
in connection with the payment of all ... taxes or contributions imposed or required ...
with respect to compensation received under this Agreement by you” (Filing No. 1034, at CM/ECF p. 3). LBL’s indemnity claim, however, is founded on common law.18
Wilson also relies on the “doctrine of acquiescence” to argue that LBL “is not
entitled to indemnity because it acquiesced to converting the Subject Policies through
its own actions” (Filing No. 101, at CM/ECF p. 30). That doctrine has been applied
“in cases when a person became liable to a third party for a dangerous condition, and
as between the first person and a second party, it was the second party’s duty to make
the condition safe. The duty of the second party to indemnify the first was held to be
waived if the first party acquiesced in the continuation of the dangerous condition.”
Central Nat. Ins. Co. of Omaha v. Devonshire Coverage Corp., 565 F.2d 490, 495
(8th Cir. 1977) (citing Restatement (First) of Restitution § 95 (1937)). The doctrine
applies only in premises liability cases and has no application here. See id. (doctrine
of acquiescence not a defense in action where insured sued its general agent to recover
damages for agent’s failure to obtain reinsurance to limit insurer’s risk of liability).
Finally, Wilson argues that LBL is not entitled to indemnity because its own
conduct caused the injury and it waived any breach of contract. Because these
arguments have already been addressed above in connection with LBL’s negligence
Although once commenting that “[i]t is questionable whether contribution
and indemnity are separate causes of action, as opposed to theories of recovery,”
Cerny v. Todco Barricade Co., 733 N.W.2d 877, 885 (Neb. 2007), the Nebraska
Supreme Court has held more recently that “indemnification may be asserted as an
independent claim under Nebraska law.” Malone, 858 N.W.2d, at 217-18.
and breach of contract claims, they require no further discussion. It remains to be
determined whether the doctrine of collateral estoppel applies.
B. Wilson’s Damage Claim; LBL’s Declaratory Judgment Claim
Although not discussed by the parties, the special agent’s agreement that was
executed in 1999 provided that Wilson “shall be compensated solely by the Recruiter”
and “[n]o compensation will be paid ... by LBL” (Filing No. 103-4, at CM/ECF p. 4).
The recruiter on the special agent’s agreement was identified as W. James & Co.
(Filing No. 103-4, at CM/ECF p. 1). In 2004, however, Wilson and LBL appear to
have executed an “Agent’s Agreement–Appointment” which was stated to “supersede
all previous agreements between the parties” (Filing No. 103-4, at CM/ECF pp. 5-6).
The recruiter on this agent’s agreement was identified as Freundt & Assoc. (Filing No.
103-4, at CM/ECF p. 5). Wilson claims he is owed commissions because the schedule
of commissions attached to, and incorporated by reference in, the 2004 agent’s
agreement provides that “[i]f a Level Best Term plan is exchanged for a universal life
or whole life policy within the first ten years, full first year commissions will be paid
on the premium actually paid by the policy owner up to the target premium reduced
by the conversion allowance, if any” (Filing No. 103-4, at CM/ECF p. 21). Wilson
contends he became entitled to receive commissions after the Lollytogs shareholders
notified LBL in 2007 that they intended to convert the term policies within the 10-year
level premium period.
LBL denies that it owes commissions because the 2004 agent’s agreement states
that Wilson would be “compensated according to the Schedule of Commissions ... for
premiums received on policies issued by LBL for applications secured under this
Agreement” (Filing No. 103-4, at CM/ECF p. 8). LBL alleges that “Wilson is not
entitled to commissions following the judgment in the underlying litigation because
the term plan was not actually exchanged for universal life or whole life policies, and
Lincoln Benefit did not receive premiums on converted policies” (Filing No. 1-3,
¶ 75). LBL also argues that “neither Wilson nor anyone else submitted an application
to Lincoln Benefit for the purposes of seeking to convert the Policies” (Filing No. 99,
at CM/ECF p. 20). In the alternative, LBL alleges that “Wilson was not entitled to
commissions following the judgment in the underlying litigation because his wrongful
conduct formed the basis for the plaintiff’s claims” and therefore “Wilson was in
material breach of his Agent’s Agreement” (Filing No. 1-3, ¶ 76).
LBL argues that securing an application and issuing a policy were conditions
precedent to the payment of a commission. Wilson responds that these conditions
were excused because LBL breached its duty to the insured to convert the policies.
“As a general rule, a condition is excused if the occurrence of the condition is
prevented by the party whose performance is dependent upon the condition. That
person must put forth a good faith effort to obtain the condition. Additionally, if a
promisor prevents or hinders the occurrence of a condition precedent, the condition
is excused.” Bellevue College v. Greater Omaha Realty Co., 348 N.W.2d 837, 840
“It is an elementary principle of law that when a broker produces a purchaser
ready, willing, and able to enter into the subject transaction, the broker is entitled to
the promised commission. An agreement to pay a commission is binding on the
principal despite the refusal or default on the part of the principal to complete the
transaction based on the terms agreed to.” Armstrong v. Hartford Life Ins. Co., 361
N.W.2d 511, 513 (Neb. 1985).
Just as in the case of LBL’s damage claims, the doctrine of collateral estoppel
may control the outcome of Wilson’s counterclaim and LBL’s claim for declaratory
relief by conclusively resolving the competing issues of whether Wilson breached the
special agent’s agreement or LBL breached the insurance agreements. For the reasons
previously discussed, the court requires additional evidence and will allow additional
briefing on this matter.
IT IS ORDERED:
This case is removed from the court’s trial docket during the week of
July 27, 2015, and trial is continued until further order of the court.
On or before August 3, 2015, Wilson shall file a copy of the complete
record in the case of Stephen Carb as Trustee of Lollytogs, Inc. Trust v.
Lincoln Benefit Life Company, Inc., Case No. 09cv2980, in the United
States District Court for the Southern District of New York.
Also on or before August 3, 2015, Wilson shall file a supplemental
brief discussing whether, under the doctrine of collateral estoppel, the
judgment and jury findings in the New York litigation preclude LBL
from proving any essential element of its claims or require a finding in
favor of Wilson on his counterclaim.
On or before August 31, 2015, LBL shall file a responsive brief and may
file supplemental evidence.
On or before September 14, 2015, Wilson may file a reply.
The parties’ motions for summary judgment (Filing Nos. 97, 98) will be
ripe for decision on and after September 15, 2015.
DATED this 7th day of July, 2015.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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