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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. O'Donnell v. Johnson (06/05/2009) sp-6378
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SERENA L. ODONNELL, | ) |
| ) Supreme Court No. S- 12938 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-12557 CI |
| ) | |
| IRIS I. JOHNSON, JOHN F. | ) |
| JOHNSON, and JANE DOE, | ) O P I N I O N |
| ) | |
| Appellees. | ) No. 6378 - June 5, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Brett von Gemmingen, Law Offices
of Brett von Gemmingen, LLC, Anchorage, for
Appellant. Barry J. Kell, Call, Hanson &
Kell, P.C., Anchorage, for Appellees Iris I.
Johnson and John F. Johnson.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. The plaintiffs insurer paid her medical bills, thus
acquiring a subrogation interest against the defendant and the
defendants insurer. The plaintiffs insurer informed the
plaintiffs attorney that it would recover its subrogated medical
payments directly from the defendants insurer. The eventual
settlement in the suit between the plaintiff and the defendant
provided that, in addition to payment to the plaintiff, the
defendants insurer would satisfy the subrogated medical claim
directly with the plaintiffs insurer. The plaintiffs attorney
nonetheless sought a portion of the subrogated medical payment as
fees under the common fund doctrine, but the superior court
refused. Because our settled case law controls this case and
has not been altered by later case law, and because the plain
language of the settlement offer did not contemplate that
defendants would pay any part of the subrogated claim directly to
plaintiff, we affirm the superior courts exclusion of the
subrogation payment from the judgment entered and the superior
courts determination that the defendant owes no additional
attorneys fees. On the issue of post-judgment interest, we also
affirm the decision of the superior court because the defendant
repeatedly attempted to pay the plaintiff.
II. FACTS AND PROCEEDINGS
In November 2002 Serena ODonnell, insured by State
Farm, was injured in an auto accident caused by Iris Johnson, who
was insured by Allstate. After the accident, State Farm paid
ODonnells medical bills, totaling $14,047, under the medical
payments coverage portion of her policy, thereby obtaining a
subrogated claim against the other driver and Allstate. In April
2003 State Farm sent a letter to ODonnells attorney informing him
that it would pursue its subrogated interest directly with
Allstate, and requesting that he not incur any expense or
attorneys time on behalf of collection of State Farms medical
payment lien. In February 2004 State Farm sent a letter to
Allstate asserting a subrogation claim for the medical payment
lien.
In July 2007 the Johnsons made an offer of judgment to
ODonnell. The terms of the offer were that the Johnsons would
allow entry of judgment for plaintiff SERENA
ODONNELL in this action for the sum of
SIXTEEN THOUSAND DOLLARS ($16,000) plus Civil
Rule 79 costs, prejudgment interest, and
schedule[] Rule 82 (b)(1) attorneys fees. In
addition, Allstate will satisfy the State
Farm Insurance Company lien/subrogation
interest ($14,046.80) directly to State Farm
Insurance Company.
ODonnell accepted the offer ten days later. On the
same day, she filed a proposed final judgment with the superior
court. That proposed judgment added the State Farm subrogation
amount to the $16,000 to be paid to ODonnell to result in a
$30,047 principal amount. The superior court entered this
proposed judgment as the final judgment on August 1, 2007,
omitting attorneys fees and costs from the total.
On August 29, 2007, the Johnsons objected to the
proposed final judgment on the grounds that the judgment was
contrary to Alaska law and the plain language of the agreement.
ODonnell responded that the objection was untimely, having been
due within ten days of the entry of judgment in accordance with
Alaska Rules of Civil Procedure 59(f) and 58.1(c)(3). In October
2007 the court determined that it had erred in signing the
previous final judgment because of the omission of costs and fees
and because the base figure for calculation of attorneys fees
should not have included the satisfaction of the subrogated
medical payment. The court vacated the judgment, and granted the
Johnsons Motion for Relief of Judgment, calculating the fees,
costs, and interest on the basis of the $16,000 offered to
ODonnell in the original offer for judgment.
ODonnell then moved to join Allstate and State Farm,
claiming that State Farm was obligated to make an appearance in
the case if it was the real party in interest regarding the
medical payment claim, and that Allstate also should be joined,
because Allstates offer to pay State Farm was an essential part
of the judgment. ODonnell claimed these joinders were necessary
to protect ODonnell against later claims for reimbursement from
State Farm from the judgment paid to her and to ensure
enforcement of all of the terms of the Johnsons offer of judgment
to ODonnell. The Johnsons opposed the motion on the ground that
the State Farm claim was never an element of ODonnells damages in
her suit against the Johnsons under this courts rule in Ruggles
v. Grow1 that a subrogated claim belongs to the insurer, who
cannot be required to assert its claim as part of its insureds
claim against the tortfeasor. Further, the Johnsons argued that
ODonnell was aware at the time the agreement was signed that
Allstate was not a party to the agreement. The court denied the
motion to join the insurance companies and entered final judgment
in November 2007.
Several additional post-judgment motions were then
litigated. These motions primarily concerned ODonnells attorneys
refusal to accept payment from Allstate of the judgment
calculated in October and refusal to sign a satisfaction of
judgment, as well as the Johnsons attempts to obtain the release
from the court registry of funds seized from their personal bank
account by ODonnell after the initial incorrect judgment. For
the first time in late November, ODonnells attorney notified the
Johnsons by letter of his belief that they should pay one-third
of the State Farm medical payment subrogation amount to him,
although the letter also acknowledged that at that time the full
claim had been paid directly to State Farm. At a hearing in
January 2008, ODonnell argued that this courts ruling in Sidney
v. Allstate,2 handed down that month, supported his claim that
Allstate should pay him one-third of the sum it had already paid
to State Farm. The superior court asked for briefing on that
issue.
The Johnsons argued to the superior court that Sidney
affirmed the Ruggles rule. Therefore, Allstate did not owe any
additional money on top of the settlement amounts already paid,
and any claim for attorneys fees from the common fund should have
been made against ODonnells insurer under the common fund
doctrine. ODonnell replied that the money in the registry should
simply be released to her. This money was the Johnsons personal
money seized immediately after the initial judgment of $38,241 in
August 2007, which the Johnsons had been attempting to have
released from the court registry since November 2007. ODonnell
also quoted the Johnsons counsels statement at the January
hearing that, assuming common fund moneys were owed, Allstate
would be liable for them rather than the Johnsons.
The superior court issued a final order on these issues
in February 2008. The court did not require the signing of a
satisfaction of judgment, but ruled for the Johnsons on all other
issues, ordering that (1) the Johnsons personal funds be
released to them, (2) ODonnell accept the check from Allstate
representing the corrected judgment amount determined in November
2007, (3) ODonnell was not entitled to attorneys fees on the
State Farm medical payments claim, and (4) if the Alaska Supreme
Court reverses this Court on the medical lien attorneys fees
issue, then the amount owed to any Plaintiff . . . shall be paid
by Allstate and not Iris Johnson or John Johnson.
ODonnell appeals, raising three issues: First, she
argues that the final judgment should have included the State
Farm lien amount, either because the offer should have been
interpreted to include that amount or because otherwise she would
have been unable to enforce Allstates promise to satisfy the
State Farm lien. Second, she claims that the common fund
doctrine mandates payment of attorneys fees on the State Farm
lien. Finally, she argues that post-judgment interest should
have been awarded until the date that she accepted payment
regardless of any fault on her part in the delay in accepting
payment.
III. STANDARD OF REVIEW
I. Because interpreting the offer of judgment involves contract
interpretation, we independently review whether the final
judgment should have included the subrogated medical payment
amount and whether Allstate or the Johnsons should have been
required to pay any additional fees to ODonnell.3 The correct
interpretation of our precedents also calls for independent
review,4 as does determining the proper period of time for a post-
judgment interest calculation.5
IV. DISCUSSION
A. It Was Not Error To Exclude the Subrogation Claim from the
Calculation of Final Judgment.
A. Under Ruggles v. Grow,6 an insurer may explicitly
direct its insured not to pursue its medical subrogation claim as
part of the insureds lawsuit against the tortfeasor.7 Once the
insurer has done so, the subrogated claim cannot be part of the
insureds claim.8 State Farm cited Ruggles in a letter to
ODonnells counsel early in the litigation process and directed
him not to expend litigation efforts to recoup State Farms claim.
State Farm then presented its claim directly to Allstate and
requested that Allstate communicate directly with State Farm.
The offer of judgment stated that Allstate would satisfy the
medical subrogation lien directly with State Farm and explicitly
did not include that amount in the judgment that the offer stated
it would allow to be entered against the Johnsons.
ODonnell presents two lines of argument for concluding
that the judge erred in excluding the lien amount from the
judgment. The first is that the offer was ambiguous and that her
interpretation was more reasonable than the Johnsons
interpretation; that is, that the Johnsons and the court
misinterpreted the offer. The second is that the promise to
satisfy the lien might not be enforceable because it was between
non-parties to the suit. Neither argument succeeds.
1. The offer of judgment was not ambiguous.
ODonnell asserts that the judgment did not match the
terms of the Rule 68 offer of judgment and that she did not get
the benefit of her bargain. Although the offer explicitly stated
she would receive judgment in the amount of $16,000, she suggests
there was room to disregard that unambiguous language and award
judgment for $16,000 plus the medical lien amount. This appears
to be because she assumed that the agreement referred to the fact
that Allstate would satisfy the lien to State Farm only because
she bargained for it. Therefore she also assumed that the offer
represented a common fund. We have applied the common fund
doctrine in situations in which an injured partys insurer
benefits from her recovery of a settlement fund from which her
insurer satisfies its medical lien subrogation.9 ODonnell
appears to argue that the language of this agreement should have
been interpreted to give rise to such rights.
But here such an interpretation was unreasonable in
light of Alaska law, which allows an insurer, by explicit
direction, to prevent its insured from pursuing the insurers
subrogation claim. It was not possible under Alaska law for
ODonnell to regain the right to collect money on behalf of State
Farm after State Farm told her not to do so in clear and emphatic
terms.10 Further, the offer of judgment could not reasonably be
interpreted to mean that the Johnsons agreed to have judgment in
the amount of the lien entered against them, or that they would
pay any part of the subrogated medical payment claim to ODonnell.
The first sentence of the offer explicitly states that it will
allow judgment to be entered against Johnson for $16,000 plus
costs and attorneys fees. The second sentence provides that
Allstate, [i]n addition, will satisfy State Farms subrogation
amount directly to State Farm.
Further, since the common fund doctrine, where it
applies, applies to benefitted insurers,11 it would not have been
a reasonable interpretation of the offer that it had any effect
on whether ODonnell would be entitled to collect attorneys fees
from Allstate or the Johnsons beyond what was stated explicitly
in the offer. The offer of judgment is unambiguous with respect
to the obligations the Johnsons agreed to undertake, and
ODonnells interpretation is unreasonable.
2. No enforceability problems existed such that joinder of the
insurance companies was required.
1. ODonnell further argues that unless the trial court joined
State Farm and Allstate as parties, or made payment of the
subrogation lien part of the judgment against the Johnsons,
Allstates promise to pay the lien would be unenforeable. She
further argues that since the trial court denied her motions to
join the insurance companies,12 the only way to enforce her
bargain with the Johnsons was to include the lien payment in the
judgment. But she had no obligation to enforce the agreement as
to Allstates payment to State Farm: State Farm had already
notified her that it would be pursuing the claim on its own
behalf. Further, under our ruling in Rice v. Denley,13 where two
parties explicitly state that their settlement does not include
the injured partys insurers subrogation claim, that insurer
cannot collect its claim from the settlement.14 ODonnell
therefore had no reasonable concern that if Allstate did not
satisfy State Farms subrogation claim directly with State Farm,
that State Farm would then return to collect it from ODonnell
instead. The Johnsons statement in the offer that Allstate would
satisfy the medical payment claim directly with State Farm made
it clear that the judgment for ODonnell against the Johnsons did
not include that amount.
Ruggles held that where an insurer acquires a
subrogated interest by payment of its insureds medical expenses,
that subrogated claim belongs to the insurer.15 The plain language
of the agreement and State Farms express direction to its insured
not to pursue its medical lien claim place this situation clearly
under Ruggles. ODonnells claim did not and could not include
State Farms subrogated interest.
B. It Was Not Error To Conclude that the Medical Payment
Subrogation Satisfaction Was Not Common Fund Money for Which
ODonnells Attorney Is Owed Fees.
ODonnell argues that we should apply the common fund
doctrine to this case without regard to the insurance companys
directions to her not to pursue the case. First, she argues that
under Sidney 16 we have already invoked the common fund doctrine
without regard to insurance company authorization. Second, she
argues that we should overrule Ruggles because of another
equitable doctrine, the made-whole doctrine. We address each
argument in turn.
1. Sidneys holding regarding the requirement of insurer
authorization in the application of the common-fund doctrine does
not apply to this case.
1. Under the common fund doctrine generally, a litigant or
lawyer who recovers a common fund for the benefit of persons
other than himself or his client is entitled to a reasonable
attorneys fee from the fund as a whole.17 In the insurance
context, where an injured plaintiff confers a benefit on his or
her insurer by securing recovery for both, the insurer is liable
for pro rata fees and costs based on what it recovers as a result
of plaintiffs efforts. For example, in Alaska Native Tribal
Health Consortium v. Settlement Funds18 (ANTHC), patients
recovered from third party tortfeasors funds that were ultimately
used to used to satisfy the Consortiums medical liens for
treatment of the patients.19 Under unjust enrichment principles,
we determined that it would be inequitable to allow the
Consortium to retain the benefit of having its lien satisfied and
not pay its share of fees and costs for the recovery. We relied
on this rationale for the common fund doctrine:
In hospital lien cases, the hospitals right
to assert a lien, and its right to recovery
based on that lien, depend by statute on the
obtaining of a judgment or settlement. The
proceeds of that judgment or settlement
operate as a fund, and, without the fund, the
hospital has nothing upon which to assert a
lien . . . .[20]
The common fund doctrine is applied whenever a party
obtains well-defined benefits for other parties.21 In ANTHC,
without the judgment obtained by the patients there would have
been nothing on which to enforce the lien, and the Consortium was
ready and willing to take the benefits of the common fund so
obtained.22 Thus, the elements of a common fund recovery under
Alaska law are (1) the efforts of one party (2) result in the
creation of a fund benefitting a third party (3) who is
benefitted in a clear and well-defined manner, and (4) the third
party is ready and willing to accept the benefits so obtained.
In Sidney, we addressed the issue of an insurers
readiness and willingness to accept the benefits of its insureds
efforts where it accepted those benefits without objection.23 In
that case, Sidney, the insured driver, settled with the driver
who injured her for the limits of the at-fault drivers insurance
policy, exhausting that policy and thereby triggering Sidneys
rights to collect underinsured motorist insurance from her
insurer, Allstate.24 Sidneys settlement with the at-fault
drivers insurance company had designated $25,000 to be paid to
her and $25,000 to be paid to her insurer to satisfy its medical
payment subrogation lien.25 Regarding Sidneys right to have her
insurer pay a pro rata share of the attorneys fees expended to
obtain this settlement, we held that Sidneys pursuit of that
claim conferred a direct benefit on her insurer.26 We reasoned
that since $25,000 of the settlement satisfied Allstates medical
subrogation lien, and Allstate neither expended effort to collect
that $25,000 nor objected to Sidneys efforts to obtain it, but
rather retained the benefit, the equitable rationale of the
common fund doctrine should apply.27 Therefore, in that case, we
ruled that Allstate owed a pro rata share of the attorneys fees
and costs expended in settling with the at-fault drivers
insurance company.28
Contrary to ODonnells assertion, the discussion of
Ruggles in the Sidney opinion confirms the essential holding of
Ruggles.29 We noted in Sidney that Ruggles allowed an insured
injured party to include the subrogated claim in its claim
against the tortfeasor if the insurer does not object.30 This is
consistent with basic unjust enrichment principles, since a party
who passively accepts a benefit can be held responsible for
reimbursing the person who conferred the benefit under those
principles.31
Sidney does not render the insurers authorization
irrelevant, as ODonnell argues. If the insurer actively requests
that the plaintiff not pursue her subrogation claim, there is no
common fund because the insurer will not be collecting the lien
from the plaintiffs recovery fund but will seek its own recovery.
Conversely, the plaintiff may not collect the subrogated amount
or attorneys fees on that amount, whether from her own insurer or
from the defendant. In Sidney, the insurer did not take any
action, but passively accepted the conferred benefit.32 Most
jurisdictions agree that if an insurer chooses not to rely on the
services of plaintiffs counsel and provides notice of this, there
is no benefit conferred and no unjust enrichment, and thus the
common fund rule does not apply.33
2. The made-whole doctrine does not apply to this case.
ODonnell also argues that Sidney implicitly recognized
equitable doctrines such as the made-whole doctrine, or, if it
did not, we should now apply that doctrine to this case and
overrule Ruggles. We disagree that the made-whole doctrine has
any bearing on this case or was at all relevant to Sidney.
The made-whole doctrine recognizes that there may be
situations in which a defendants policy would be exhausted and
the injured party would be left without being fully compensated
for her own loss if her insurer collected the subrogation lien
before she was herself compensated for her separate damages.34
This issue is not before the court now because ODonnell was fully
compensated. The made-whole doctrine was also not an issue in
Sidney because of her under-insured motorist protection.35
3. The promise that Allstate would pay common fund money is
irrelevant.
1. Finally, ODonnell makes the claim that the Johnsons attorney
repeatedly promised the trial court that any common fund monies
owed to Ms. ODonnell would be paid by Allstate, implying that
therefore Allstate has incurred a liability. But Allstates
attorney merely stated that, if any common fund money were owed,
Allstate would pay it rather than the Johnsons. Because we have
held that no common fund money is owed, the promise is
inapplicable.
C. The Superior Court Did Not Err in Ruling that ODonnell
Was Not Entitled to Post-judgment Interest After
November 23, 2007.
Final judgment in this matter was entered on November
11, 2007. Allstate mailed ODonnell a check for the amount of the
judgment, which included post-judgment interest through November
23, 2007. That check was received by ODonnells attorney on
November 20, 2007. ODonnells attorney notified the Johnsons
counsel by letter on November 21, 2007 that he had received the
check but that the Johnsons owed another $296 because the
November 20 check and the Johnsons personal funds seized and held
by the court registry did not cover the one-third of the State
Farm satisfaction to which ODonnell now claimed to be entitled.
On December 14, 2007, ODonnells attorney mailed the check back
to Allstate. The Johnsons prevailed on a motion to compel
ODonnell to accept the check on February 12, 2008.
Under Farnsworth v. Steiner,36 an appellant may be
entitled to post-judgment interest where she was not paid during
the pendency of her appeal regardless of responsibility for that
delay.37 However, payment to ODonnell was not delayed here.
ODonnell had the check in her possession for twenty-five days
and then chose to return it; the Johnsons attorney then had to
expend additional resources to get her to accept it. We held in
Providence Insurance Co. of Alaska v. Firemans Fund Insurance
Cos.38 that the common law definition of when payment is tendered
should guide the determination of when post-judgment interest
accrual is tolled.39 At common law, tender required that the
thing actually be produced and made available for acceptance and
appropriation by the person to whom it is offered.40 Here, the
Johnsons did tender payment to ODonnell on November 20, 2007, and
no post-judgment interest should accrue after that payment.
V. CONCLUSION
Because no common fund money or attorneys fees are owed
ODonnell under the plain language of the offer of judgment or
under Ruggles v. Grow, and because the Johnsons in fact paid
ODonnell before the deadline set in the final judgment and
therefore owed no additional post-judgment interest, we AFFIRM
the decision of the superior court in all respects.
_______________________________
1 984 P.2d 509 (Alaska 1999).
2 187 P.3d 443 (Alaska 2008) (holding that underinsured
motorists carrier was liable for pro rata share of attorneys fees
and costs for insureds efforts to obtain settlement with
liability insurer).
3 See Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 638
(Alaska 2007).
4 Sidney, 187 P.3d at 448.
5 Pagenkopf, 165 P.3d at 644.
6 984 P.2d 509.
7 Id. at 512 (Once [a request not to present insurers
claim] was made [plaintiff] lost the right to present the
claim.).
8 See id.
9 See, e.g., Alaska Native Tribal Health Consortium v.
Settlement Funds Held for or to be Paid on Behalf of E.R. ex rel.
Ridley, 84 P.3d 418, 432 (Alaska 2004) (applying equitable
considerations to health care provider lien recovery and finding
pro rata share of attorneys fees owed because injured partys
litigation benefitted hospital with lien, hospital appreciated
benefit, and it was unjust to allow hospital to benefit without
paying its share of legal fees and costs).
10 See Ruggles, 984 P.2d at 512.
11 Cooper v. Argonaut, 556 P.2d 525, 527 (Alaska 1976)
(interpreting workers compensation statute in light of equitable
principles and holding that in order to insure that the employers
compensation carrier is not unjustly enriched at the expense of
the employee, we read AS 23.30.015(g) to require the proration
between the carrier and the employee of litigation costs and
attorneys fees incurred by the employee in recovering from a
third-party tort-feasor.).
12 Although she listed the denial of her motion to join
the insurance companies in her statement of points on appeal,
ODonnell does not present any arguments on this point in her
briefs. We therefore consider this issue abandoned. See Kodiak
Elec. Assn, Inc. v. DeLaval Turbine, Inc., 694 P.2d 150, 153 n.4
(Alaska 1984) (holding that issues raised in points on appeal,
but not adequately briefed, are deemed abandoned). However, the
refusal to join the insurance companies would likely not be
erroneous under the same reasoning used in this section.
13 944 P.2d 497 (Alaska 1997).
14 Id. at 500 (holding that meeting of minds was required
as to whether settled claim included victims insurers subrogated
claim and noting that if it was clear that both parties intended
that the settlement agreement was only for the nonassigned
portion of Denleys claim there would be no basis for Colonial to
assert lien rights against the settlement proceeds.).
15 984 P.2d 509, 512 (Alaska 1999).
16 187 P.3d 443 (Alaska 2008).
17 Edwards v. Alaska Pulp Corp., 920 P. 2d 751, 754
(Alaska 1996) (quoting Boeing v. Van Gemert, 444 U.S. 472, 478
(1980)).
18 84 P.3d 418 (Alaska 2004).
19 Id. at 420-22.
20 Id. at 433 (quoting Martinez v. St. Joseph Healthcare
Sys., 871 P.2d 1363, 1365 (N.M. 1994)).
21 Id.
22 Id.
23 187 P.3d 443, 453-54 (Alaska 2008).
24 Id. at 446.
25 Id.
26 Id. at 454.
27 Id.
28 Id.
29 Id.
30 Id. (quoting Ruggles v. Grow, 984 P.2d 509, 512 (Alaska
1999) (emphasis added)).
31 See, e.g., Alaska Native Tribal Health Consortium v.
Settlement Funds Held for or to be Paid on Behalf of E.R. ex rel.
Ridley, 84 P. 3d 418, 432 (Alaska 2004) (holding that passive
beneficiaries required to bear fair share of costs). Appellees
complain that the court in Sidney appears to have assumed that
Sidney had authority to collect but that seems to miss one of the
main points of the common fund doctrine, which is that express
authorization is not required if the party charged with sharing
the fees passively accepted a benefit.
32 187 P.3d at 453-54.
33 See, e.g., Richter, Wembley & Erickson, P.S. v. Honore,
628 P.2d 1311, 1313-14 (Wash. App. 1980); Travelers Ins.Co. v.
Williams, 541 S.W.2d 587, 590 (Tenn. 1976).
34 Lee R. Russ, 16 Couch on Insurance 223:134 (2008).
35 See 187 P.3d 443, 445-46 (Alaska 2008).
36 638 P.2d 181 (Alaska 1981).
37 Id. at 185.
38 778 P.2d 200 (Alaska 1989).
39 Id.
40 Id. at 204.
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