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BATES v. BANKERS LIFE AND CASUALTY COMPANY CNO INC – Medical Newspaper

Supreme Court of Oregon.

Lorraine BATES, Charles Ehrman Bates, Eileen Burke, Jaci Evans, as Successor Personal Representative for the Estate of Thomas Marier, and Dalla Francis, as Personal Representative for the Estate of George Alexander, Plaintiffs, v. BANKERS LIFE AND CASUALTY COMPANY, an Illinois insurance coverage firm and CNO Financial Group, INC., a Delaware company, Defendants.

SC S064742

    Decided: January 19, 2018


Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn, and Duncan, Justices.*Rachele R. Selvig, Cauble Cauble & Selvig, LLP, Grants Pass, argued the trigger and filed the briefs for the plaintiffs. Adam J. Kaiser, Alston & Bird LLP, New York, New York, argued the trigger and filed the transient for the defendants. Also on the transient have been John M. Aerni, New York, New York, and Vicki L. Smith, Lane Powell PC, Portland. Erin Okay. Olson, Law Office of Erin Olson, PC, Portland, filed the transient for amicus curiae Oregon Trial Lawyers Association. Also on the transient was Emily Teplin Fox, Portland.

The licensed query is answered.

BALMER, C. J.

This case is earlier than the courtroom on an authorized query from the United States Court of Appeals for the Ninth Circuit below ORS 28.200 and ORAP 12.20. See usually Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 811 P2d 627 (1991) (discussing components courtroom consid-ers in exercising discretion to simply accept licensed questions). The licensed query pertains to claims below ORS 124.110 for monetary abuse of “vulnerable persons”—right here, aged individuals—who bought lengthy-time period care insurance coverage from defendant Bankers Life & Casualty Co. (Bankers) and sought to obtain insurance coverage advantages below their insurance policies.1 The Ninth Circuit licensed to this courtroom, and we accepted, the next query:

“Does a plaintiff state a claim under Oregon Revised Statutes 124.110(1)(b) for wrongful withholding of money or property where it is alleged that an insurance company has in bad faith delayed the processing of claims and refused to pay benefits owed under an insurance contract?”

Bates v. Bankers Life & Cas. Co., 849 F3d 846, 847 (ninth Cir 2017).

For the explanations that observe, we reply within the neg-ative: Allegations that an insurance coverage firm, in unhealthy religion, delayed the processing of claims and refused to pay advantages owed to susceptible individuals below an insurance coverage contract don’t state a declare below ORS 124.110(1)(b) for wrongful withholding of “money or property.”2

We take the information from the Ninth Circuit’s certification order, supplemented by the federal courtroom pleadings. The certification order states:

“Plaintiffs are aged Oregonians or their successors who bought lengthy-time period healthcare insurance coverage insurance policies bought by [Bankers and its parent company]. These insurance policies are designed to supply well being companies for aged individuals who can now not take care of themselves and are supposed to cowl bills for in-dwelling care suppliers, assisted residing amenities, and nursing houses.

“Plaintiffs allege that Bankers developed onerous procedures to delay and deny insurance coverage claims. Examples of those procedures embody failing to reply telephone calls, shedding paperwork, denying claims with out notifying policyholders, denying claims for causes that didn’t comport with Oregon legislation, and paying policyholders lower than what they have been owed below their insurance policies. Bankers allegedly col-lected premium funds and, with out good trigger, delayed and denied insurance coverage advantages to which Plaintiffs have been entitled below their insurance policies.”

Bates, 849 F3d at 847.

The federal district courtroom dismissed plaintiffs’ elder monetary abuse declare for failure to state a declare, concluding that Oregon’s elder monetary abuse statute applies solely within the “bailment or trust scenarios expressly referenced in the statutory language.” Bates v. Bankers Life and Cas. Co., 993 F Supp 2nd 1318, 1345 (D Or 2014)). Plaintiffs appealed the judgment dismissing the elder monetary abuse declare, and the Ninth Circuit, after briefing and argument, licensed the query set out above.

Because the licensed query asks us to contemplate whether or not plaintiffs have said a declare below ORS 124.110 (1)(b), we settle for as true the effectively-pleaded factual allegations within the grievance and construe them within the gentle most favor-capable of plaintiffs. Philibert v. Kluser, 360 Or 698, 700, 385 P3d 1038 (2016). Under that customary, we settle for the factual assertions within the grievance, together with plaintiffs’ allegations that Bankers didn’t act in good religion and deliberately adopted practices that may hinder policyholders in get hold of-ing advantages to which they have been contractually entitled. The challenge earlier than us, then, is the authorized query whether or not Bankers’ alleged conduct constitutes elder monetary abuse below ORS 124.110(1)(b).

ORS 124.110 supplies, partly:

“(1) An motion could also be introduced below ORS 124.100 for monetary abuse within the following circumstances:

“* * * * *

“(b) When a susceptible particular person requests that one other particular person switch to the susceptible particular person any cash or property that the opposite particular person holds or controls and that belongs to or is held in categorical belief, constructive belief or ensuing belief for the susceptible particular person, and the opposite particular person, with out good trigger, both continues to carry the cash or property or fails to take cheap steps to make the cash or property available to the susceptible particular person when:

“(A) The possession or management of the cash or property was acquired in entire or partly by the opposite particular person or somebody performing in live performance with the opposite particular person from the susceptible particular person; and

“(B) The different particular person acts in unhealthy religion, or knew or ought to have recognized of the precise of the susceptible particular person to have the cash or property transferred as requested or in any other case made obtainable to the susceptible particular person.”

(Emphasis added.) The profitable plaintiff in an elder monetary abuse motion can get well 3 times the plaintiff’s eco-nomic and noneconomic damages, in addition to legal professional charges. ORS 124.100(2)(a) – (c).

Plaintiffs qualify as susceptible individuals below the statute. See ORS 124.100(1)(e) (“vulnerable person” contains an “elderly person”); ORS 124.100(1)(a) (“elderly person” means an individual 65 years of age or older). They declare that in imposing numerous impediments to their efforts to gather insurance coverage advantages on account of them Bankers retained “money or property” that belonged to plaintiffs. Although plaintiffs articulate their declare in a number of barely alternative ways, they primarily search to carry themselves throughout the phrases of the elder monetary abuse statute by arguing that the insurance coverage advantages that Bankers was contractually obligated to pay them constituted “money or property” that “belong[ed] to” them. ORS 124.110(1)(b). As they assert, “[P]laintiffs are contractually entitled to the benefits under the long-term care policies; hence, that money belongs to them.” When Bankers didn’t pay these advantages in a well timed method, they contend, Bankers (within the phrases of the statute) “without good cause, either continue[d] to hold the money or property or fail[ed] to take reasonable steps to make the money or property readily available” to them. Id. Because Bankers “act[ed] in bad faith, or knew or should have known of the right of [plaintiffs] to have the money or property transferred as requested or otherwise made available to [plaintiffs],” ORS 124.110(1)(b)(B), plaintiffs conclude, Bankers engaged in elder monetary abuse.three

Plaintiffs are easy in asserting that ORS 124.110(1)(b) supplies a explanation for motion “against insurance companies that wrongfully retain benefits that belong to vulnerable shareholders.” They argue that the federal district courtroom erred in holding that claims below subsection (1)(b) require susceptible particular person allege that the opposite individuals have “acquired” the cash or property “from the vulnerable person” after which refused to return it, thus limiting such claims to belief and bailment relationships. They level out that the statute isn’t expressly restricted to these sorts of relationships, but in addition covers cash or property that “belongs to” the susceptible particular person. Responding to Bankers’ declare that plaintiffs’ interpretation would enable an elder monetary abuse motion every time an insurance coverage firm incorrectly denies an insurance coverage declare, plaintiffs emphasize that unhealthy religion is a important aspect of a monetary abuse motion. This case, they state, isn’t about mere denials of insurance coverage advantages, “but about a systemic bad faith scheme.”

Bankers responds that ORS 124.110(1)(b) merely doesn’t apply to its insurer-insured relationship with plaintiffs. Bankers asserts that it doesn’t “hold” or “control” any “money or property” owned by plaintiffs; somewhat, plaintiffs bought insurance coverage from Bankers in change for the fee of premiums. Those funds grew to become Bankers’ cash, and, in return, plaintiffs acquired insurance coverage insurance policies. Bankers’ obligation, it asserts, is to pay the advantages to which plaintiffs are entitled below the coverage phrases, however that doesn’t make the quantities that Bankers is contractually obligated to pay “the money or property” of plaintiffs.

Bankers additionally factors out that the statute particularly refers to circumstances during which an individual holds a susceptible particular person’s cash or property “in express trust, constructive trust or resulting trust,” and argues that these examples point out that the intent of ORS 124.110(1)(b) is to not autho-rize an elder monetary abuse declare in reference to an unusual arms-size client transaction, akin to the acquisition of insurance coverage, however solely when an individual is holding cash that it has “acquired” from and that “belongs to” the susceptible particular person or is being held by the opposite particular person as a trustee or bailee on behalf of the susceptible particular person.

Finally, Bankers argues that the usage of the article “the” within the phrase “the money or property,” which seems a number of instances within the statute, makes clear that “the money or property” that the opposite particular person “continue[s] to hold” regardless of the request for its return by the susceptible particular person (paragraph (1)(b); subparagraph (1)(b)(B)), is “the money or property” that the opposite particular person beforehand had acquired from the susceptible particular person (subparagraph (1)(b)(A)). In different phrases, Bankers contends, the statute applies solely when a susceptible particular person seeks the return of the identical cash or property that she or he transferred to a different particular person, which isn’t the circumstance on this case.

To resolve this interpretive dispute, we start with the textual content of the statute. A cautious studying of the monetary abuse statute helps the interpretation urged by Bankers.

ORS 124.110(1) supplies that an motion could also be introduced for “financial abuse” in three completely different circumstances, solely two of which have any relevance to the interpretive train right here.four ORS 124.110(1)(a)—which isn’t the idea for plaintiffs’ declare—permits a monetary abuse motion “[w]hen a person wrongfully takes or appropriates money or property of a vulnerable person.” (Emphasis added.) That provision’s use of the emphasised phrases signifies that it refers back to the improper acquisition by one other particular person of the susceptible particular person’s cash or property—akin to by fraud, conversion, or theft. See Hoffart v. Wiggins, 226 Or App 545, 548-49, 204 P3d 173 (2009) (noting that motion below subsection (1)(a) requires that any taking have to be “wrongful” and distinguishing motion below subsection (1)(b), which doesn’t require preliminary wrongful taking, however does require unhealthy religion refusal to return cash acquired from susceptible particular person when requested).

Paragraph (1)(b), in distinction, applies to circumstances the place the susceptible particular person entrusts his or her cash or property to the opposite particular person and later requests its return, however the different particular person in unhealthy religion refuses to return it. Under that provision, an motion for monetary abuse requires proof of a number of components. The first aspect in time (though it seems in the midst of the availability) is that “[t]he ownership or control of the money or property was acquired in whole or in part by the other person *** from the vulnerable person.” ORS 124.110(1)(b)(A). That aspect doesn’t require that there be wrongful conduct within the acquisition of the cash or property, nevertheless it does require that the cash or property at challenge be acquired in entire or partly by the particular person from the susceptible particular person. The second aspect is the susceptible particular person’s request to the opposite person who the opposite particular person “transfer” to the susceptible particular person any cash or property that “belongs to” the susceptible particular person, and the third aspect is that the opposite particular person “without good cause” proceed to carry the cash or property that “belongs to” the susceptible particular person. ORS 124.110(1)(b). The fourth aspect is that the opposite particular person have acted “in bad faith, or knew or should have known of the right of the vulnerable person to have the money or property transferred as requested.” ORS 124.110(1)(b)(B).

Plaintiffs’ argument that Bankers’ failure to pay insurance coverage advantages to them constitutes elder monetary abuse runs into an preliminary, and deadly, textual barrier. Plaintiffs’ place primarily reads out of the statute the primary aspect of the declare—that Bankers have acquired “ownership or control of the money or property from [plaintiffs].” If, as plaintiffs assert, “the money or property” is their contractual proper to obtain insurance coverage advantages below the insurance policies, Bankers didn’t “acquire[ ]” that contractual proper “from” plaintiffs. Rather, plaintiffs paid insurance coverage premiums to Bankers in change for insurance coverage insurance policies. Plaintiffs usually are not looking for the return of the cash they transferred to Bankers within the type of premium funds, however as a substitute the contractual advantages they’re entitled to below Bankers’ insurance coverage insurance policies, which aren’t the identical factor. A “premium” is “[t]he amount paid at designated intervals for insurance; esp., the periodic payment required to keep an insurance policy in effect.” Blacks’s Law Dictionary 1371 (10th ed 2009). “Insurance” is “a contract whereby one undertakes to indemnify another or pay or allow a specified or ascertainable amount of benefit upon determinable risk contingencies.” ORS 731.102(1). Because “the money or property” that plaintiffs transferred to Bankers—premiums—is factually and legally completely different from the insurance coverage coverage advantages they now declare Bankers is withholding from them, plaintiffs are unable to ascertain the primary aspect of their elder monetary abuse declare, and that declare fails on the threshold. That, after all, was the idea for the federal district courtroom’s dismissal of plaintiffs’ elder monetary abuse declare. Bates, 993 F Supp 2nd at 1344-45.

Before this courtroom, plaintiffs elaborate on a number of arguments in assist of their proposed interpretation of the elder monetary abuse statute that the federal district addressed solely summarily or in no way. We flip briefly to these contentions. Plaintiffs argue that Bankers “acquired” the cash or property that “belong[ed] to” plaintiffs on the time that Bankers didn’t pay (and thus “continue[d] to hold”) the insurance coverage advantages that have been on account of plaintiffs. But the statutory phrase “acquired *** from the vulnerable person” suggests a change in possession that’s miss-ing from plaintiffs’ studying. Plaintiffs’ interpretation would require “acquired” to imply one thing nearer to “retained,” a that means that doesn’t make sense within the context of a statute addressing intentional transfers of cash or property akin to trusts. Moreover, the statutory wording “continues to hold” confirms that the statute is targeted on the wrongful retention of cash or property already owned by the susceptible particular person, somewhat than the failure to pay an obligation owed to the susceptible particular person, which is the gravamen of plaintiffs’ allegations right here.

Plaintiffs additionally argue that the federal district courtroom incorrectly interpreted the elder monetary abuse statute as making use of solely to cash transferred by a susceptible particular person to a different particular person in “bailment or trust scenarios.” Bates, 993 F Supp 2nd at 1345. In doing so, they search to broaden the that means of the phrases “money or property” that “belongs to” them (and that Bankers wrongfully didn’t switch to them) to incorporate the insurance coverage advantages to which they’re contractually entitled.

Plaintiffs are right that the phrases “money or property *** that belongs to *** the vulnerable person” point out that ORS 124.110(1)(b) might apply outdoors the strict “trust” confines particularly recognized within the statute and talked about by the district courtroom, however that doesn’t imply that the statute applies right here. We typically apply the interpretive rule noscitur a sociis (“it is known by its associates”), see Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012), to assist us decide the that means of a phrase or phrase by contemplating different phrases in the identical sentence or provision. Goodwin v. Kingsmen Plastering, Inc., 359 Or 694, 702, 375 P3d 463 (2016). The phrases “belongs to” are instantly adopted within the statute by a extra particular description of circumstances during which the subsection applies: “or is held in express trust, constructive trust or resulting trust for the vulnerable person.” That context means that by together with the phrases “belongs to” the legislature supposed the statute to cowl circumstances—along with an categorical, constructive, or ensuing belief—the place one particular person refuses pay cash to a susceptible particular person. But, opposite to plaintiffs’ obvious view that the statute covers any wrongful failure to pay cash owed to a susceptible particular person, the statute solely applies to cash or property “that the other person holds or controls and that belongs to” the susceptible particular person, and the belief examples assist us below-stand that “belongs to” a minimum of have to be learn to use in belief-like conditions—and never merely to any failure to pay a contractual or different debt owed to a susceptible particular person because of an arms-size client transaction.

That conclusion is strengthened by the statute’s use of the article “the” in all however one of many references to “money or property.” That utilization signifies that the cash or property at challenge have to be the cash or property of the susceptible person who the opposite particular person acquired as the primary aspect of an elder monetary abuse declare, described above—not cash or property of the opposite particular person (right here, Bankers) which that particular person could also be obligated by contract to pay to the susceptible particular person. Given the textual content and context, it’s tough to flee the conclusion that the legislature supposed ORS 124.110 (1)(b) to use solely the place the opposite particular person holds the identical cash or property that the opposite particular person acquired from the susceptible particular person and that also “belongs to” the susceptible particular person. As famous, the insurance coverage advantages plainly usually are not the identical “money or property” that Bankers acquired from plaintiffs. Depending on the coverage phrases and the person circumstances of plaintiffs, they could have paid insurance coverage premiums and but be contractually entitled to no advantages in any respect—for instance, in the event that they by no means wanted lengthy-time period care—or they could be entitled to advantages far in extra of the premiums they paid. That is the character of insurance coverage. Plaintiffs make no coherent authorized argument that the legislature supposed that the inchoate proper to obtain contractual advantages in sure circumstances—right here, advantages below an insurance coverage coverage—is to be equated with “money” for functions of ORS 124.110(1)(b). And whereas such a contract proper may be con-sidered “property” within the broadest sense of the phrase, what plaintiffs acquired in change for these premiums have been insurance coverage insurance policies. Neither these insurance policies, nor plaintiffs’ contractual proper to advantages below these insurance policies, constituted “the money or property” that Bankers “acquired” from plaintiffs, and Bankers’ failure to pay these advantages below the contract phrases, even when wrongful, due to this fact was a not a violation of the elder monetary abuse statute.5

Plaintiffs additionally assert that their grievance states a declare below the elder monetary abuse statute for a similar causes because the plaintiffs’ declare in Hoffart. The Court of Appeals’ evaluation of the statute in that case is fully according to our evaluation right here, however the information in Hoffart distinction with these right here and display why Hoffart doesn’t assist plaintiffs’ declare.

In Hoffart, the Court of Appeals held that the plaintiffs had made out an elder monetary abuse declare below ORS 124.110(1)(b) by alleging that they’d entrusted cash to defendants to take a position on their behalf, that the defendants had agreed to return “the entire sum of money *** to plaintiffs upon their request,” and that the defendants in unhealthy religion had refused to return the principal quantity of the plaintiffs’ funding. 226 Or App at 547-48.6 Hoffart illustrates a state of affairs the place the defendants held and invested cash that “belonged to” plaintiffs and had agreed to return that cash on request. Here, nevertheless, plaintiffs paid insurance coverage premiums to Bankers in change for insurance coverage insurance policies, which, as famous, are contracts to pay sure quantities of advantages “upon determinable risk contingencies.” ORS 731.102(1). The cash plaintiffs paid to Bankers as premiums grew to become Bankers’ cash; it now not “belonged to” plaintiffs. Bankers comingled that cash with premiums paid by different insurance coverage purchasers, spent some on opera-tional bills, and invested the remainder; it continued to carry the rest of the cash, both as funding property or in reserve funds to pay future claims. In return, plaintiffs acquired insurance coverage insurance policies that gave them contractual rights to insurance coverage advantages.

In sum, plaintiffs’ central argument seems to activate their view that when their circumstances met the coverage standards and so they grew to become contractually entitled to insurance coverage advantages below the insurance policies that they’d bought from Bankers, that contractual proper was “money or property” that belonged to them, and Bankers’ failure, in unhealthy religion, to switch that cash or property to them on request constituted elder monetary abuse. Even if we have been to simply accept that premise, plaintiffs can not present that that very same cash or property had been “acquired” by Bankers from them, as plainly required by ORS 124.110(1)(b)(A).

Finally, we briefly tackle competing arguments raised by plaintiffs and Bankers primarily based on different facets of the monetary abuse statute. Plaintiffs notice that numerous classes of individuals—akin to monetary establishments, grownup foster houses, and well being care amenities—have statutory immunity from civil elder monetary abuse claims, and that insurance coverage firms don’t, ORS 124.115, suggesting that, for that cause, we should always discover that their grievance states a declare in opposition to Bankers. Bankers, however, argues at size that the excellent regulation of insurance coverage firms, together with these providing lengthy-time period care insurance policies, demonstrates that the legislature didn’t intend disputes about advantages below lengthy-time period care insurance coverage insurance policies to be actionable below the elder monetary abuse statute. Neither plaintiffs nor Bankers, nevertheless, establish any particular provision of the elder monetary abuse statute or the insurance coverage code that may have an effect on the appliance of the statute to the allegations right here or in any other case trigger us to switch the statutory interpretation set out above. Those arguments might have drive in different contexts, however as a result of we conclude that the allegations on this grievance don’t state a declare for reduction below ORS 124.110(1)(b), we’ve no event to contemplate them additional on this opinion.

The licensed query is answered.

FOOTNOTES

1.   For comfort, we consult with plaintiffs’ declare below ORS 124.110 as a declare for “elder financial abuse.”

2.   It ought to go with out saying that we categorical no opinion as to what different claims plaintiffs might or might not have in opposition to Bankers primarily based on the allegations on this case. Plaintiffs asserted different claims within the federal courtroom litigation, however none are earlier than us, and our opinion is proscribed to the difficulty of whether or not plaintiffs have said a declare below ORS 124.110(1)(b).

three.   In addition to alleging failure to pay advantages, plaintiffs’ grievance additionally con-tains allegations that Bankers improperly required coverage holders to proceed paying premiums—with Bankers typically persevering with to obtain automated withdrawals from plaintiffs’ financial institution accounts—although the insurance policies’ “waiver” provision suspended premiums whereas coverage holders or their spouses acquired advantages. The taking and improper withholding of premiums might current a distinct authorized challenge below ORS 124.110(1)(a) or (b)(B) than plaintiffs’ central declare that Bankers violated that statute by failing to pay coverage advantages to which they have been contractually entitled. However, at oral argument, plaintiffs’ counsel said that plaintiffs weren’t making a declare relating to the wrongful retention of premium funds; in any occasion, that challenge isn’t raised by the licensed query, which focuses on whether or not Bankers “delayed the processing of claims and refused to pay benefits owed under [the] insurance contract[s].” Accordingly, we don’t tackle these allegations.

four.   The third circumstance, set out in ORS 124.110(1)(c), is when an individual vio-lates a restraining order issued below ORS 124.zero20 relating to sweepstakes.

5.   In a distinct federal district courtroom choice involving Oregon’s elder monetary abuse statute, the courtroom rejected a declare involving an insurance coverage coverage on related grounds:“Plaintiff’s claim is based on her payment of insurance premiums to State Farm and State Farm’s alleged refusal to provide sufficient insurance coverage. These allegations do not assert a claim for wrongfully taken or appropriated property, as plaintiff paid those premiums in exchange for coverage under an insurance policy. Whether State Farm breached the terms of that policy is properly brought as a breach of contract rather an elder abuse claim.”Yoakam v. State Farm Fire and Casualty Co., No 6:15-cv-00478-AA, 2017 WL 132845, at *2 (D Or Jan 11, 2017) (citations omitted). Yoakam apparently concerned a declare below ORS 124.110(1)(a), somewhat than ORS 124.110(1)(b), see dialogue above, 362 Or at ___, and thus isn’t instantly related right here, however its distinction between premiums paid for insurance coverage and insurance coverage coverage advantages is according to the dialogue within the textual content.

6.   As Hoffart implies, the opposite particular person’s obligation to return the “money” that she or he acquired from the susceptible particular person doesn’t imply that the exact same precise foreign money or different authorized tender have to be returned. Because cash is fungi-ble, the duty may be met by returning the amount of cash that the opposite particular person “holds or controls and that belongs to” the susceptible particular person. Relatedly, Hoffart didn’t tackle, and we’d like not determine right here, whether or not curiosity that will have accrued on cash held on behalf of the susceptible particular person additionally have to be returned on request, together with the principal, although the curiosity was not itself “acquired” by the opposite particular person from the susceptible particular person below ORS 124.110(1)(b)(A). We notice, nevertheless, that paragraph (1)(b) refers back to the switch, on request, to the susceptible particular person of “any money or property the other person holds or controls” on behalf of the susceptible particular person, and subparagraph (1)(b)(A) describes the cash at challenge as “the money or property [that] was acquired in whole or in part by the other person” from the susceptible particular person, suggesting that the duty to return cash to the susceptible particular person might embody curiosity that accrued on the acquired cash whereas it was held or managed by the opposite particular person.

BALMER, C. J.

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