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Zabilowicz v. Kelsey

SUPREME COURT OF NEW JERSEY


December 17, 2009

EDWARD ZABILOWICZ, PLAINTIFF-APPELLANT,
v.
ROSLYNE KELSEY, DEFENDANT-RESPONDENT.

On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers whether plaintiff Edward Zabilowicz, a Pennsylvania resident whose automobile insurance carrier was authorized to do business in New Jersey, is bound by the limitation-on-lawsuit threshold and barred from suing for non-economic injuries caused by another Pennsylvania resident, defendant Roslyne Kelsey, who was not insured by a carrier doing business in New Jersey and therefore was not entitled to New Jersey PIP benefits.

Zabilowicz filed a lawsuit in Atlantic County alleging that on October 18, 2005, Kelsey's automobile struck his Chevy truck from behind while he was stopped in traffic at an intersection in Pleasantville, New Jersey. Zabilowicz alleged that he suffered severe, permanent, and painful bodily injuries. Both Zabilowicz and Kelsey are residents of Pennsylvania and are covered by automobile insurance policies written in that state. Plaintiff is insured by State Farm Mutual Automobile Insurance Company, which is authorized to do business in New Jersey. Kelsey's insurance carrier, Infinity, is not authorized to do business in New Jersey.

Kelsey moved for summary judgment, asserting that Zabilowicz's injuries did not satisfy the limitation-on-lawsuit threshold and therefore he could not collect damages for pain and suffering. Zabilowicz conceded that his injuries would not permit him to sue for non-economic damages if the threshold applied. However, he argued that the threshold can only be invoked by defendants who have been issued insurance policies by companies doing business in New Jersey and are thus entitled to receive PIP benefits. The trial court determined that the limitation-on-lawsuit threshold applied to Zabilowicz by reason of the Deemer Statute, N.J.S.A. 17:28-1.4. Because he did not have a qualifying injury under N.J.S.A. 39:6A-8(a)(identifying six categories of injuries that vault the threshold), the court granted the motion for summary judgment and dismissed Zabilowicz's personal injury action.

The Appellate Division affirmed in an unpublished decision. The Supreme Court granted Zabilowicz's petition for certification. 198 N.J. 474 (2009).

HELD: In this automobile insurance case, under the plain language of N.J.S.A. 39:6A-8(a), the limitation-on-lawsuit threshold can be invoked only by a defendant who is eligible to receive New Jersey PIP benefits. Because the defendant's out-of-state insurance policy does not provide her with this State's PIP benefits, she is subject to suit for non-economic damages without restriction under that statute.

1. Under New Jersey's no-fault insurance system, owners of motor vehicles registered or principally garaged in New Jersey have certain legal obligations. First, they must purchase standard, basic or special insurance coverage for their automobile. Second, every policy must provide personal injury protection (PIP) benefits-the payment of medical expenses to the insured and family household members who suffer bodily injury in an automobile accident. Those medical benefits are paid without regard to who caused the accident ("no-fault insurance"). Third, New Jersey policyholders, in exchange for lower premium payments, have the option of selecting the limitation-on-lawsuit threshold, which restricts their right to sue for "non-economic loss" if they are injured in an accident. Those covered by the threshold may not sue a tortfeasor for non-economic damages unless they suffer a serious or permanent bodily injury, as defined in N.J.S.A. 39:6A-8(a). Under the same provision, a New Jersey policyholder who chooses the threshold may sue for non-economic damages if the tortfeasor is not a participant in this State's no-fault system and therefore is not insured for PIP benefits. (Pp. 1-3)

2. N.J.S.A. 17:28-1.4, the Deemer Statute, and N.J.S.A. 39:6A-8(a) define when the limitation-on-lawsuit threshold shall apply to an out-of-state plaintiff bringing a personal injury action arising from an automobile accident. To interpret these enactments, the Court reads them in context with each other and with the overall legislative scheme governing automobile insurance. The Court presumes that the Legislature intended the outcome dictated by the statutes' clear language. (Pp. 6-8)

3. The Deemer Statute requires that insurers authorized to transact automobile insurance business in New Jersey provide coverage to out-of-state residents consistent with New Jersey law whenever the automobile insured under the policy is used or operated in this State. The required coverage includes liability insurance, uninsured motorist insurance, and personal injury protection benefits. In addition, the Deemer Statute provides that the named insured and the immediate family members "shall be subject to the tort option specified in subsection a. of [N.J.S.A. 39:6A-8]." In short, the Deemer Statute furnishes the covered out-of-state driver with New Jersey's statutory no-fault PIP and other benefits and, in exchange, deems that driver to have selected the limitation-on-lawsuit option of N.J.S.A. 39:6A-8(a). Here, Zabilowicz is insured by a carrier transacting automobile insurance in New Jersey and therefore is bound by the Deemer Statute. Because Kelsey is not insured by a carrier doing business in this State, she does not fall within the sweep of the Deemer Statute and is not covered by the no-fault PIP provisions. The question before the Court in this case is whether an out-of-state defendant not eligible for New Jersey PIP benefits can invoke the limitation-on-lawsuit threshold against a plaintiff covered by the Deemer Statute. (Pp. 8-11)

4. N.J.S.A. 39:6A-8(a) states that a defendant who wishes to invoke the limitation-on-lawsuit threshold against a plaintiff must demonstrate eligibility for no-fault PIP benefits under N.J.S.A. 39:6A-3.1, -3.3, or -3.4. Unless the defendant meets this burden, the remainder of the statute does not apply, including the requirement that a plaintiff prove that he or she sustained one of the six qualifying injuries. One of the rationales for the limitation-on-lawsuit threshold is to offset the costs to insurers of a system that mandates the prompt payment of medical expenses resulting from automobile accidents. An insurer of a defendant not participating in New Jersey's no-fault system is not subject to the monetary quid pro quo that justifies making the threshold available to a PIP defendant. For that reason, a defendant ineligible for PIP benefits cannot assert the threshold as a defense. (Pp. 11-13)

5. The plain language of the statutes makes clear that an out-of-state defendant who is not eligible to receive New Jersey PIP benefits may be sued for pain and suffering damages without regard to the threshold. If the Legislature, through the Deemer Statute, intended to restrict Zabilowicz's right to sue for pain and suffering caused by the negligence of an out-of-state driver who is not part of New Jersey's PIP system, it could have drafted the statute to achieve that result. Nothing in the legislative history conflicts with this finding. The quid pro quo presented to New Jersey drivers under our no-fault system is no different for out-of-state residents insured by carriers doing business in this State. Under the Deemer Statute, in exchange for prompt payment of medical bills, the out-of-state insured gives up the unlimited right to sue for pain and suffering, provided that the defendant is eligible to receive New Jersey PIP benefits. A defendant-such as the one here-who is not participating in New Jersey's no-fault system does not receive the benefit of invoking the N.J.S.A. 39:6A-8(a) limitation-on-lawsuit as a defense. (Pp. 13-16)

6. A defendant who causes an automobile accident and is not eligible for PIP benefits cannot bind a plaintiff to the limitation-on-lawsuit threshold set forth in N.J.S.A. 39:6A-8(a). Under the Deemer Statute, Zabilowicz could have been subject to the limitation-on-lawsuit threshold because he had no qualifying injury under N.J.S.A. 39:6A-8(a). In this case, however, he is not statutorily barred from recovering pain and suffering damages because Kelsey is ineligible to collect New Jersey PIP benefits. (Pp. 16-17)

The grant of summary judgment in Kelsey's favor is REVERSED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE ALBIN's opinion. JUSTICE LONG did not participate.

The opinion of the court was delivered by: Justice Albin

Argued October 14, 2009

Under New Jersey's system of no-fault automobile insurance, owners of motor vehicles registered or principally garaged in New Jersey have certain legal obligations. First, they must purchase standard, basic, or special insurance coverage for their automobiles. N.J.S.A. 39:6B-1; see also Caviglia v. Royal Tours of Am., 178 N.J. 460, 466 (2004). Second, every automobile insurance policy must provide "personal injury protection [(PIP)] benefits" -- the payment of medical expenses to the insured and his family household members who suffer bodily injury in an automobile accident. See N.J.S.A. 39:6A-4, -3.1(a), -3.3(b)(1); see also Caviglia, supra, 178 N.J. at 466. Those medical benefits are paid without regard to who caused the accident, giving rise to the moniker "no-fault" insurance. Caviglia, supra, 178 N.J. at 466; see also N.J.S.A. 39:6A-4. Third, New Jersey policyholders -- in exchange for lower premium payments -- have the option of selecting the limitation-on-lawsuit threshold, which restricts their right to sue for "non-economic loss" if injured in an accident.*fn1 DiProspero v. Penn, 183 N.J. 477, 480-81 & n.1 (2005); see also N.J.S.A. 39:6A-8(a).

Those covered by the limitation-on-lawsuit threshold may not sue a tortfeasor for non-economic damages unless they suffer a serious or permanent bodily injury, as defined in N.J.S.A. 39:6A-8(a) (identifying six categories of injuries that vault limitation-on-lawsuit threshold). DiProspero, supra, 183 N.J. at 481, 497-98. Significantly, a New Jersey policyholder who chooses the lawsuit threshold may nonetheless sue for non-economic damages if the tortfeasor is not a participant in this State's no-fault system and therefore is not insured for PIP benefits. See N.J.S.A. 39:6A-8(a).

In this case, plaintiff, a Pennsylvania resident, while driving a vehicle in New Jersey, was allegedly rear-ended by a car operated by defendant, also a Pennsylvania resident. Although both had automobile insurance, only plaintiff was insured by a carrier authorized to do business in New Jersey.

N.J.S.A. 17:28-1.4 -- known as the "Deemer Statute" -- provides benefits and burdens to out-of-state drivers insured by companies authorized to do business in New Jersey.*fn2 On the one hand, such out-of-state drivers, like New Jersey policyholders, receive PIP benefits on a no-fault basis under N.J.S.A. 39:6A-4; on the other hand, they are subject to the limitation-on-lawsuit threshold, as defined in N.J.S.A. 39:6A-8(a).

The issue before us is whether, pursuant to N.J.S.A. 17:28-1.4, plaintiff is bound by the limitation-on-lawsuit threshold when an out-of-state tortfeasor, such as defendant, is not insured by a carrier doing business in New Jersey and therefore is not entitled to New Jersey PIP benefits. The trial court dismissed plaintiff's personal injury suit because he could not prove a qualifying injury under N.J.S.A. 39:6A-8(a). The Appellate Division affirmed.

We now reverse. Plaintiff is subject to all of the provisions of N.J.S.A. 39:6A-8(a) pursuant to the Deemer Statute. Under the plain language of N.J.S.A. 39:6A-8(a), the limitation-on-lawsuit threshold can be invoked only by a defendant who is eligible to receive New Jersey PIP benefits. Because defendant's out-of-state insurance policy does not provide her with this State's PIP benefits, she is subject to suit for non-economic damages without restriction under N.J.S.A. 39:6A-8(a).

I.

Plaintiff Edward Zabilowicz filed a lawsuit in the Atlantic County Superior Court, Law Division, alleging that on October 18, 2005, defendant Roslyne Kelsey's automobile struck his Chevy truck from behind while he was stopped in traffic at an intersection in Pleasantville, New Jersey. Plaintiff claims that, as a result of defendant's negligence, he has "suffered severe, permanent and painful bodily injuries."

Both plaintiff and defendant are residents of Pennsylvania and are covered by automobile insurance policies written in that state. Plaintiff is insured by State Farm Mutual Automobile Insurance Company, which is authorized to do business in New Jersey. Defendant's insurance carrier, Infinity, is not authorized to do business in this State.

Defendant moved for summary judgment, asserting that plaintiff's injuries did not satisfy the limitation-on-lawsuit threshold and therefore plaintiff could not collect damages for pain and suffering. Plaintiff responded that under the plain terms of N.J.S.A. 39:6A-8(a), the limitation-on-lawsuit threshold did not apply. He argued that the threshold can only be invoked by defendants who have been issued insurance policies by companies doing business in New Jersey and are thus entitled to receive PIP benefits. Plaintiff conceded that his injuries did not fall into any of the six categories in N.J.S.A. 39:6A-8(a). Accordingly, plaintiff could not sue for non-economic damages if the threshold applied.

For purposes of the summary judgment motion, the parties did not dispute any material facts. On the contested issue of law, the court determined that the limitation-on-lawsuit threshold applied to plaintiff by reason of the Deemer Statute. Because plaintiff did not have a qualifying injury under N.J.S.A. 39:6A-8(a) that allowed him to sue for pain and suffering, the court granted summary judgment in favor of defendant and dismissed plaintiff's personal injury action.*fn3

In an unpublished per curiam opinion, the Appellate Division affirmed the dismissal of the action. The panel also concluded that "an out-of-state plaintiff insured by an insurance company authorized to transact business in New Jersey is subject to the New Jersey verbal threshold limitation under the [D]eemer [S]tatute."*fn4

We granted plaintiff's petition for certification. Zabilowicz v. Kelsey, 198 N.J. 474 (2009).

II.

Plaintiff and defendant contest the interpretation of our laws, not the facts of the case. We review the law de novo and owe no deference to the trial court and Appellate Division if they have wrongly interpreted a statute. M.S. v. Millburn Police Dep't, 197 N.J. 236, 246 n.10 (2008); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

In deciding the issue before us, we must look to the interrelationship between two statutes, N.J.S.A. 17:28-1.4, the Deemer Statute, and N.J.S.A. 39:6A-8(a), which define when the limitation-on-lawsuit threshold shall apply to an out-of-state plaintiff bringing a personal injury action arising from an automobile accident. Both statutes are part of New Jersey's comprehensive scheme of no-fault automobile insurance.

We begin as we must with the plain language of the statutes, mindful that the ordinary meaning and significance given to the words chosen by the Legislature are generally the best indicators of statutory intent. DiProspero, supra, 183 N.J. at 492. We must read the two applicable statutes in context with each other and in context with the overall legislative scheme governing automobile insurance. Ibid. It is our purpose to give life to the statutory language, not to "rewrite a plainly-written enactment of the Legislature." Ibid. (citation omitted). Therefore, we will presume that the Legislature intended the outcome dictated by the clear language of the statute. Ibid. Only if the words of the enactment are shrouded in ambiguity will we turn to other sources in search of legislative intent. Id. at 492-93.

A.

We first look to the specific language of the Deemer Statute. N.J.S.A. 17:28-1.4 requires insurers authorized to transact automobile insurance business in New Jersey to provide coverage to out-of-state residents consistent with New Jersey law "whenever the automobile or motor vehicle insured under the policy is used or operated in this State." Under the Deemer Statute, those insurance companies must provide out-of-state residents with liability insurance pursuant to N.J.S.A. 39:6B-1 or N.J.S.A. 39:6A-3, uninsured motorist insurance pursuant to N.J.S.A. 17:28-1.1, and personal injury protection benefits pursuant to N.J.S.A. 39:6A-4 or N.J.S.A. 17:28-1.3. In addition to that mandated coverage, the Deemer Statute provides that the named insured and his or her immediate family members "shall be subject to the tort option specified in subsection a. of [N.J.S.A. 39:6A-8]."*fn5 N.J.S.A. 17:28-1.4. In short, the Deemer Statute furnishes the covered out-of-state driver with New Jersey's statutory no-fault PIP and other benefits and, in exchange, deems that driver to have selected the limitation-on-lawsuit option of N.J.S.A. 39:6A-8(a).*fn6

In Whitaker v. DeVilla, we upheld the constitutionality of the Deemer Statute, which imposed the limitation-on-lawsuit threshold on an out-of-state plaintiff. 147 N.J. 341, 355-58 (1997). We found that the Legislature, in an effort to contain the rising cost of automobile insurance premiums, made a constitutionally permissible policy determination by imposing the limitation-on-lawsuit threshold on non-residents who are injured in New Jersey and insured by carriers authorized to transact insurance business in this State. Id. at 356-57. We noted that the limitation-on-lawsuit option is deemed to apply even if a plaintiff has selected, and paid for, full tort coverage in his out-of-state insurance policy. Id. at 355-56. In Whitaker, the defendant/tortfeasor presumably was insured for PIP benefits under N.J.S.A. 39:6A-4.

The Pennsylvania plaintiff in this case is insured by a carrier transacting automobile insurance in New Jersey and therefore is bound by the Deemer Statute. Because defendant is not insured by a carrier doing business in this State, she does not fall within the sweep of the Deemer Statute and is not covered by the no-fault PIP provisions of N.J.S.A. 39:6A-4. We must address the issue that was not before the Whitaker Court --whether an out-of-state defendant not eligible for New Jersey PIP benefits can invoke the limitation-on-lawsuit threshold against a plaintiff covered by the Deemer Statute.

We now turn to "the tort option specified in subsection a. of [N.J.S.A. 39:6A-8]" that is applicable to plaintiff under the Deemer Statute.

B.

N.J.S.A. 39:6A-8 reads in relevant part:

a. Limitation on lawsuit option. Every owner, registrant, operator or occupant of an automobile to which [N.J.S.A. 39:6A-4], personal injury protection coverage, [N.J.S.A. 39:6A-3.1], medical expense benefits coverage, or [N.J.S.A. 39:6A-3.3] regardless of fault, applies,... is hereby exempted from tort liability for non-economic loss to a person who is subject to this subsection and who is either a person who is required to maintain personal injury protection coverage pursuant to [N.J.S.A. 39:6A-4], medical expense benefits pursuant to [N.J.S.A. 39:6A-3.1] or benefits pursuant to [N.J.S.A. 39:6A-3.3], or is a person who has a right to receive benefits under [N.J.S.A. 39:6A-4], [N.J.S.A. 39:6A-3.1] or [N.J.S.A. 39:6A-3.3], as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State, unless that person has sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. [N.J.S.A. 39:6A-8(a) (emphasis added).]*fn7

By the clear language of the statute, a defendant who wishes to invoke the limitation-on-lawsuit threshold against a plaintiff must demonstrate that she is eligible for no-fault PIP benefits under either N.J.S.A. 39:6A-3.1, -3.3, or -3.4. Unless the defendant meets this initial burden, the remainder of the statute does not apply. Therefore, a defendant without a statutory entitlement to PIP benefits cannot insist that an injured plaintiff prove a qualifying injury within one of the six categories set forth in N.J.S.A. 39:6A-8(a), even though the plaintiff is otherwise bound by the limitation-on-lawsuit threshold.

One of the rationales for the limitation-on-lawsuit threshold "[is] to offset the costs to insurers of a system that mandates the prompt payment of medical expenses resulting from automobile accidents." See Cynthia M. Craig & Daniel J. Pomeroy, New Jersey Auto Insurance Law: No Fault (PIP), Uninsured & Underinsured Motorists § 15:3-3 at 278 (2009). An insurer of a defendant not participating in New Jersey's no- fault system is not "subject to the monetary quid pro quo that justifies making the [limitation-on-lawsuit] threshold available to a PIP-eligible defendant." Ibid. It is for that reason that a defendant ineligible for PIP benefits cannot assert the limitation-on-lawsuit threshold as a defense. Ibid.

C.

Defendant would have the Court read out of N.J.S.A. 39:6A-8(a) the requirement that she must be eligible for New Jersey PIP coverage to benefit from the limitation-on-lawsuit threshold. The critical language of the Deemer Statute, however, makes plaintiff, as a covered out-of-state driver, "subject to the tort option specified in subsection a. of [N.J.S.A. 39:6A-8]." This reference to N.J.S.A. 39:6A-8(a) does not suggest that one part of the statute shall apply and another not. We cannot read just half of N.J.S.A. 39:6A-8(a) when the Deemer Statute pointedly references the entirety of subsection (a). We must read the statute as a whole, giving meaning to each of its parts. See DiProspero, supra, 183 N.J. at 492. Simply stated, an out-of-state defendant who is not eligible to receive New Jersey PIP benefits cannot find shelter under N.J.S.A. 39:6A-8(a) and may be sued for pain and suffering damages without regard to the threshold. Loftus-Smith v. Henry, 286 N.J. Super. 477, 487 (App. Div. 1996).

As indicated earlier, we will not rewrite a plainly written statute or remove a statutory qualification included within a comprehensive legislative scheme. If the Legislature, through the Deemer Statute, intended to restrict plaintiff's right to sue for pain and suffering caused by the negligence of an outof-state driver who is not part of New Jersey's PIP system, then the wording of N.J.S.A. 17:28-1.4 would simply read that plaintiff is "subject to the requirement of proving an injury falling into one of the six categories set forth in N.J.S.A. 39:6A-8(a)." The Legislature knows how to draft a statute to achieve that result when it wishes to do so. For example, an automobile accident victim seeking to recover non-economic damages from the Unsatisfied Claim and Judgment Fund must show that the injured person "sustained an injury described in [N.J.S.A. 39:6A-8(a)]." N.J.S.A. 39:6-70(n) (emphasis added); see generally Jimenez v. Baglieri, 152 N.J. 337 (1998). Unlike the Deemer Statute, which incorporates by reference all of N.J.S.A. 39:6A-8(a), N.J.S.A. 39:6-70(n) instead directs the inquiry specifically to an injury qualifying under N.J.S.A. 39:6A-8(a).*fn8

Nothing in the legislative history concerning the Deemer Statute and N.J.S.A. 39:6A-8(a) conflicts with our plain reading of those statutes. Moreover, the quid pro quo presented to New Jersey drivers under our no-fault system is no different for out-of-state residents insured by carriers doing business in this State. Under the Deemer Statute, in exchange for prompt payment of medical bills, the out-of-state insured gives up the unlimited right to sue for pain and suffering, provided that the defendant is eligible to receive New Jersey PIP benefits. A defendant -- such as the one here -- who is not participating in New Jersey's no-fault system does not receive the benefit of invoking the N.J.S.A. 39:6A-8(a) limitation-on-lawsuit threshold as a defense.

Defendant is not disadvantaged under this statutory scheme. The Deemer Statute does not impose the limitation-on-lawsuit threshold on non-residents who are "insured by carriers not authorized to transact business in New Jersey." Whitaker, supra, 147 N.J. at 356; see also Comitale v. Masters, 302 N.J. Super. 291, 295 (App. Div. 1997) (holding that threshold did not apply to out-of-state plaintiff not covered by Deemer Statute). That is because those non-resident insureds, if injured in an automobile accident in this State, "would not receive the benefit of New Jersey's minimum mandatory liability coverage, uninsured motorist coverage, or personal injury protection coverage that the [D]eemer [S]tatute mandates for non-residents insured through New Jersey authorized insurers." Whitaker, supra, 147 N.J. at 356.

Defendant's problem is not the Deemer Statute, but the fact that she is not participating in New Jersey's no-fault system. Had a New Jersey resident, rather than plaintiff, selected the insurance policy's limitation-on-lawsuit option, and were defendant the tortfeasor, defendant would be in the same position. She could not invoke the threshold as a defense because she is not participating in New Jersey's no-fault system of PIP benefits.

III.

A.

defendant who causes an automobile accident and is not eligible for PIP benefits cannot bind a plaintiff to the limitation-on-lawsuit threshold set forth in N.J.S.A 39:6A-8(a).

Under the Deemer Statute, plaintiff could have been subject to the limitation-on-lawsuit threshold because he had no qualifying injury under N.J.S.A 39:6A-8(a). In this case, however, plaintiff is not statutorily barred from recovering pain and suffering damages because defendant is ineligible to collect New Jersey PIP benefits.*fn9 We reverse the grant of summary judgment in defendant's favor and remand to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE, HOENS, and RIVERA-SOTO join in JUSTICE ALBIN's opinion. JUSTICE LONG did not participate.

Chief Justice Rabner PRESIDING


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