The Stealey Law Firm Blog

Thursday, September 5, 2013

Truck Accident Personal Injury Claims

Truck Accident Personal Injury Claims: Are They Different from Car Accident Claims?

While automobile and truck accidents have many aspects in common with each other, in certain respects, they differ greatly. Due to the specialized knowledge required to successfully resolve these types of matters, it’s important that you hire an attorney who knows the ins and outs of truck accident law if you’ve suffered an injury from an accident involving a truck.

How Do Truck Accident Claims Differ from Car Accident Claims?

Truck accident claims involve many of the same basic questions that car accident claims involve. Who was negligent? How did the accident occur? And what insurance coverages apply to the claim?

Numerous circumstances can occur during truck accidents, though, that are unique to crashes involving commercial vehicles and large vehicles. For example:

  • Semi truck drivers are required to stop and rest at legally mandated intervals. Drivers’ logs, driver and expert testimony, witnesses’ testimony and other evidence can be used to prove that a truck driver was fatigued at the time of the accident.
  • Semi trucks must be regularly maintained in order to be operated safely. Maintenance records obtained via the discovery process may prove the truck was unsafe to operate.
  • Semi truck drivers are barred from operating a vehicle under the influence of drugs, alcohol and certain prescription medication. If the driver was under the influence of a substance, or had a history of substance abuse that went unnoticed when he or she was hired, the driver or transportation company can be held liable for damages.
  • Transportation companies are legally required to employ safe and cautious drivers, and to competently screen drivers. If a transport company fails to determine that a new hire has a history of traffic violations, it can be held liable.
  • New trucks are often now equipped with technology similar to jumbo jets’ “black boxes”. If an accident occurs, a truck accident attorney can subpoena possible evidence of negligent driving via the black box.
  • Truck drivers, more so than car drivers in many jurisdictions, are barred from using cell phones while driving. Following a truck accident, a lawyer can subpoena the truck driver’s personal and or company cell phone records to determine whether he or she was using the device at the time of the accident.

Other complex legal issues can arise when a commercial vehicle such as a delivery truck, pickup truck or even company car is involved in a crash. The question of whether the driver was “on the clock” immediately comes into play. If a driver was returning from a sales appointment, leaving work, or running an errand that involved both work and non-work-related stops, complex questions can arise regarding whether company-purchased insurance coverage applies.

Car and truck accident claims begin at the same spot – negligence, fault, cause and coverage – but truck accident claims involve numerous additional federal regulations and state laws. When hiring a personal injury lawyer following a truck accident, make sure he or she has the necessary knowledge to help you obtain the best possible result.

Sunday, August 25, 2013

Be Wary of Carbon Monoxide Levels During Winter

Be Wary of Carbon Monoxide Levels During Winter

If you live in cooler climes, winter is a time to take precautions against carbon monoxide poisoning.  Residents of the northern parts of the country are starting to seal up their homes to keep them warm over the winter, which can increase the threat of carbon monoxide poisoning.  

According to the Centers for Disease Control and Prevention, carbon monoxide poisoning is the leading cause of accidental poisoning deaths in the United States.  Rates of injury and death are highest in the winter and among residents of the Midwest and Northeast United States.  To minimize risk, it is important to understand the symptoms of carbon monoxide poisoning and how to prevent it in your home and other sealed locations like your car and garage.

Carbon monoxide is a dangerous gas that you cannot see, smell, hear, taste or feel.  Without detection equipment, your first clue that carbon monoxide is present may be symptoms of poisoning in yourself or a loved one.  Many household appliances produce carbon monoxide, including oil- and gas-burning furnaces, portable generators and charcoal grills.

Symptoms of Carbon Monoxide Poisoning
A person with carbon monoxide poisoning may exhibit flu-like symptoms, such as:

  • Headache
  • Dizziness
  • Chest pain
  • Nausea and vomiting
  • Fatigue
  • Confusion

Pets as well as humans can exhibit these symptoms.  If anyone in your home shows these signs, it is important to immediately:

  • Provide fresh air, either by leaving the premises or opening all doors and windows
  • Put distance between the victim and the likely source of the carbon monoxide
  • Call 911 and state that you suspect carbon monoxide poisoning
  • Get medical attention for the victim
  • Have your home inspected before returning (your local fire department or police department should be able to help with this)

Preventing Carbon Monoxide Poisoning
Carbon monoxide can easily be fatal if untreated, especially among children and the elderly,.  Increase your family’s peace of mind by taking the following steps to prevent carbon monoxide poisoning:

  • Install CO detectors outside every bedroom and in the basement or where your oil or gas-powered appliances are.
  • Get regular service for appliances that use oil or gas.
  • Do not use appliances to heat your home that are not built for that purpose, such as portable camping stoves, lanterns, charcoal grills or your oven.
  • Never sleep in a room heated by a gas or kerosene space heater.

Taking these simple steps can keep your family safe from CO poisoning throughout the winter months.

Thursday, August 15, 2013

Centralized System for Reporting Medical Errors

Federal Agency Proposes a Centralized System for Reporting Medical Errors

Currently, there is no centralized system to report hospital or medical malpractice, and research indicates that reporting rates are very low.  The federal Agency for Healthcare Research and Quality (AHRQ) has proposed a new, centralized system for consumers to file complaints about harm suffered while receiving medical care.  

Information About Reporting Rates for Medical Errors
Because no centralized complaint agency exists for reporting medical malpractice, accurate statistics about the medical error rates in the United States are difficult to come by.  A 2010 review of medical records by the inspector general of the Department of Health and Human Services (HHS) revealed that about 134,000 Medicare patients were harmed in the hospital in a single month. Another HHS report revealed that hospitals report only about 1 percent of adverse medical events they are required by state law to register.  The report went on to state that the low percentage is most likely due to hospitals’ failure to identify medical errors that occur in their facilities, as opposed to failure to report known medical errors.

In short, available data suggest that hospital error reporting does not accurately reflect the number of hospital errors that actually occur.  The data also suggest that one reason for low reporting may be that hospitals do not have accurate systems in place to identify adverse medical events resulting from medical negligence or medical malpractice.

Why Are Hospital Errors and Medical Malpractice Incidents Rarely Reported?
Hospitals may need to improve their reporting procedures if hospital error data are to more accurately reflect reality.  There are other reasons for low reporting rates, as well.  Patients who suffer from hospital errors may be too traumatized to make the report, they may be focusing on other aspects of their lives after a disabling medical error, or they may find the current reporting bureaucracy too complex to navigate.  Without a centralized reporting system, patients and their families must choose from several different complaint options:

  • The state medical professional licensing board
  • The state public health department
  • The Joint Commission, which accredits hospitals
  • A Medicare Quality Improvement Organization

These different agencies do not have procedures in place to communicate complaints among one another, and no agency collects accumulated data from all agencies into a centralized location.

Summary of the Agency for Healthcare Research and Quality’s Proposed Program
The AHRQ’s proposal is to design a prototype system to collect information about patient harm events, to test telephone and internet patient questionnaires, and to test follow-up surveys of health care providers after a report of hospital error.

You can Visit the Federal Register Website for information about commenting on the AHRQ’s medical error complaint prototype system.

Monday, August 5, 2013

Cities With the Best and Worst Drivers

Cities With the Best and Worst Drivers

Sioux Falls, South Dakota, is “America’s Safest Driving City” for the fifth time in eight years, according to Allstate Insurance Company’s annual safe driving report, released August 28, 2012.  Allstate has compiled the report for eight years in a row, using data from insurance claims made to the company.  The report ranks the 200 largest U.S. cities from safest to most dangerous based on car accident frequency.

The top 10 safest driving cities in the United States, according to the Allstate report, are:

  1. Sioux Falls, South Dakota, where drivers file car accident claims every 13.8 years, 27.6 percent less often than the national average of 10 years
  2. Boise, Idaho – 27.3 percent less often
  3. Fort Collins, Colorado – 26.7 percent less often
  4. Madison, Wisconsin – 23 percent less often
  5. Lincoln, Nebraska – 19.3 percent less often
  6. Huntsville, Alabama – 19.1 percent less often
  7. Chandler, Arizona – 18.9 percent less often
  8. Reno, Nevada – 18.4 percent less often
  9. Knoxville, Tennessee – 18.1 percent less often
  10. Springfield, Missouri – 17.4 percent less often

The 10 most dangerous driving cities in the United States, according to the Allstate report, are:

  1. San Francisco, California – 54.6 percent more often
  2. Miami, Florida – 58.4 percent more often
  3. Newark, New Jersey – 59.4 percent more often
  4. Alexandria, Virginia – 62.6 percent more often
  5. Philadelphia, Pennsylvania – 64.1 percent more often
  6. Glendale, California – 77.5 percent more often
  7. Hialeah, Florida – 77.6 percent more often
  8. Providence, Rhode Island – 80.9 percent more often
  9. Baltimore, Maryland – 87.9 percent more often
  10. Washington, D.C. – 112.1 percent more often

The report indicates that big-city drivers have more car accidents, statistically, than drivers in smaller cities or towns.  In cities of more than one million people, only Phoenix drivers filed car accident claims less often than the national average of 1 every 10 years.  Phoenix beat the national average, however, by only 0.2 percent.

Thursday, July 25, 2013

Is Your Child's Booster Seat a Good Fit?

The seatbelts in cars are not designed with children in mind.  In a car accident or during a sudden stop, a child who does not use a booster seat is vulnerable to serious injury because the seatbelt is not positioned to properly restrain the child.  In fact, a seatbelt can actually cause additional injury to the child during an accident – for example, by cutting across the child’s stomach.

Booster seats are designed to elevate your child to a position where the seatbelt is positioned properly and will properly protect your child in case of a car accident or sudden stop.  Booster seats are not specially made for different types of vehicles, even though the seats and seatbelts are shaped and positioned differently in different models of cars, trucks, SUVs, and minivans.

When shopping for a booster seat for your child, how do you tell if the booster seat is a good fit?  Highway safety research tells us that there are three important measurements to consider when purchasing a booster seat for your child:

  • The child should be able to bend his or her knees easily over the edge of the booster seat.  If the child can’t comfortably bend his or her knees over the edge of the booster seat, he or she might slouch, which might cause the lap belt to ride up onto the child’s stomach
  • The lap band of the seatbelt should lie across the child’s upper thighs and hips.  It should not lie across the child’s lower or upper stomach, or across the child’s lower thighs.
  • The shoulder band of the three-point seatbelt should cross the child’s shoulder midway between the outside edge of the child’s shoulder and the child’s neck.  The seatbelt should not cross too close to the child’s neck or too far down the child’s shoulder or arm.

What are the dangers of a booster seat that does not fit properly?  They can be very serious, and in fact some doctors refer to the following common injuries as “the seatbelt syndrome.”

  • If the shoulder belt cuts too close to the neck or too far down the shoulder or arm, it can be uncomfortable.  The child may learn to tuck the shoulder belt behind his or her head, leaving the upper torso unprotected in a car accident.  Increased forward and backward movement during a car accident increases the likelihood of brain injury, neck injury, and spinal cord injury.
  • If the lap belt is positioned across a child’s stomach instead of across his or her lap, a car accident will cause sudden tightening of the belt across the vulnerable stomach area.  Serious injuries to vital organs or the child’s spine are very common in car accidents where the child’s lap belt is positioned across the stomach.

Various consumer safety organizations rate specific models of child booster seats for how well they fit a standard 4- to 8-year old in a variety of vehicles.  The follow sites offer insight into considerations when choosing a booster seat:

Insurance Institute for Highway Safety
National Highway Traffic Safety Administration

Be sure to check out the safety rating of booster seats before you buy one for your child.

Monday, July 15, 2013

Damages Allowed in Personal Injury Cases

Damages Allowed in Personal Injury Cases

If you have been injured in an accident, and another party is to blame, you may be able to obtain monetary damages from that person or business to compensate you for medical expenses, loss of income and pain and suffering as a result of the accident.  

There are a variety of types of damages allowed in personal injury cases. Those damages can be divided into several categories. First, there are compensatory damages and punitive damages. There are also two types of compensatory damages: economic and non-economic.

Compensatory damages are damages that are intended to compensate a person for a loss or problem relating to a personal injury, including monetary losses, pain and suffering and physical impairment. Punitive damages are intended to punish the negligent party for its wrongdoing, and aren’t specifically related to a loss the plaintiff suffered.

For example, if a company decided to dump toxic waste into a creek instead of disposing of it safely, and as a result a woman living next to the creek developed cancer, her compensatory damages may include amounts for her medical expenses, her lost wages, and her pain and suffering.  In addition to these damages, the jury may also decide to award punitive damages, which are strictly intended to punish the company for its wrongdoing. Punitive damages are somewhat rare – in most cases, plaintiffs only receive compensatory damages.

Compensatory damages can be further divided into economic damages and non-economic damages. Economic damages are those damages that result in an identifiable economic loss. For example, economic damages include medical expenses, lost wages, the cost of hiring a helper or nurse, and the cost of special transportation or medical equipment that’s needed as a result of the accident.

Non-economic damages are damages for harm relating to the injury sustained that are difficult to quantify using a specific dollar amount. Instead, non-economic damages are awarded to a person who has suffered a diminished quality of life as a result of the accident. Some examples of non-economic damages include emotional distress, pain and suffering, embarrassment or humiliation, loss of enjoyment of life, loss of consortium (sexual relations) and scarring or disfigurement. Although non-economic losses can be difficult to quantify, they are an important component of a personal injury case.

Friday, July 5, 2013

Mediating Personal Injury Lawsuits

Mediating Personal Injury Lawsuits

Personal injury cases run the gamut from slip-and-fall accidents to auto wrecks. Insurance companies are often involved, and most parties generally want to resolve cases as economically as possible. Mediation is one option to accomplish this.

Mediation is a form of alternate dispute resolution (ADR), in which the parties voluntarily agree to work with an independent third party – a mediator – to resolve their disputes. Unlike a court trial where one party is the “winner” and the other party is the “loser,” mediation involves finding a workable solution to which all parties can agree. A mediated settlement is formalized with a legally binding contract signed by all parties.

Mediation is a non-binding procedure, meaning that no party can be forced to consent to an agreement. The mediator does not have the decision-making authority that a jury, judge or arbitrator has. Even if the parties previously agreed to mediate their dispute, any party is free to walk away from the process and pursue the matter in the courts.

Mediation also affords the parties a level of confidentiality that is not available in court cases. Parties cannot be forced to disclose information. If a party opts to make admissions or disclose confidential information, those statements or information cannot be introduced in court or otherwise used outside the scope of the mediation itself. This confidentiality enables the parties to freely and productively negotiate their dispute.

Unlike court trials or arbitration hearings, which are determined based on the underlying facts of the incident and the applicable laws, mediation allows parties to make agreements based on their own interests. The parties are free to allow their choices to be guided by business interests or personal preferences. When the dialogue within a mediation is focused on each party’s true interests, a mutually satisfying result is often possible.

Parties to a personal injury dispute often choose to mediate the case to avoid a trial involving significant attorney’s fees and other costs and an uncertain outcome. When both sides are faced with uncertainties regarding the outcome, a mediated settlement agreement can be a good solution. Furthermore, taking a case to trial can take months or years and usually results in at least one party being unhappy with the outcome.

In mediating a personal injury case, the parties and their lawyers work with the mediator to devise a settlement that everyone can live with. Plaintiffs can be compensated for their property damage, medical costs, lost income, and pain and suffering. On the other hand, defendants and their insurance companies can end up paying far less than it would have spent in legal fees and costs to defend the case at trial, and a potential sizable jury award. A good mediator will help all parties see the strengths and weaknesses in their respective cases, enabling them to compromise and arrive at a result which is acceptable to both.

Tuesday, June 25, 2013

Choosing a Litigation Attorney

Choosing a Litigation Attorney

If circumstances have required you to get involved in litigation, you may find the process of selecting an attorney to be overwhelming.  There are, however, some steps you can take to make the selection process a bit easier.

First, you should consider hiring someone who specializes in your type of case. If you had an automobile accident, consider hiring an attorney who exclusively practices personal injury law and preferably one with a track record of success in car accident cases. If you were wrongfully fired, hire a litigator with experience in employment rights.

Since you and the attorney you choose will be working very closely together, it’s important to choose someone with whom you feel comfortable.   How long has the attorney been practicing law? Has the attorney ever handled a case like yours before? What was the outcome? How much are fees and how are they paid? Does the attorney seem like he or she is concerned about your case? Does the attorney seem knowledgeable about the area of law?   Does the attorney articulate himself clearly and effectively?  Does he have a credible and trustworthy demeanor?  Remember, a judge or jury may be making the same assessments down the line.   

With respect to fees, most attorneys will take a personal injury case on a contingency basis, meaning that you only pay if they succeed, typically about one-third of the judgment or settlement amount.  You may be able to negotiate the percentage, especially if your damages are significant and your case against the potential defendant strong.  In addition to contingency fee structure, you should also be aware that many attorneys will bill for “out of pocket expenses” such as $0.25 per page for photocopies, $1.00 per page for faxes and cost of hiring experts and consultants.  Again, depending on the strength of your case, you may be able to negotiate these terms.  If you’re involved in a commercial or contract dispute, most such cases are billed on an hourly basis.  If you’re a plaintiff, a hybrid fee structure whereby you would pay a lower hourly fee but provide the lawyer with a percentage of the settlement may be an interesting option.

It’s also a good idea to find out how long the attorney believes the case will take. Obviously, many factors are beyond your attorney’s control, but you should be able to determine a general timeline and what type of resources the attorney will commit to your case.   It’s also important to know how you will be kept updated throughout the proceeding. It can be very frustrating if your attorney does not keep you informed on the status of your case. Ask the attorney how he or she plans to communicate with you and how often you can expect a status report.

Choosing an attorney is a big decision. Before you decide to choose one based on the number of television commercials he or she runs, or the size of the yellow pages ad the firm maintains, it’s important to sit down with the attorney to make sure the relationship is the right fit for your case.

Saturday, June 15, 2013

Wrongful Death

Wrongful Death

If you watch the evening news or read the local paper, you’ve probably come across the term “Wrongful death.”  Legally speaking, wrongful death is a term used for a type of action that can be filed by the heirs and beneficiaries of a person who was killed because of the wrongful conduct of another person. Wrongful death laws are intended to provide compensation to help support the dependents of the deceased.

Conduct that can result in a wrongful death claim include negligence, such as reckless driving, or intentional crimes such as assault or murder. In most states, the standard of proof for wrongful death cases is a preponderance of the evidence meaning that the injured party has to prove to the jury that there is a greater than 50% chance that the defendant’s negligent or criminal actions were the cause of death. This differs from criminal cases where the prosecutor must show proof beyond a reasonable doubt, a much higher standard. Therefore, it’s often easier for survivors to prove a wrongful death case than it is for prosecutors to prove a criminal case. One well-known example is the O.J. Simpson case where the survivors of Ron Goldman and Nicole Simpson chose to sue for wrongful death and won after O.J Simpson was acquitted in the criminal case.  

Wrongful death laws are different from state to state, and they govern who can sue for wrongful death and whether there are any limits that should be applied to damage awards. In general, a surviving spouse, children, or next of kin can recover for wrongful death. However, in some states, only minor children, not adult children, can sue for the death of a parent.

There are some exceptions to who can be sued for wrongful death. In order to promote strong family relationships, some states don’t allow a person to sue another member of his or her family for wrongful death, However, many states have dropped this rule, because it has at times prevented families from collecting insurance proceeds. It can also be hard to sue states or local governments, or the federal government for wrongful death – the rules vary among jurisdictions.

In order to sue for wrongful death, it must be shown that the defendant’s actions (or failure to act when he should have) were the immediate and foreseeable cause of the deceased’s death. In wrongful death cases, state laws govern what amount of damages can be recovered. Usually, wrongful death cases include compensatory damages, which provide an amount of restitution for lost income, medical and funeral expenses, and economic support in an amount the plaintiffs would have received if the deceased had not died. In some cases, the survivors can also recover for loss of companionship and sexual relations. Calculating the exact amount of damages requires the  consideration of a number of a variables, such as the amount of time the deceased would have continued working and the deceased’s salary, and the deceased’s life expectancy, including physical and mental health.

In some wrongful death cases, punitive damages (which are intended to punish the defendant) can be awarded if the defendant’s actions were extremely reckless. The jury decides whether there should be an award of punitive damages. Any punitive damages that are recovered are generally divided among the survivors by statute.

Wednesday, June 5, 2013

Good Smaritan Laws

Good Smaritan Laws: Should I help a stranger in need of medical attention?

Sometimes, individuals are in need of urgent medical attention. There aren’t always trained professionals around to help. Ordinary citizens who see someone in distress could be afraid to help, for fear that they may be held liable for doing something wrong. Good Samaritan laws originated to avoid that scenario.

As a result, many states have enacted “Good Samaritan” laws that protect people who come to the assistance of others from legal responsibility.  Good Samaritan laws in general provide that a person who sees another person in imminent danger, and tries to rescue the injured party, can’t be charged with negligence if the rescue attempt does not go well.

Good Samaritan laws are intended to encourage people to assist others by removing the fear of legal responsibility for damage done by the rescue attempt. For example, a Good Samaritan may see an overturned car beside the road, and discover the driver is trapped. If the Good Samaritan pulls the trapped driver out of the car, he or she may exacerbate the driver’s injuries. If the driver suffers a spinal injury while being pulled out of the car, he or she cannot later sue the Good Samaritan for negligence under the Good Samaritan law of his or her state.

In general, in order to use the Good Samaritan law as a defense to negligence, there are four elements that must be met. First, any assistance provided must be given as a result of an emergency. Second, the emergency that necessitated the care can’t be caused by the Good Samaritan. Third, the emergency services provided by the Good Samaritan can’t be given in a grossly negligent manner. Finally, if it’s possible to obtain permission from the accident victim, the victim must have given permission for the rescue. This may involve calming the person down before asking if he or she needs assistance. One extra requirement in some states is that the aid rendered must be free – if a doctor renders aid and sends a victim a bill later, the doctor could lose protection under the Good Samaritan law.

Currently, all 50 states plus the District of Columbia have some form of Good Samaritan law. There are many variations on the laws from state to state. Some states have different standards for emergency first responders, and some Good Samaritan laws limit who can provide medical assistance to someone in need. Also, most states providing Good Samaritan protections require that the medical care take place outside a hospital or other medical facility – so if a person goes into distress inside a hospital, and a professional renders aid, that person can be held liable if the aid is rendered negligently.

Another type of Good Samaritan law actually requires people to call 911 in some situations - usually if you cause an accident and someone is hurt, or if you happen upon an accident. For example, Vermont has a law that says if an individual sees someone who needs help, that person must call 911 or could face prosecution. This type of Good Samaritan law is not as common, but it’s important to be aware of your state’s requirements for mandatory assistance.

Saturday, May 25, 2013

Can you be sued for hurting someone's feelings?

Can you be sued for hurting someone's feelings?

In a civilized society, citizens are expected to conduct themselves with at least a small amount of regard for the feelings of others.  To prevent behavior that can cause severe anguish, the law has created a tort called “intentional infliction of emotional distress”. An intentional infliction of emotional distress claim allows those who are emotionally injured by another person to recover for emotional injuries as well as any physical injuries that result from distress induced by the bad behavior, such as migraines, ulcers or a miscarriage. 

In order to prove intentional infliction of emotional distress, four elements must be shown. First, the defendant must act either intentionally or recklessly. The defendant’s conduct must be extreme and outrageous. Third, the plaintiff must have suffered extreme emotional distress.  And lastly, the plaintiff’s conduct must be the cause of that distress. In addition, some states require that the incident that caused the emotional distress must have taken place in public. 

Some examples of behavior that may constitute intentional infliction of emotional distress include a person telling a parent their child has died, while knowing it wasn’t true; a medical professional telling a patient he or she is HIV positive as a joke; or a person threatening to shoot another person if he or she does not meet certain demands. Some behavior that may seem like intentional infliction of emotional distress but probably is not would include a person having an affair with a friend’s spouse; a landlord evicting a dying person who hasn’t paid rent for a few months; or an action that was intended as a harmless prank, such as toilet papering someone’s house. 

When determining whether intentional infliction of emotional distress has occurred, a judge or jury must take into account the emotional state of the victim and whether the plaintiff knew of that emotional state. For example, a person locking another person who is scared of roaches in a closet filled with roaches could be intentional infliction of emotional distress in that instance, while it may not be to a person who isn’t afraid of roaches. 

Intentional infliction of emotional distress can be hard to prove. The hardest element to show is that the defendant’s conduct was so extreme or outrageous to be completely intolerable in a normal society. It is not enough for the defendant to simply have behaved badly or even very badly – the behavior must be atrocious and harmful to one’s mental health. 

The Stealey Law Firm is based in Parkersburg WV and serves the surrounding counties of Wood, Jackson, Wirt, Roane, Doddridge, Pleasants, Tyler, and Ritchie in the legal area of Personal Injury.

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