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Texas Insurance Companies and the Supreme Court

Texas Insurance Companies: They’re in Good Hands at the Texas Supreme Court

A Report from Court Watch
A Project of Texas Watch

The 1990s emerged as the decade for insurance companies at the Texas Supreme Court. Decisions by the high court eliminated significant incentives for insurance companies to behave responsibly, stripping consumers of important protections.

An analysis of cases decided by the Texas Supreme Court concerning insurance in the 1990s shows that the court has deeply undermined insurance consumers in three areas — claims evaluation, legal defense and policy coverage. While making it procedurally more difficult to sue insurance companies, the court also sent the following messages to policyholders and claimants:

  • Insurance companies will not be penalized for sloppy or incorrect claims evaluation and denials.
  • Insurance companies will not be held accountable for botching settlement negotiations and a policyholder’s legal defense nor for providing ineffective legal representation by the lawyer they hire to represent policyholders.
  • Insurers are permitted to crimp their coverage under their contract, even in situations where the contract provision is irrelevant.

Further, a study of the voting patterns of high court justices since 1991 shows a pro-insurance company slant by the court that grew from 1991 to 1994 as Republican justices replaced more populist Democrats on the court. Court voting favoring insurance companies was most pronounced in the 1995-96 biennium immediately after Republicans gained a majority on the court, with 79 percent of the votes cast in 23 cases favoring the insurers. (Section 2)

Section 1.

Ten Decisions that let insurers off the hook for their mistakes

Prior to the 1990s, Texas families had legal rights in place which encouraged fair treatment from insurance companies. These rights helped to protect consumers from the denial of legitimate claims and unreasonable delays in claims handling. The legal rights and remedies encouraged responsible and thorough treatment of insurance consumers.

In the 1990s, many of these incentives for responsibility and accountability by insurance companies were restricted or eliminated by so-called tort “reforms.” The Texas Supreme Court was a leading force in eliminating these incentives.

First, important protections for Texas families were stripped from the Deceptive Trade Practices Act and the Insurance Code in response to pressure from the self-styled tort reformers and insurance lobby. After that, the Texas Supreme Court curtailed protections against irresponsible behavior by insurance companies the Texas Legislature had left standing.

The 1990s was the decade for insurance companies at the Texas Supreme Court. Of 132 insurance cases decided by the high court since 1990, insurance companies won 71 percent. (See Section 2 for statistical detail)

But not only have consumers been on the short end of Texas Supreme Court rulings, the cumulative effect of these rulings allows insurance companies to behave irresponsibly—deny legitimate claims, fail to investigate claims, simply delay payment for no good reason, botch legal representation or unduly reduce coverage—with little or no penalty. These decisions removed incentives insurance companies had to deal with claims and policyholders in a forthright manner from the start of a claim. In many cases, the court determined that even though an insurance company acted irresponsibly, it would not be penalized in any way. The high court of the 1990s sent a message to insurance companies that it was all right to delay, tie-up or deny legitimate claims. If the court found that an insurance company did in fact have to pay, it would not be penalized for any of the costs born by the families making the original claim.

Texas families, on the other hand, lost most legal rights they had to hold these insurance companies accountable for failing to follow the terms of their insurance policies, or for imposing delays and increased financial costs realized simply because they filed an insurance claim. The high court of the 1990s leaves Texas families spinning a roulette wheel every time they file a claim with an insurance company—and the insurance companies control the table.

The decisions by the Texas Supreme Court letting insurance companies off the hook fall into the following categories:

A. Insurance companies will not be penalized for sloppy or incorrect claims evaluation and denials.

B. Insurance companies will not be held accountable for botching settlement negotiations and a policyholder’s legal defense nor for providing ineffective legal representation by the lawyer they hire to represent policyholders.

C. Insurers are permitted to crimp their coverage under their contract, even in situations where the contract provision is irrelevant.

A. Insurance companies will not be penalized for sloppy or incorrect claims evaluation and denials.

Forbau v. Aetna I and II (1992 and 1993):

Impact: The court held that insurance companies are responsible only for unpaid claims for wrongfully denying payments and do not have to compensate policyholders or claimants for damages that arise from their fight to obtain benefits.

Case: Aetna cancelled its group policy covering a cooperative of grocery stores a few weeks after an employee’s covered 14-year-old daughter was rendered a quadriplegic in an automobile accident. When the successor insurer of the group stopped payments, the injured girl’s mother sued Aetna, asking for damages for breach of contract. In November 1992, the Supreme Court split 5-4 in rebuffing Aetna’s argument that it could be sued only for lost and future benefits and not for more extensive breach of contract damages. Six months later, with the change of two justices and a reversal by Justice Raul Gonzalez, the court reversed its course and held by a 5-4 vote that federal laws governing employee benefit programs preempted the injured girl’s claims. The court ordered Aetna to cover the injured girl’s past and future expenses, holding that Aetna’s policy did not clearly terminate the payment of expenses with the termination of the contract.

Allstate v. Watson (1993):

Impact: The Court denied a direct bad faith claim against an uncompromising insurer, forcing accident victims to endure double time and expense to try cases consecutively against the insured and the insurer.

Case: Kathleen Watson was injured in a car accident in March 1989. When a settlement was not forthcoming, she sued the other driver and his insurance company, Allstate. Watson sued the insurer because she felt the company was failing to offer a reasonable settlement after reaching a point where its policyholder’s responsibility for the accident was reasonably clear. A lower court allowed Watson’s claims against Allstate for bad faith settlement practices to survive because of provisions of the Texas Insurance Code. In a 7-2 decision, the Supreme Court held that Watson had no standing to sue the other driver’s insurance company for bad faith without first obtaining a judgment against the other driver.

Transportation Insurance Co. v. Moriel (1994):

Impact: Moriel frees insurers from paying punitive damages as punishment in all but the most extraordinary cases. It specifically allows insurance companies to be indifferent to claimants without regard to the mental anguish caused by a drawn-out and adversarial claims process.

Case: Juan Carlos Moriel was injured when a stack of countertops fell on him at work. He brought suit against the employer’s insurer, Transportation Insurance Co., for acting in bad faith for delaying settlement and for delaying medical insurance payments until a hospital sued Moriel to collect. A jury awarded him $1,000 in damages for physical injuries, $100,000 for mental anguish and $1 million for punitive damages. The Texas Supreme Court, in a 7-2 opinion, held that the conduct of the insurance company in arbitrarily delaying payment did not warrant punitive damages.

Republic Insurance Co. v. Stoker (1995):

Impact: This decision endorses, and lets insurers off the hook for, sloppy or non-existent investigations of claims. Policyholders may sue insurance companies based on what they believe is a wrongful denial, but they will not be compensated for their time and expenses if the insurer ultimately comes up with a valid reason.

Case: Linda Stoker crested a hill on an interstate highway to find other cars braking and swerving to avoid furniture that had fallen off a pickup truck. She rear-ended another car. The insurance company and its adjusters denied the claim Stoker filed under her uninsured-motorist coverage, concluding that Stoker was more than 50 percent at fault for causing the accident. Stoker sued Republic Insurance Company for breach of contract and for bad faith. Before trial, the company stated that its reason for denying the claim was that Stoker’s accident did not involve her car being hit by another vehicle, a requirement of invoking the uninsured-motorist coverage. The Supreme Court unanimously agreed that Stoker had not suffered any bad faith damages, but split 7-2 in holding that the insurance company could not be sued for bad faith for giving the wrong reason for denying a claim when it could ultimately come up with a valid reason.

State Farm Life Insurance Company v. Beaston (1995):

Impact: This decision allows insurers to escape responsibility for mental anguish of policyholders resulting from an insurer’s unfair and deceptive practices.

Case: Terri Beaston presented mental anguish claims when State Farm Life Insurance Company denied her husband’s death benefits, saying the policy had lapsed at the time of his death. Beaston proved that the insurer back-dated the policy-causing lapse. Beaston contested that the policy terms were ambiguous and that State Farm and the agent engaged in deceptive and misleading acts in the selling of the policy. Beaston contended that the agent sold them the wrong policy for their circumstances and did not adequately explain the premium dividend system to prevent lapsed coverage. Beaston claimed mental anguish damages stemming from having to battle to receive the financial support she counted on—and believed she had paid for—in the event of her husband’s death. The jury, trial court and the appellate court all awarded Beaston mental anguish damages. The Texas Supreme Court overturned these decisions and in its opinion said policyholders must prove mental anguish by showing that the insurer “knowingly” engaged in the contested activity. The court said the Beastons did not prove the state of mind of State Farm at the time it sold the policy and could not hold the company accountable.

B. Insurance companies will not be held accountable for botching settlement negotiations and a policyholder’s legal defense nor for providing ineffective legal representation by the lawyer they hire to represent policyholders.

St. Paul Surplus Lines Insurance Co. v. Dal-Worth Tank Co. (1998):

Impact: Insurer can botch the defense of a policyholder, sending it into bankruptcy, yet the company escapes responsibility if its action—or inaction—causes the policyholder additional damages above and beyond the original actual damages claimed.

Case: Dal-Worth was informed by the buyer of one of its trucks that it would be sued for damages after the truck it sold rolled over. Dal-Worth informed its insurer, St. Paul, which refused to pay. The insurance company later claimed it did not know of the lawsuit. Despite talks between the company and insurer about a lawsuit, St. Paul did not hire a lawyer to defend Dal-Worth, as required by its policy. The truck buyer obtained a default judgment of almost $800,000 against Dal-Worth, which was forced into bankruptcy. Dal-Worth then sued its insurer, winning a lower court award of $26.2 million. On St. Paul’s appeal, the Supreme Court let the insurer off the hook for most of the damages, concluding that while the insurer did not do what it should have done, it was unaware of its negligence and could not be held responsible under the Insurance Code and Deceptive Trade Practices Act. The decision left the award to Dal-Worth at less than $2 million.

State Farm Mutual Auto Insurance Co. v. Traver (1998):

Impact: Insurance companies cannot be held responsible for the actions of the attorneys they hire to defend policyholders, even though they exercise significant economic control over the actions taken by the attorneys. The court essentially said to consumers, “Sue the attorney, not the insurer.”

Case: When Mary Jordan was injured in a head-on collision, she sued both the driver of her car and the driver of the other automobile, Mary Davidson. State Farm insured both drivers. After Jordan refused settlement offers, Davidson was judged by a jury to be completely at fault. Davidson died shortly after trial, but the executor of her estate sued State Farm. The executor, Traver, alleged that State Farm’s choice to defend Davidson committed legal malpractice by failing to show up for key depositions and by failing to offer a meaningful defense. Traver also accused the insurer of undermining Davidson’s legal defense to avoid being sued by the other driver for failing to make a settlement offer within the policy limits. The Supreme Court split 7-2 in saying that insurance companies were not responsible for the malpractice of the attorneys they hire to defend policyholders on the theory that the attorney’s duty was to his client, not the insurer who paid him. That assertion brought dissent from Raul Gonzalez. Gonzalez pointed out that in an era where insurers supervise “captive” firm lawyers with insurance company staff and regulation over, the loyalty of the lawyer is often compromised.

C. Insurers are permitted to crimp their coverage under their contract, even in situations where the contract provision is irrelevant.

Provident American Insurance Co. v. Castaneda (1998):

Impact: Insurance companies are permitted to deny a medical claim when an insured patient manifests a disease if medical records describe symptoms of the undiagnosed disease regardless of the fact that the patient and doctor were unaware that the patient had the disease. As genetic sciences lead to the identification of genetic symptoms of many medical conditions, insurers will be able to disqualify more claims, arguing that the disease already had shown itself.

Case: The Castaneda family took out a health insurance policy, effective June 17, 1991, that excluded payments for diseases that manifested in the first 30 days of the coverage. On July 14, an uncle called the Castanedas and informed them he had a rare, gall bladder-related genetic disease that could have symptoms of jaundice and anemia. Because two of the Castaneda children had such symptoms, the Castanedas arranged to see a doctor. The doctor failed to diagnose the problem on July 18 and referred the family to a specialist, who diagnosed the condition on July 20. Less than three weeks later, Denise Casteneda had her gall bladder removed as treatment, with the insurance company granting pre-approval for the surgery. The company later refused to pay medical benefits for the surgery, giving a variety of reasons, but relying on policy provisions that excluded payments for a problem that manifested during the first 30 days of the policy. A jury later awarded the Castanedas $50,000 in damages for lost benefits and credit reputation. The Supreme Court held in a 7-2 split decision that even though the company’s claims representatives never had consulted a physician about the rare disease and had given numerous incorrect reasons for refusing to pay the claim, the Castanedas would not be paid because they failed to show the insurer acted unreasonably.

Stephens et al. v. American Home Assurance Company (1998):

Impact: Insurance companies are free to use policy provisions — in this case, a provision that lowered coverage for therapist’s sexual misconduct — even if the provision is irrelevant to the misdiagnosis of a mental illness.

Case: Rory Ross sought counseling as a victim of child abuse and incest from Billy Carl Stephens, a licensed professional counselor and social worker. During four years of treatment, Ross and Stephens had sexual relations on several occasions. In June 1994, Ross sued Stephens for malpractice, alleging that the counselor had negligently misdiagnosed and mistreated her condition. Later, Ross filed a complaint with the state licensing board for counselors that spelled out the sexual relations. The affair was mentioned in motions filed in the lawsuit, but no damages were sought for the unprofessional behavior. In pre-trial depositions in the lawsuit, Stephens admitted to having sex with Ross. An arbitrator ultimately awarded Ross $2.9 million in damages against Stephens. The counselor was insured by American Home Assurance Corp. for up to $3 million in malpractice damages. But the policy contained a poison pill benefiting the insurer at the expense of the insured: if sexual misconduct was alleged, the insurance company would have to pay only $25,000 in damages. The insurance company undercut Ross’s suit by asking a federal court to declare that its liability was limited to $25,000. The trial judge initially agreed to do so, but the U.S. Fifth Circuit Court of Appeals in New Orleans disagreed. The court ruled that the insurer’s policy exclusion lowering the amount it would pay when sex had occurred — even when the sexual conduct was “immaterial” to the malpractice claims — violated state public policy that encouraged victims of sexual misconduct by therapists to report the conduct to licensing boards and prosecutors. The federal appeals court then asked the Texas Supreme Court for its interpretation. The court ruled the state policy did not override the insurance contract language.

Section 2

Rising Tides: Insurance Company Favor by the Texas Supreme Court.

The emphasis on insurance company leeway over the elimination of consumer protections at the Texas Supreme Court can also be seen through the voting record of the court through the 1990s. The percentage of wins for insurers in their cases in the latter half of the decade — 75 percent — is exceeded only by decisions for doctors and hospitals in medical malpractice cases, and is matched in lopsidedness only by the record of manufacturers.

How Insurance Companies Fared in the Texas Supreme Court 1991-99

PeriodCasesInsurers’ record Signed Opinions(Won-Lost-Split)Insurer’s recordPer curiam opinionsPercentage of cases won by insurers




56 percent





70 percent





79 percent





71 percent





55 percent





71 percent

Texas Supreme Court Voting in Insurance Cases with Signed Opinions


Number of votes

Number for insurer

Percent for insurer




52.8 percent




63.4 percent




76.5 percent




72.7 percent




61 percent




67 percent

*Votes in split cases are counted as half-votes for the insurer.

But the decisions of the Texas Supreme Court tell only half of the story. A groundbreaking study by lawyers Jerry Galow and Amy Horowitz (Insurance Bad Faith — The Plaintiff’s Perspective) indicated that from 1994 through 1998, the state’s highest civil court accepted one-third of the appeals filed by insurers. By comparison, policyholders and injured claimants suing for insurance benefits and other damages had their cases accepted just 7.56 percent of the time. In short, insurance companies were four times more likely than their opponents to have their appeals heard by the Texas Supreme Court.

Shifts in the dominant legal philosophy of the state’s highest civil court can be tracked by the increased ratio of insurance company wins between 1991 and 1999.

A Delicate Balance

During 1991-92, insurance companies broke about even in the cases decided by the court in signed opinions, wining six, losing five and splitting one. In unsigned per curiam opinions, insurers did slightly better, winning eight and losing five. During this period, voting in insurance cases defined the spectrum of the court. The percentages of votes cast for insurers by the court’s four Republicans — Chief Justice Thomas Phillips and justices Nathan Hecht, John Cornyn and Eugene Cook — ranged from 63 to 77 percent. Two conservative Democrats — Jack Hightower and Raul Gonzalez — voted with the companies 54 percent of the time. The three other Democrats — Bob Gammage (29 percent), Lloyd Doggett (38 percent) and Oscar Mauzy (21 percent) — voted against the insurers most of the time.

A Slippery Slope for Consumers

When Republican Craig Enoch defeated Democrat Oscar Mauzy in the 1992 elections, the court began to tilt toward the insurance companies. When Enoch took his seat in 1993, the partisan balance of the court was still 5-4 for the Democrats, as Democrat Rose Spector had simultaneously defeated GOP incumbent Cook.

But in the 1993-94 biennium, the results in signed and unsigned decisions favored insurance companies 70 percent of the time. Policyholders and claimants won just 7 of 30 cases and split another 2. Insurers won 21 of the cases.

The change from Mauzy to Enoch and the hardening of Justice Raul Gonzalez’s voting for insurance companies led to an increase in votes for the insurance companies. Fifty-three percent of the votes in signed opinions favored insurers in 1991-92; in the next biennium 63.4 percent of the high court votes went for the companies. Where Mauzy had voted for insurers just 20 percent of the time in 1991-92, Enoch voted for them 95 percent of the time in his first two years on the court. That shift was accompanied by that of Raul Gonzalez, a conservative Democrat whose percentage rose from 54 percent in 1991-92 to 90 percent for the insurers in 1993-94.

Two cases decided by the court in 1992 and reversed on rehearing in 1993 warrant special attention as evidence that personnel changes on the bench make a difference in the decision-making of the court. In Forbau v. Aetna, the court split 5-4 in November 1992 to uphold continued coverage for a severely injured girl whose medical insurance payments ended one year after the termination of her father’s group health policy. The following May, after justices Cook and Mauzy left the court and their successful opponents took their seats on the bench, a vote switch by Gonzalez gave the insurer a 5-4 win.

Similarly, American Physicians Insurance Exchange v. Garcia was decided in December 1992 in favor of the policyholder who was suing his carrier for failing to properly settle a medical malpractice suit. The 7-2 margin in the initial decision eroded after the new justices joined the court, and on rehearing in March 1994, the insurer walked away with a 5-4 split decision.


In 1994, the election of Republican Priscilla Owen over Democrat Jimmy Carroll for a seat vacated by Democrat Lloyd Doggett secured a Republican majority on the court for the first time in the 20th century. It also appears to have marked the high tide for the insurance companies’ success in the court.

In 1995-96, votes for insurance companies jumped to a high of 76.5 percent, with only Justice Rose Spector voting less than half the time with the companies. In 19 cases during the biennium, insurance companies won 23 and lost just 6 cases.

The period shows an interesting trend as Republicans Craig Enoch and John Cornyn were significantly less likely to back insurance companies than in the previous two-year period. At the same time, Jack Hightower — a conservative Democrat — and Bob Gammage — a moderate Democrat — increased their voting for insurers.

Hightower’s increase from 57 percent to 69 percent translates to two more votes for the companies, while Gammage’s 34 percent jump from 20 percent in 1993-94 to 54 percent in 1995-96 equates to at least five additional votes against policyholders and claimants.

Moderate Moderation?

In 1995-96, Governor George W. Bush replaced Hightower and Gammage with Republicans James A. Baker and Greg Abbott. Baker voted 80 percent of the time for insurance companies, compared to 69 percent for his predecessor. Abbott went six for six for insurance companies, a perfect record of 100 percent. Gammage had only voted for the insurer in 7 of 13 cases — or 54 percent — in his last biennium on the court.

In 1997-98, hints of moderation were showing in the court’s insurance docket. Insurers won outright only 11 of the 20 cases with signed opinions decided by the court, losing 5 and splitting 4. But insurance companies won 16 of 18 cases decided by unsigned opinions.

Part of the perception of moderation was based on a three-case series of cases involving bad faith claims by policyholders against their insurance companies. In all three cases, the policyholders triumphed, preserving what many consumer lawyers had anticipated as a dying bad faith cause of action. However, in two of the key cases, State Farm v. Nicolau and Universe Life Insurance Co. v. Giles, the policyholders’ wins were substantially muted when the court stripped each of them of $300,000 in punitive damages. Winning the legal point didn’t preserve the damage awards, the policyholders discovered.

Perceptions of moderation or a receding tide must be tempered with caution. While upholding the bad faith cause of action, the justices still cast 72.7 percent of the votes in 20 insurance cases for the insurer, down just 3.8 percent from the previous two-year period. That decrease could be owed in part to some of the cases that the court accepted in which insurance defense lawyers over-reached themselves in extending insurance company defenses. For example, the court split 7-2 in rejecting an insurer’s argument that a “person” under the insurance code could only be a business entity and not an individual (Liberty Mutual Insurance Co. v. Garrison Contractors). The court also rejected by the same margin an insurance company’s argument that slab foundation damage was not covered by standard homeowner insurance policies despite state insurance department interpretations to the contrary (Balandran v. SAFECO Insurance Co. of America).

It is still too early to tell if the suggested moderation of justices in insurance voting will harden in 1999-2000, or whether the justices will continue to vote three out of four times for insurers as they did in the previous six-year period.

Slight moderation continued in the nine other opinions released by the court in insurance cases through Jan. 1, 2000. Five cases were decided for the insurer and one was a split decision favoring an insurance agent who sold annuities with vanishing premiums that failed to vanish. While agreeing that the agent was able to sue under the insurance code as an individual, the court rejected the agent’s status as a consumer and sent the case back for a new trial on other grounds.

Naming Names

Seventeen justices have sat on the Texas Supreme Court during the 1990s. These justices have participated in at least 9 and as many as 81 insurance-related decisions.

Nathan Hecht protégé Priscilla Owen voted 87 percent of the time for insurers, slightly surpassing the 85 percent mark of Hecht and Craig Enoch. James A. Baker cast 84 percent of his votes for the insurance companies.

Five others tallied in the 70 percentile range. Four — current Texas Attorney General John Cornyn, Chief Justice Thomas Phillips and justices Greg Abbott and Alberto Gonzales — were Republican. Raul Gonzalez, a pro-business Democrat, tallied 76 percent.Gonzalez was the only Democrat to exceed Republican justices in voting for insurers; Abbott (76 percent), Phillips (72), Alberto Gonzales (72), Deborah Hankinson (69) and Eugene Cook (63) were less likely to vote that way.

At the other end of the spectrum, former state senators Oscar Mauzy, Lloyd Doggett and Bob Gammage lived up to their populist reputations by favoring policyholders and claimants. Mauzy voted with the insurer only 21 percent of the time, Doggett 27 percent and Gammage 32 percent.

The other two Democrats were the court moderates on insurance issues by almost any statistical definition based on variation from the norm. Former state senator and congressman Jack Hightower cast 60 percent of his votes for insurers, while Rose Spector voted with insurance companies just under half the time (48 percent).

Spector’s balanced voting is clear, but her influence on the court and its insurance cases is better demonstrated by another statistic. Sixty insurance cases were decided by signed opinions during Rose Spector’s six-year tenure on the court. Spector wrote 14 of them, a disproportionate share.

Hightower’s level of moderation is less clear. A 60-40 percent split is considered a landslide in presidential elections, yet a similar split in high court voting in Texas in the 1990s has the appearance of moderation. Why? The fifteen justices who voted in at least 9 insurance cases varied from a 50-50 split in voting by an average of 23.7 percentage points. If “moderation” is defined as being less than half as likely to vote for or against insurers as the average justice, “moderates” would be justices who voted for insurers between 38 and 62 percent of the time. Hightower fits that bill and Republican Eugene Cook comes close.


The Texas Supreme Court was a leading force in removing important insurance consumer protections in the 1990s. The court—through decisions granting insurance companies wide leeway and lopsided voting on behalf of insurance companies—became the last wall of defense for insurance companies in the 1990s.

These high-court decisions come as a one-two punch for consumers as they reel in the wake of legislative changes that stripped consumers of many of their rights against irresponsible insurance companies and corporations. Many court decisions of the 1990s eliminated what protections the so-called tort “reform” movement had left standing. As a result, consumers have been left to all but fend for themselves against insurance companies.

Texas Watch is a non-partisan statewide consumer research and advocacy organization committed to engaging and involving Texas consumers in the public policy process.

To learn about Texas Watch, visit www.texaswatch.org


I am a Dallas, Texas lawyer who has had the privilege of helping thousands of clients since 1971 in the areas of Personal Injury law, Social Security Disability, Elder Law, Medicaid Planning for Long Term Care, and VA Benefits.

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