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Injured construction worker

Attorneys Mr. Vita and Ms. Kane analyze Nagog Real Estate Consulting Corp. v. Nautilus Insurance Co.

Whose Employee is it Anyway?: Federal Court Finds No Coverage for Injured Subcontractor's Claim Based on Modified Employer's Liability Exclusion

Monday, September 28, 2020 — Jeffrey J. Vita & Kerianne E. Kane - Saxe Doernberger & Vita

In Nagog Real Estate Consulting Corp. v. Nautilus Insurance Co.,1 the United States District Court for the District of Massachusetts held that an insurer had no duty to defend its insureds against claims brought by an injured subcontractor, based on an overbroad employer’s liability exclusion in the policy.

Nautilus Insurance Company issued a commercial general liability policy to developer Nagog Homes LLC and its related construction company, Nagog Real Estate. The policy was endorsed with an Employer’s Liability Exclusion (the L205 Endorsement) that expanded the scope of the standard exclusion in the coverage form to include bodily injury claims of employees of “any” insured and their contractors or subcontractors, as opposed to simply the employees of the named insured.

Nagog Homes was the developer, and Nagog Real Estate was the general contractor for a residential construction project. An employee of the framing subcontractor hired by Nagog Real Estate was injured while working on the project and sued both Nagog entities for his injuries. Nautilus, relying on the modified employer’s liability exclusion, denied coverage for the lawsuit based on allegations that the Nagog entities hired the framing subcontractor to perform work, which effectively made the plaintiff an employee of one or both of the Nagog entities.

Reprinted courtesy of Jeffrey J. Vita , Saxe Doernberger & Vita and Kerianne E. Kane, Saxe Doernberger & Vita
Mr. Vita may be contacted at jjv@sdvlaw.com
Ms. Kane may be contacted at kek@sdvlaw.com


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Businesswoman holding temples

Not complying with a post-loss obligation such as submitting a sworn proof of loss can lead to unnecessary headaches for the insured.

Avoid the Headache – Submit the Sworn Proof of Loss to Property Insurer

Monday, September 28, 2020 — David Adelstein - Florida Construction Legal Updates

Property insurance policies (first party insurance policies) contain post-loss obligations that an insured must (and should) comply with otherwise they risk forfeiting insurance coverage. One post-loss obligation is the insurer’s right to request the insured to submit a sworn proof of loss. Not complying with a post-loss obligation such as submitting a sworn proof of loss can lead to unnecessary headaches for the insured. Most of the times the headache can be avoided. Even with a sworn proof of loss, there is a way to disclaim the finality of damages and amounts included by couching information as estimates or by affirming that the final and complete loss is still unknown while you work with an adjuster to quantify the loss. The point is, ignoring the obligation altogether will result in a headache that you will have to deal with down the road because the property insurer will use it against you and is a headache that is easily avoidable. And, it will result in an added burden to you, as the insured, to demonstrate the failure to comply did not actually cause any prejudice to the insurer.

By way of example, in Prem v. Universal Property & Casualty Ins. Co., 45 Fla. L. Weekly D2044a (Fla. 3d DCA 2020), the insured notified their property insurer of a plumbing leak in the bathroom. The insurer requested for the insured to submit a sworn proof of loss per the terms of the insured’s property insurance policy. The insurer follow-up with its request for a sworn proof of loss on a few occasions. None was provided and the insured filed a lawsuit without ever furnishing a sworn proof of loss. The insurer moved for summary judgment due the insured’s failure to comply with the post-loss obligations, specifically by not submitting a sworn proof of loss, and the trial court granted the insurer’s motion. Even at the time of the summary judgment hearing, the insured still did not submit a sworn proof of loss.

Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Clock

A D.C. Superior Court rejected a business interruption claim due to closures related to the COVID-19 pandemic.

With No Evidence of COVID-19 Being Present, DC Trial Court Finds No Claim for Business Interruption

Monday, September 28, 2020 — Tred R. Eyerly - Insurance Law Hawaii

A D.C. Superior Court rejected a business interruption claim due to closures related to the COVID-19 pandemic. Rose's 1, LLC v. Erie Ins. Exchange, Civil Case No 2020 CA 002424 B (Order dated Aug. 8, 2020). The decision is here.

Plaintiffs owned a number of restaurants in the District of Coiumbia. Plaintiffs had commercial property coverage in a policy issued by Erie. The policy provided coverage for loss of income sustained due to interruption of business resulting directly from "loss or damage" to the insured property.

DC Mayor Bowser issued a series of orders in March 2020 which closed all non-essential businesses, including plaintiffs' restaurants. Plaintiffs filed claims with Erie. When coverage was denied, plaintiffs filed suit. Both sides moved for summary judgment.

The dispute centered on whether the closure of the restaurants due to the mayor's orders constituted a "direct physical loss" under the policy. Plaintiffs argued that the loss of use of the restaurants was "direct" because the closures were the direct result of the mayor's orders without intervening action. The court reasoned, however, that the orders were governmental edicts that commanded individuals and businesses to take certain actions. Standing alone and absent intervening actions by individuals and businesses, the orders did not effect any direct changes to the properties.

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Taking the Mystery Out of BIM Data Mining

September 28, 2020 — Aarni Heiskanen - AEC Business

Information mining as a way to affect the productivity curve in construction.

Success in the AEC industry comes down to productivity. Unfortunately, as we all know from many famous studies, productivity has not changed much in the AEC industry. However, there is a deep well of potential for BIM to help show us how problems in our project delivery workflow can be re-thought. VIATechnik is achieving a finer understanding of our productivity levels by collecting and organizing data output from the software backbone of the project. This has the potential to truly impact the industry as we discover ways to improve communication and move closer to a single shared source of information for all project teams.

Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Ninth Circuit Rejects Excess Insurer's Attempt to Dispute Exhaustion of Underlying Insurance

September 28, 2020 — J. Kelby Van Patten & Jared De Jong - Payne & Fears

This week, in AXIS Reinsurance Co. v. Northrop Grumman Corp., ____ F.3d ____, 2020 WL 5509743 (9th Cir. Sept. 14, 2020), the Ninth Circuit addressed an important question of first impression: When can an excess insurer second-guess an underlying insurer’s decision to pay a claim? Prior to AXIS Reinsurance, there had been no California or the Ninth Circuit case discussing an excess insurer’s right to make a covered-claims challenge to the exhaustion of underlying insurance, even though policyholders frequently encounter such arguments.

Reprinted courtesy of J. Kelby Van Patten, Payne & Fears and Jared De Jong, Payne & Fears
Mr. Van may be contacted at kvp@paynefears.com
Ms. Jong may be contacted at jdj@paynefears.com

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Homes Designed to Keep Heat In Are Now Struggling to Cool Down

September 28, 2020 — Jess Shankleman - Bloomberg

When it was completed in 2012 for the Summer Olympics, Lydia Yuzva’s housing complex in East London was hailed as a beacon of green design and energy efficiency. The 2,800 units, a mix of apartments and town houses, have floor-to-ceiling windows, lots of insulation, and environmentally friendly heating systems that use waste heat from a nearby power plant fueled with biomass and gas. They were designed for the U.K.’s cold winters, trapping heat to reduce energy bills.

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ABC Leadership Institute 2020

September 28, 2020 — Beverley BevenFlorez – CDJ Staff

This year’s Associated Builders and Contractors (ABC) Leadership Institute will feature an in-person, socially distanced format as well as providing all sessions virtually for those who cannot travel to the event. The conference is comprised of educational sessions and keynote speakers. Educational sessions include topics such as “Futurenomics: The Economic Snapshot You” and “Communicate, Lead, Succeed.”

November 10th-12th, 2020
In-Person & Virtual Conference
The Westin Kierland Resort & Spa
6902 E Greenway Pkwy
Scottsdale, AZ 85254

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Question mark in maze

The EEOC recently published guidance that construction leaders can reference.

Guidance for Construction Leaders: How Is the Americans With Disabilities Act Applied During the Pandemic?

Monday, September 28, 2020 — Molly Gwin - Construction Executive

With the spread of the COVID-19 pandemic, numerous cities and states have mandated infection control practices, including social distancing, mask requirements and sanitization of work areas and tools. As a result, many construction leaders now have questions as to how government guidance related to COVID-19 interacts with the Americans with Disabilities Act (ADA). For example, can a project manager enforce a mask mandate when a construction worker presents a doctor’s excuse noting breathing difficulties? Or, what if the employer is aware that an individual presents a higher risk for severe illness because of an underlying health condition, but that employee does not request an accommodation?

Thankfully, the United States Equal Employment Opportunity Commission (EEOC) recently published guidance relating to these requests that construction leaders can reference. While our goal is to summarize that guidance and provide practical advice for the construction sector, this article does not substitute for situation specific legal counsel.

SCENARIO 1: AN EMPLOYEE REFUSES TO WEAR A MASK AND PRODUCES A DOCTOR’S NOTE CITING BREATHING DIFFICULTIES. MUST THE EMPLOYER ACCOMMODATE SUCH A REQUEST?

Potentially. Since the request to not wear a mask is considered an accommodation under the ADA, the employer can still require a doctor’s note when considering the accommodation.

Reprinted courtesy of Molly Gwin, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Ms. Gwin may be contacted at mgwin@isaacwiles.com

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Gavel illustration

A federal district court found that COVID-19 can cause physical loss under business-interruption policies.

Court Concludes That COVID-19 Losses Can Qualify as “Direct Physical Loss”

Monday, September 28, 2020 — Lorelie S. Masters & Jorge R. Aviles - Hunton Andrews Kurth

In a victory for policyholders, a federal district court found that COVID-19 can cause physical loss under business-interruption policies. In Studio 417, Inc., et al. v. The Cincinnati Insurance Co., No. 20-cv-03127-SRB (W.D. Mo. Aug. 12, 2020), the court rejected the argument often advanced by insurers that “all-risks” property insurance policies require a physical, structural alteration to trigger coverage. This decision shows that, with correct application of policy-interpretation principles and strategic use of pleading and evidence, policyholders can defeat the insurance industry’s “party line” arguments that business-interruption insurance somehow cannot apply to pay for the unprecedented losses businesses are experiencing from COVID-19, public-safety orders, loss of use of business assets, and other governmental edicts.

The policyholders in Studio 417 operate hair salons and restaurants asserting claims for business interruption. In suing to enforce their coverage, the policyholders allege that, over the last several months, it is likely that customers, employees, and/or other visitors to the insured properties were infected with COVID-19 and thereby infected the insured properties with the virus. Their complaint asserts that the presence of COVID-19 “renders physical property in their vicinity unsafe and unusable.” Unlike some other complaints seeking to enforce such coverage, it also alleges that the presence of COVID-19 and government “Closure Orders” “caused a direct physical loss or direct physical damage” to their premises “by denying use of and damaging the covered property, and by causing a necessary suspension of operations during a period of restoration.”

Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth and Jorge R. Aviles, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Aviles may be contacted at javiles@HuntonAK.com


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3d Vote with green check mark

The Governor of California issued executive order N-38-20, giving the Judicial Council emergency authority to act in response to the COVID-19 pandemic.

California Judicial Council Votes to Rescind Prohibitions on Eviction and Foreclosure Proceedings

Monday, September 28, 2020 — David Rao & Lyndsey Torp - Snell & Wilmer Real Estate Litigation Blog

The California Judicial Council’s emergency rules staying evictions and judicial foreclosures are coming to an end.

On March 27, 2020, the Governor of California issued executive order N-38-20, giving the Judicial Council emergency authority to act in response to the COVID-19 pandemic. On April 6, 2020, the Judicial Council of California voted to approve temporary emergency rules of court. Rule 1 prohibited the issuance of a summons, or the entering of a default, in an eviction action for both residential and commercial properties except as necessary to protect public health and safety. Rule 1 also continued all pending unlawful detainer trials for at least 60 days, with no new trials being set until at least 60 days after a request was filed. Rule 2 stayed all pending judicial foreclosure actions, tolled the statute of limitations, and extended the deadlines for responding to such actions.

Rule 1 and Rule 2 were to remain in effect until 90 days after the Governor declared the state of emergency resulting from the COVID-19 pandemic lifted, or until repealed by action of the Judicial Council. On August 13, 2020, the Judicial Council voted 19-1 to sunset Rule 1 and Rule 2 as of September 1, 2020. Beginning September 2, 2020, California state courts are authorized to issue summons on unlawful detainer actions, enter defaults, and set trial dates on request. Stays on pending judicial foreclosure actions will be lifted.

Reprinted courtesy of David Rao, Snell & Wilmer and Lyndsey Torp, Snell & Wilmer
Mr. Rao may be contacted at drao@swlaw.com
Ms. Torp may be contacted at ltorp@swlaw.com


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CONSTRUCTION DEFECT NEWS
Businesswoman signing document

Mr. Eghtesad, representing himself, filed a form complaint checking a box for breach of contract.

Nader Eghtesad v. State Farm General Insurance Company

Monday, September 28, 2020 — Michael Velladao - Lewis Brisbois

In Eghtesad v. State Farm Gen. Ins. Co., 51 Cal.App.5th 406 (June 29, 2020), the California Court of Appeal reversed the trial court’s entry of judgment in favor of State Farm General Insurance Company (“State Farm”) based on an order sustaining a demurrer without leave to amend regarding a complaint filed by Nader Eghtesad. Mr. Eghtesad, representing himself, filed a form complaint checking a box for breach of contract. The complaint alleged two paragraphs contending that State Farm had acted in bad faith and concealed benefits due under a policy issued to a former tenant who rented space in a building owned by Eghtesad. Eghtesad was an additional insured under the tenant’s policy. In that regard, the building was damaged during the time that the building was rented and Eghtesad tendered a claim under the State Farm policy contending that he was an additional insured pursuant to the terms of the lease with the tenant. According to Eghtesad, State Farm advised him that he could only make a claim for slander against the former tenant and that coverage was not afforded for his property damage claim.

After Eghtesad filed his form complaint, State Farm demurred to the complaint and argued that it did not state facts supporting a cause of action for breach of contract. Ultimately, the trial court agreed with State Farm and entered an order sustaining the demurrer without leave to amend, such that a judgment was entered in State Farm’s favor. Due to health reasons, Eghtesad was never able to file an opposition to the demurrer, despite two extensions of time provided by the trial court intended to allow Eghtesad time to retain counsel and to recover from injuries sustained as a result of an automobile accident.

Reprinted courtesy of Michael Velladao, Lewis Brisbois

Mr. Velladao may be contacted at Michael.Velladao@lewisbrisbois.com

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Business team raising arms in triumph

These awards are recognitions given to attorneys who are earlier in their careers for outstanding professional excellence in private practice in the US.

Wilke Fleury Attorneys Featured in 2021 Best Lawyers in America and Best Lawyers: Ones To Watch!

Monday, September 28, 2020 — Wilke Fleury LLP

Wilke Fleury congratulates attorneys David Frenznick, Adriana Cervantes and Dan Egan on their inclusion in the 2021 Edition of Best Lawyers in America!

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 108,000 industry leading lawyers are eligible to vote (from around the world), and they have received over 13 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2021 Edition of The Best Lawyers in America©, 9.4 million votes were analyzed.

Reprinted courtesy of Wilke Fleury
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Legislative building

Recently released environmental law rulings.

A Court-Side Seat: Citizen Suits, “Facility” Management and Some Nuance for Your Hazard Ranking

Monday, September 28, 2020 — Anthony B. Cavender - Gravel2Gavel

Some very interesting and fairly complex environmental law rulings have been released in the past few days.

U.S. Supreme Court—Trump, et al. v. Sierra Club, et al.

On July 31, 2020, in a 5-to-4 decision, the Supreme Court denied a motion to lift the stay entered by the Court a few days earlier. The earlier action stayed a preliminary injunction issued by the U.S. District Court for the Northern District of California, which had enjoined the construction of a wall along the Southern Border of the United States which was to be constructed with redirected Department of Defense funds. The merits will be addressed by the lower court and perhaps the U.S. Court of Appeals for the Ninth Circuit.

U.S. Court of Appeals for the District of Columbia Circuit—Meritor, Inc. v. EPA

In a case involving EPA’s administration of the Superfund National Priority List (NPL) of priority Superfund sites requiring expedited cleanup, the court held that EPA had acted in accordance with the law and its implementing rules, and denied relief. Meritor was spun off from Rockwell Corporation, and is responsible for Rockwell’s environmental liabilities, including sites Meritor never operated. In 2016, EPA added the Rockwell International Wheel & Trim facility in Grenada, Miss., to the NPL list. Meritor alleged that this listing was arbitrary and capricious, pointing to EPA’s failure to adequately consider the impact of a mitigation measure added to the facility to address vapor intrusion, a factor EPA must consider in its application of the agency’s hazard ranking system. However, the court was not impressed by these arguments, and denied relief. The court’s discussion of the nuances of the hazard ranking system is very instructive

Reprinted courtesy of Anthony B. Cavender, Pillsbury

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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5 things you should know about a Scope of Work in Construction

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CONSTRUCTION DEFECT NEWS
Trophy on hill

Best Lawyers is the most respected peer-review publication in the history of the legal profession.

Partners Nicole Whyte and Karen Baytosh are Selected for Inclusion in Best Lawyers 2021 and Nicole Nuzzo is Selected for Inclusion in Best Lawyers: Ones to Watch

Monday, September 28, 2020 — Bremer Whyte Brown & O’Meara, LLP

Bremer Whyte Brown & O’Meara, LLP is proud to announce that Partners Nicole Whyte and Karen Baytosh have been chosen for inclusion in Best Lawyers 2021 Edition!

CEO/Founding Partner Nicole Whyte has been selected for the 2nd time by her peers for inclusion in the 27th Edition of The Best Lawyers in America, for her work in Family Law. Reno Partner Karen Baytosh is also being recognized by her peers for her work in Commercial Litigation. This is an outstanding recognition as only the top 5% of talent in the United States are chosen for inclusion in this publication.

BWB&O is also excited to share Partner Nicole Nuzzo has been selected by her peers for her inclusion in the edition of Best Lawyers: Ones to Watch, for her work in Family Law. The “Ones to Watch” award gives recognition to attorneys who are earlier in their careers for outstanding professional excellence in private practice in the United States.

Reprinted courtesy of Bremer Whyte Brown & O’Meara, LLP
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Law book open on desk in front of bookshelf

Attorney Craig Rokuson analyzes Greater Mutual Insurance Company v. Continental Casualty Company

Federal Court Holds That Other Insurance Analysis Is Unnecessary If Policies Cover Different Risks

Monday, September 28, 2020 — Craig Rokuson - Traub Lieberman Insurance Law Blog

In Greater Mutual Insurance Company v. Continental Casualty Company, 2020 WL 5370419 (S.D.N.Y. September 8, 2020), the United States District Court for the Southern District of New York had occasion to consider the “other insurance” provisions of a commercial general liability policy, issued by Greater Mutual Insurance Company (“GNY”), and a directors and officers (“D&O”) policy, issued by Continental, to the same insured. The GNY policy covered, inter alia, property damage caused by an occurrence, as well as “personal advertising injury,” defined to include “[t]he wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” The Continental D&O policy covered claims for wrongful acts, including “wrongful entry or eviction, or other invasion of the right to private occupancy. . . .” Unlike the GNY policy, however, the Continental policy expressly excluded coverage for damage to tangible property.

In the underlying action, the plaintiffs alleged that the insured engaged in construction work to fix a leak from a terrace on the seventeenth floor. In doing so, the insured accessed the plaintiffs’ roof terrace. The plaintiffs alleged that the construction workers installed and stored construction materials on the roof terrace, making the plaintiffs unable to access the terrace. Plaintiffs also alleged that their deck furniture may have suffered damage, and that the workers had a “direct line of sight” into their unit, resulting in the plaintiffs having to leave their unit frequently. Causes of action were for property damage, constructive eviction, partial constructive eviction, and invasion of privacy.

Reprinted courtesy of Craig Rokuson, Traub Lieberman

Mr. Rokuson may be contacted at crokuson@tlsslaw.com

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Businessman at elevator

A building standard pitched as making indoor spaces “immune” to the coronavirus aims to get more employees back to the office.

Out of Eastern Europe, a Window Into the Post-Pandemic Office

Monday, September 28, 2020 — Andra Timu & Irina Vilcu - Bloomberg

Special quarantine rooms. Floor-to-ceiling walls in bathroom stalls. Touchless entrances that take your temperature. This is what telecommunications company Ericsson’s office building in Bucharest looks like after coronavirus. The space has become the pilot for a 100-prong coronavirus standard that a real estate investor in Eastern Europe is pitching as a new global “immune” building standard.

Liviu Tudor, president of the Brussels-based European Property Federation, hopes the standard will convince more employees to go back to work. He’s gathered a team of experts in construction, health care and engineering, such as such as Adrian Streinu-Cercel, the head of Bucharest's biggest infectious diseases hospital, to develop three tiers of “immune” building certifications that he says are intended to make indoor spaces “pandemic proof.”

Reprinted courtesy of Andra Timu & Irina Vilcu, Bloomberg
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Yaquina bridge

Skanska has confirmed that 22 barges broke loose from their moorings during the storm.

Pensacola Bridge Repair Plan Grows as Inspectors Uncover More Damage

Monday, September 28, 2020 — Jim Parsons - Engineering News-Record

With a still-growing list of repairs needed to restore the barge-damaged Pensacola Bay Bridge, the Florida Dept. of Transportation has yet to determine a timeline for completing repairs. But assessments by the agency’s inspectors indicate that impacts from several Skanska-owned construction barges that unmoored during Hurricane Sally not only resulted in five irreparable spans, as previously reported, but at least two more that will require partial replacement.

Jim Parsons, Engineering News-Record

ENR may be contacted at ENR.com@bnpmedia.com

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Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

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