Afoa v. China Airlines Ltd et al, No. 2:2011cv00028 - Document 203 (W.D. Wash. 2019)
Court Description: ORDER denying Plaintiff's 190 Motion to Vacate Judgment and Reopen Case signed by U.S. District Judge John C Coughenour. (TH)
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Afoa v. China Airlines Ltd et al Doc. 203 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 BRANDON APELA AFOA, 10 Plaintiff, 11 CASE NO. C11-0028-JCC ORDER v. 12 CHINA AIRLINES LTD, et al., 13 Defendants. 14 This matter comes before the Court on Plaintiff’s motion to vacate judgment and reopen 15 16 case (Dkt. No. 190). Having thoroughly considered the parties’ briefing and the relevant record, 17 the Court finds oral argument unnecessary and hereby DENIES the motion for the reasons stated 18 herein. 19 I. BACKGROUND 20 Plaintiff was paralyzed while working for Evergreen Aviation Ground Logistics 21 Enterprises, Inc., (“EAGLE”), a company that provided ground services at Seattle-Tacoma 22 International Airport (“SeaTac Airport”) to Defendants China Airlines (“China”), Hawaiian 23 Airlines (“Hawaiian”), Eva Airways (“Eva”), and British Airways (“British”) (collectively the 24 “Airline Defendants”). (Dkt. No. 26 at 2–5.) On December 26, 2007, Plaintiff was driving a 25 “pushback” at SeaTac Airport when the vehicle’s brakes and steering failed causing Plaintiff to 26 collide with a cargo loading machine, which collapsed on him. (Id. at 8.) ORDER C11-0028-JCC PAGE - 1 Dockets.Justia.com 1 Plaintiff initially filed a lawsuit in King County Superior Court against the Port of Seattle 2 (the “Port”), which owns SeaTac Airport. (Dkt. No. 105 at 2.) The superior court dismissed 3 Plaintiff’s claims against the Port on summary judgment. Plaintiff appealed, and the Washington 4 State Supreme Court ultimately held that the trial court’s grant of summary judgment was 5 erroneous and remanded the case for further proceedings. See Afoa v. Port of Seattle, 296 P.3d 6 800 (Wash. 2013) (Afoa I). 7 After the superior court dismissed Plaintiff’s claims against the Port, and shortly before 8 the three-year statute of limitations for tort actions ran, Plaintiff filed this lawsuit in King County 9 Superior Court against the Airline Defendants and the manufacturers of the pushback and the 10 cargo loader involved in his accident. (Dkt. No. 105 at 2–3.) 1 Plaintiff alleged three theories of 11 negligence against the Airline Defendants: (1) breach of duties under the Washington Industrial 12 Safety and Health Act of 1973 (“WISHA claim”); (2) breach of duties under the common law 13 retained-control doctrine (“retained control claim”); and (3) breach of duties owed to an invitee 14 on premises by a possessor of land (“premises liability claim”). (Dkt. No. 117 at 7–10.) 2 15 Defendants timely removed the case to this Court, and the Court stayed all proceedings 16 pending the Washington State Supreme Court’s resolution of Plaintiff’s appeal in Afoa I. (Dkt. 17 No. 77.) After the Washington State Supreme Court issued its opinion in Afoa I, this Court lifted 18 its stay, and the Airline Defendants each moved to dismiss Plaintiff’s second amended complaint 19 on the pleadings. (Dkt. Nos. 24, 34, 74.) The Court granted the Airline Defendants’ motions to 20 dismiss Plaintiff’s premises liability claim, but gave Plaintiff leave to amend. (Dkt. No. 117 at 21 10) (“[T]he complaint fails to provide any factual allegation sufficient to support Plaintiff’s 22 claim that any of the Airline Defendants possessed the premises on which he was injured.”) The 23 24 1 Plaintiff’s motion does not implicate the manufacturer defendants, and the Court does not discuss them any further. 2 Plaintiff asserted identical negligence claims against the Port in the state court action. 26 (See Dkt. No. 198 at 14.) 25 ORDER C11-0028-JCC PAGE - 2 1 Court denied Hawaiian and China’s motions to dismiss Plaintiff’s retained control claim and 2 WISHA claim, ruling that Plaintiff alleged facts demonstrating that “Hawaiian Airlines and 3 China Airlines retained control over his work and [were] potentially liable for his injuries 4 because he was working for them when he was injured.” (Id. at 7, 9.) 5 Conversely, the Court granted Eva and British’s motion to dismiss Plaintiff’s retained 6 control claim and WISHA claim ruling that “at the time [Plaintiff] was injured he was doing 7 work for Hawaiian Airlines and China Airlines, not for Eva Airways or British Airways.” (Id. at 8 7–8.) The Court reasoned that: 9 10 11 12 [I]t would be illogical to conclude that either Eva or British owed Plaintiff any duty to provide him with a safe workplace at the time he was injured. Although an employer can be liable for injuries to an independent contractor’s employee, the employer is not liable when the injured employee is performing work on another contract. (Id. at 8.) In making its ruling, the Court cited to the same legal authority that the Washington 13 State Supreme Court applied in Afoa I when assessing the Port’s liability under a retained-control 14 theory of negligence. (Id.) (citing Kamla v. Space Needle Corp., 52 P.3d 472, 476 (Wash. 2002)) 15 (rejecting defendant’s argument that Washington law required actual control as opposed to 16 “retention of the right to direct the manner in which the work is performed”); see Afoa I, 296 17 P.3d at 810 (noting that Kamla established that “if a jobsite owner . . . retained the right to 18 control work, it could be liable under a common law safe workplace theory.”). 19 After Plaintiff amended his complaint, the Airline Defendants filed motions for summary 20 judgment on Plaintiff’s remaining claims. (Dkt. Nos. 150, 153, 154, 158.) The Court granted 21 summary judgment on Plaintiff’s premises liability claim as to all Defendants, ruling that the 22 evidence demonstrated that “no defendant had ownership or control over the area” where “the 23 accident occurred.” (Dkt. No. 173 at 5–6.) The Court granted summary judgment on Plaintiff’s 24 WISHA claim as to Hawaiian and China because Plaintiff had “not even identified what 25 regulations were violated, much less identified relevant actions on the part of Defendants or 26 suggested what facts could be uncovered that would further the unidentified claims.” (Id. at 7.) ORDER C11-0028-JCC PAGE - 3 1 The Court also granted summary judgment to China on Plaintiff’s retained control claim 2 because China presented testimony that it “had no authority over or involvement with Plaintiff 3 driving the tug/pushback,” and Plaintiff did not produce any contradictory evidence. (Id. at 8.) 4 Conversely, the Court initially denied Hawaiian’s motion for summary judgment because the 5 motion relied on a declaration from a witness that had not been identified in Hawaiian’s initial 6 disclosures. (Id.) Hawaiian subsequently filed a second motion for summary judgment, asserting 7 that Plaintiff “was not working for Hawaiian at the time of his accident,” and that Hawaiian “in 8 no way had authority over or supervised the plaintiff in any way with respect to him driving the 9 tug/pushback.” (Dkt. No. 174 at 10, 13.) In response to Hawaiian’s second motion for summary 10 judgment, Plaintiff stated that he was “now certain that Hawaiian Airlines, China Air, Eva Air, 11 and British Air are not responsible for the loss, that the Port of Seattle is and always has been 12 responsible for the loss, and [he] therefore does not oppose the dismissal of claims against 13 Hawaiian Airlines.” (Dkt. No. 176 at 6–7.) 14 Based on the evidence presented by Hawaiian, and Plaintiff’s concession, the Court 15 dismissed Plaintiff’s remaining retained control claim against Hawaiian. (Dkt. No. 177 at 1) 16 (“Having conducted further discovery, Plaintiff now confirms that Defendant Hawaiian Airlines 17 was not responsible for his loss, and he does not oppose the dismissal of claims against it.”). 18 Plaintiff neither moved for reconsideration of nor appealed any of the Court’s orders dismissing 19 his claims against the Airline Defendants. 20 Following the Court’s entry of final judgment, the Port amended its complaint in the state 21 court action to allege that the Airline Defendants were at fault for Plaintiff’s injuries. (Dkt. No. 22 198 at 9–10.) Plaintiff moved for summary judgment on the Port’s proposed “empty chair” 23 defenses, arguing that this Court’s dismissal of Plaintiff’s claims against the Airline Defendants 24 precluded the Port from seeking to hold them liable. (Id. at 13–36.) The superior court denied 25 Plaintiff’s motion, and allowed the Port to present empty chair defenses against the Airline 26 Defendants at trial. (Id. at 38–40.) Following a five-week trial, a jury found damages for Plaintiff ORDER C11-0028-JCC PAGE - 4 1 in the amount of $40 million, concluding that the Port was 25% liable, each Airline Defendant 2 was 18.7% liable, and Plaintiff was 0.02% liable. (Id. at 44–45.) 3 Plaintiff made a post-trial motion seeking, among other things, to hold the Port 4 vicariously liable for the Airline Defendants’ negligence arguing that the Port had a 5 nondelegable duty to provide Plaintiff with a safe workplace. (Id. at 52–54.) The superior court 6 denied Plaintiff’s motion. On appeal, the Washington State Court of Appeals reversed the trial 7 court, holding that “the Port had a nondelegable duty to ensure a safe workplace and safe 8 equipment and is vicariously liable for breach of that duty.” Afoa v. Port of Seattle, 393 P.3d 9 802, 817 (Wash. Ct. App. 2017). 3 The court of appeals further held that the Port was “not 10 entitled to proportionately reduce its liability based upon an allocation of fault to the four 11 nonparty airlines.” Id. As a result, the court of appeals ordered the case remanded to the superior 12 court for entry of an amended judgment making the Port liable for the 74.8% of fault that was 13 allocated to the Airline Defendants at trial. Id. 14 After the Port sought discretionary review, the Washington State Supreme Court reversed 15 the court of appeals with regard to the Port’s vicariously liability. Afoa v. Port of Seattle, 421 16 P.3d 903, 909 (Wash. 2018) (“Afoa II”). The Supreme Court held that the Port was not 17 vicariously liable for the Airline Defendant’s concurrent negligence because breaches of the non18 delegable duties at issue were still subject to apportionmate under Revised Code of Washington 19 § 4.22.070. Id. The Supreme Court further held that although the Port could have been 20 vicariously liable for the Airline Defendants’ negligence “the jury was not asked to find if the 21 Port retained control of the airlines,” such that the Port could be held jointly and severally liable. 22 Id. at 915. As a result, the Supreme Court reinstated the superior court’s judgment, which 23 awarded Plaintiff approximately $10 million in damages against the Port. Id. 24 After the entry of a satisfaction of judgment, Plaintiff filed this motion to vacate the 25 26 3 The court of appeals affirmed the jury’s verdict regarding the Port’s liability. Afoa II, 393 P.3d at 813. ORDER C11-0028-JCC PAGE - 5 1 Court’s prior judgment and reopen this case. (Dkt. No. 190.) Pursuant to Federal Rule of Civil 2 Procedure 60(b)(6), Plaintiff asks the Court to vacate its prior judgment dismissing all claims 3 against the Airline Defendants and allow these claims to proceed to trial. (Id. at 4.) 4 The Airline 4 Defendants object to Plaintiff’s motion. (Dkt. Nos. 197, 200, 201.) 5 II. DISCUSSION 6 A. 7 Federal Rule of Civil Procedure 60(b) allows a district court to “relieve a party or its legal Legal Standard 8 representative from a final judgment, order, or proceeding,” under any of six circumstances. Fed. 9 R. Civ. P. 60(b). Under the “catch-all provision,” a district court can vacate a judgment for “any 10 other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6); Harvest v. Castro, 531 F.3d 737, 749 11 (9th Cir. 2008). A party moving for relief under Rule 60(b)(6) “must demonstrate both injury and 12 circumstances beyond his control that prevented him from proceeding with the action in a proper 13 fashion.” Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006) (internal 14 quotation marks and alteration omitted). The Ninth Circuit has repeatedly cautioned that the Rule 15 60(b) catch-all provision should be “used sparingly as an equitable remedy to prevent manifest 16 injustice and is to be utilized only where extraordinary circumstances prevented a party from 17 taking timely action to prevent or correct an erroneous judgment.” Id. (quoting United States v. 18 Washington, 394 F.3d 1152, 1157 (9th Cir. 2005)); see also United States v. Alpine Land & 19 Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). 20 B. Plaintiff’s Motion to Vacate 21 Plaintiff asks the Court to vacate its prior judgment against the Airline Defendants 22 because “he received substantially different treatment in federal and state courts.” (Dkt. No. 190 23 24 4 Plaintiff specifically asks the Court to: (1) vacate its order dismissing Plaintiff’s claims 25 against Eva and British (Dkt. No. 117); (2) vacate its orders dismissing Plaintiff’s claims against Hawaiian and China (Dkt. No. 173, 178); and (3) vacate its final judgment (Dkt. No. 189) with 26 regard to the dismissal of all claims against the Airline Defendants. (Dkt. No. 190 at 4.) ORDER C11-0028-JCC PAGE - 6 1 at 17.) Plaintiff asserts that the Court “dismissed his claims against the airlines on the basis that 2 the airlines did not owe him duties under WISHA and the retained control doctrine. Yet the state 3 courts found the airlines did owe these duties concurrently with that of the Port.” (Id.) As a 4 result, Plaintiff asserts that he is precluded from collecting a judgment against the Airline 5 Defendants, despite a state court jury finding each of them partially at fault for is injuries. (Id. at 6 17.) Plaintiff cites to several cases where courts have granted relief from a judgment “to rectify 7 disparate results in litigation arising from the same transaction or occurrence.” (Id. at 14) (citing 8 Gondeck v. Pan Am. World Airways, Inc., 382 U.S. 25, 31 (1965); In re Terrorist Attacks on 9 Sept. 11, 2001, 741 F.3d 353, 355 (2d Cir. 2013); Pierce v. Cook & Co., 518 F.2d 720, 721 (10th 10 Cir. 1975)). 11 Plaintiff has not demonstrated that “extraordinary circumstances” prevented him from 12 challenging this Court’s judgment dismissing his claims against the Airline Defendants, which 13 he now argues was erroneous. See Alpine Land & Reservoir Co., 984 F.2d at 1049. Instead, the 14 outcome in this case is a result of Plaintiff’s own litigation choices and rulings by the 15 Washington courts that are only tangentially related to this Court’s dismissal of Plaintiff’s 16 claims. This combination of circumstances, though preventing Plaintiff from collecting a 17 judgment against the Airline Defendants, does not warrant relief under Rule 60(b)(6). 18 Plaintiff suggests that the Court’s legal rulings were “rejected” by both the court of 19 appeals and Washington State Supreme Court in Afoa II. (Dkt. No. 190 at 10, 12.) Plaintiff 20 characterizes the appellate courts’ decisions in Afoa II as creating “changes in controlling 21 substantive law in Washington,” that warrant vacating the Court’s judgment. (Id. at 3.) The Court 22 disagrees. 23 As an initial matter, the Washington appellate courts were not reviewing this Court’s 24 orders dismissing the Airline Defendants, nor were their rulings made on the same evidentiary 25 record or procedural posture. Neither the court of appeals nor the Supreme Court’s opinions in 26 Afoa II address some of the reasons that this Court gave for dismissing Plaintiff’s claims against ORDER C11-0028-JCC PAGE - 7 1 the Airline Defendants—for example, that Plaintiff failed to provide evidence in support of his 2 premise liability claims or that Plaintiff failed to specify what WISHA regulations the Airline 3 Defendants had violated. (See Dkt. No. 176 at 5–7.) The Court perceives nothing in the Afoa II 4 decisions that would cure these previously identified deficiencies or warrant vacating its 5 dismissal of these claims. 6 Contrary to Plaintiff’s contention, Afoa II did not bring about a change in decisional law 7 regarding the Court’s dismissal of Plaintiff’s WISHA claim and retained control claim against 8 the Airline Defendants. (Dkt. No. 190 at 10.) To the extent the court of appeals discussed 9 Plaintiff’s retained control claim and WISHA claim, it did so with regard to the Port’s liability, 10 not the Airline Defendants’ liability. Afoa II, 393 P.3d at 813. The court of appeals affirmed that 11 there was “substantial evidence to support the jury’s finding that the Port retained a right to 12 control the manner of EAGLE’s work, including how EAGLE maintained its equipment.” Id. 13 Not only was the court of appeals’ decision made on a different evidentiary record than this 14 Court’s orders dismissing Plaintiff’s claims, but the court of appeals also grounded its decision in 15 the same precedent that this Court relied on to dismiss Plaintiff’s claims against the Airline 16 Defendants. (See Dkt. Nos. 117 at 7–9, 173 at 7–8.); Afoa II, 393 P.3d at 808–09. 17 The Washington State Supreme Court discussed the Airline Defendants’ liability only as 18 it related to Plaintiff’s assertion that the Port was vicariously liable for his injuries. Afoa II, 421 19 P.3d at 909–10. Like it did in Afoa I, the Supreme Court reiterated the same legal principles that 20 this Court applied in dismissing Plaintiff’s claims against the Airline Defendants. Id. (citing 21 Kamla for the proposition that under WISHA and the common law the standard for control exists 22 “where there is a retention of the right to direct the manner in which the work is performed.”) 23 What Plaintiff is really arguing, is that the opinions in Afoa II demonstrate that the Court 24 misapplied the controlling legal standard in dismissing his claims against the Airline Defendants. 25 But if the Court misapplied Washington law, its ruling would have been erroneous prior to any 26 of the state court decisions in Afoa II, which reiterated, but did not change, the controlling legal ORDER C11-0028-JCC PAGE - 8 1 principles that this Court applied. 2 In other words, Plaintiff should have either moved for reconsideration or appealed the 3 dismissal of the Airline Defendants once the Court entered final judgment. Plaintiff did neither, 4 and even conceded that “Hawaiian Airlines, China Air, Eva Air, and British Air are not 5 responsible for [his] loss.” (Dkt. No. 176 at 6.) It appears from the record that Plaintiff made this 6 concession—and decided to forego an appeal—because he assumed the Port would be held fully 7 liable for his injuries in the state court lawsuit. (See id. at 6–7.) (“[Plaintiff] is now certain that . . 8 . the Port of Seattle is and always has been responsible for the loss.”). However, relief under 9 Rule 60(b)(6) is not warranted where a party makes a strategic decision not to appeal a judgment 10 that it later argues was erroneous. See Ackermann v. United States, 340 U.S. 193, 198 (1950) 11 (affirming district court’s denial of a Rule 60(b)(6) motion where petitioner made a “calculated 12 and deliberate” choice not to appeal the district court’s allegedly erroneous judgment); see also 13 Title v. United States, 263 F.2d 28, 31 (9th Cir. 1959) (“Rule 60(b) was not intended to provide 14 relief for error on the part of the court or to afford a substitute for appeal.”). 15 The only change in decisional law that Plaintiff can conceivably point to as a basis for 16 vacating the Court’ judgment is the Washington State Supreme Court’s conclusion that the Port 17 was not vicariously liable for the Airline Defendant’s concurrent negligence as determined by 18 the state court jury, and that it was proper to apportion fault to the Airline Defendants 19 notwithstanding the Port’s nondelegable duty. Afoa II, 421 P.3d at 909–10. But this Court never 20 addressed the issues of the Port’s vicarious liability or the apportionment of fault under Revised 21 Code of Washington § 4.22.070, and neither issue played any part in the Court’s dismissal of 22 Plaintiff’s claims against the Airline Defendants. The Court struggles to see how a change in the 23 law that was not pertinent to its judgment can represent “extraordinary circumstances that 24 prevented [Plaintiff] from taking timely action to prevent or correct” what he now argues was an 25 erroneous judgment. See Latshaw, 452 F.3d at 1103. Moreover, the Washington State Supreme 26 Court explicitly noted that Plaintiff’s inability to recover from the Airline Defendants was a ORDER C11-0028-JCC PAGE - 9 1 result of his own litigation decisions: his failure to initially sue the Port and the Airline 2 Defendants in a single action; his failure to argue at trial that the Airline Defendants were the 3 Port’s agents for purposes of establishing vicarious liability; and his failure to prove his claims 4 against the Airline Defendants in this lawsuit. See generally Afoa II, 421 P.3d 903. 5 Each of the cases Plaintiff cites in support of his motion are distinguishable from the facts 6 of this case. In Gondeck, two plaintiffs brought claims under the Longshoremen’s and Harbor 7 Worker’s Compensation Act arising from the same car accident. 382 U.S. at 25. In one of the 8 cases, the Fifth Circuit ultimately affirmed the district court’s decision to set aside the plaintiff’s 9 award from the Department of Labor. Id. Following that decision, the Fourth Circuit affirmed an 10 award for the other plaintiff, relying on the same United States Supreme Court precedent that the 11 Fifth Circuit had applied in denying an award. The Supreme Court subsequently reversed the 12 Fifth Circuit’s judgment because it had “misinterpreted the [controlling] standard,” which 13 resulted in the plaintiff not receiving compensation while the other did. Id. at 27. 14 In contrast to Gondeck, this case does not involve two similarly situated plaintiffs who 15 received disparate outcomes based on contrary interpretations of the same controlling legal 16 standard. This case involves one plaintiff litigating two lawsuits and receiving disparate results 17 based largely on his own litigation decisions. See also In re Terrorist Attacks on Sept. 11, 2001, 18 741 F.3d 353. The case that Plaintiff argues most justifies his motion actually illustrates why 19 Rule 60(b)(6) relief is not warranted. See Pierce, 518 F.2d 720. In Pierce, separate plaintiffs filed 20 lawsuits in Oklahoma state court arising from the same car accident. Id. at 721. One of the 21 lawsuits was ultimately removed to and litigated in federal court, while the other remained in 22 state court. Id. The federal court dismissed the plaintiffs’ lawsuit based on a controlling decision 23 from the Oklahoma Supreme Court, Marion Machine, Foundry & Supply Co. v. Duncan, 187 24 Okl. 160, 101 P.2d 813 (“Marion Machine”). Id. On appeal, the Tenth Circuit affirmed the 25 district court’s dismissal based on the rule established in Marion Machine. Id. at 722. 26 The state court action was also subsequently dismissed based on Marion Machine. Id. ORDER C11-0028-JCC PAGE - 10 1 The plaintiff appealed to the Oklahoma State Supreme Court, which overruled its prior holding 2 in Marion Machine, and remanded the case to the trial court for further proceedings. Id. The 3 plaintiff eventually settled his lawsuit. Id. In light of this result, the plaintiffs in the federal action 4 sought to vacate the dismissal of their claims pursuant to Federal Rule of Civil Procedure 5 60(b)(6). Id. The Tenth Circuit granted the motion, noting that the plaintiffs had received 6 “substantially different treatment than that received in state court by another injured in the same 7 accident.” Id. at 723. In finding that extraordinary circumstances existed under Rule 60(b)(6), the 8 Tenth Circuit emphasized that the plaintiffs “lost because state law control[ed] and the Marion 9 Machine decision defeated their claims as a matter of law . . . [while] [a]nother party, exercising 10 a stratagem not shown to be available to these plaintiffs, obtained the reversal of the Marion 11 Machine decision and a settlement thereafter.” Id. at 722 (emphasis added). This case differs from Pierce in two important ways. First, there was no change in 12 13 Washington law following the Court’s dismissal of the Airline Defendants that would have 14 altered the Court’s judgment, like there was in Pierce when the Oklahoma Supreme Court 15 overruled the controlling decision in Marion Machine. Second, the federal Plaintiffs in Pierce 16 were unable to appeal their case to the Oklahoma Supreme Court, and therefore were unable to 17 obtain the relief that the state plaintiffs did. Id. at 721–22. By contrast, Plaintiff could have 18 appealed this Court’s judgment, but chose not to. That Plaintiff pursued a different strategy, and 19 ultimately obtained a less than optimal outcome in the state court action, does not mean he 20 should get a second bite at the apple in this case. Ultimately, Plaintiff has not demonstrated 21 extraordinary circumstances warranting relief under Rule 60(b)(6). 22 III. CONCLUSION 23 Plaintiff’s motion to vacate judgment (Dkt. No. 190) is DENIED. 24 // 25 // 26 // ORDER C11-0028-JCC PAGE - 11 1 DATED this 11th day of July 2019. 4 A 5 John C. Coughenour UNITED STATES DISTRICT JUDGE 2 3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER C11-0028-JCC PAGE - 12
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