first part is a question whether or not gallagher owed a duty to marsh second part is whether or not the coordinator erred in dismissing the claims on judicial stopped with respect to the duty issue i want to call to your attention three aspects first gallagher argued that it owed a duty to its quote client unquote where is the law in arizona clearly says quoting darner against universal underwriters the duty is concisely stated by the supreme court of hawaii an insurance agent knows a duty to the insured to exercise reasonable care it's right to pose for an insurance agent in which depends on state law right well in state law in arizona no more is there a definition of insurance agent neither is there a definition in health in arizona any longer of an insurance broker rather both of those  definitions were abrogated bout legislation in two thousand and one and didn't in that legislation are the only definition of an insurance professional now extend in the status of arizona is a definition of an isn't a lot seems to forgive me for interrupting but arizona law is pretty consistent the have to look at what the what functions were being served right right and a similar case of darn it was decided your honor in one nine hundred eighty four this legislative an act with that i'm nobody from marsh ever talked to calabar they never had any dealings with gallant but that march excuse me gallagher issued the policy but he never advised marsh my reading if you only believe it's gallacher is contact was with in is owed to the insured and who owes the duty an insurance professional who wrote the policy limits just the math the question of a different way what do you claim allege that gallagher did or didn't do with respect to any duty it might hold marsh if you want to please that gets to the question of whether or not the d d was breached right that's what i'm asking you how did gallagher breach the duty well respectfully that's not before the court because the court hailed as a matter of law that gallagher did not owe a duty to march in the first instance so we never reached well let's assume you know we can affirm on any basis supported by the record and so we'll go with  your honor the only question and another words if i recommend a lawyer to you and you go to that more as far as i know if that lawyer is you know as an a v morton the hubbell rating i mean why my liable for any malpractise lawyer i believe best distinguished your honor because we've got a top professional rating in the construct of the context of this case that's a fact question for the jury based on professional expert testimony that was not allowed in this case because law in arizona says expert testimony is not permitted in order to advise the court whether or not a duty to duty exists in the first instance so i'm a little bit handicapped to because there's a  in the judicial last stop of argument is the court really refused to decide an indispensable issue you'll recall that that marsh in its bankruptcy proceeding filed disclosure amended disclosures one of the paragraphs was paragraph five point one point in which in which the disclosure said we've hard a lawyer to produce to pursue this rate as a result of this far right and she thought you raise that too late right but but but what i think at the time before you raise that i think in response to the original summary judgment motion i'm this is i'm trying to get at what did you argue in response to the original summary judgment motion about on the on the question of whether or not your client had concealed or or failed to disclose that property as is acid in in the brief you on and before the t answer to your question is nothing i want to look at the disclosures what wait a minute why didn't you disclose the existence of the property oh of course we just i'm trying to figure out what how the wool got pulled over anybody's eyes what was disclosed i think without question and this is really for opposing counsel as well is the existence of the property that was in the hangar and it seems to me at best there was not an updated schedule to show the property got damaged or maybe even destroyed will the disclosure thousand dollars of personal property in that hangar that's right you know right from the creditors point if you what they want to know is how much money is available as far as they knew there was seven hundred thousand dollars the claim was for approximately seven hundred thousand dollars so it was basically the same amount of money that's wrong so the question is you didn't argue this in your brief before us as far as i know but i gather you did in the district court that there was no traditional stoppel because there was no advantage gained from disclosing or not disclosing the claim now you making that argument aren't you making that argument and making it right now just for the court for having failed to  bring it to the court's attention either but they're going to say i'm sure that it doesn't say enough anyway because it doesn't actually say the claim was ever filed or that it succeeded argument because that would be required showing of bad faith and if you and if your client missed it and made the goof made the error pretty tough to to argue that the opposing counsel opposing party has got a rule eleven said that counsel for the defendant had simply misrepresented the controlling lol to the court yes but to misrepresent means that there is one where an awareness implicitly in an awareness of what the correct state of affairs was and it seems to me from reading the record and opposing counsel can respond as well but it seems to me everybody missed it there was a there was in fact an amended schedule that showed the council had been hired to pursue a claim related to the fire and the district judge hears the important point the district judge didn't know that she didn't know that so that's why i asked you to turn the page and look at what she had in front of her at the time and the problem i've got is it seems the property and the and hence the value of the property was disclosed which you which is true your honor but i can't i can't overcome the fact that i failed to disclose even very candid in that regard i appreciate that but  respectfully vendor height doesn't say anything about bad faith and vendor hype implicitly say is you're supposed to know lol when you represented let me come back to my church christian asked you before what did you argue chapter eleven plan and it was a full pay plan so under any circumstances the creditors were going to lose anything right so that just goes back to the new hampshire factors and opposing counsel have a chance to respond when we hear from them if you want to reserve time you should do it now saying and there were two and since there were two issues i'd like to probably spend the most time on duty but do i do want to address the judicial stop argument as well ok and i want to so there were there were two issues with the respect to duty for gallagher and that is that the undisputed facts showed that gallagher was acting on behalf of travelers and to that the undisputed facts show that at no time did did gallagher act inconsistent with that relationship there any indication in the record that not and if you look at the cases that were cited after that were decided after darner they'd painstakingly go through the relationship between the parties and then the relationship between the party that's claiming to be owed a duty napier which was decided after darner it says that the general rule is that a professional does not owe a duty to a nine anon client absent special circumstances had gallagher acted somewhat inconsistent  marsh contact about the insurance to begin with who did marsh contact yes marsh directly through harvey i'm sorry what party you contacted how could they contacted you right now  acting as marcia's agent and harvey didn't join the motion right on duty that only gets gallagher out right so we have to digital stoppel to talk about harvey curry my understanding yes thank you does address traditional stop please with respect to the judicial stoppel argument i think that the timeline is extremely relevant here and that is back in two thousand and nine is when marsh actually filed for bankruptcy and when they filed their personal property schedule they listed the property that they're now alleging was contained in hangar j for at scrap value i mean that word mean something but there was an amount of money attached how much was that they were unable to tell us during deposition testimony how much of that material deposition what was a schedule less than the two thousand and nine document the schedule contains more property than just the property in hangar j for there was no money and no amount of attached to that property correct so to say that they disclosed the seven hundred thousand dollars claim is is not accurate but counsel neither is it accurate to say under our case  all respect that just the knowledge of the claim the civil claim and the failure to disclose to update the bankruptcy schedule is sufficient right i don't think anybody cited quinn to the district court that they know what we did cite hamilton which hamilton says that if the if the the debtor has enough information to know a potential claim not even and i'm not sure that's not the updated case but we have we've been turpitude that right in there and they did argue that they didn't have an intent to to conceal that hard now i'm talking about the reason this is just limited to hardy and i recognize that you represent gallagher but isn't an incomplete analysis at best i don't not if you look at the totality of the convenient errors so not only do they claim the property at scrap value then when the claim when the properties destroyed and they make a claim for for the fair market value to travelers they don't just close that property claim what exactly is the difference in scrap value and for a market value if it only has scrap value on the fair market value of scrap value you know the fair market value is not scrap value and why does that ever determine what do we know that i mean and if you say what is this what the seller if it's not the only well i don't know that it is defined in the bankruptcy that not that we found but these are terms of art and when you when you're saying something scrap you're saying something is throwaway not if they intended to sell it on the open market for it's well pre market for scrap there's an open market was crap well right but that's not what ended up happening here was the thing ended up happening but i also know that they never got anything  the insurance right sure they didn't get anything on the insurance but then they went on to sue the co tenants who allegedly caused the fire and they did that before the disclosure the second amended plan for reordered disclosing the contingency fee and that's it here's the problem the op queen case file that we've got isn't it isn't a function of rewarding a litigant who fails to disclose the civil claim in bankruptcy the reason that that case was pretty clear the problem is right if the if th if the claim is lost that harms the the debt or the bankruptcy debtors creditors they lose access to that potentially valuable khorassan whatever the value winds up being right correct and if that seems to have gone completely unaddressed here but it hasn't gone on a in two thousand and nine right so you think the bankruptcy creditors were held at bay because of something that happened here they were held up by the nondisclosure the non disclosure of ongoing but they thought there was a hole i mean if they thought anything it more as a claim that it would be worth at the time the bankruptcy schedules file so that the property wasn't him the appearance was that these claims were not being disclosed and marsh not being forthcoming with amendment so then we get to the fact that in fact he did did say that there was a possible claim in the amended or the supplemental disclosure and and sort of not reaching the truth of what actually happened because somebody did something wrong and you refused to consider the question of whether somebody did something wrong because when neither side brought this thing for d and when it wasn't all that complicated to do it on the motion term to reconsider it is hard for me to understand frankly and i would just didn't quite know why did you get an advantage or an equitable advantage from what is at worst of a steak and might have been a mutual mistake and might have been you're not bringing something for and let's leave rule eleven out of this because i understand there is really some argument that it wasn't an adequate disclosure but it was some sort of a disclosure well and i will close i believe it was another misstatement because at the time that that disclosure was amended plan was filed there was an actual claim being litigated it was not an investigation of a potential claim it was an actual claim that was being litigated and you can find that e r one sixty paragraph twice but it still wasn't money in hand very much small for the personal property schedule and actual bankruptcy filing schedule b shows the air force and program in appreciate the value difference that you've pointed out and we've got that and it is three hundred eighty five thousand dollars once they go through the council but here's the problem i've got that there's well there's two fold maybe you could help me out in the in the time available disclose and whether any real gain was achieved by that and i think i don't see how they particularly benefited here particularly because the concern is whether or not the bankruptcy creditors i'm going to be harmed the second thing is kind of minor but it is bugging me and that is there was the complaint filed by the plaintiffs misstated the ownership slashed leasehold interest in the hangar and first claimed it in march of course it wasn't marshes it's still wells and purchased by the lease hold interest in the in the hanger and that seemed to be significant to the district court and i can't figure out why i feel like i'm missing something on that or let me address that first story the in order for there to be an insurable interest in the insurance agent to cover all the property owned by marsh aviation they added to the complaint an allegation that that hangar j was leas was because there's a presumption direct result of the law that if the title of the property is in the name of mr stillwell the presumption is that the property there and is it is mr stillwe aviation's why would i think i'm sorry i think that's a very odd presumption people store property in other people's property and real estate all the time well under the lease with the city of mesa  mr still well we're not supposed to use it for commercial purposes or store anything but the aircraft that he designated in the lease but there allegation in the complaint is that that hardie and i guess gallagher but anyway well it's hardly an gallagher in the complaint field to tell us that we were going to be insured over there and whether that means failed to tell us that those premises were going to be insured failed to tell us that our personal property wasn't going to be insured if we started in a premise off site in somewhere more than a thousand feet away we didn't hold the leasehold interest whatever that is i'm trying to figure out as is judge birds on how does this influence the district courts just all stop analysis  that's purely a procedural matter that is you get one bite at the apple no no no no my question is if she had considered all the affidavits then but i understand your procedure argument the judge simply said it was too late yeah i get  be a claim there and then attach no value to it the value in the in the bankruptcy schedule remain the same both before and after this hypothetical anticipate amount but be the same another as whatever the bank whatever he would recover from the loss the property would be whatever the property was worth in the first place right  twenty one thousand dollars in the initial bankroll fine it's only worth twenty one thousand dollars but whatever they are they're the same if that is sick and he made a claim for seven hundred fifty thousand dollars then he wasn't going to get zimmerman fifty thousand dollars if say that they're the same as what matters and exactly what the value is doesn't matter that much the well i disagree that they were the same applies then because of the different numbers used in the representation  in the bankruptcy schedules that lowe's creditors into not going after this asset whatever the number is but i true but that's a different form of judicial stop and the one that the judge relied on it's not the reasoning relied on by the district regardless of that that it seems to me your honour's that you can find that there is an abuse of discretion for the trial court to rely on circuit precedent precedent forbidding this this argument wasn't presented this case that was not presented to the district court but is an abuse of discretion to not do not undertake the auckland inquiry it is an incomplete analysis i don't believe so the the course being asked to and adopt to adopt an excusable neglect standard for post judgement relief and i don't think that wise to do that simply as a matter of judicial practice you don't want to invite a never ending motion practice thank you thank you very much you have same thing in the context when you file bankruptcy what the creditors want to know in a chapter eleven proceeding is ok if we're going to approve this chapter eleven we've got to know what your stuff is worth right now well did you know it was the original representation that it was worth twenty one thousand dollars i beg your pardon was the original representation that it was worth twenty one thousand dollars in the disclosure the disclosure of scrap that was of scrap  tell you what the totals were the total of all of the property was greater than seven hundred fifty thousand dollars but my point is this you on when you're going to sell something it's crap that's one thing that's what they were faced with in the bankruptcy proceeding in two thousand and nine that's what did the creditors want to know what can you get for it right now a story up in and that's what they put down in the in the ru in the chapter eleven proceeding years later after the chapter eleven had been approved they had had an opportunity to could to keep the stuff as inventory what a willing buyer and a willing a bit willing buyer will pay immediately you take it out and lay it on the ground and see what you can get for it that's the question that in the bankruptcy context and the answer is scrap b any unique buyers to come along shopping for this stuff canceled just quickly forgive me for interrupting but your time's just about i beg your pardon so this is an equitable doctrine my question is was there ever any amendment anything in the bankruptcy court even after i say if you want to please counsel counsel says here's the thing that they are arguing agency this is not an agency issue they say they say gallagher