number four three four one mat protective company versus center for a ban act at all argument not to exceed fifteen minutes for the plaintiff and fifteen minutes to be here by the defendant m address both you can proceed however you want to be able to limit it to fifteen minutes if you please the court steve janick for medical protective company and i'll address the motion first and then to the merits of the appeals while the motion is dismissed the appeal because it is now mid medical protective appeal is moot as is the underlying rulings of the district court because the facts have changed since the filing of this appeal before the appeal dr dromi medical protective insured absolutely unequivocally without reservation refused to assist in his defense in the underlying proceedings and to attend a trial of the underlying proceedings that was the basis of the declaratory judgment the summary judgment blau in the district court's ruling since appeal after several years dr duran e has in the last six weeks said he will assist in the to drop the pail that's the end of the pail i should have to pay court costs or something like that you know and i don't believe that there's an issue amongst us as to dismissal of the pill i believe the issue focuses on whether the effect of that dismissal on the district court ruling medical protective suit smith's respectfully that in accordance with the supreme court's teaching in arizona in this court's teachings in haydel once the appeal is deemed to be moot that the district court's decision should be vacated moreover the district court in this case declined court vacated the case anyway and so it so to speak that your honor i believe is the critical issue the district court declined your stiction but then nonetheless issued a ruling on summary judgment on decision should be vacated or your motion to do is vacant chair of the district court is a separate motion or a separate matter if we given that we may address these motion to dismiss and by the way we haven't you didn't say whether you are asking that we dismiss with prejudice or without prejudice and the appeal so to use you still want day it doesn't satisfy the conditions for voluntary dismissal the minute answer to the complaint where you are in the middle of litigation and we have to rule on your and you had this case on appeal notwithstanding the district court's ruling as for when you say you didn't think the matter was moved when you initiated the appeal it was not your run of the facts that have changed have developed since the pill was fi the new facts presented that rendered moot only emerged in the last six weeks so the council the your assertion is that because end the court kind of ruled against you by most definitely right ok well i say that because you're challenging you're saying there was jurisdiction but then he he addressed them the merits anyway but so and now we learn that the doctor is willing to cooperate a little or to some degree so that the facts they may have changed but they are even less favorable to your position right because before you had no cooperation and you wanted to say this is you know non cooperation and prejudicial in the whole business and you wanted a ruling and now he's even cooperating a little so it puts your position even further away from success is that a fair statement if you weren't going to get a ruling on non cooperation when he was totally not cooperating cooperate that is the core of the issue below in this appeal there are two prongs to that to that to you to cooperate one is to assist in the preparation of trial which has now changed and is still being developed to is the duty to attend trial and from the standpoint of the appeal being rendered moot because of the change in facts that is not rendered moot the issue on the failure to cooperate in the refusal to attend trial the refusal to attend trial continues today but is subject to developing facts from that standpoint on the duty to the the the facts of the for refusal to attend trial it is undisputed from day one through today the position dr dr he is he won't not attend trial that undisputed fact of the teachings of the supreme court of ohio in lunch for sister and where the facts are undisputed breach is a question of law and where those facts have been presented it is in there is no doubt that he will not comply with that duty than that question of law still prevails and even on the supplemental record which which we have submitted to the court which is subject to the st rulings under the facts as they are presented today he has refused to cooperate and that in and of itself is a breach of the cooperate that warrants reversal of the district court in judgment for medical protective but that was just an argument against appeal is moot from the standpoint of the record your honor and then in the record before this court all of the facts that have now come forward on his current position are are just we're just coming in we just heard from yesterday that's why  are certainly don't help you i agree with you on ok so it how is it moot if there are some new factual developments that hurt your case even more i mean basically if the plaintiffs were were going to win they were going to win even more now if the court accept the district court's analysis that is true that's right but that's what's on appeal so how is cooperation of compliance with the duty to cooperate we now have an undetermined statement by dr dryly that he will assist that he will cooperate in the defense but without development as to at this point with us whether he will attend trial so those those facts have changed the basis of our appeal you're saying but it doesn't make sense to me but let me just ask you this  shouldn't the trial judge be the one that decides whether this moves things want i would suggest that the that since this isn't over of unit is a question of long on from network but perspective standpoint as to whether or not there's been a failure to cooperate that the appropriate is reversed and in a judgment for me the extent that there are issues as to the scope of that cooperation with the district court and declined jurisdiction i think the court would have to address that threshold issue as to whether there is even the ability at this point to the man back so if the court declined jurisdiction what what is the legal effect of its other decision that is the problem your honor we respectfully submit it is virtually an advisory opinion that it never should have been dependent on facts and other words he can't reach the jurisdiction issue unless he decides certain other issues like whether prejudice is required and so he decides that and then that enables him to decide the jurisdiction question i believe that's what occurred here and i believe he exercises discretion to entertain the clear tory judgment action after the certification of the class which first there were three aspects of the district court's opinion number one summary judgment was denied for an issue of fact number two the decertified a class judge black and then number three he declined jurisdiction the new evidence that's been put into the record only relates to the summary judgment medical protective move for summary judgment here without any discovery what judge black held was that there were issues of fact which precluded summary judgment all they've done is introduce new facts into the record which would accumulate t been put into the record is a letter saying that he might cooperate and he wants to put some conditions on that cooperation but we have no idea how that's going to affect each one of these underlay i just want to make sure you understand th basis for jurisdiction was careful the basis for jurisdiction was a declaratory judgment the high supreme court in two thousand and ten issued a case called which is cited within our briefing what hides them and provides is that ohio has a direct action statue which even though you're not a policy holder under a policy you can sue the insurer if you first obtain a judgment and it goes on paid for thirty days what hind some and held is that furnish sure to bring it to clara tory judgment they have to join every single party who could be a potential thirty nine twenty six zero six statutory direct action plaintiff so that's how we got here before the court trial court's decision to be vacated in essence their way just to dismiss this appeal and leave it up to the trial court to make that decision whether it was that they cater they video what all the trial court's decision would be a final decision on the merits back in october of last year so there would be nothing to reconsider the trial courts already consider these issues the issue on appeal they're trying to use a procedural motion to dismiss to reach the substance of reversing the trial court's opinion by vacating at the tr court's decision became a final order when it was issued in october they had thirty days to appeal it which they did if they want to dismiss that appeal that's fine but the trial court's decision has to stand there are no grounds going  this right because what judge black did was he held that there is prejudice is an issue of fact in each one of these for four hundred underlying cases and then of medical productive wants to litigate coverage on a cooperation defense it needs the facts of each one of those underlying cases at the time summary judgment was brief here actually one three or four defense verdicts in the out charges i'm sorry that showing up and without giving a deposition right without showing up correct does that mean there was no prejudice we would argue that prejudice has to be determined in each case that's what the how supreme courts are that it's an issue of fact number one and that the facts of each case have to determine prejudice that's pretty much where the district course it is oil is wrecked yeah that's exactly what judge blackout held on page eight of his opinion which is seventy one twenty of the record he outlined to syllabuses both weaver and costa which established the basic points on ohio law so your position in your class was ition is that the matter doesn't appear to be moot ever you have no objection to the dismissal of the appeal you do you do object to this court vacating the district court's order and that's that's that's correct we objected vacating the warder because what the district court held was that coverage has to be determined in each one of these underlying cases we want this order to apply as race  every plaintiff it was party to this and it's collateral stoppel to any party who was not it's a final decision on the merits so if medical protective chooses to litigate coverage in each one of these underlying cases as judge black hell they should then we still have to establish number one that there was prejudice a breach of the cooperation condition and number two that there was prejudice as result of that and what about the whole jurisdiction thing why it wasn't an advisory it was an advisory because this court has a five part test to determine whether jurisdiction was proper under the federal declaratory judgment act it's an abuse of discretion for judge black to run through that test but in order to do that he has to consider the five factors if it's an advisory opinion in every instance you could never reach those five factors so what judge black had to do was say ok what is the issue of coverage here that's in dispute it's a cooperation condition what are the elements of that i'm holding that as an element prejudice is required and as an element prejudice is an issue of fact because that's what the supreme court itself once he determined that then he ran through the five factors and determined that this is not going to settle the controversy by keeping a federal declaratory judgment in federal court each of these underlying factual issues needs to be determined in the underlying cases because every one of them are going to be different you're going to have different patients with different you know treatment that was provided some of it may have been fraudulent some of it though is it what i said before when i asked the question well what if in order to decide whether there's jurisdiction he has to decide that issue whether prejudice is required that's correct in order to apply the five factor test he has to determine what's the correct standard for coverage he has to determine what test needs to apply for coverage because if a declaratory judgment is going to settle the controversy as part of that five factor test he has to determine what the controversy is what are the elements of the claim for coverage and how are they applied once he determined the proper tests he realized that the test requires a factual predicate meets one of these underlying cases therefore used his discretion to dismiss them and send the coverage issues back to each one of these underlying cases but you do agree that you may want it to be erased or to be collaterally stopped in future cases but that's something that another court is going to have the past is the test your honor and we would just want to prevent medical protected from arguing that prejudice is not required as they have you know throughout these proceedings you know if these cases go back down to various state courts or wherever these cases are pending we just simply want to have the correct test apply cooperation clause requires prejudice and prejudice is an issue of fact so you have to establish it the whole reason we're here is that judge black determine there was no discovery has to precious they moved without any discovery in the case and what he held was the could impact prejudice and therefore there were issues of fact that precluded summary judgment as a procedural matter then substantively whenever he looked at the jurisdictional issue he determined that because prejudice is an issue of fact and we have over four hundred underlying cases here you need to determine that meets one of these cases but that type of decision that well i guess you can argue it in state court about the but ok judge seiler you had a question about whether we have a right to object unequivocally that he's going to cooperate he's got conditions he wants to apply yeah that's our position is that you know this this doesn't moot anything all this is additional evidence that there are additional factual issues as to whether there is going to be cooperation in the future  in fact you know we didn't make a motion to clutter this record which it did with additional evidence on appeal but there's been correspondence going back since june even through yesterday as to what to ronnie is going to do to cooperate what he needs to do whether he's going to appear for why he fled the jurisdiction where the process stands as i currently understand it with the u s attorney's office is that pakistan and the united states have an extradition treaty which goes back to nine hundred forty eight but they're trying to get incarcerated or separate like that and you know there variety of civil cases that move forward with folks who've been incarcerated for their crimes all right us see that you're out of  just to start off with that judge want to thank us about the i'm sorry i just wanted you to keep your voice up i'll do my best thank you for including me there's a question about that subject matter jurisdiction of of the  and federal declaratory judgment act ots provide the rule of decision and i are you saying you followed the federal procedural rules in this situation but the substantive law is on these issues this is that what you're saying some sort of law would would govern yes but it applies to classes of defendants or classes of plaintiffs and here we have a class of defendants under katha and that provides the sub's of they said i'm not sure what your point is i'm sorry you lost me i'm sorry judge why it has to do with the subject matter jurisdiction of this court or you are you arguing i'm calling to the court's attention that we may not have subject matter stiction here in the first instance we have an appeal from we've lost four cases he wasn't there he was the one case we provided a deposition we won but he wasn't physically there he he left the country just before that trial and  the other the others we've lost ok let's do whatever it is you want i'm sorry the case you want yes ma'am what is going to be happening with that to determine coverage is coverage already been determined coverage has been determined i can represent to the think you'll agree that the judgments been paid by medical protective how was the prejudice is who decided in that case i'm think it was brought up  medical a protective paid the that portion of the judgment that was covered under its policy ok so they never contested it they settled with c s yes ma'am so they settle but i mean asking before they settled that they can did they contest coverage in that case i was not no it was not brought up ok it was brought up here but it wasn't brought up in in the underlying state court action ma'am ok so you're saying that you should try your cases if you lose they go away and if you win then what then there's a there's a determination of prejudice in each case each case is different and the wisdom of that very principle is set forth in judge black's opinion let's just say for example we lost carte blanche that it's a condition the policies terms are a condition preceding and we lost the condition proceed no coverage and then dr duranty shows up with a videotaped deposition from pakistan and gives us gives us testimony than where where would we be you know the plaintiffs here would be the ones that are prejudiced by  just for a few comments and well over time your honor with respect here in korea on the citizenship we had moved for a class action and we i believe that under diversity which we deplete is an alternate jurisdiction it is the citizenship of the representatives of the class dispositive we did have diversity as an alternate jurisdiction the calf to respond to the court's question secondly also respond the court's question we did reserve rights as to the pierce case which we did settle alternately after the judgment was returned but we did raise our coverage issues and preserve them and pierce was in the representative of the class we did addressed coverage here as well we reserved our rights in the state court action pursued them here thirdly there's been a great deal of discussion about prejudice and respectfully that's  and major it here the declaratory judgment action was based upon the refusal to cooperate whatsoever which we held was a question of law underlines versus stern the teachings of the supreme court and once are very clear where they're undisputed facts as to the refusal cooperate that then becomes a question of law no dispute those facts have changed on appeal and we don't know what has happened with those facts which is why the appeal is rendered moot if this court raise said why they want to underline decision they want to be wasted comma they want to be binding they want prejudice to be the standard wever that they rely upon nowhere mentions the word prejudice the district court in federal court your honor and you know the state the state court proceeding we would have to have waited for a judgment and then thirty nine point zero six is not a direct action statute is a supplemental complaint statute only after the judgment was rendered we then contest that on coverage and proceed up an up in through those ranks because there's been no data cooperate under once we believe the appropriate mechanism was the d j in federal court as a class to address all of the issues at once and but for this change of facts on appeal we believe as a question of law on the record before the court in the underlying court that the district court err in applying a prejudice standard the district court is the first court that is taken ho grafton and we even said prejudice is part of the cooperation defense cooperation is a condition proceeded it's not a defense it's a condition precedent to cover it to me unless it's satisfied there is no coverage to ensure doesn't get into the ensuring agreements at that point in time that's by lunch well that's a question of law once doesn't match in practice at all those facts run disputed until we're on appeal and now this changed the effect of that change we think is what the proceedings below moot because they were never considered and in in the proceedings below where the court should have after to certify the class to simply dismissed there was no need to address the merits of this case to issue an advisory opinion should exercise discretion to decide to dismiss the p l o i have no problem with that what the what the district court has done with that advisory opinion is about the neuron a standard that if is going to he's going to stand as the police are urging that we would ask the court doing the motion or the no but it's not i mean it just shows that that the appeal that it's now from from the standpoint of the of the record before the court has supplemented on the ongoing refusal to attend trial and