balance of my time to the extent i have any at the end of this argument your honor runners the interesting aspect of this case on appeal and has been touched upon by the briefs but really hasn't been focused on is the fact that the underlying court the district court really simply refused to simply ignore the refused to apply civil code one thousand to the facts in issues presented at the court done so clearly should have found civil code one thousand obscene california yes and specifically that's that's that's it states that every person who has actual notice of the circumstances sufficient to put a prudent man upon inquiry as to a particular fact has constructed notice of the fact itself in all cases in which by prosecuting such inquiry he may have learned of such fact when this one off looking issues not whether as companies knew the ministry claim it's been the law of california for at least fifteen years where there's a duty to defend a suit that's absolutely that's always been the case your honor and that's not the issue but the issue is with all due respect the circumstances here is not they're not challenging that they knew about the actual loss of itself what they're saying is they never really had notice of it there was no concern the notice was not the position the positions understand is that it wasn't a tender technical deficiency it was not a constructive notice the existence of this what what is similar in those cases as well as this one is that the intention to seek the assistance of these carriers was are mind of the insured but not out of his mouth and in writing to the insurer certainly it's an issue of fact if you just look at some of the key gonna leave no issue of fact your i mean where is there any evidence in the record that your insured tendered in writing or verbal ie the defense of the suit well we at we have the intention to do so i knew it would be you me to infer that the world is full of good same time it reflects an intention to seek assistance to something directly related to the r t a the carriers are not blind they can't simply put their heads in the sand says the artist and argues are not going to morph into a lawsuit they similarly defended this  and in fact did it so it's hard to say that constructive notice should be good enough when there is evidence in the record that your client actually knew how to tender a suit and didn't do it in well i'm not saying that there's a duty of continuing investigation your honor but there is a duty there once they are aware that circumstances have changed and they know that from the letter that they received from barbara that the suit was actually filed actually served and the insured was litigating that case but it's all this is the utica case and this is maybe the facts your strongest set of facts clearly so you've sent a total of three letters actually there were you took a got three and the others got two so but sounds one after the lawsuit has been commenced no one and the much harder it doesn't mention the last well there's very clever it's interesting if you look at the three letters the first two letters say we're denying your a claim because it hasn't gone into soup the third letter says we're denying your claim but based upon the reasons of our prior to letters they notably don't want to use words that that specifically confirm that they know that the suit is outstanding and they know that we want our system your client's third letter which comes after the lawsuit has been file doesn't mention the law and it obviously is a mistake if you look at the letters and cells they weren't prepared properly because on top of the written by whoever it was written then it didn't specifically indicate that but more specifically you did could you because no stranger to this thing they've litigated these cases before this insured have had problems with these carriers in the past their argument that this is an armstrong election a red herring we were going to be armstrong election with ace where we're suing them for bad faith number one number two you can't surmise an armstrong election based upon mere silence and even the district court recognized that the point is they did not want to acknowledge that they knew about the lawsuit if they weren't the type of carriers like we have in you know guard we don't know anything about what's going on we're basically taken advantage of by truck wasn't your carrier to whom you to the lawsuit but these carriers never provided this one and rejected northwest's offer of defense on coon's grounds don't know your honor we rejected it because there was that there was ongoing disputes between nationwide know tender from nationwide yes and you know how to refuse tender for whatever reason right well that's not the issue of these three carriers the knowledge of knowing how to how to tender and how to reject is not at issue here here there are there are more well your honor they they cannot take the twenty eight sixty approach because they never avail themselves that their brief they want to take the benefit of twenty sixty when they know very well they can avail themselves of the benefit was a never provided in the fence and never paid for  o it's a council that brings me to the point of whether or not actually receive the full defense from another carrier it did at that that's the most incredible point about this opinion it did not there w well there was one point six million dollars worth of vent fees incurred in the three lawsuits seven hundred seventy five thousand was incur and sunnyvale alone it that the insured never got the benefit or all that all those fees were incurred they were responsible to pay those things to the insurance was required to pay the rate that it had negotiated with the attorney that if the lect it right it was it was sure the the carrier and the lawyers could negotiate that rate on the q must but the we know that the post the post made february two thousand and twelve fees were not paid we know that seven hundred thousand dollars of the pre february bills were not paid but why would you say that the settlement agreement is the the reasons for the words themselves with the was to protect ace from any potential bad faith by billion that's the words that they wanted to use now obviously there's an there's an interpretation of whether incurred and paid are two different things and we would argue as we have in the brief on the significance of pro level and so on that that issue and the court didn't want to go there but i think that on the parole evidence rule they should have allowed those alternative the paying into the come in to play but even even if you take that issue to decide you know even delve on that issue of parole and you only look at what happened afterwards there's an issue of fact as to we received as to whether we received a full defense clearly the february march april two thousand and twelve those were not take consideration that was under to stoop twenty eight sixty that these carriers cannot avail themselves to and also iran or what portion of the defense did you not receive we did receive seven hundred fifty thousand dollars worth of defen make a february two thousand and twelve payment it doesn't require any parole leavens with respect to the fact that february march april may we're not subject to that agreement and we're not fully paid and we didn't receive a full defense as to that so that's why i'm saying the brief addresses the and the fans we're going to pay a certain amount for the past and we're going to make a deal with you on going forward but they made a deal with a heavy firm but the insured certainly was required to pay the hammer great the fourth fifty which was not egregious and outrageous but it wasn't a two way the rate that the insurance company wanted to pay and did pay so certainly a so has the benefit of arguing we paid for whatever was required from our standpoint we got a release from that they don't have they can tender yet and i read the complaint and the lion see is listed as a defendant why would that typically off to the because because because we hadn't received the tender this is a sophisticated insured who who great american knew very well this insured had tendered three other dry cleaning sites to us we had responded with a restoration of rights later we had appointed counsel we were involved in a dispute at that time in santa clara superior court on the coombe is issue so it was a very reasonable conclusion for my client to make that this ensured that m b o did not want to tender to great american or federal or you to cut because we were in a fight on the christmas issues  and instead what they did it is they went hunting for a no other insurer that would agree to pay independent counsel without a dispute they tried nationwide and in you know on a nationwide did except the defense and and they appointed the same counsel the great american mr know ed like to defend that great american to put up and that was rejected and this is in the in mr barber's twenty eleven letter where this is explained that mr hamrick told them that they would defend on their own so then they found atheists and ace agreed to pay independent counsel so this case is really about trying to get around the limitation of twenty eight sixty but isn't it well maybe it is that maybe it's not they were going to pay all the the fees incurred to the end of the case according to the christmas wait so they got everything they were entitle to under the christmas statute of course mr thirty and in that case the court said that the few rates paid to independent counsel chosen by the insured operate collectively to all the insurers and that the twenty eight sixty imposes a single rate limitation on a case that all insurers whether or not they are there defending can take advantage of and it makes sense that that would be the case you can't you can be an issue whether or not the council wants to hire that as an independent counsel would take that rate but that is the way twenty eight sixty reads some limitation know if you had received the tender mr barbour it was writing that letter as a lawyer in another action to a lawyer in my office and another action wanting to check behind the scene so i'm not even sure  that that translates to to any kind of notice to utica it included the even clued in the complaint that included the complaint that he sent to my office in a in a different action that that's true your honor the other point  that's important is m b l nor mr hammack were ever aware of these letters either letter being sent that they now want to rely on as somehow being a tender and of course as is in the record in mr r barber's out tender is required it's the hallmark of the beginning of an action for and in short and every single construct constructed notice case is the insured demanding all be it was some type of mistake defen of the matter at issue in this case you don't have the insured demanding of utica anything with respect to the matter at issue you have a third or is that the underlying facts i'm sorry  that the they're making it a man with respect to the facts that are exactly the same as a result in the loss of right but you're on the must you must remember get mr killian pointed this out this is a this is a case where there is a long history you took a was one of the main insurance companies in the other action that we took to the court of appeals on the state level and prevailed where mr hammack was trying to insert himself as counsel and force himself as independent counsel and we were well aware of that we alternately prevailed and case and we likewise reasonably believed that mr hammer who within two months of the lawsuit did actually tender to two carriers nationwide an ace tender the lawsuit we understood that he was selectively tendering pursuant to armstrong where they can control their insurance assets and decide who they want to tender to into that they don't and specifically in this instance when he knew very well similar to nationwide that great american federal and  we're going to respond as they did in the other case and say if there's an obligation to defend this lawsuit we're going to do so with our panel counsel we're going to point knoll at one and they rejected that another strong point that i want to emphasize and justice breyer you're racist in the record so there's no way for this court to look at a bill to look at there was a different rate and on this record and there's certainly no evidence that m b l has paid any money out of pocket this case is all about mr hammack wanting more money and trying to get around twenty eight sixty i'd like to turn to a minute to the to the the second point which is the number of cover the fact that they receive one hundred percent defense and i would just like to point out in the record the settlement first paragraphs and this is by the way after the language is said there was a full defense and i am responding to the argument that post february it's something different well it is something different but it's interesting what it is something different because from now paragraph deep in further consideration for and subject to all the terms and conditions provided under this agreement the parties agree that all invoices through april two thousand and twelve and that's that's the first i guess jump in the single blunder rate of two two hundred eighty represent reasonable fees so it's n p l saying that it represents reasonable fees and costs incurred in the defense of the environment's claims and by the way that's their incurred word that they like to use because it's there for them paid and incurred and they forego any r arbitration under twenty eight sixty if so clearly they knew what a full defense was and there is even a folder for defense and then the next paragraph implicit in that by the way your honor is the arbitration could only determine what the ok that is exactly what arbitration is for because during the life of the case right you as defense counsel must take the coolness right which is the same type of case for the same quality of lawyer in the same location you reserve your right as if you will and and what your normal reasonable rate would be of course here the interesting thing is there is no such reservation nor do they refer to a coonass rate or anything else they specifically talk about agreed upon rates nowhere in battle as i anticipated you're on it there are arguing armstrong election that that's the reason why they didn't call us because they figured well we're obviously not going to want to tender to them because we've had some problems with them in another case even that this record acknowledge that they can't reach that conclusion there's no facts to support our silence on the armstrong election does not allow them to once assume infer or otherwise claim that that was the case that's why there's a triable issue of fact on that issue they're using armstrong throughout their brief to say well because we're that we're having the spirits we just didn't want them they never picked up the phone to call utica specifically went out of their way when they said we're denying this thing on the basis of our prior to letters they didn't say not because of the suit because they knew that a suit had been filed they didn't want to pick up the phone but they didn't want to lie about it in the letter outright but they knew that the suit had been filed because barb told them that's not the test whether or not they knew that this happened now the test is whether it was properly tendered on and that absent and under the law the constructive notice also reflects the facts and circumstances which in insured shows his intent to want them involved in this and that's my point simply going back to the civil code which i think you reject as as having significant it does have significance on that specific issue it does apply to ensure in the insurance context where there are facts to alert them to the fact that we wanted their assistance in this lawsuit that's what the it's run beacon you're strong as constructive i think also california shoppers as well those two are your strong and if you look at the district courts this decision they cite three cases out of two out of state cases but they actually support her position because in those get in you think is that there was an implied gender based on constructive notice yes there was no reply tender on the constructive notice in the facts indicated the zire to to to tender this lawsuit and this claim based upon all the facts  notice then the court was wrong in requiring and expressed under that and whether or not the can under constructive notice the facts or circumstances showed an intention on the part of the insured to want and desire  the case that addresses that issue i would only go back to the civil court on that as to the reason blinker what facts or circumstances rise to the level of reasonable inquiry i think were there more importantly right on this issue if i just me address the same gabriel decision that was a case that sent the the difference there was there are two are participating in the defense what counsel keeps on saying is will somehow we waive this and we waive that we we agreed on certain issues with  ace they don't get the benefit of that release as to agreed upon rates that's not necessarily m p l agrees that that's what they're paying hamrick they agreed that that's what they'll pay the bill except that for ace they never then then on agree the language of one beacon directly talks about specifically insurers obligation to the insured with respect to calling them and inquiring as to whether they want their participation or involvement when they have sufficient fact