surplus insurance company this is an insurance coverage case where an excess high level excess carrier is asserting an equitable subrogation claim against a primary carrier liberty for negligence or settle i'll skip to the facts  citation but you'll have that in houston george supreme court said when the insurers duty to settle st arises and it's very precise the court said the insurance to need to settle arises injured party pursues percents a valid offer to settle with in the carrier's policy limits now in this case there was never an opportunity was actually there was never a demand to settle with him policy  limits the st offer in the case was actually made by the plaintiff in march th to ski two thousand and thirteen it was a five million dollars demand and it was made a time when the defense counsel case was very new st mediation was coming and the defense counsel evaluated the case for settlement at around three hundred thousand dollars and no one in the case at that point thought that this case was worth a one million dollars much less five million dollars after that basically we'll go to three if you'll go to one that was a settlement offer that was in the negotiations of trying to close the gap that's not a you pay this x dollars and we'll settle the case so there's sure wasn't wasn't there an offer to the day that one million dollars would be the lead and three million dollars would be the high no matter what the the outcome of the trial was and so you could have  policy to settle the case there  be insured if you i think you have to look at all of the offers or all of the whole tower of insurance there and the offers were within that and that's what triggers your requirement to put up your one million dollars limit because otherwise there would never be any requirement for you to settle any case that exceeded your limit i mean you know when there one is other insurance offer settlement demand can be an all it's basically it's a it's all the contract terms we use all the time that a plaintiffs can demand or offer to settle and then the insurance carrier can accept or not set the offer we can call it one of the fourteen defense counsel still is vising us and i think the rector still shows that in the trial record also shows that the defense counsel is not valuing this case as  that might go to liability but that's separate from the argument you're making of there was no demand there certainly was a demand for the in excess of the one million dollars or are as you are framing this yes but if i may i have two arguments  insured because the judgment was twenty five million dollars and as the court noted all the insurance involved is thirty three million dollars so it's never excess judgment that the insured face they never suffered any danger there then the case settled for fifteen million dollars which all the carriers the lower level for for lower level carriers paid thirteen million in two million was paid by americans here and t so there was never any harm as shoes for the  rd element that would allow recovery because he sure was never put in danger in any way by the same token the measure of damages has to be a bad time damages and in this case the court granted a contract which the actual insurance actually insurance limits that were available to american guaranty to the insured that's the two million dollars so it was a contract measure of damages it wasn't bad faith and so was no basis for that finally the brighton test law what american guarantee is doing is showing that a properly presented sufficient evidence to the finder of fact that for this particular claim the facts support  st look to the damages to the insured but the cases that apply equitable subrogation do not require that there st be any sort of judgment that that circuit supports that an excess insurer can use at will so the gate subrogation to recover against the primary there is nothing in that case that stands for the proposition that the insured must st suffer on are for the proposition that involve a single insurer allowing an excess judgment to be taken against its insured and they don't involve this case which is a multiple insurers with multiple layers of vertical coverage and i think that the home of the home insurance company the case the court said placing the excess insurer in the shoes of the insured advances the public interest in obtaining prompt and just subtle men of claims the existence of excess wear brown the cover coverage must not leave the primary insurer of its responsibility to accept reasonable settlement offers less than those situations where a claim exceeds the amount of primary coverage the premier insurer is encouraged to attempt to place its financial burden upon the excess insurer so that's the whole point of the axle subrogation is to allow this exact type of recovery  going back to i think there's a two step process that needs to take place in these situations or is that where there is a vertical tower of multiple layers of coverage in the st that is is there a valid offer within the limits under shoes and then the nd step is if there was did the primary take the bright and safe harbor and in this case there was plenty of evidence by the plaintiff that said listen i'm not going to settle this case unless liberty st puts in its one million dollars which it never did which it never did all the liberty can do is settlement offer which day and what came out ok so i think you have to look at the context of the all from the from the moment that the point is made a demand for five million dollars that whole demand back in april of two thousand and thirteen specifically delineated one billion dollars from liberty mutual and from that moment  plaintiffs consistently said and it was reported by the liberals defense counsel that basically i'm not going to do anything until that one million dollars is on the table so once that was very clear and think was there anything in writing that said i need you have to say give me a one million dollars nothing other than the original communications i would go to three million if you just put up that one million and defense counsel reported that he's hung up with with any further offers because or discounts because he wants to st get the one million dollars and so that continued on in november of two thousand for king december of two thousand and fourteen he kept saying in fact that december  ar to liberty that in all these communications the plaintiff was not going to settle until it at least got the one million dollars so it's within that context that there was a that the trial court judge found there to be a legitimate valid offer with in liberty's own limits because nothing was going to happen i'm still a little confused and i apologize but it was so there wasn't going to be a settlement for a one million dollars liberty put up a one million dollars but they want to get an offer for anything beyond that if liberty can put a one million dollars right correct and liberty can only talk about a settlement i'm sorry how is that a settlement because liberty can only control what it can it can control and that's its own limits and knowing that but there's not a settlement offer within the insured insurance one there is within the insured limits with liberty and that's the key is that and that's what really the purpose of brightman's is that if you've got multiple insurers and that there is a an offer for a global settlement with other insurers you have to control your own limits and that's all i really like a little bit agree with that but the my problem that i'm having is that i don't know what the settlement number  there had been we don't know what it would have been for so it seems like you know i'm not really sure there was a settlement offer there i mean money ask you something what what was the st time that there was a firm settlement the it was the five million dollars the man and then the communications after that from plaintiff counsel that i will go to three if you will go to one and so that saying that was a three million dollars  i think is what a valid settlement offer is depends on the context of the case and in this case because there was a one million dollars at the base at the low that is can be interpreted was correctly interpreted by the court as a valid offer to liberty to at least put its limits toward  whether what did afterwards that was up to a spot liberty controlled its own limits with the insured ok so i understand your position is it doesn't really matter what was offered to settle the rest of the case because it was offered to liberty just within liberties limits to settle for a one million dollars but correct i'm asking let's just assume for a moment that the question is whether it's within seal your liability three million dollars if you'll give us the floor of a one million dollars and then we'll go to trial and see what happens and the worst you can have three million dollars and the worst we can have is one that a valid settlement offer of the global settlement of the global i guess claim i think it is a valid settlement offer and that liberty recognized it as such by responding to when a counter offer of four hundred million nine hundred thousand bracket but is that the really defined by the amount that it's going to take to settle the case  globally because if if if it is that same size it would be really hard for the duty to ever be triggered on the part of the primary carrier i agree and so that's really going back to brightman that really was the whole purpose you can't you can't worry about what the other insurers are going to do you have to focus on your obligation insurer and once you realize or once there is a valid offer and you realize that it is likely that the verdict will exceed the amount of your limits that is when you your duty ok mr sharp do you have anything else for us i just wanted to add one i think i'll relinquish my time and thank you very much thank you  acts of liberty and there's nothing in the record that shows in the specific acts that are frankly anything other than contract dances and in fact in the course of an order it specifically says that is warning the two million dollars within the global the global insurance amount no sir i mean there are cases where there is evidence of damage for instance there's mental distress found in a couple of those circumstances but nowhere where there is no excess judgment dollars or five million dollars offer well but there's no evidence of that that's purely speculative in advance especially for this reason will that be sufficient damage let's assume for the moment there is evidence of it would that be sufficient quick yes or no because those were contract damages not bad faith than just not something outside the scope of their insurance obligations they negotiated that settlement that all the carriers to tender their limits to amma american guarantee with the chief production account yes permission i'll give you some extra time thank you very much well you have time and we want to i want i want an answer to judge looks question here over your time i want you to answer his question and then we'll give you fifteen sec that's correct thank your honor the only non contract no the answer is you that is a contract measure of damages whereas the court talked about on page thirty three and thirty four of the order that there may have been some type of damage in the sense that by having to pay more or that there would be less coverage available for future claim but that's the only reference  they had the opportunity is so within their limits they didn't get they didn't they chose not to so it's no reason to believe that the year before they would have put up money when they weren't willing to even a trial ok thank you mr martin