good morning good morning your honors your honors director or in short of capacity for purposes of insurance coverage is not a simple legal question simple factual question in fact it's a complicated legal question the issue is before this court because it was decided by a jury it shouldn't make a difference this court's review is the no vote because it was a legal question so the critical question before this court is w and we're supposed to look at those facts and make an independent conclusion and disregard with the jury exactly your honor it's sort of an unusual situation we actually could only find two ninth circuit cases where the circuit has been asked to review a legal question that was given to a jury and what this court did in those situations and it's what we urge the court to do in this situation is to regardless of how it sort of got here  it's a legal question what is insured or director capacity in this context of this insurance policy and so we gardeners of the how what the jury's result was it's a legal question it's reviewed out it's interpreted insurance contract we have jurors faced with that kind of question all the time we tell them what the contract says and they have to decide if what we tell them in the form instructions or more properly say judge martinez tells them in the form instructions and and they go  question to which is what was done here but to answer your question more completely it is a legal question because under california law in interpreting and insurance contract is a legal question and under california law the term question they were asked was whether cavanagh was acting in an insured capacity in whole or in part yeah they were told by the judge in the form of instructions what it meant to be acting in an insured capacity what they were other case where we have jurors instructed on a point of law some legal definition and asked whether that applied in this case or not whether that happened or not well and so in negligence jurors are constantly told what it means to be negligent breach of duty and so forth and well fault was that x that was the knives in or not because in this context and the insurance contract california law from the california supreme court says it is a legal determination and if there are factual questions that have to be decided and there are here in order to reach the legal determination you know there can be decided either by a judge sitting as a fact finder by a jury will decide i'm going to hear what happened here is the judge gave a legal instruction asking the court to make a legal passively when he committed the wrongful acts that led to the judgment in the underlying lawsuit he was acting in and is injured capacity if he was acting in whole or in part in his capacity as a director a pre nup when he committed the instruction was agreed to once and well not completely at all your honor in fact citrus counsel objected to this kind of theme of the whole case was objecting to this kind of determination that is that it was merely a simple factual determination and had no legal aspects and if you look at the objective aspect in the context of how it came up i think you'd have to agree that one more objection wouldn't have made a difference and let me explain this part first frankly when i read that my stance was that the judge was incorporating the objection by adding the in whole or in part by language and that was just fine with with your client's counsel when you know your honor there or what what the  mr george did and when he objected to that in jury instruction was to try to save it when the judge because the judge had refused to give the jury his instructions for its instruction which had the key language in of stuck with those instantaneous decisions i didn't see something in this instruction let me to thank the defense counsel was the finest counsel was was objecting to the instruction has finally arrived at by the judge now and you just look at you sign the papers like the insurance company do or do you actually explore was in this to benefit one side or the other was this the usual duties performed we and both our opening brief and the reply brief exhaustive lee difference acting in furtherance of his duties as a director and with regard to the transaction if you measure all of the testimony and the evidence the jury or not actually i'm just that's not the question and it's about because that language in whole or in part goes to the standard of was he acting for one or the other or both and if he was wearing both pass at the time he acted he is acting in his direct or  instruction given on what you say your instruction says then it's hard to figure out what's wrong with the exception given let me say this i can't find anything language in the instruction given that talks about the conduct tests to be taken to further the duties of the director good morning morning my name is paul rosen i represent most western i think the question is posed to put it right on there this is no different from any other insurance case the judge made an instruction on agreed that it's not they're not attacking the substantial evidence aspect so they've agreed as a practical matter that the jury verdict is supported on the issue of which capacity was acting as they went on this motion for summary judgment we made a motion for summary judgment on the ground that he was not acting as insured passy that mark motion was fundamentally based on the legal issue which is part of our brief that there can be no duty of a director to an investor in an investor that was on that issue i'm confident that the factual issue part is dead and now we get to the instruction issue part once again they aren't in any position to raise that issue before this court and the instruction that was first propound the words in whole or in part the judge says phone and the final instruction has in whole or in part and then they move on to argue but other instructions he made an objection he got the instruction changed and then approved it never again i challenged it so factually they can't challenge this because of judicial stoppel legally they can't challenge this because they did not question decided by a jury and we know that it has to be a legal question because we just heard that the policy offers no explanation for what is insured capacity it says director capacity equals insured capa review didn't over all measured by california it situates position that if this court looks at that evidence to see measured by the components for deciding whether someone is acting as a director that this court will conclude as a matter of law