doctrine of rescue to conduct the first issue that i'd like to address to the court is why would we would we be here to judge kelly not made certain statements during the underlying trial it seems like the district court and in fact this court has sided judge kelly's statements as a basis for why at least register to kind of would be considered in the absence of those statements and analysis of the pleadings in this case in sacks of this case does not lead to the conclusion that rescue to cut applies in fact it leads to the exact opposite conclusion when you gree that  the jury in this case was asked again i don't know the specifics of that insurance policy this insurance policy required to show it for the intentional toward exclusion to apply it require that one that the act be proved intentional and that subjectively intend to harm the jury very clearly sound that he did not subjectively intend the harm that was the entire basis of shelters exclusion in fact we had brought in exhibit for the court today which is a final judgment which in fact shell to recognize that covered this trial triggered because mr morrow stood up in court and said we are withdrawing our coverage defense the only thing we're going to argue today is duty to defend it subsequent to that they took an appeal to the louisiana for a circuit and they tried to argue the very factual basis of that finding of the jury in the first circuit agreed with our position that you withdrew that there's a finding of fact so not only is the finding of fact not erroneous but because you withdrew it it's not position the insured said i didn't hit mr smith that was his position throughout the trial and continuing peel shelter said we're going to totally disregard what you say and accept this true the robin's case is a very limited application if you look at the broad scope of the dock of the do get a supposed under nine hundred seventy three anyway every single court louisiana has adopted the phrase that insurance companies must act as the champion of their insure all of the dots must be resolved in the favor of the of the insured in this particular case shelter did not do that but it ended logical that they're now obligation to to exercise reasonable y you even though i may win on some subject subsequent exclusion that's in my policy and in this particular case there was a choice made a big tactical decision made to not defend on a very limited set of facts which were understand the rather case but all of the broad scope of the jurisprudence in the easy on this issue is that the insurance company is required to act as the champion of the insured and in fact there's a been almost an incorrect application versus state for kelley versus state for reset the heart to push the hard reset button when it came to nine hundred seventy three claims there was a misunderstanding in the in the bar in general and the supreme court explain of course that was on certification from this court that that's what we were doing we were we were misinterpreting one thousand nine hundred seventy three and that the issue in that particular case is whether the insurance company was required to receive a firm written demand from the pla before they had an obligation to settle and that's how it was always interpreted for twenty thirty years and the supreme court said no that's not the case and it's never been the case and that treatise was written before that decision was still a change the entire outlook  in this case the answer is no not so can you just if you were going to talk to somebody who is not a great expert in louisiana law what would be your best authority for this proposition that you and it says because you're supposed to be a champion that it's more like indemnify and defend what authority would you it's you say that the treatise is wrong you say the case is not what would be the best authority for this thing not to defend where would you and judge davis reads from a leading treatise that sounds like it comes from the duty to its fin side of the house wire and what authority do you have that it comes in the duty to  i side of the house so again from a sorting issue i don't believe that this has actually been addressed but there's no authorities what is i don't know if there's no authority but i haven't seen it i didn't know that this question would be perfect but again it comes down to doesn't get anything it's not paid it's not indemnified in the settlement the defendant is being indemnified through the funds and resources of the insurance company and the plaintiff is receiving compensation the duty to defend is simply to provide a legal defense provide a lawyer expert's pay court costs and it's also a very specific coverage of this policy and the policies listed here so even if the jurors prints would say that it's not what shelter said in shelters policy it has a listing of coverages and it says coverage what defense coverage to indemnification can't say wrote the contract i know the time is running short it's supposed to be fine that claim prisk lucian assuming argument we find claim proportion does not apply here but we think that issue preclusion would apply here do we need to send it back to the district court if it so that the district court can have  briefed all the issue preclusion issues if we're to terminate the claim preclusion is not satisfied i know that it was a complaint you had that the district court didn't give enough notice or something should we need to give you notice that it might be issue preclusion instead of claim preclusion and do you need to get to go to the district court and talk about that or do you think that the record is just clear that it's not issue preclusion and we should you win anyway issue with issue preclusion as this comes back to the whole issue of what's the occurrence you know i think we can all agree this wasn't a transaction a business deal sale a contract a pledge it was an occurrence an event when this court adopted the matthys versus blanchard standard in the  day of the event well this court has also said that the day of the event for accounting prescription is the day the judgments entered and therefore the occurrence was february twenty seventh twenty fifteen and therefore cannot be bound as a same transaction in occurrence and paragraph three secondly there is a zero zero evidence that this case was actually litigated when you look at the final judgment there is very specific language that was very specifically included to prevent these  given the fact that mr sed that it didn't make that claim nor was there any evidence not a single bit of testimony that documentary evidence nothing in the record sports that anyone at the court discussed the issue in fact mr morrow's words are my best evidence that didn't happen what we're here to argue today is the duty to defend because we've already indemnified they admitted they show how the indemnification is completely separate and the court has conclusively and he my opponent has stipulated that shelter has hands down prevailed and that there was no duty to defend paul bowden arising out of this automobile collision and against shelter that included the duty to indemnify be the duty to defend and see misrepresentation they threw it all out there there was not a thing with held and on that point ok so the case in its merits on liability in damages went to the court on in late september two thousand and fourteen to october first two thousand and fourteen and tried in front of a jury and in that case the court said that he act was intentional but the damages were not is clear that based on that ruling that the jury finding triggered or that found coverage under the shelter policy then you fast forward to december much later after the trial where there was a trial on the remaining issues and the cross claim of paul battle and it was in that cross claim duty to inde exactly yes because shelter in the judge is very clear in its ruling that they said shelter did not have a duty for coverage that and i have a duty to indemnify and they did not have a duty to defend and they did not know misrepresent you see that in the oral reasons for judgment which are clearly considered under the law and you see that also in the written judgment where it says they dismissed the duty to defend the claims you do to defend and they said that shelter did absolutely nothing wrong and there louisiana that duty to defend if you look at the duty to defend they call it the corner analysis in louisiana that's where you look at the four corners of the policy you look at the four corners of the petition and you determine whether or not there could be a possibility of coverage and that's triggered when the duty to defend is triggered you don't have oral testimony of the insured you don't ask him quote i believe let me get the questions that were asked in bifurcated trial did he pay his premiums on time that was he testified to that how he felt being denied by coverage by shelter they were going for general damages on now this is important although that may seem like these are are small questions asked of the insured but for collateral estoppel the federal case law which can be considered because the adoptive the federal idea of collateral stop the federal case law holds it does not miss actually litigated does not require a full blown trial or opinion on the matter it does not refer to the quality or quantity of argument or evidence addressed on the issue and you need not establish that oral testimony or any particular type of testimony was present you just need to show that it was tried and it's very clear that a in the cross claim he went worded oral decisions stated that shelby did absolutely nothing wrong and there was no failure on any part of shelter in the handling of this case including there was no no duty to provide coverage and no duty to defend and then there was the written judgment the written judgment with dismissed all bad faith action all bad faith on the part of shelter under eight hundred ninety two and one hundred seventy three of the two statutes for bad faith in the we sample of her insurance companies and then separately dismissed the duty to defend against shelter so clearly that's all obviously i'm going to argue that if you no matter what bucket those but all that he made that argument i have to you earlier said but if i was forced which i'm being forced now if i was forced to put it in the duty to defend you have of the motion for summary judgment the shelter dismissing the excess judgment claim if you look at it actually cites to nth degree in her ruling stating that she has considered both two and three in the she's both considered issue preclusion in plain english and i believe the confusion arises because it's under the same heading under the wheezy in a law even though the louisiana has clearly adopted for since time before the bifurcated hearing was tried so the excess exposure was clearly on the record prior to the bifurcated trial and therefore it is shoulders argument that and shelters not waiving any particular argument and in the course of this all argument although it it does acknowledge our our counsel acknowledges the theoretical issues that you raise concerning cl that we need to get back to the district court where you believe that the district court considered both in i believe that the district court considered believe that in the in the scope of the court's ruling they considered this to be a a under both i and given that rope clearly gives it some indication that the duty to defend drives the duty to settle explain that that makes sense to defend necessarily means that the two insurance interests are aligned and so that's when the duty to settle comes in is that when you have that sort of fiduciary duty to not expose the insur i'm just representations of the judge first of all judge kelly did not find that there was no coverage louisiana revised actually twenty two twelve sixty nine we call it the direct action statute says an insurance company can only be found jointly and in five hundred thousand dollars to the policy limits that is the clear ruling of the court i understand judge kelly had some off the cuff comments those off the cuff comments though as we have articulated to this court in our  are barred for considered a consideration because of louisiana code of civil procedure article nineteen eighteen the louisiana supreme court has said on numerous occasions adopted by every single court of appeal that the written reasons written or reasons for a judgment are merely an explanation of the trial court's determination they in no manner alter amend or affect the final judgment appeals where there is a conflict between what the trial judge has said and the written judgment the written tell you to defend asking for indemnification which they did didn't do which was withdrawn and then for misrepresentation of policy coverages mr bout unless those two claims were not making those two claims but uses this word a broader duty it is easier to trigger a check the duty to defend than it is the duty to cover of the duty to indemnify and again shelter drafted its own insurance policy this court is well aware that when int transaction or occurrence for paragraphs wanting to what we're going to do is we're going to look at whether the cause of action existed at the time that's the phrase ology that's used in the statute and for paragraphs three the phrase ology was was it actually litigated and determine if the determination was necessary for the principle judgement the closest case that i could find which is in our supplemental brief was goodman versus spillers and in that particular case the court was looking at kant's a malicious issue preclusion one of the issues that the court really focused on was what do you need to prove in the subsequent case in a malicious prosecution claim this is court knows the first element is a bona fide terminations of the litigation in your favor you may not prosecute that claim until that happens what is the seminal of that in the next s judgment a judgment in excess of the policy you cannot litigate this mr morris said oh it was over in september mr moore must have forgotten that said very specifically hey we would have done this differently had it been a suspense of appeal but it wasn't because of the volume of deals and now we have the final judgment nobody knew what the final judgment would be until the post trial delays had run so the earliest date that it could be was the day the judge kelly put pen to paper february twenty seventh i want to leave the court with this the language in goodman versus seller is very clear it is generally not sufficient for purposes of issue preclusion to simply prove that a party pro in prior litigation argued numerous issues and lost his cause issue preclusion requires that the issue to be precluded have been specifically dispositive issue which the prior court must have specifically considered in a contest between the same parties in the same capacities