good morning may please the court crisper alive for appellants krantz and all like to reserve two minutes for rebuttal if possible the primary issue in this appeal and i say primary because the second third issues in this appeal offset income implying calculation the prevailing party issues are contingent on this primary issue of whether the district court properly allowed a set off of sixty five thousand se the seto if she turns on an interpretation of the us policy of the issue in this case is interpreted through washington law both of the usage for interpretation and contract insurance policy interpretation being issues the court refused in their will and the the policy provision that's key in this case is the set off reimbursement provision which provides they all say it was entitle to set off any psalms paid by anyone under insured motorists or anyone else responsible and so as this case isn't mr wenner i think that's what the person of the policy the bulk of the of the settlement came from correct or is he someone else responsible for the injuries to mr prince well your honor the policy doesn't define responsible with no i'm  the sixty five thousand dollars doesn't count but if there had been a jury verdict to this effect it would partially or our full argument is that because there was a settlement and because the policy provision question requires someone to be responsible which we would define is legally responsible that the set off wasn't right so that was that was the question i was asking so if there had been a jury trial or a court trial heard arbitration that said mr winter you owe two hundred fifty thousand dollars or whatever your policy limits are in this and the driver's limits were sixty whatever they were and then allocated the money the way you could allocated you would not be here to correct your honor so the critical fact in your wrist in your view is the absence of an adjudication of responsibility yes your honor and it wouldn't necessarily even need to be an adjudication it could have been a stipulation between the party is it could have liability but you're saying that's that's not your position and in fact there's no support for the at so you want something less and so what is the something less of what's the reason at that last has to be found well the something less would be essentially a judicially binding finding of liability and that could come in the form of a stipulation between the part asked of his legal responsibility is that what you say that is one option all say also stepping into the shoes of the tort fees are in the us they could have admitted winners liability because jury found that the total amount of damage was i now forget when it was eighty one thousand and change and your position is well that may be what a jury actually found was our total damage but nevertheless we get lots more than that i don't understand how that is consistent with either the policy or the statute well your honor our response would be twofold one and a one thousand seven hundred eight dollars and thirty two cents found the jury in this case was only with respect to damages caused by adam somebody found that his damages from that accident were eighty one thousand dollars the accident was the fault of both mr pena and mr winter but you didn't suffer damages over and above the eighty one thousand dollars to your client your honor i would say we did not suffer damage so that when you go back to judge brinn question essentially what you're saying is even though we recovered all of our damages under washington law we think we get another sixty five thousand right and against kim's thirty thousand dollars worth of damage is the supreme court looked at the policy you provision the issue in that case which is materially is it material or don't go not because i think it's it's materially different isn't it one of the policy provisions saying but tannic and then it can it say i can't pronounce it is stated that all say it could set off son's paid by or for some anyone legally responsible language in the allstate policy says amounts paid by the owner operator or anyone else responsible so the crucial language buyer for is not there and we would respond that  the policy language is the issue and bad can use the term legally responsible and that is that seems to be your position in this case right correct that even though this policy doesn't say legally responsible it it should be read as saying that creditor of the policy in elma cancer which the insured is legally entitled to recover from the owner operator of an under insured motor vehicle which also is not in your policy correct correct your honor and then say and so anyone for anyone i or for anyone who is legally responsible and the korean turgid that as meaning anyone who is legally responsible as the owner operator but none of that language appears in this policy this policy doesn't have the expression legally responsible it just as anyone else for the the result that sixty thousand dollars told damages were found fifty four thousand was paid by can troll and yet the larsons supreme court says the set off toward you thousand was not permissible under the policy language they say that was just if your contract interpretation is that right correct your honor and we have a different contract here is i guess i don't see how that helps it's there was no concern of a windfall or double recovery in bad can't was simply they were applying the contract as a barricade and in your position your position as you admitted court say that the fifty four thousand cannot be set off against the thirty thousand dollars damages caused by kim so our bag has there is still thirty thousand dollars under  policy is to make somebody whole but not in a better position than if he had been struck by an insured motorist you are really arguing for results contrary to that orange well we're simply arguing applying the contract as written and as drafted if there's any ambiguity is the term responsible it should be construed against all the state and in favor of appellant and the con the contract a to support the opposite result if it says legally responsible in one place and leaves out the word legally in the other shouldn't we ever fact to that distinction well we submit that it doesn't because responsible is undefined and also offer another interpretation of the term responsible all we have to go on is the plain language of the contract be read into insurance policies some sort of adjudication or finding a legal liability is required so responsible has to be an interpretive against that that and we would because i'm not so much sure of your position on it so i understood that it can be the arbitration came up with an award of how much fifty four thousand and sixty thousand two thousand and one policy provided for fifty four right  one policy had limits of three hundred right now but i mean one one one party paid fifty four and the insurer wanted to set off against that fifty for thirty thousand dollars of coverage correct year and i would have meant that the that the plaintiff would have only recovered twenty four thousand dollars correct correct and so all that that did was prove that was a case in which the court said we're not going to do that because that would rule that would mean that  plaintiff would recover less than the damages awarded by the arbitrator so i don't see how in that case there was a double recovery and we would submit that ultimately the court applied the contract  written which is and in this case doing so would not result in an unfair result all say because one they wrote the contract and drafted it to there was only a determination only on the amount of damages correct your honor but only because of the mission of liability that was made before a trial because it but the jury actually found these are the total out of a case damages that's what the eighty one and change instructions also say they were not to look at liability or consider life they were not finding liability that's correct your honor and yes but we'll give you  good morning irene hack your honour's i represent the respondent and under insured motorist insurer in this case allstate property and casualty insurance company i also would like to focus my comments on the primary issue the that is the issue of whether allstate as an under insured motorist insure is entitle to set off the sixty five thousand dollars k k we have already received from a global settlement of his liability lawsuit against all of the tortfeasor against the jury's award in this under insured motorists trial that determined the total amount of take a scam it is as a result of that accident and in in resolving that issue i think it's important to remember that the global settlement that paid k k sixty five thousand dollars for his injuries and damages as a result of the accident was one indivisible settlement another words all of the tortfeasor put their entire liability limits into one pot and from that one pot they settled all the claims of all of the injured parties in that accident and in doing so they exhausted all of the liability insurance that was available for all of the tortfeasor so adam pena the under aged intoxicated driver and his parents  twenty five thousand dollars per person fifty thousand dollars per accident auto liability insurance policy dean winner the individual the adult who supplied the alcohol to adam pena had one hundred thousand dollars per person three hundred thousand per occurrence homeowners liability policy so they took that total three hundred fifty thousand dollars and put it all in one pot and it was from that total pot that  brissie sixty five thousand dollars so it's important to remember too that the u i hammed jury trial was specifically held at to address and resolve the question the beginning was a case it was to resolve the dispute about the value of k k s injuries and damages from the accident and we know that from the complaint because the complaint itself ma specific reference to the sixty five thousand dollar allocation from the global settlement reached with the pena's and winner and in the complaint the plaintive or k k argued that the allocation and netters distribution that k k received from that global settlement was significantly below the value of the damages he suffered and it goes on to say taking into account the amount k k received in the settlement has not been made whole and so he was seeking under insured motorists benefits to make him whole for his injuries and damages also in the trial brief that was filed by k k they'd flat out said to the court this straightforward trial will ask the jury to determine the amount of damages that k k suffered as a result of his collision that was the issue it to what were his total damages as it were going to accident i take it there was no evidence that there's no contention in this case that k k suffered damages from mr weathers actions separate from the collision no there is only one mechanism of injury here it's the automobile accident when adam penn across the center line and struck the krantz vehicle that k k was riding in as a passenger so there's no evidence that could have been presented to the jury regarding winners negligence that would properly have been relevant or impacted the jury's decision on the amount of damages that k k suffered as a result of the accident so you know our position is that that there's simply nothing you know either washington's under insured motorists statute or the policy that suggests or supports appellants position that a u i am carrier is not entitled to a set off or the liability insurance proceeds paid to the injured party b u i am insured for his injuries and damages as a result of the accident i mean it what happened here is entirely consistent with the purpose and intent of the under insured motorist statute the very purpose of the statute is to provide a secondary or floating layer of coverage above the primary coverage which is the liability insurance to insure that an injured individual recovers the total amount of his damage is up to the under insured motorist limits what the court the washington court has consistently recognized is that the whole purpose of you i am coverage is to to take up where the liability carriers you know coverage leaves off thus in avoiding any sort of an uninsured gap and that's precisely what should happen here when i ask you a question about one of the secondary issues in this case i don't want to prevent you from finishing your argument on on the major points so if this is a good time fine otherwise no escalator sure it's the question of the of the attorneys feel ward and i've been looking at the washington supreme court's decision safeco insurance company vs woodley which seems to involve an identical situation to this one and what it says as i read it is first everybody agrees the pro rata share is twelve percent in this case nobody's fighting about that the question is what what that's applied against and as i read the washington supreme court's decision i think it's a pretty clearly say that what you do is you take both the recovery in the you i am suit of eighty one thousand dollars and you take the recovery of sixty five thousand dollars in the in the previous settlement you put them together and that's what you apply the twelve percent against and that's not what the judge did here i'm not sure it's not a matter of great monetary consequence i think the calculations probably get your opponent a few more thousand dollars but it doesn't doesn't woodley control the way that this should be done i don't think so i think the case that actually controls is the winters but tell me what tell me why and as i said it's not a lot of money but since you're here b b so the way that the washington court has approached this issue of offsets and we're talking here about the pip offset adding the recovery in this in the u i in case and the judge did that here he took the recovery in the oil and case but you also add to that the recovery in the previous any other recovery of sixty five thousand dollars and that's the against which you apply the twelve percent the judge didn't put the sixty five thousand dollars in here not only is woodley say you should do that but it is a long question but it strikes me as a matter of equity since they actually produced that fund that you got the benefit of they want to get reimbursed for their fees and it well i think the what what would we says is that ultimately and i'm looking at the decision it says without the offset wo recovery would exceed her total damages as determined by the am arbitration nothing in the u i am an arbitration entitles the insured to receive more than the total damages resulting from the collision and the reason i make that point is that i think that when you take the sixty five thousand dollars and the fees to the total recovery here he would not have recovered more than he i thought the fees were calculated as a third of the total pot that was awarded exactly and so it would be twelve percent of the total hog of the eighty one thousand which are twenty something and isn't that what was around it is correct so are we really talking about costs what why wouldn't he be entitled why why would i not have to pay for the additional costs that were incurred at the settlement i think was like some five thousand dollars of costs well the expenses hard wood leases legal expenses doesn't well be the the wood we paste doesn't address how you calculate the costs you know it says but here entitle to recover settlement and spent a lot of money to do it you're saying because i incurred no statutory costs in doing it and i wouldn't be able to recover those expenses in producing a common fund well not as not as cost your or you would be  yes would you be entitled to recover those expenses there let's assume there is expenses necessarily incurred in producing the common fund but they didn't qualify as statutory costs and they weren't attorney's fees your view is that you get the benefit of the fund that was produced but you don't have to reimburse the party for its costs we have to reimburse them for our pro rata share of the attorneys these incurred and we believe the statutory dog under just the the district court has orders i'm sort of confused about what the plaintiffs are asking for by way of costs and i'll give them what they asked for in their last write up which was like the seven thousand dollars  but they had previously moved for five thousand dollars for the those are the costs associated with the settlement so did the district court  win relying on the last submission by the plaintiffs was that a recognition or was how they it implicit holding that only the costs associated  about what the costs were but there is and i found the citation to the washington case it's williams versus banks of california or bank of california pardon me it's at page forty three of our brief that where the court in that case you know in one little short paragraph says that that when you're calculating cost for purposes of a common fund award or an award based on having created a common fund you look to to what the statutory costs are in a war that can i go back to the attorney's fees for a second we all agree i take it in this case that that the attorney's fees attributable to producing both funds the you i am fund in the earlier sixty five thousand dollars settlement are one third of the total correct ok and were you disagree with with the other side is that when the judge is calculating the attorney's fees that should be awarded will in this case you think the twelve percent number is applicable only to one third of the eighty one thousand you am recovery well and not and not to the generation of the sixty five so i think that where i disagree with your analysis is that thousand and change that was awarded as the u i i am damages because the u i i am the amount that that that allstate owes the u i am benefits is the total damages award reduced by the liability recovery so the eighty one thousand if i understand as of the total damages it is the total amount of the fund that was created it were actually five thousand from the settlement in the whatever under twenty from the litigation and so the attorney's fees under washington law would be one third of the ad or that the court was within his discretion to say the attorneys total attorney's fees for the common fund is one third y the court did not do that that's why i'm asking the court seemed to say i take the entirety of the your i am award and it is because you because you sought to recover the ten thousand dollars pip i take the entire context of an under insured motorists award where there's part of the part of the common fund comes from the liability recovery and part of the common fun comes from the under insured motorists coverage  recovery and specifically says the under insured motorist portion of the recovery is the difference between the total damages and reduced by the liability payment that wrong number that's why i was asking yeah thank you council will will straighten out the years and you have a need for a bottle briefly your honors  so we are not correct we would the agree woodley requires the tolls the jury only determine what the total amount of damages was or the total the value of the injury to k k it didn't recover as to whether damage is a day when or where encompass by the time you i am very in this case when or was completely excluded from this proceeding it was through all states initially and liability is and p only and that allowed a motion in limine they do exclude the evidence of one or providing alcohol intoxication but i guess i'm still back to the question i asked you before your clients only injuries came from this yes we would respond that winner and his actions were not included in this calculation and that's what it was what i asked i asked was whether or not your client has any damages other than the damages caused by the collision correct your honor thank you counsel thank you it's just are you just submitted and we appreciate the helpful arguments from both counsel