you your honor if it please the court i'd like to begin by comparing the policy language that we have here with the policy language regarding set off from themsel that the policy language insults or says that amounts payable for damages under under insured motorists coverage will be reduced by all amounts all under any workers compensation disability benefits or similar law and the supreme court in their decision characterized they have language is being clear concise so it's straightforward policy which i want to compare that with the policy language that we have in the american economy policy which we suggest of a court is the atlas it is not clear by workers compensation disability benefits or similar law so it's clearly conditional and i think that's the most important feature of the case that this panel has before them this morning the the problem with the conditional element of the policy language is the manner in which american economy has conduct itself and like of that conditional policy provision because everything that american economy has done with respect to their condition is to try to avoid that condition and we know that like all insurers they have a duty of good faith they have a duty of fair dealing with their insured and so how can they attempt to avoid a settlement agreement in compliance with their duty it's imposed upon them so that that's been the rub throughout the case there's an agreement there it's articulated that there that there was a pool given for a settlement that's correct your honor just assigning it there's been our position from the start the way this policy is set up there's three because provisions in there you get tentative settlement agreement you've got settlement agreement and then you get in the event of a settlement agreement and when you read those three policy provisions together they show one thing to the average joe on the street that's me reading this policy and that's the purpose of those three provisions is to set up what the under insured motorist proceeds setoff will be against the policy limits and that's that's the only thing that makes sense now even if you don't adopt that position and one second there but then there's the other clause that if in the event that there is no sell there's a different reality there's a different question regarding the allocation contribution that was the other set off and it clearly sas in the event of a settlement agreement the set off shelby the under insured motorists contribution that's all they get now american economy w trial court and of course the scene before you e s q to read into that extra language they want you to read that in the event of a someone agreement the set off shelby the under insured motors proceeds worker's comp benefits pension benefits disability benefits we can't do that the average joe on the street isn't going to read the policy that way they're going to read it according to the literal language so that's been the problem from the start so  insurer it would be between the solo settlement agreement is defined in the palace as being the agreement between the insured in the insurer that first of all there's an under insured motors second of all that he's liable for damages and then without abba trajan degree as to what those damages are so what the it's doing is beds setting up the under insured set off because the damages in that clause refer back to the antecedent clause where it talks about the damages from the under insured motorists so but even if you don't look it hit way even if you look at the position that's been urged by the insurer in this case they've tried to claim that the reason there's no settlement agreement is because the images is capable of all these various interpretations ok i don't care what interpretation you give american economy and behalf of father greeley i'm going to agree to it ok if you tell me that it's gold will be image and you claim it's seven million i'm fine with that then it still exceeds the policy limits here if you tell me that it's damages that he's legally entitled to recover when you look through their briefs and there those targets father greeley is still entitle to the entire hour as he proceeds because all of them fire exceed what the policy limit here it's only a million dollar policy limit back then he had nine hundred thousand dollars in benefits that have been paid and most of those were for medical but some of them were for temporary total disability which in a true big image scheme would would equate to lost wages because he wasn't cloyd at the time he was receiving money from the sun times he was he was still writing books there was a book that came out after he was injured that he'd finished it was in the editing process at the time just as quick i'm sorry  own both of these companies are owned by the same people and i found that out when i got on the telephone one day and and they told me hey we got your letter demanding under insured motors coverage and you want to know what we're not going to pay because our subsidiary  has paid out all this money in workers comp proceeds this is it or we have been going along for a year and i had advised them well in advance we knew from the beginning he's got traumatic brain injury this gentleman is never going to be the same not to be the  images in this case are extreme and and so there was the first time i heard that the workers comp carrier was the same one and that they were alleging that they had a worker's comp set off in the case that's first time we were ever advised that so when you look at the policy provisions and you take them together it's clear the purpose of those policies provisions it's to set the under insurers set off and that's clear we agreed to that and so under that  september sixteenth proceeding that although he had ruled on motion for summary judgment it never addressed the breach of contract claim and the problem with the truth of the trial court's ultimate dismissal what the breach of contract  and despite their own internal documents which show that he was a named insured despite the fact that the policy refers to him as being a priest a sociologist and an author we know corporations are they're not sociologists they're not authors so everything show that he was a named insured and so then under the goldstein versus lustig case once you have their primary breach they can at a bail themselves of the claim that they've got a set off in another provision so and it's also there's the debate case which holds the same thing so in light of those things i'm submitting to this court that the trial court should not have dismissed contract claim the breach of contract counterclaim was pending at all times it was valid and so for that reason jurisdiction is properly vested in this court because the first time that all issues were resolved one way or the other was fact that you hear the the primary breach where despite their own internal documents despite those documents they insist that he's not a named ensure they then disclose those documents in discovery in their clear in their face there's at least eight references to father really being named as an individual so it's clearly a bad day at fifty and their part at least at least he at the point where they continue their way after and up to in addition to that we kept the problem where the way the policy is set up under these facts what american economy has to try to do is they have to do everything within their power and that's what they've done to try to avoid a settlement  defined by the palace they had seen by a lesion of their due to good faith and fair deal section one fifty five they had some violation of public policy as applied under the actions that they've taken in this case so american economy was intitled to set off from the u u i am claim the full amount that father greeley had recovered the nine hundred plus thousand dollars from worker's comp and the two hundred fifty thousand dollars from the to insurer that clearly exceeded the one million dollars limits and at that point judge martin even recognized right away that there was nothing left to decide in that case and once he made that determination that that the set off could be applied there was nothing to be recovered under the u n provision of the policy and he noted that on the record there was a fairly recent case i think just discordant wrote it called american country insurance which dealt with this identical problem where you have and this is like a part sam question on finale and post trial motion practice but it was an identical circumstance where and you see this all the time in the declaratory judgment actions you'll see that one party will file a claim for declaratory relief or the other party typically the insured will counter claim for breach of contract and they had faith under section one fifty five and then the judge makes a ruling on cross motions for summary judgment that doesn't address all of the pending counts in these claimant cross coins and in the american country case the court adopted what i think for lack of a better term a sort of a mirror image rule where when you have a kind of claim or a complaint an account a claim th put in issue the identical point which is all we're talking about here the complaint the counterclaim put into question the identical question of is he entitled to get any u i in benefits under this contract once judge martin ruled that the american economy was entitle to the set off there couldn't be any breach of contract there couldn't be any prejudgment interest there could be any bad faith and so that was a case dispositive decision that occurred on july twentieth now what happens after that is  a timely post judgment motions filed on august eighteenth you know i think the fact that it's filed within thirty days of the july twentieth ruling is recognition of the fact that it was probably a final judgment as the judge had indicated at the time he ruled there was no need for three or four a finding that would have been superfluous the judgment was final there was nothing left for the court to do that's the hallmark of a final judgment so you have a post judge of motions filed on august eighteenth and then the judge  look at that motion and it's attacking the ruling about the set off so it's a proper post judgment motion tows the time for appeal and then you have a decision on that motion on september sixteenth and at that time judge martin denies it now at that point the case is done there's there's nothing left to do there was no modification of the prior ruling the motion to reconsider was tonight and when that occurs our case law is pretty clear that you know you either give up or you appeal those are your only two options there was there was no appeal filed within thirty days it's temper sixteenth order that denied father greeley's motion to reconsider no appeal at that point instead what occurred is there was a little dispute that erupted between the parties about whether or greeley's counterclaim for breach of contract was still alive judge martin did call for additional briefs on that that's kind of the unusual twist in this case the judge did call for additional briefs and so the parties filed additional brace father greeley's brief when you look at the substance of it is ace improper successive post which motion it is almost a duplicate of the prior motion to reconsider attacking the judge's decision about the set off so it is an improper successive post judgment motion it's ineffective it was clear that the circuit court judge does not have the authority to allow a successive post judgment motion and american economy took the position that the quote was lacking jurisdiction that the july twenty eighth order had been final that the september sixteenth ruling denying the motion to reconsider was the end of the case we did argue in the alternative in opposition to it because you never know how those things are going to go but we did take the position very clearly that the earlier orders were jurisdiction to enter the october twenty eighth order at that point he had lost jurisdiction ready there was no proper post judgment motion before him that would have extended the jurisdiction out talked over twenty right he didn't ask for briefing on it and that's you know this raises a a what would we still ok well you know there's a jurisprudential concern here about the finale of judgments and i think you know the case law it talks about the fact that the importance of the you know the the policies that we're looking at here it's really a package of four distinct insurance policies there's a commercial general liability see g l policy there's a a marine and in the marine policy there is a property casualty policy and there is an auto business auto policy so there are four distinct policies here all wrapped into what's called a commercial package each of those policies has its own specific declarations page that identifies who is in and who is the insured and specifically here since we're dealing with the under insured motors coverage we're talking specifically about the business auto coverage form and the you i am indorsement of both of those documents have a place on them where they identify who is the name t and the only named insured this is identified on those pot on the policy is the corporation all name is on is on the decoration his perch name appears across from where the mailing addresses it's named insured and mailing address and that's the only place where i ndividual name does appear if so and it's mentioned elsewhere in the halls unset mentioned his even visual name is not mentioned anywhere elsewhere in the policy that's incorrect judge there are some underwriting materials that council has included in the record from prior year policies about five years earlier where you do see father greeley mentioned individually and in that instance yes he is mentioned as an individual but that's not part of the declarations of the bodily injury coverage in certain instances for officers and officers and employees of the company sure but in this case in order to qualify for the right m coverage it says that he as an officer of the company would have to be occupying a covered auto and he was not occupying a covered auto he was occupying a taxi and that's why he didn't qualify for you i am coverage as an insured person under this policy and the sea hero in the sea joe has nothing to do it i mean that's a completely separate policy that's the portion that mr pratt's was referring to it talks about where his business happens to be as a sociologist a priest an author that's in the c g a policy that's not in the business auto policy there'd be no reason to identify what his occupation is in the business  in an address frank opens the sun has to be covered under event declaration thing in that particular case it was not a corporation it was a partnership and the court specifically found in that case that because it was a partnership and not a corporation it wasn't subject to those limitations in terms of having to be an officer or employee of the corporation it was sufficient that because it was a partnership that the individual was covered as a person because the partnership didn't have an existence apart from the individual partners and it was one of the one of the partners children i was and it does provide coverage for insurance family member and they go back this is i'm talking about the c e o now it said quote named insured mailing address and the name insured shows are insured as an organization other than a partnership drive venture or limited liability company you are sure your executive officers and directors are insured but only with respect to their duties first response is that the c g i policy is a comprehensive general liability policy the right am indorsement as a part of the business although form and the roi in the door sort itself identify specifically who is the name to ensure that he is on both and in and policies he was no question about it and i don't i'm not arguing with you about that but we're talking specifically about the business auto coverage and the u i amador split and there is a you i am indorsement in there that identifies who the named insured is and he's name doesn't appear anywhere on and when you look at the renewal declarations where you see his name appear individually it says that there are other declarations attached to this policy that modify and provide the particular coverage so it does incorporate specifically the other indorsements and the other declarations for the business auto coverage and the u i i'm indorsement and so you have to refer specifically to the specific policy under which he's claiming coverage and under the business auto coverage which is what provides the you am and the you i am the only person identified as a name to a church is the corporation not the individual whose name is individual name does not appear anywhere on those and that's the coverage that he's seeking but the what if what i'm assuming you're reading is the remove declarations page judge it's no different to the issue i'm not sure which make there's a claim here that there was actually a substantial period of time that took place where there was a denial of coverage individually that they would recognize no that's not accurate there the the time sequence the way the time sequence went down was that they first notified american economy that they thought there was a potential for a u i am claim but they didn't notify you american economy about the fact that the tortfeasor had made a settlement offer until january believe it's either two thousand and ten or twenty a lot of a forget the date you have  january twenty second of twenty ten is when father greeley's attorney notifies american economy that they have received a two hundred fifty thousand dollars settlement offer from the tortfeasor insurer under the uninsured under insured motorists statute that's part of the process that's required they have to first tell the insurer here's what has been offered now that triggers under the statute the opportunity for the insurer to indicate whether they're going to advance that money and then figure out how much money on february nineteenth and by march ninth is the denial letter so all we're talking all within a period of from jim the end of january to march ninth which is i don't know barely about forty days is from the time when there's no occasion to issue a reservation rights letter because there's that typically occurs in the context where somebody asking for a defense to a loss and and there's a question as to whether the coverage for the defense of the loss and in this case that you know it's either we're going to accept coverage over not going to accept coverage for what they call a first party claim reservation rights typically come up with third party claims claims by a third party against the insured with there's a question of coverage but for a first party claim where you're just seeking your own benefits under the insurance policy typically it's just going to be either an acceptance or denial of the claim you have five more minutes the first issue that exists in this case is the question of whether there was ever a settlement between american economy and father really because that's the only way he can avoid the set off for the workers compensation benefits there's always a set off for the tortfeasor the amount paid by the tortfeasor so the real question here is whether there's american economy has the type of the set off for the payment of the workers compensation benefits the only way he forwards to set off is if he can show that american he an american economy entered into an agreement as to the tortfeasor liability and the amount of his damages that he had sustained and there's no count there's no agreement like that in this case anywhere there is simply a denial of coverage the denial of coverage letter says basically if you want to go and settle with tortfeasor you're free to do so but that's not a settled that's a settlement between him and the turkeys or that's not a settlement between american economy and father greeley and you have to ask yourself well if there are if he contends there was a settlement between the insurance company and himself what were what was the term of that settlement if you agree with the damages because that's really what he's going on he's trying to say the we agreed on t v images if we agreed that the damages were two hundred fifty thousand dollars the amount of the tortfeasor settlement that he still has no under insured motorcycling because it's only if the settlement amount that we've agreed to would exceed the amount that he's received from the twenty's or that there would be any you enclave so if he's saying that the settlement was our saying ok you can go ahead and take the money from the twit fees or the two hundred and we agree that's two hundred fifty thousand dollars that's your damages well then he has no you right i am claiming so there would have to be by definition an agreement on an amount of damages that he suffered in excess of the two fifty and there's nothing or we have the only thing we have and the received so there can't possibly be a settlement in this case and that's specifically what judge martin found dispositive that was that that was where the case and it was on that decision and that decision was evidently correct there was no settlement agreement you can't construct the settlement agreement anywhere out of the documents in this record or there is a denial of coverage letter how can there be a settlement on the you write him benefits if they deny that he was entitled any coverage how can he claim  a claim that we deny outright how can we how can claim that if you he can't have it both ways you can't say there was a settlement between the particles and that we were effects aisha sent a reasonable he's basing the fact that we're because we refused to settle it so there can't be a settlement in this case and that's what church might be found and so if there is no settlement in the case no settlement agreement then we're entitled to the set off as judge martin found and he's there's no u i  benefits to be recovered here the man has received over a million dollars in benefits already from other sources it exceeds the amount of the way i'm covered so there's no claim to be made here at the end of the day insurance policies are to be given an you can't interpret this in a colloquial sense it has to be whether or not it meets the definition of settlement agreement under the policy provisions in it to allow them to argue that because in a colloquial sense we're not coming to a settlement agreement is to allow them to frustrate the policy because the policy says that they can't get a set off in the event that there's a solomon agreement so that's why they're making that argument but th argument cannot be made because it has to be restricted to do we have a settlement agreement under the terms of the policy and one of our claims before the trial court was we can make out in our breach of contract claim a settlement agreement under the policy provisions because all that's required to have a settlement agreement under the policy provisions is an agreement that you've got or you don't even need the agreement but the facts make the settlement agreement under the policy provisions do you have a was libel in tort is he liable for damages and what are those damages and in this case it was his his policy limits so that was our position throughout now the fact that the trial court didn't accept that doesn't mean that this panel cannot accept that and find that that's the appropriate understanding of settlement agreement under the policy language and that's what's important is what does the policy say not what does the guy on the street think and that's correct and the reason that they did that was because they didn't want to have a finding that we've got a settlement agreement and so what they did was they said well the only thing we can pick here is damages because clearly we've got a court fees or is liable offered up his damages so what we're going to claim is the damages in that settlement agreement provision they don't refer back to the court fees or damages they refer to ok first we're going to say this now we're going to say this now we're going to say agree whatever they are they're going to be in excess of the million dollars a policy coverage should they so that's the problem but the position that they've adopted here and they've done it throughout and they've consistently required cute things such as well  we're not going to enter into a settlement agreement with you because you don't want to agree to a set off and we claim that a settlement agreement would include a sat off for workers compensation despite the fact that it's the absolute reverse of what he says it's contrary to logic but nonetheless they've continued to do this there are two hundred fifty thousand dollars off against a million dollar you know that's what they have here quoting to their policy because what their policy says is you know in therefore you would you look to the language in the policy that says in the event of the settlement agreement that's what they get they get the set off for the under insured motors proceeds but you'll get a set off a worker's cap it's not in there and you can't read it in there if there were pension benefits they wouldn't get the set offer that it's not in there you can't read it in there i'm going through a disability benefits it's not in there and you can read it in there that's what they suggest that that should be done and they continue to suggest that that's the way it should be approached it's contrary to or simon and ask what was necessary at what point did we first put them on notice that we had just substantial under insured motors usa and counsel told you it wasn't until january we told them we've got the policy limits offer her state statute from the cab company i notified them in july of two thousand and nine they didn't respond until march of two thousand and ten claiming obama the way you're not a named insured so that's the