court already yes yes my name is richard older joining me somewhat remotely are j sat and michael werner we represent amy kemper against equity insurance company in the section of your honor's we think this is an obvious case of insurance negligence churns bad faith and we asked the court to reverse and to explain why i'm going to start with two propositions  law and then three faction bullet point fashion that i'd like to get across to the court and then of course hopefully after that will spend more time on questions because i want to hear you know more from your concerns more than any speech i can prepare but be the two issues of the law are that you know georgia laws been clear for many decades that an insurance company has a duty to accept a reasonable opportunity to settle within the policy limits georgia law is also clear to nd proposition that an insurance company has a duty to reasonably respond to a settlement offer within the policy limits now this case involves a reasonable opportunity to settle within policy limits that the insurance company rejected with an unreasonable counteroffer and that counteroffer was an reasonable for at least three reasons st the counteroffer included an escrow account it was a demand that state wide equities adjuster state wide acted as equities agent statewide and demanded that miss kemper put one hundred percent of the settlement funds into an escrow account for an indefinite period of time to handle any lien of any type for any time in the future second the nd unreasonable part of the counteroffer was statewide tried to sneak in a property damage release miss kemper offered to settle her bodily injury climb and at that time state why it was negotiating the property damage claim and had not paid it and asked her to release that her the counteroffer required as a condition of some and that miss kemper swear under oath that all of her hospital bills had been paid as court now she was severely injured this is a week after she had gotten out of the hospital there is no way anyone can swear under oath that all their hospital bills had been paid they were being paid but as we know it takes insurance companies health insurance companies time to pay clanks if she not just should not send them a letter demanding that my days she did your honor that was the reasonable opportunity to settle in this case is amy kember's handwritten demand that she wrote with the help of attorney michael werner and it was a very simple demand as required by st acceptance be hugh's it was valid because it was capable of acceptance under contract law all statewide had to do to accept her demand was to send a conforming release and send the check within the twenty day time period that your honor mentioned and state why did some of those things that sent the check safe harbor which is an affirmative defense requires equity to prove that it is than title to the affirmative defense by showing that there were outstanding hospital leads in this created in well started by the court because the language judge tiller used when he crafted the safe harbor expressly says outstanding hospital liens and there were no outstanding hospital liens or the insurance company could request that maintenance counsel and in this case the letter sent by your your client specifically say don't contact me again so there was no indication that she was represented by understanding  then it can be dispersed whatever is left well your honor i do not believe it puts the burden on the plane the burden is on the equity to prove that they're entitled to the affirmative defense but that isn't it doesn't say that there has to be means it's just saying you need to verify what it means and if there is need then you need to pay it off and then disburse whatever amounts are left afterwards and then your guests well i think the well started decision respectfully does say that there has to be outstanding hospital and but the answer to your question is that once the money is paid to miss can for when it is delivered to or there is then a binding settlement agreement  medical treatment at any time you're going after your one of your points mr gold or in the brief i think is that once the settlement was consummated had it been consummated between equity and miss kemper then equities liability for any subsequent liens would have been extinct right they would have been that they would have had any liability for any lien perfected after consummation of the settlement agreement and that's forty four dash fourteen dash for seventy three b rather than settlement use the cumbersome phrase covenant not to bring an option but yes your honor and the other the other point you make in the brief is that the letter from mr chang to ms kemper along with the check was not limited to medically it said any and all liens pending which theoretically could have dealt with non medical l arising from the accident i think was beyond what the well star case allowed as a safe harbor well beyond your well beyond your honor and indeed state wide we can tell from the claim ridge in the demand letter was do not contact and if the question is whether there were outstanding liens on the insurance companies we really had no way to verify her deposition the terms of her demand were very simple and that was her way of saying this is non negotiable don't bother call me and you know that that's what insurance companies do all the time that's what lawyers do all the time many parties do that all the time they offer a settlement and it's non negotiable that was her way of saying don't bother to call me it's non negotiable the nd part to answer your question your honor is that calling miss kemper was an  immaterial fact it would have not changed the outcome this was a new office policy mr truong in putting that escrow account demand and the counteroffer was just an acting a new office policy it was going to happen no matter what it was further immaterial because there was nothing a layperson like ms kemper could say if they're the leanest perfected in the public records or does not mr all read the attorney asked mr chops do you want he did a lean search there were no liens he said do you want me to send someone to the courthouse to double check it would have taken this paralegal one hour to do it and they said and the rd party vendor reported that there were no liens and then it raised the question there was perhaps three layers of hearsay there might have been a day or two delay in the filing and that's why mr already said if you want me to send someone to the courthouse we can do that cheap and easy and we can find out for sure state wide said no we've done our due diligence  demand was silent on the issue we didn't address in any way shape or and then you add to that the no call man that's had come out to refusing to give any assurances about  and consistent with that with an insurance company there are laws to protect their insurer and under these circumstances they could not do that given that they were flying that at the same i mean you say you're trying to protect the insured you're exposing him to a multimillion dollar judgment by not settling the policy limit we don't know what would have happened when she received the check during that two new time which would have signed a release among other things we're going to do all of that also in this case  camper says that the solution for act would he was to just send the check and had they sent the check they would not have been protecting their insurer because we didn't know about chop to miss kemp or refer to any and all liens supposed to the medical liens for which you or the insured would have been on the hook for because we had received exposed to contention other claims that were being assigned and had actually been assigned in the case but you also knew but you also knew that she was a state employee you also knew that there were no liens pending at the time and the person you had hired mr already suggested to you that there would likely be no liens and he  within a certain period of time those monies were but before responding to that act with a state wide use due diligence to check them but it would be impossible impossible to  according to your letter under those circumstances if there were no pending leaves at that time she didn't have to do anything to know you didn't you demand that you said any and all liens pending what did that mean until she cashed the check because if there were no liens filed up to that point there wouldn't be any liability or concern for anybody you gave her an open ended demand to create an escrow account and put this in state wide from inquiring about those things but i'm granting you all of that i'm making for purposes of my question but then you've asked her to create an escrow account and put the check into it and mr chopper wrote a demand letter says that the escrow demand referred to hypothetical hypothetical liens never filed perfected or even contemplated if that's his understanding as the draft what sort of an understanding is this kemper going to have about the us for the man st of all she never communicated with us to know what was out there so she prevented there from ever being a dialogue and not only that the nd argument that i was making was that when his response was reasonable given the totality of the circumstances in her refusal to why didn't you just tell her that if there are no liens you can cash the check and there's no need for an escrow account because we don't know if there are or not no no but you put the onus on her you tell her if there are when we set that check we knew that there was a least a couple of day gap as far as the registration of lanes online and then we didn't know when she would actually is here in i'll go back and watch your honor has further questions regarding you but you know the reality of the situation would take the position that there was not even a  precisely under the facts that we confront here and that there were the demand in the donald was absolutely fifty one as far as needs and they said in that decision that excess liability so it's our contention that everything flows from you know furthermore it's th man so you know it is ambiguous as written given that there were certain things that she did not respond to including the fact limited liability release she left it open to web content about limited liability released the and then uses this cited in her discussed in our brief f e m a and the federal law that requires someone to represent asked that there's no medicare or medicaid rights that are out there in this case actually went to the point of actually sending two different types of and the s c a statements but for a long with the chalk and have i mean technically that would not have been complying with the everything in their power to do that mr donor also made the raise the question that we were demanding that she sign a release of all her claims and other matters along  a notice of hospital lien on august five two thousand and one the settlement demand was dated june five two thousand and two that case is not on all fours with us because there a lien was filed and perfected in the public record that's also like well star well star the southern general there were liens filed in the per in the public record and everyone had notice of them but the claima refused to do anything about them that's not this case as equity just said its own counsel there were no liens judge will go i want to go back to one of your st questions to me why  southern general the safe harbor doesn't apply and we talked about one of its elements which is no outstanding hospital lee but there's another element that needs to be addressed and that is judge diller in crafting safe harbor specifically wrote that the lien issue has to be the sole reason there was no settlement and he the judge put the word soul in italics to emphasize i n this case the whole lien issue is not the sole reason that the claim did not settle other reasons the claim did not settle included state wide trying to sneak in the property damage release  into the release as a user in the internet you for nd i didn't see that argument any were in your brief about the property damage and you tell me where you make that argument that i couldn't cite to you the page number right believe i do not have his letter in front of me but i don't think it purported to say this is the exclusive with us so construing the testimony that we have in favor of the nonmoving there were other reasons  trying to help around pro bono and that this is a common and responsible practice for you know lawyers of his stature in the plaintiff's community and and also with regard