thank you your honor my name is darla williams i'm counsel for your power in this case this case presents the question of where the watershed is between pleading requirements and ultimate issues of fact to be proven at trial it's complicated i believe in this case by the fact that we are dealing with a rather unique area of the law which is unique to arizona aris versus all state case which holds that an insurance carrier and the lawyers for the insurance company can be held guilty of not guilty liable for an abuse of  process if they engage in tactics during the course of litigation which has a primary purpose other of it and defending a case the crackle case i approbation in those same journals but still that case comes up in the context of what has to be proved not really what has to be planned is that i read it that is correct and well i believe the complaint does articulate all the elements set forth in crackle what the complaint does not do is to go into the specific evidence which crackle says must be proved so kinder run through the complaint and see how each of the factors that crackle says have to be proved has been adequately pled if i look at paragraph six of the complaint as that both before and after the jury trial national union took well for actions in the use of judicial process for an tarrier purpose which was not proper in the regular conduct of those proceedings and  it is always difficult for me your honor to clearly define the difference between a complete restatement and a factual allegation but certainly this puts national union our notice aspects of the legal process which were abused it also says that national union was primarily motivated by its improper intent which resulted in its  process and by that what it is intended to be conveyed is is that national union which is can face a multimillion dollar obligation has incentive  do something to do not pay that claim which is the cost of defense which will be millions of dollars and in this particular case as we allege here what they did was is they attempted to prove that mr griffin scheme was indeed guilty when that was not an issue in the insurance coverage case and so when the insurance company expands so much efforts to prove that it's named insured is guilty which has nothing to do with coverage because guilty only affects coverage after a trade deal has in fact found that and so the idea is to w out the defendants who do not have money continue with the litigation deprive them of the funds during the course of the litigation which they need to defend themselves in the collateral criminal case and chicken and egg carton horse what is the primary purpose of this particular strategy if your strategy is based upon well i'm just going to string this out even though i know this coverage exclusion is not operative and i'm going to string it out until the coverage exclusion takes effect because there's going to be a guilty verdict board we hope there will be one then you cannot string it out for that purpose and thereby  ultimately they paid more than that but during the course of the criminal or you mean them by filing the court order to pay for the defense before the policy limit was reached there was an extended order which required national union to fund defense fees and they did not do it and so there was a high lead us i don't remember how many months that was pretty considerable number of months where they simply would not fund the defense at a crucial time prior to before that particular final judgment there was an interim order by the court obligating them to pay fees for defense worked great that in the record well that's not in the record all it is good morning me please the court will hoxsey on behalf of the at the least national union fire insurance company and stephen can't to zero in on the panel's question about this floating court orders it is in the record at the tab for of the excerpts of record of which judge mcgee took judicial notice there is a minute entry dated november fourteenth two thousand and three and the trial judge in the state court case makes it very clear that national union's obligation to advance the defense cost terminated upon exhaustion of the policy limits this was a one of notice of this particular order that the trial judge in that case on a box had issued in november of two thousand and three and she made it very clear that once the policy limits were exhausted there was no more requirement on the part of national union to advance criminal defense cos governed by federal law right to clean standard yes so there would be facts about facts played so as to meet the plausibility standard and for the elements of abuse of process where you have the  facts showing that there that the use of the litigation procedure under attack was primarily for an improper purpose and that the procedure use can't pass the logical explanation test in other words there's no logical explanation for the use of that procedure other than for a primarily motivated improper purpose and are you saying that under federal law i mean every the facts have to be pleaded to establish that proposition you have to you can't just rely on three allegations you have to plead some facts you don't have to plead all of your evidence but you have to produce your own facts what's your best case to support that proposition paragraph eight even if you assume those to be true they fail to state a claim under arizona law for abuse of process so there was nothing by way of an amendment that would cure that legal defect and there is it and she stated that standard in her order and found that there was no possible start of facts that would under under this case that would pass muster under the arizona law as to abuse of process was complied with until the policy limits were satisfied and what were the policy limits five million but there had been a massive civil fraud case brought against mr gribben ski's employer and some of the funds were used to settle that judgment but the ruling of the trial court was that once the policy limits were exhausted there was no further duty to at vance criminal defense costs now in the costs he could have asked for injunctive relief which would have been in the form of some sort of a court order requiring that that criminal defense cost be advanced for whatever reason he chose not to do so so he ended up and he won but he ended up with a sizable money judgment but it was a judgment for money only and then national union exercised its right to post a super c d s bond which was in an amount set by the trial judge mr verbinski was unhappy with that so he took that up on appeal to the arizona court of appeals they said no as a matter of right you you have a right to post to proceed e s you don't petition the arizona supreme court for review citing wisconsin law where and wisconsin under a different statute insurance companies may be required to advance funds during the pendency of an appeal but that's not the law in arizona then there was no discussion of what facts could be pled there was some and the transcript of the hearing is in the excerpts of record that we provided are supplemental excerpts of record but the theme that was evolving at the time of oral argument was that national union was stringing out in this case during the appellate process but by the time we had oral argument the underlying appeal had run its course the court of appeals had affirmed the underlying state court judgment and national union without moving for reconsideration petitioning the supreme court for review promptly paid not only that underlying judgment but entered into a settlement and paid the appellate fees which under arizona law the prevailing party would be entitled to receive paid those fees so judge mchugh was cognizant of that now one of the big the complaint which seems to me to be erroneous well cheat what she was doing when she was zero ing in on the the sub parts of paragraph eight and said i'm not requiring that you at this point provide all of your well for example she had an abundance of information in front of her by way of judicial notice so that for example paragraph eight noting a court orders simply not true when she could she could take and survive a motion to dismiss and move on and given additional notice that you had from the trial court below and the very acts that they were complaining about moving for a new trial filing a notice of appeal here but here at cent it's no different but here the purported improper personal purpose was trying to obtain a settlement and the laying payment of a judgment but under arizona law under the bird versus rothman case trying to get a settlement is not an improper purpose it's a proper person and here by the time we had the oral argument she knew there was no settlement the case never s believe like him no you can show you know you have evidence to support these you know improper and more than all career purposes yes although i will say  motives and purpose with us are typically drawn based upon other inference inferences from other things and so it's very hard in a complaint to say here is the evidence that shows improper motives without discovery for example to find the internal memoranda which like crackles say what you do with the mistakes that you just take no prisoners and use defendant even if it cost extraordinary amounts and so