there's a declaratory judgment action that was filed one day after a settlement was approved in state court and seventy six days before an excess judgment was entered that might have implicated other coverage for geico i think the question here is an interesting one if neither party has been able to cite a case in which a district court simply did not decide a motion to dismiss based on the abstention doct went ahead instead even though that motion had been fully briefed and entered summary judgment and so i would suggest that there are a couple ways to look at this respectfully the first is the failure to decide in itself error largely because what we know is that appellate review of these sorts of decisions is granted that that review is for abus insulate themselves from appellate review on these sorts of things just by not deciding abstention motions or i suppose having a court conclude that they must have decided that in a way that was contrary to the everything else before it in its order it said i'm not going to grant you new discovery there was that motion going there are some other things that just simply didn't mention this you think you might have just missed it well your honor i don't know whether he missed it what i know is the record would reveal that he didn't decide it directly to jass to reconsider and have a ruling on that issue well the summary judgment had been issued so no and the appeal was taken from that so if you  the position that judge judge greg or suggest that it was decided then aren't you left with the question of should it have been decided the way it was and i would suggest that this is one of those cases it's a there's a parallel state action the other side has a different view of that but because it's broader but the very issue the single issue whether there could be stacking of this policy is in the state action which was filed on the phone basically within five days  possible to file a this court's previous decision say that even five a five month lag is not law and it would overcome a filing when it's filed as soon as possible  geico makes a number of sort of points about this first it says you can glean from the record what the basis for the denial was but the record is quite sparse in this case this is a baby case it's less than it's barely over six months old when it's finally terminated the only thing that's been filed it or a complaint an answer motion for summary judgment some extensions of time to respond to the summary judgment request for discovery and then  district court could have said well this case is so far along here that we simply shouldn't do it and that that would be one thing you could glean from a record different than this one but this case is not so far along if so how about the motion for summary judgment is fully briefed before the state court action was filed then it's right for decision maybe have already worked on the opinion the normal efficiency are the law is clear in missouri so the normal efficiency arguments for abstaining don't apply i know he didn't say any of that so we'd have to impute a rationale in addition imputing a decision but suppose that were the rationale would that be an abuse of discretion well the state court judgment is entered on january the twenty fourth on january the seventeenth there is a motion which was granted for more time to respond to the summary judgment motion so the district court is where one would presume of the existence of the state court judgment excess judgment which would have made the tory judgment at least right one of the one of the questions you have here is that geico faces absolutely no financial risk until there is an excess judgment in  in missouri could easily have said well we're not going to enter an access judgment or the hundred thousand is sufficient and so the declaratory judgment action here is filed well before there's any knowledge that there is actually going to be an  ex a potential exposure depending on how the policy is written so i suppose in that situation on your honor judge quality would so you saying there is no case or controversy really in the federal case well i did i certainly didn't say it in the brief i just said it but i didn't argue that at the time well it seemed to be what you were saying that the declaratory judgment action was premature there was no real dispute yet well i guess i was responding to your question if it's a fully addressed summary judgment motion with that overcome the yeah well that's just the facts of the case right yes or in as it played out here nobody questioned the federal jurisdiction and so the summary judgment motion was fully briefed as i understand it before the state action was filed well i have that timeline right well your honor the state action is an interesting state action because it begins with a motion to enforce the settlement in which there's a counter claim for wrongful death which predates everything and then on november the seventh of two thousand and seventeen there is a approval a state court approval of the wrongful death settlement and that settlement geico pays one hundred thousand dollars and it also then part of the settlement is that the driver in this vehicle is not going to be personally liable but if there's any other insurance or other assets of the parents than those could be attached if there's a judgment entered so this is this is all going on before the state court judgment is even approving the wrongful death happens and then the very next day geico says well we want to know what the policy says so i guess i would not suggest that the first filed rule this is a classic preemptive strike that this court talked about in north west airlines case let's rush to the federal courthouse every single issue of the many that are still pending decided in the federal court and in those circumstances where the system i would respect suggest has been game in order to get federal a decision before the state court can decide the state law issues then the courts have not looked kindly on that and then finally on this particular issue it seems to me that comedy would suggest there were you have an opportunity to have a state court decide a state law issue that's it's there and could be invoked for that purpose that the federal courts ought to allow that to happen i know you regularly are required to make erie doctrine judgments about what state law is  most of the cases that i thinking have understood say we don't like doing that unless we have to and so here you have an opportunity to avoid making an eerie doctrine  judgment because the state court will be able to do this and why why does it matter because there are a series of cases that lead up to this that say you can stack uninsured motorist coverage between policies the next one out of the supreme court  missouri as you can stack on insured motorists with any single policy if there's more than one vehicle the next one that's rich the next one is a burden which as you can stack liability policies not uninsured motorist policies there's more than when one vehicle insured in a single policy and that's an issue of state law that ought to be respectfully decided by a state court when there is a vehicle available to do that how about this chandler case well chandler is a is a case that curated quickly get you to the conclusion that it has been decided but there is not a non owned vehicle in chandler and you know lawyers read insurance policies like talmudic scholars i think from time to time but you end up with if you read the other insurance provision if there's any insurance we provide for losses arising out of the ownership maintenance or use of a vehicle you and you as defined as the policyholder which is not a defined term do not own shall be excess over any other valid collectable insurance well that use of a vehicle you do not own is not in chandler also not in chandler is the plural of the word limits limit used in chandler and this would suggest under the weight missouri courts tend to read these policies that somebody could properly  that there is more than one limit it's a plural and if if it's not due to the policyholder driving a vehicle you do not own there is an ambiguity or at least reasonable doubt and those are two separate things  under the seat case and reasonable doubt would lead you to want to discover this is the second point what the insurance company had done historically with regard to these and we've we asked for  in that regard that was denied and then secondarily if that's the case then the ambiguity would be resolved under missouri law against geico and the ambiguity resolved by the policy language itself when it says that coverage is provided to you and a relative who resides with you it does say that it's it doesn't say resides with us well that's what it describes relative best if you say it is says it or your relative and then if you look at it it's a person related who resides with you in the in the defined terms well that's only with anon own office but the other insurance exclusion uses the word you and you as defined the policyholder which is not defined named in the declarations and and what the declaration say is who are these are the insured mom and dad and then it has additional driver well is the additional driver a policy holder or we don't know but it's pretty clear that the direct insured is only mom and dad and so if you read all this stuff together it leaves a cloud of confusion and a cloud of confusion it seems to me and that's what missouri cases say you can't just grap and this is what the district judge you just don't grab one of the pieces of the policy and will concede that the limit of liability language if bread alone in a vacuum you get it's wrong we're dead but you have to read the whole policy and if you read the whole policy you're left with with a head scratcher and head scratchers mean that at least the the ambiguity is  resolved against the author probably have used up more time than i intended to do well you may save the minute forty five for a bottle if you'd like you your honor mr beck will have other things i'm sure there's a very well good morning i represent geico and i want to start today responding on the issue of abstention to some of the arguments that were just raised it's understandable that opponents want to make this into a jurisdiction issue but to be clear it is not a jurisdictional issue the declaratory judgment that confers no jurisdiction there's no question it was never a challenge that the district court here had proper subject matter just diction the entire time what the declaratory judgment act does is empower district court to exercise its remedial powers which it did importantly here the rule is retention that is the default abstention is an exception to that rule so it is not a case where you have a line in the middle and on one side is retention and one side is abstention the rule is retention we have cases that discuss when a district court may abuse its discretion  direct circuit split amongst the missouri appellate courts as to a particular legal issue that was core and have a feel and the court opted in that circumstance under the scottsdale are brought heart factors to say hey this is something that needs to be decided by a missouri state court because we have to appellate courts in missouri that are reaching different conclusions of very different circumstances present here in that we're not facing a situation where we have different authority i would say we're not facing a situation where we have no authority we have multiple missouri cases that all stand for the proposition that you cannot stack bodily injury liability limits within a single policy what makes you think bro hired and our cases should be limited to situations where the conflict in intermediate state courts i do not believe that they are limited so your honor i would economic call for the federal court to proceed when there's this state courts who raising the same issue in an under state law and i would respond to this this way the implementation of that geico somehow did something it shouldn't have done by  not getting in there whether you did anything wrong i'm just saying isn't that the law that it's an economical for the federal court to decide something when there's a state court case pending raising the same issue and it's a state law issue it is a factor to be considered under both scottsdale or bill hart however it is not true that having a state court action automatically means that a federal action should simply abstain for judicial economy especially in a circumstance here where before the state court action is even far i'll we have a fully brief motion for summary judgment on a discrete legal issue in front of the federal district court it is ready to be ruled it is actually not economical for that federal court to not go overall is a factor to be consider it is not dispositive under the first filed rule that whoever gets there first is automatically entitled to stay it is however inaccurate to say that appellant's could not have filed an action true they needed to get a judgement they needed that judgment to file an equitable garnishment but nothing precluded appellants from finding a declaratory judgment action the parties entered into an agreement that specifically acknowledged hey we have a dispute here on stacking we're going to get this agreement and then we're obviously going to have to resolve the dispute shortly after that agreement was executed and it need to be approved because it involved a wrongful death case geico filed that required under the law to simply sit around and wait for that garnishment to be filed to have this case litigated it is in fact in my opinion one of the entire purposes of the declaratory judgment act what do you think we should do about the fact that this court never there are multiple cases the so all of which are cited in our brief that we're honest twenty is correct the district court need not rule on every single thing on its docket the entry of final judgment when other motions are pending how do we review that when we don't have any ruling or explanation from the district card with respect to the district court exercise of discretion in choosing to retain that discretion is obviously very broad this court can affirm that based on the record and there are cases from this court that hold that that it is not necessary for every discretionary decision that a district court makes to be explained in order to be reviewed and affirm i would say your honor that it is true that it would be difficult for this court to hold that the district court abused its discretion without some findings of fact in conclusions of law to the extent that the court does i should and we remain and  explanation and then do the proper review there's two reasons one i believe that this claim has been waived because as a general principle you can't show up in an appellate court and complain about something an issue that you never raised in the district court appellants had multiple opportunities to ask the district court to provide its reasoning on its decision to retain could have done it in their motion could have done it after judgment was entered as a motion to amend the judgment simply request that the district court provide its reasoning for purposes of review let burglars we have any cases the say once a judgments entered in the dischord aired that the unsuccessful parties required to go ask the court for him to do more i don't think we have i'm not aware of a case that's directly on point i would say however that there are multiple cases that discuss if you want to complain about an issue on appeal you need to bring that issue to the district court's attention and give the district court the opportunity to that but they filed a motion they did file a motion and things but i do think under the rules they could have filed a motion to amend the judgment or to clarify the judgment and simply said we think you're wrong we want to have your reasoning out of they could have but you said they waived it by not doing that and i wonder if we've got any cases as are required to wear the bird the law clearly puts the burden on them with respect to the review and so i think if they're going to argue that it was abuse of discretion and argue that it's an abuse because there is no specific findings they had the obligation to raise that issue what's your second point after waiver the other thing is this court can absolutely affirm the district court's proper exercise of its discretion on record and if we look at the assertion that this case is in its infancy sounds reasonable but with respect to the factors under either scottsdale or broken heart we know everything we need to know and in fact there was a dispute between the parties is it's got stale is it really hard i would respectfully suggest that it does not matter under either of those two tests it would have likely been abuse of discretion if the court had chosen to abstain this court is free to review the information before it in the record and determine based on those factors that the court reasonably exercised its discretion and i would cite to the court with respect to would have been abuses question for the district court to say this is an issue state law that should be settled in state court and so i'm going to hold hold off on state court decided yes because that's an incorrect statement of the law because missouri law is clear on the issue before the court it is not a disputed issue of missouri law and i do believe it would have obviously we don't have that question before the court and that's why i said it would likely have been i think it would arguably have been an abuse of discretion for this court to abstain we have three or four cases directly on point it's a straightforward issue it was fully briefed played this file day equitable garnishment action for five months later raising the exact same issue with respect to the stacking argument your honor i just want to address the other insurance clause is not relevant to the policies unambiguous terms provided that the limit of what i'm going to quote from a policy here because i think it's valuable limit on the decorations applies regardless of the number of autos to which the policy applies the conditions of the policy state if this policy covers two or more autos the limit of coverage applies separately to each if you look at missouri law it's very clear that your coverage analysis or static analysis here is two steps the first step is is there other available coverage to stack if there isn't you're done as long as the limit of liability section you might have something to stack any single policy case where you're talking about us or you i am and that's because those coverages fall the person and float and don't fall vehicle or in i've not seen this case but the two policy case i'm sorry a single policy case that was bodily injury coverage were two or more listed vehicles were involved in the same accident when you look at missouri case law that scheme becomes a very apparent that's why the chandler court noted it doesn't matter if it's own or not because we never reached the other insurance clause it would be a materially different question if this was two policies that's chandler other cases th in each one of those cases the court determined there is nothing to stack there is no other of ailill coverage to consider stacking so the other insurance cause which is step two is never reach and i want to look at the cases because a poet talked a little bit about the history we have multiple to policy cases in this wonder doughty from this core and durbin and  from this court all of those involved more than one policy some of us some are beyond in every one of those cases the court said multiple policies something to stat let's look at the other insurance clause we also have single policy cases that are un and you i and those are cases like richie and see those cases said yes here we have something to say that because it's un or you i am multiple listed vehicles so perhaps covered for above we look at the other insurance costs to see if they stat when we get to one policy bodily injury cases missouri law is very clear and in fact the o'rourke in the farmers case were particularly interesting because in both of those cases they started out as multiple policy bodily injury stacking cases the court first analyzed the threshold issue of do these are policies a plot determined they did not which whittled it down to one policy and all of those cases said very distinctly doesn't staff i think the former is b wilson court kate said it best and this is a quote from that case before stacking can be an issue there must first be a political coverage stack therefore in any case potentially involving stacked coverages the initial step for both insured and all potential insurers should be an analysis of whether there are multiple  nothing here is stacked i would also say at the end of my time here to the extent that the court considers the other insurance clause this case is not one where we're talking about a concedes and there replied that this was an own daughter they attempt to make some ambiguity out of the you do not own language in the other insurance clause you is defined as the policyholder identified in the decorations page when you look at that page the name insured or prime and person isaacson those are the people who owned the car involved in this accident to make an argument that that doesn't qualify as you is to stretch the law to create an ambiguity where one does not exist thank you all right thank you for you you may proceed in rebuttal i don't have much your honour's i do want to say though that i think the difference in the way you determine the use of discretion is described quite different in brill harden in scottsdale and the reason is  most of the cases that we've been talked about there hasn't been a pure parallel state action in the state law and no federal law really hard is that case and the language in there is surprisingly strong it basically says you ought not to case if you have an opportunity to let the state do it the fight over whether or not the policy says one thing or another it seems to me is best decided in missouri where the state courts are required to interpret the state law and i would respectfully suggest that they ought to be given that opportunity where it exists as easily gotten to as this one is and finally back to the original point i think the questions on for both of us have indicated that the court simply has no way of knowing how judge wines was thinking or if he was even thinking at least that reasoning we then would be in a position to discuss whether or not the judge properly applied brill hark or some other case that he thought control leaving five seconds i will walk away very well for