court's resolution of this case first on june fifteenth two thousand and seven plaintiff initiated a case in the u s district court for the eastern district of tennessee against the villages of plaintiff's case was there after state in the eastern district third plaintiff hired florida counsel in florida and to file a motion for relief from that stay the trustee immediately objected from that motion for the relief from the automatic stay in resolving the dispute the bankruptcy court allowed the plaintiff to proceed in room only and deny the plaintiff from proceeding persona and the stay in the eastern district was thereafter lifted to pursue insurance and whether there was actual insurance involved in  stronger that i mean you're going after the insurance now the bankruptcy court allowed you to proceed with your action to the extent that it was covered by insurance why why didn't you do that why didn't you proceed with your action rather than file this new action directly against the insurance company well we were only allowed to proceed in ram we were not you were allowed to proceed to the extent that there was insurance coverage which is all you're asking for here anyway i think that's correct so what what is the problem what was the pope was the problem with the order granting your motion to lift the stay well proceeding against  defendants the villages of norse lake in land resources in that original action would of course a brought an objection and potentially subjected miss more e l o to sanctions for not if the court lifted the stay to the extent of being able to proceed you would have been able to collect anything against them but you would have had a judgment which could have been perhaps which you say was covered by insurance right i think exactly what you want is what the well i don't understand at least from ms marie l o s position what she could do to continue with that it's only the action to the extent that there's insurance coverage right and we did discover that there was insurance coverage and then that the only way you can get the insurance coverage is to proceed to judgment which is what the state was lifted to permit you to do when you had a judgment then you would have something to demand that the insurance company actually pay out on but when you didn't proceed to a judgment and they why didn't you proceed to a judgment well the concern there was violating the automatic stay which had been lifted well only to pursue at the question this is a at least with regard to the cases i mean we readily acknowledge that the law says what it says with regard to direct actions in the state tennessee prevents direct actions against insurance companies that much we acknowledge the concern here is the windfall allowing the defendant and persistently in re morris which was a western district  tennessee bankruptcy decision it's stated in a footnote that quote if a question regarding the sufficiency of the insurance coverage arises or debtor were required to pay the cost of his defense the continuation of lawsuit against the debtor might be prohibited and what we have at least based on this insurance policy it is shu is section one which states that the company shall pay on behalf of the insured those sums in excess of the sofa insured retention and up to limits of liability stated in the declarations the policy there is a self insured retention and proceeding against the debtor would of course at least would run into objections  the edgeworth this circuit opinion in which they said you know this is precisely the type of situation you end up with a windfall for the insurance company when their insured runs into some sort of financial difficulties that's what happened in this case case proceeded at least almost two to trial significant expense was incurred by the parties to defend this original action both from the the insured in this case is as well as miss more e l o and on the eve for at least a few months before trial then we get the suggestion of bankruptcy then we you know left to do nothing at that point  without at least spending the money to hire florida counsel to lift the stay which did she attempted to pursue her remedies in this case and it just seems in inequitable at least with regard to  wo great americans position in this case and again as the district court noted there is at least ish genuine issues of material fact with regard to notice in this case mr martin who was the  least i notice from from the insured in a application for renewal in december of two thousand and seven he stated that to provide coverage they had received notice before the expiration of the insurance contract which would have been april of two thousand and eight they had it they had they at least had notice of that lawsuit prior to that date mr martin acknowledged that it was included in a summary of pending litigation and what did the insurance company do in this situation nothing took that information and did nothing with it they didn't ask the insured anything about those litigation they simply did nothing and they didn't want to ask any questions but they did use it for one reason they used it to non renu land reese horses in this case that's what mr martin testified that was the reason that they considered land resources a quote bad insured and that was the sole basis for the rejection of court and in this court that they at least had to see it's not a direct action state the way around that at least is with regard to the in re morrison the fact that there was at least contemplated in this policy a requirement for the insurer to at least fund the cost of its defense or its defense and for that reason we believe that this is a case that should be allowed at least based on the public policy and to see and that there is at least the ferguson versus nationwide property and casualty case in the tennessee court of appeals two thousand and six that says very clearly to quote while tennessee is not directly address the question of the rights of one claiming to be a third party been a fishery to an insurance contract who has never been granted a judgment against the insurer tennessee has not at least made a decision based on that so we think that this court at least deposition which mister taylor produced where there were negotiating and had a claim pending in two thousand and five they didn't file suit till two thousand and seven and then they controlled the defense from the time it was five until they found that they were bankrupt and then they elected not to proceed and get relief from the did not do that is in their brief and it makes no sense whatever so here we are with the judge magistrate judge her found the nut of the coconut he says there's no there's no issue about claim made in this case they raised you think that was that their argument that's the issue they raised and then when you read their rebuttal plot a brief that's all i talk about you know we got a claim made issue and we've and he found there was no judgment and they had not reduced the things under the policy the try to try to get more insurance than the insured had so i don't think there's anything that we need to instituted against the thing in contradiction to personal actions which are said to be in persona again i just don't see how at least based on that court's order granting the relief to  stay to lift the stay at least would allow mrs more e l o in this case to proceed in that case with anything more than just allowing her to discover insurance  and then taking that information and turning it around and then following a separate suit precisely the the the objection would have been raised at least by by the defendants in that  case the trustee in that bankruptcy and again the bankruptcy trustees trying to control the estate at that point they certainly are going to object to anything where the debtor is continuing to spend money to fund a defense in litigation remedies she did she did retain a lawyer to lift the station did at least attempt to follow up and diligently search for insurance contracts or the existence of an insurance contract then she took that information and utilize