recently at the end of this year or at lest last year excuse me had a case almost exactly on point at this and he did a quite thorough job of campus campus seeing the nevada law on contractual breaches  and that is something that he talks about is whether or not there's evidence of fraud and collusion between the injured party and the insured but that's something that is a factual thing that he even said can't be decided on summary judgment and i think this case is even stronger on that point in that there is no evidence in that case i believe scuse me there was a settlement agreement or a covenant execute that was agreed to prior to the default judgment even being entered in this case is not there reduced it to two or three point one five or i mean we asked for three point five at the beginning and then asked for five million later and they said no it's three point five so i think there was definitely a determination as far as damages were concerned i mean the little girls literally right now we don't have any have based on my understanding and from what i have the cases that i've read in the cases that are in the briefs and i don't there hasn't been a judge ordered him self in the energy center surety case that i support hadn't spoken directly on this point in those also i'm out in believe that the case should be reminded to the district court for further proceedings on the extra contractual or claims including the breach of the duty of good faith and fair dealing as we feel that there are issues of material fact that are and that a reasonable juror could find that a breach of the duty existed here most importantly we feel that the district court applied the in corrects incorrect standards when deciding that there was no proof of of a breach of the duty of good faith and fair dealing  those judgments based on again i think that the confusion comes where there is the standard that's being applied both in the previous before we came to this court the first time and in the motion for summary judgment just prior to coming to the court this time the judge has repeatedly stated such things as in the hearing in the oral hearings on those most for summary judgment knowledge intentional proof of intent intentional disregard this is not the standard for finding a breach of the duty of good faith and fair dealing of out of the standard is an actual or implied awareness of an absence of reasonable basis and i would posit to the court that finding a reading of a policy of insurance that is reasonable it doesn't follow ipso facto that the denial of coverage is reasonable because insurance policies have to be read not just you know vacuum in and of themselves but in the background of the law that supports them and in nevada and insure is obligated to read a policy in order to provide the most coverage possible to their insur therefore if you say i see in this case was aware of the other reasonable reading which this court has found in which the district court found to be in force and thus held that they breached their duty to defend which was reading our client's reading lewis's reading if they were aware of that reading that other reasonable reading and they chose the their reading which does not provide coverage i would posit that that is there is no reason laces for that because by law they are required to if there is to reasonable readings adopt the one that provides coverage they should also search for coverage where they can go so i'm interested in where we stand on the statutory claim sixty six eighty three ten what were does that fit in the terms of this appeal i believe that the statutory claims were upheld is dismissed from this court your original appeal first appeal that those those aren't or they're out of the case i think there's no question that my client's interpretation of the renewal offer was reasonable the first district court judge hearing it in fact agreed with us and i think  argument that well maybe if they knew the interpretation that mr lewis had it was unreasonable the problem with this is they have offered no facts whatsoever to suggest there's a material issue as to whether the united auto was aware of any reading of this renewal offer other than the one that they had and judge jury disagreed agreed with they deposed almost every employee at united auto that ever touched  they've offered no facts to suggest they were aware of any alternative reading that it ever been raised before and in fact as we point out the record mr lewis himself acknowledged he never raised this question to either his insurance agent response that suggested that he actually paid for his new policy term on time and we somehow lost the payment well when we asked for discovery to ascertain this mode of this missing payment he was on not forthcoming we had to file a motion to compel literally on the doorstep to the court room in the hearing on their motion they provide amended answers which now say wait we've had time to look at all your records you see at any time before march of two thousand and ten had any notice that mr lewis read ambiguity in the renewal offer is this ingenuous there's no facts in the record and in fact i think you can agree but t surely somebody in the company must have me able to figure out that interpretation that three judges of this court wind up coming up with and if not number to say you're just not doing your job what you're doing your job and i'm a reasonable fashion that if you company doing business in the bad dealings consume petition well your honor i think i mean that's the reality i mean you pretty much what you're saying is between the lines is this is such a crazy you personally but your client rejects it so even if we admit the possibility which i find very strange that nobody in this insurance company could come up with this alternative interpretation all the lawyers all the insurance adjusters couldn't come up with that at one point he was handed to you and you had a chance at that point you could've said  skepticism that that could possibly be the case and i have but even if you accept that to be the case that everybody at your client had tunnel vision and just couldn't see an alternative whoops we were wrong that the district court judge hearing the case did affirm leave the ambiguity if we should have paid the policy during that time i guess i have no good answer for you except to say that it was a legal argument being made in advance of that time and had not been confirmed by the court that w policy that was enforced and made the insurance company made a judgment call about whether someone was operating in the course in scope as in the andrew case pointed out by appellants or whether or not someone had permissive use something some one of factual investigation there was no there were the investigation every fact the time revealed that this policy the premium was due on june thirtieth and you say what information was there what did they do  windfall of a three point five million dollars people judgment for what i think is a reasonable interpretation of a renewal offer six years in the past it's not it's an equitable and it certainly wouldn't do just eat you could have district court judge and so i think at the very least that's the essence of this case there are two reasonable interpretation let's face it if you look at the renewal offer it's a duty to places on the renewal if the due date was surrounded in stars house if you get your mortgage couple days later they don't turn off your water because you got your one of a couple of days later don't turn off your cell phone if you get your cell phone they don't turn on your t v in fact i can't  means what we all know it means that if you get it in with a few days of the due date you know ok i have and i've been paying bills for decades and that's that's that's my experience i mean i try i know your over time but i have two questions first what is your response to your opposing counsel suggestion that we certified to the nevada supreme court and then secondly what is your take on the andrews case  also mentioned by your opposing counsel i think you are going to try to be very brief obviously this court chooses to certify it we would understand i think based upon existing that that allow you do not need to do that the rayburn case as well as the home association briefs i think adequately speak to this issue in those cases the nevada supreme court essentially said that breached the duty to defend the result in the damages would be fees and costs incurred by that insured hardening but the quince question of consequential damages was not always in those cases no it was not but i think that the that supreme court could have spoken to that you're honors brought up earlier there's no case on this in about a supreme court has tended to be very circumspect in what they issued opinions on i think they wait for things to become appropriately ripe that combine with a very small state and up until this year only one layer of judicial review has led to the fact that we do not this richard case law as other states especially california we often look to california in fact for guidance and in vote more with california doing this case well i think out the california law in this case it would not assess consequential damages this was not a foreseeable consequence i mean they believed no policy was in force so i just completely unforeseeable that the default judgment who speaks the council with respect andrew see you haven't reached that point very quick i was obviously focusing on the judge gordon decision and andrew sanders to yeah yeah and that that particular insured was driving in the course and scope on a garage policy which by its very nature is a slightly different type of insurance policy you know if this person may be operating many different vehicles so it's considered in the underwriting for that policy that he would be operating other vehicles to complain itself allege he was in the course and scope of this work and doing so so for me the that is a makes a big difference because judge gordon suggested that the default judgment was foreseeable because of that fact in this case there's just no policy in effect and in fact we argued that because it was an ambiguity in the renewal and if you look at the documents there was no policy you want to see expire june thirtieth a new policy incepted july tenth after the accident that intervening period i believe you can find ennobled that the under the district court judge implied a contract in the law to do justice to fifteen thousand dollars but that is an equitable remedy and if you can come to that decision there is no breach of that you to defend because i ask out as an equitable remedy you fashion a remedy that is equitable and a force unforeseeable default judgment against my client would not do justice in this case my client by the way has paid over eighty thousand attorney's fees and cos already there is a pending from emotion under nevada state law for fees and costs which came about after this appeal is files with some part of your record but we have paid in addition to the fifteen thousand already over eighty thousand dollars in fees and costs i quickly i'll try to address a couple points the proof of actual or implied awareness that there was another reasonable reading of the policy i think there is in the record the depositions of several of the employees and seats didn't even look at the renewal notice which they had an awareness of and they know that that's part of the contract furthermore they had a knowledge of his reasonable expectations in that he continually paid policies can't find an implied contract and that they did not breach their duty to defend i don't think the court could find that those issues were not appealed properly by the defendant and so they're not properly before this court and the district court explicitly found said he was not implying a policy that he found that there was a policy actually enforce it a real policy and they breached their duty to defend and the last thing your honor it asked my opposing counsel what california would do  villas case i think exists says exactly what california would do in such a situation as far as with regards to the default judgment and whether or not that's consequential damages and in particular