my name is thomas biskup on behalf of damon humphries the petitioner who's also guardian conservator for angela humphries i would like to reserve two minutes but i hope to address my argument today is the clear error by the district court in this case as well as the reasons for why mandamus is appropriate to write insurance in its current we had half a billion dollars per year in property and homeowners insurance in the state of arizona in the second basis is the district court not only didn't mention or did not only did not in force arizona law that says the insurance code is different and we interpret the requirements under the insurance code this is the board case of course that statute and it focused on the portion of the arizona insurance co that says in order as a foreigner i'm sure in order to write business you must give a part of attorney to the insurance commissioner of the state of arizona and case by the insurance company in a case which is very not quite word for word but pretty close to what all state's power of attorney is in this case and i think the in so in fact in the wal mart case that came afterwards the arizona court of appeals said interpreted the business registration statute the opposite way the way that i think they are used and so how do we interpret well how the state supreme court would come out where recognized bore here and said bor we're talking about implied consent of the business registration statute bori or interpreted the insurance code a different statutory section and wal mart court explicitly said border here fall in oregon nobody had any connection arizona at the case was filed here in the case of an insurance company the langley the insurance co provision says you have to have insurance commissioner have this power of attorney as long as you have liabilities and assets i think liabilities in the state and that was one of the issues in board here the insurance company had stopped writing and they were arguing well you have no power over  ferguson the power to regulate the insurance companies is soley with the fifty states federal government has to the congress has the term in hands off approach we're going to leave it to the state regulation and so and i think the fundamental distinction if you end up not registering under the arizona statute the business registration statute you have one penalty you can't bring a lawsuit in the state courts the difference with the insurance regulations where all states conduct in this case or in this state is soley regulated by the insurance commissioner there are all sorts of financial implications requirements that have to be met to be licensed and the penalty for not having the power of attorney that last revocable and it lasts as long as there are liabilities in this state the penalty for that is that all states can't write business they can't do business they are legally they would be illegally writing insurance business and that's it that's especially when you're talking about a half a billion dollars that's a huge issue it's not merely somebody opening a business not registering with no regulation frankly so i think that the distinction between those made a very similar decision that insurance companies are different now obviously pennsylvania fire then got extended to general business registration statutes but the narrow distinction here is very important this is if you you know this is a mom and pop store opening on the corner and not bothering to spend you know their hundred dollars of and single piece of paper every year saying who their board of directors or their officers it's not what we're dealing with we're doing well i'm going with wal mart i'm sorry neither was wal mart then out of it and that's true and yet you're putting wal mart on on the other side under the general corporate just ration requirement and what reason do you think i mean  guess you've offered the reason but for us the question is would the arizona supreme court split the uprights in the same way that you've argued the walmart decision made a point of saying we don't have to go to or rear or however that sprint ounce and indeed the author of or rear joins a decision in wal mart they tee it up and wal mart is saying look the main argument is that pennsylvania fire is now is out there but has been arguably superceded by good year and i miller and and the court of appeals as we don't have to consider that we're just going to decide the wal mart situation and decides it in a different way if well so what tells us the arizona supreme court would decide to treat those two situations differently well first of all i disagree with the fundamental  dark pennsylvania fire had to do i'm not trying to offer that hypothesis but that was the argument that wal mart recognized and then said we don't have to decide that in any game i think the indication would be well first of all whether if we're going to at i think we're going to read those tea leaves you look at what the supreme court of arizona has done over the years with respect to insurance companies and how they treat insurance companies and recognizing the regulation recognizing  i mean arizona is one of the best bad faith states in the in the country and i think there's a fundamental public policy is that why we're here and i got to i got to ask the question of been wonder about when you're from michigan and there's no question that at the fenton is ably represented  arizona so it it i had starting to explode trying to figure out why you from michigan are desperate to be in arizona and why arizona is busy arguing that ought to be in michigan or is there a difference in the law that justifies why we're fighting about this there is and the reason we're here fundamentally is our client's been here for nine years now plus arizona law more favorable for your clients in michigan law yes and we have repeatedly in fact we've done a step to multiple times including a case that we had before judge king in honolulu that had to deal with a injured party who was never had never been to michigan could you remind me of the element of damages that's available in been in in hawaii in arizona in the vatican where the protection of the residence is an important factor and i know that's not directly what we're dealing with here the bet is that is the issue and i bring it up it's amazing to me that  jurisdiction argument and frankly with their contract we argued this in the district court we could have all been happy in illinois but i think because of that fundamental difference they also they didn't want to do it and i would point out too th what's interesting about that is all state comes here and seemingly wants to disavow its plain language of its consent says service on the insurance commissioner is this if we're physically present here in the state i don't think anybody district of michigan and yet they want to disavow what's required for them to rape business in the state and there's a fundamental public policy why there would be an interesting question and decisions including our decision and carrying it noted at the state wrote statute making it crystal clear if you want to write insurance here you have to consent to jurisdiction over claims from elsewhere and the second circuit case brown talks about that too ok that's that may be a tough question but none of these statutes say that the consent here doesn't say that and so we're grasping at straws well i will say that consent here says it talks about more than just the language of bor or the decision before you say maybe i guess i'm not so persuaded that the language itself is so clear about boree or makes it clear that the state is treating it as consent i think that's right and then they keep doing business  if you look at i agree doesn't say the magic words personal jurisdiction no but it gives the effect of what is for over one hundred years has been personal jurisdiction that is present in the state in the consent itself also says we're going to follow all the laws of arizona but so once we have border but we also have wal mart so maybe maybe you can get consent from border but then after wal mart isn't there at least enough confusion that this isn't clear for purposes of mandamus i don't i don't agree because explicitly expressly preserved in wal mart and they're dealing with two different statutes and as i've explained there's a fundamental difference between an insurance commissioner and frankly wal mart and i think that with wal mart and brown and all of those cases there was no connection to the state in time where the same thing that the connection here if you have a resident of this state for nine years who's been harmed by the conduct of all state and so i think that is a fundamental distinction along with the no specific jurisdiction argument being made you don't use the same facts you see the back door it's not you're not claiming that all states misconduct took place in arizona well we are we preserve that but it's not before the court on the petition because the clear error and i think that and i think to get your point just cliff that we that is one of the reasons we haven't raised the specific jurisdiction issue because i think it's because of the clear air of not following the arizona possibility but i don't my point is that i don't think i think to the season was to me was very that the clear air was on the general jurisdiction and the general jurisdiction the fact that something else you know from elsewhere it does  was the issue to answer your question the case we had in hawaii the michigan the person never been to michigan they were a passenger in a car with an accident here they were covered for the first party lifetime benefits they had no connection as the court has said the question is whether the arizona supreme court would construe a statute requiring appointment of an agent for service of process as consent to general jurisdiction where the statutes t of datapoints post di miller after both rear the court of appeals the same court that decided both reader look at a statute just like twenty dash two one one that had neither the word consent in it not or the word jurisdiction and said compliance with the statute is not consent to general jurisdiction and here's what the court said in wal mart a corporation cannot fairly be deemed to have consented to waive its due it i i think what it did was say we're not we don't have to deal with that to decide this issue but it did completely left it in place it but it completely destroy the underlying construct of the case which is a statute that doesn't put you on notice at all that you're consenting to general jurisdiction somehow does that and again post time l affect and sylvania fire well dialer specifically said in footnote eighteen that priya international she decisions which includes pennsylvania fire were quote decided in the area dominated by territorial thinking and should not attract heavy reliance today you're not arguing that you can't consent that a corporation couldn't consent to journalist action are you i mean that that certainly is is possible you don't have to be present you could go even though as i understand it is not either incorporated or has its principal place of business here and there's no question about the authority of the arizona court over your codefendant so so why shouldn't we infer  are at home in two places right but if you've consented it doesn't matter whether you're at home so the argument here is that you consented and so we said ok we will in for a concert and if there is this registration statute and  so it doesn't matter whether you're present or at home are incorporated or whatever because you can send it that's how i understand king and i didn't say timeliness of acting out right will first under state law issue it's what with the arizona supreme court do and i think as i said in light of lamar it would not follow both rear but if you even passed the state law issue as king said any consent is a nice the rule of consent is subject to federal constitutional restrain and that's what brown in the second circuit case they specifically disregarded a connecticut court of appeals decision that said compliance with the statute was consent to general jurisdiction and what brown in the second circuit said was after dimer pennsylvania fire simply cannot be the basis for cleland our decision in king recognizes pennsylvania fire i'm not sure that we  liberty to go down the road you're suggesting can we i mean if we've got a presidential opinion that says pennsylvania fire is not a dead letter how can we treat it is a dead letter well kate king was  places cannot be deemed at home in all of them well that's fine but the question is whether they could consent to jurisdiction in all of them and i i don't see any constitutional barrier to them consenting but every state has a registration registration you are consenting and you continue to do business after border why isn't that consent but well two points on that number one again the wal mart decision completely destroyed the very concept of the wal mart decision carved out insurance so now you're still an insurance company and you're here and you're doing business after borger and wal mart and it's still carved out insurance so how is that not consent but the again the policy here was sold in michigan it has no connection with arizona so there would be no notice right but if your client had canceled all business and said ok we don't after border at least after wal mart saving bori or we don't want to do business in arizona anymore because arizona law is bad it has bad faith claims we don't want to do this and then you have a very different case about whether this person still could use general jurisdiction and consent i guess because you wouldn't have been doing business in arizona anymore but you are doing business in arizona i think if you had rescinded the registration consent is subject to federal constitutional restraints that's exactly what king said no consent you've acknowledged that you can consent separate and apart from the limitations of those constraints so i'm not sure your argument that consent is subject to those restraints has any traction what you're arguing is that the statute should be interpreted in light of the subsequent supreme court decisions and so you're arguing the arizona supreme court today would answer the question of how to interpret the arizona state shoot differently but i don't think that's the same as what you've been asserting where we have to read this court should read the arizona the rear but i on this on the constitutional issue your honor this is identical to the second circuit case in brown in that case you had a statute that did not say consent and did not say jurisdiction in two thousand  connecticut court of appeals said that's consented general jurisdiction and the second circuit said not anymore not after dima did they have a case like king they have any precedence  and said that's different they did it but we have findings are good precedents so in order for us to say that's no longer good law we're going to follow brown we would have to say that the supreme court decisions were clearly the head no five it says federal courts look to state law for the effect of compliance with state appointment for service statutes quote subject to federal constitutional restraints so king the rule in th circuit clearly is what the state law subject to federal constitutional restraints are that was a whole different world in terms of what those restraints were post i and were and that's exactly what  this and the eleventh circuit's have done i also cited we cited in our briefs the all acquisition corp case in the eleventh circuit decided just in august of two thousand and eighteen again following brown what they said was our conclusion as the florida law and in brown i'm sorry in all acquisition corp there was a dispute as to what that state law mean and here is what the eleventh circuit said our conclusion is the florida law is reinforced by our concerns that an overly broad interpretation of florida's registration scheme as providing consent might be inconsistent with dime or which cautioned against it and exist excuse me x or been in exercises of general jurisdiction and so again the this court would be third in line second and eleventh circuit have already looked at the world differently now after dimer and have disregarded the territorial thinking the pre international issue territorial thinking of pennsylvania fire and again i wanted to bring up again the pennsylvania cases cited by the petitioner clearly distinguishable if you had a statute li pennsylvania's that said you are consenting to general jurisdiction by doing business here by registering and that is a different case that's not our case here this statute is like the florida case and a acquisition corporation which is the evan circuit and this statute is like the connecticut connecticut statute which is brown case from the second circuit i want to finish with just one quick point  on petitioners argument that this is kind of an all or nothing proposition and we the court is touched upon this a little bit with respect to specific jurisdiction use of general jurisdiction is a relatively rare occurrence most lawsuits are here in arizona because the claims are arising out of contacts with arizona a specific jurisdiction is still available in arizona for policies that all arising out of a michigan policy sold to michigan residents and a vehicle accident occurring in michigan and adjusted in michigan where the petitioner lived for thirty years after the accident and we care about this state the invitation the current petition of mandamus does not assert that crown it was that ground asserted before the district court it was your honor and how does that stand now instances potentially an issue to be raised later on appeal but not part of the current but it is definitely not part of the current appeal it perhaps could be raised after a final judgment is entered but it is not part of what's before the court today and as the court pointed out petitioners own lawyers are from michigan and again as the district and your clients well represented in arizona that that is true that is true your honor but again is there really a hardship to all state and litigating in arizona well it was petitioner that sought the transfer but not to michigan no but to illinois which is right next to michigan so what's the hardship i think lee there's a link between them but well that is true i was raised on that lake so i know about that part but but the reality there are bigger things in the background i had sort of inferred what they were i got confirmation from plaintiff's counsel i suspect you're you're acknowledging that it's not simply a matter of the weather here being better than it is in detroit agreed your honor but this is this is about the power of the courts this is not a substantive law issue i keep hearing plaintiff talk about well that was the insurance statute and in our decision in kane and i think it's talked about as well in brown suggests you know the statute could be written the way that pennsylvania statute apparently is which is to be crystal clear if you want to do business here you're consenting to being sued about things that happened someplace else that otherwise you may not be susceptible to service and you sign on the dotted line that's the end of it would you still make the same argument that  state can't do that that a state doing that would violate the federal constitutional limitations that's an excellent question your honor and it is definitely one that has been raised posed dimer the third circuit has not revisited it in so there is no circuit decision on that again you don't have to deal with that issue for this case but i'm trying to focus on where it is we should be really paying attention i well i think as the second circuit pointed out it's a you know it's a question of of notice you know what you know is there something in the statute that would would tell the corporation that  go back to the time when when all state signs the consent and its board ratifies that are so forth but doesn't in effect year after year continuing to do business and continuing to file registration papers make it not simply a matter what was done in one nine hundred fifty eight or whatever but maybe twenty eighteen well before dime where there be no reason to even rely on that because of my twenty eighteen of all state had to refile papers with the insurance commissioner to confirm that it's still operating here i would submit that typically again as i mentioned specific jurisdiction is  overwhelmingly the basis for jurisdiction for the cases here so i'm not sure the issue would have a risen until this case where they abandon specific jurisdiction and go soley for the consent theory so again we believe i think you're going to keep it very brief i just want to touch on this one idea about i know it's not direct but this last part of the argument and specific are sticks in being in the state of arizona you actually the argument that all state made was that specific jurisdiction they made this blow was that it only applies where the adjusters are so if you have an arizona policy under that argument but the adjustment takes place in texas guess where you have to sue according to the argument they made but i think the the the fundamental change in the insurance industry right now is that everything is being consolidated state farm has a has a big place down by the arizona state there where there are adjusters all for who came looking claims all over the country and so it makes for an interesting argument as to where this would go without the general jurisdiction but i want to i want to end on this point that i think the the fundamental difference between the brown case in the eleven case and here is the insurance industry is different the insurance industry this is not as i said not simply a case of wal mart paying a quick  the federal government has determined congress has determined that we leave the regulation up to the state in mccarran ferguson and so there's a comprehensive scheme and it's and still the insurance industry has to go state by state if they want to right and i think that that interpretation in the language that in there which is different than the general business statute does make a fundamental difference and we talk about fairness there's nothing unfair about allstate having to