oral arguments session we were supposed to be in atlanta of course but the viruses sort of changed things for us our st two days of zoom arguments i think you've gone pretty well and we hope that will be the case today too so judge will go and judge brasher and i are very happy to welcome all of you to our session you have a timer on the screen which will start green when that timer goes to yellow that means that your time is about to finish so you should begin wrapping up if we take you beyond your time into the read that don't worry about it you're on our time and not yours and with that we're defending themselves and each other the underly liability actions did the only harm of having to defend themselves and continuing to pay for their defense and the uncertainty of having to do that in the future  yes those declaratory judgment issues are merits issues and your st argument i think is a jurisdictional one and that is whether or not the district court properly exercised diversity jurisdiction by realigning the parties is that right it is probably mom no no i am a youth you handle the argument as you see fit but i certainly want you to spend some time discussing the realignment of the parties and the contention or finding that the greens and gilberts are nominal parties who hills is when you have i and judgment already in place and in fact in the city of hills the underlying player was armed with the final judgment and actually finally mystically against both the insure hills is distinguishable and shouldn't be applied where you have ongoing actions against the defendant for cause to a line and it's and it's right on point to a line rd party  that's basically guff i think tell me if i'm pronouncing your name correctly you are ok go right ahead thank you make these the court my name is stephanie quick off and i represent the ever cash mutual insurance company on the pleadings would address all those issues so the remained the core of the underlying court determined that typically when you have a declaratory judgment action and most times it's followed by an insurance company they've agreed to just send an underlying it insured in an underlying liability action and they file their action and they will mean they're insured and they will mean the underlying claimants because they don't want those claim the district court pointed out in this case that that specific idea that that that's typically how the appellant argued that the district court should they are adverse in the liability action however they are not adverse in the coverage action that they have the same goal in the coverage action will but that's only but that's only on the embry side none of the duty to defense side probably rather litigate against proceed parties that have attorneys funded by the insurance company and so that's what they simply are and a number of other district court cases from our circuit city scenario presented here is different if not necessarily the case that everyone is aligned against the insurance company and the odd thing for me is that as you mentioned the same district judge wrote sinclair ye there's not even a trend to distinguish same player in the order in this case it seems very odd to me because and player seems to be more squarely on point with the facts presented here there are two issues that i want to address  because they don't the nd prong that i was going to address was the fact that while the underlying case is pending that the issue is not whether the case is the liability cases pending is whether the insurance company lie where an underlying piece is pending it is not clear whether the insurance company has has given a position regarding the defense so here it is not whether the liability action is stayed whether it's reached judgment whether it's still going on the issue is whether the insurance company has either agreed to reserve the rights and defend and and it's unclear about whether there will be ultimately a duty to indemnify or whether they're sure this company has drawn a line in the sand  we don't believe there's coverage we're not going to defend and damage once that happens then the insured has the right to file a breach of contract action because at that point the insurance company has has essentially made their bet right so they've either view they're made they're bad and they're correct they were made to read and they're wrong and there is coverage or they've made their bed and they're really wrong and not only is there a cover there is coverage but they're investing in this case ever cash decided early on that there's not coverage under policy for these claims therefore there's no there's no decision to be made there's no uncertainty the law in georgia is very clear with aggressive player torii judgment actions that that  know we don't believe that federal law should apply to the clear to a judgment action the reason being is that the federal declaratory judgment act was not raised in the underlying matter and it's not a issue here the federal declaratory judgment act in and of itself doesn't confirm the jurisdiction under its own language if it did we would have just removed on a federal question whether a case is determined under federal law as is mortgage and in other words the mortgage company was alleged to have breached this contract and then the plaintiff wanted to know in light of that do i have to continue to pay my mortgage payments here there's no question regarding continuation and so not only determining diversity because their nominal party did this all and here kind of want it both ways they want to make an issue of the case being pending when it works for them and they want to make an issue about the  you know not having a judgment to what works for them or having a judgment when it works for them also so they want to ignore the cases that that say well you know they have an interest in the judge met when it when it's beneficial to them so then they are sure versus orange and blue construction cases is a case that's far more on point then the ranger case in this and you know and makes it clear that not interest in the count related to declaratory judgment and because because they don't have an interest it either they have interests and significant such that the declaratory judgment action would be decided in our favor assuming that the remain and was correctly decided we believe it was then regardless of whether the declaratory judgment action is proper or not if there is no coverage we would win on the declaratory judgment count and that's for my last minute and half of like to address the counts of been supported by this court other federal court of property damage is is surely at an economic damage which is also been deemed as a reports not to be not to be and under the policy plaintiff's claims that those defenses have been waived however it's very clear under the law that you can't waive coverage defenses these do not relate to policy defenses these defenses that would otherwise create coverage have not been waived and therefore you ask the this court affirmed the rulings made by the district court and all three of the relevant orders find that the chief its right thank you very much