for thirty thousand dollars that went slit have coverage yes and she continued that coverage we had thirty we'd accept coverage and she continued to add coverage but she lost the coverage when she didn't timely informed geico  lawsuit which would have allowed her geico to provide her with a defense and defend the claim but if you don't i don't see any cases that you cite that whole that  settling there is no excess judgement until there's an excess judgement if we have entered this case and defended it there might have been a twenty five thousand dollars judgment in which case there's no bad faith liability if put it this way if ms winslett the day after we won and struck that way the jury as instructed otherwise and the jury in answering the iraq authorities say that the refusal to settle for thirty thousand dollars the proximate cause of the calling well we can talk about why that's not true why it's not proximate cause but for now i mean there's no yes it's not bad faith until there's an excess judgment and geico was prepared to defend ms winslet and prove it evaluate the case correctly that it wasn't a thirty thousand dollars case and i can i you might come back and report on rebuttal and remember that look at our brief and remember the case we cite but i mean it comes from the fact that you can't if you can't sue is the day we countered and say there's bad faith when can you sue us you can't sue us until there's an excess judgment so by definition the claim couldn't have been crude until there was an excess judgment there's a georgia supreme court case it's  occurred right that's of in evaluating whether or not to say yes to the offer based on the fact she know was it appropriate to say yes or no to the offer but you still have to have the excess judgment  evaluate the case and say we think it's worth twelve thousand dollars which is what geico did if we defend the case and prove were right well then there wasn't bad faith the bad faith claim doesn't exist until there's an excess well that to that extent yes of defenses are proximate cause due process and the lack of coverage at the point in which the excess judgment was enter think you can see why there has to be covered coverage all the way to the end for there to be of bad faith claim consider a case just like this one where instead we know the lawsuit we entered defense but was winslet says i don't like lawsuits i don't like lawyers i'm not going to cooperate i'm not going to show up for my deposition and the answer stricken is a discovery side can she still at that point make  evidence here that a jury could rely upon the conclude this wenzel its actions and throwing away the summons was foreseeable by geico let because they were or they might not the proximate guy shouldn't go to the jury because it's an issue of law the limit of it we say it's a question it's a matter of law that an insurer knowing what geico knew could not prove it was not arguments it's an all or nothing hard and so did you argue i think you did argue intervening cause to the district court absolutely as a legal matter yes and i think that was rejected on se knew how she lived a lack of education but her drug other mental health issues but that's just not in the record the geico claims just are never spoke to ms winston there's nothing in the claims notes we had no reason to think that this winslet would have done what we say was probable that ensured he thinks he got a covered claim when sued to but isn't there enough evidence for reasonable jury to conclude that perhaps ms ones that felt like i was already had one that you have to look at it from perspective and what knew not that's the problem with this case from the jury's perspective the jury saw his winslet and heard from her but geico didn't hear any of that in may of two thousand and all they knew was she was in had been in an accident and corresponded with her talked to the policyholder talked with policyholders fiance talked a witness we never knew anything about ms winslow's life circumstances and the verdict form asked the jury about proximate cause but obviously said nothing about meaning cause did you he didn't make any objection to the jury instructions right i don't think there was an objection on that issue was raised in the jam while motion we said this you can go to the jury because reasonable insurance company could not have thought it probable that insured would throw away a summons and complaint i mean i think it says something about this case and we could not find in your very efficient law clerks may have proved me wrong we can't find a single bad faith case where the insurance company was never told about the and were told after the fact after a default judgment that we were at we have no transcript and no one seems to remember what the evidence was all we know now is no one seems to think this is a two million nine hundred thousand dollar injury that the insurance company have moved in state court to settle the fault we tried and that's cited in the record and went all the way up to the georgia court of appeals and they said no we can't set aside the default we're just stuck with this two point nine million dollars that their own expert said the biggest number he would put on his case was five hundred thousand dollars and did you make the same statutory argument about a lack of coverage before the georg that for geico to prevail on any one of its three arguments they've got to get you to ignore two things they've got to get you to ignore the fact that the damage to bonnie winslet is the default judgment that's a fixed certain historical fact of liability she has to pay the damages to bonnie when slit or not whatever the cyclist injuries might be valued by a nd jury the nd thing they have to get you to ignore is the evidence that you listed out your honor judge wilson that the evidence supports the jury's finding that the default judgment is guy coast's fault that geico is seventy percent to blame for the default judgment and impartial answer to your question judge grant the instructions although perhaps not the verdict form but the instructions on volume four page and two say even if you find geico negligent you can't find for ones that unless you find that geico negligence caused the default judgment and hear the evidence supports that finding in addition to what you listed out judge highlight two other pieces of evidence one of them is that we presented expert testimony volume three page two dollars and three dollars from a fellow named peter no he was a claims expert and he testified that the letter they sent wenzel at the one that said we will be handling this directly with charles gauthier and the failure to inform winslade of any obligation to forward the suit papers if she heard from charles gower that that doesn't meet the standard of care in the industry and you might start that your notes because i don't think we did a good job of pulling that out in the brief but it is an additional piece of evidence that creates a jury issue the other thing that i would know is their own claims manual says remind the insured of this obligation i think my colleague may stay in rebuttal or the claims manual says do that only if you anticipate that suit may be filed but if you read the exhibit it says you should remind them in all instances and you should remind them in writing if you anticipate that suit may be filed which i don't i don't think this is legally relevant but isn't it pretty bad behavior on the part of a lawyer when obligation was to put forth its best valuation of the claim not simply negotiate and try to save money but any allegation of bad conduct or at least unhandsome conduct would have been aired out in the state litigation that culminated in that default judgment by the georgia court of appeals i'm understanding are you saying it's ok to be deceptive about filing a lawsuit while you're talking to the other side and saying that i know of no law that prevents an attorney from making a policy limits demand and when the insurer refuses that by countering deciding you're simply going to file suit and not continuing negotiations i don't know of any law that prohibits that i agree there's not a lot but i don't think you're going to get very far by endorsing that behavior well i say the relevant coverage period as i seem you say at the time the default judgment but at the time of the rejection of settlement but why are they correct that you can't have a default judgment but you can't have a bad faith claim until there's a default judgment isn't that the time when we sit and i don't know that your damages would be fixed until you had an excess judgement but the bad faith clearly occurred at a time they had all their duties in place to buy anyone slit and i don't even think they dispute that  suit for bad faith that day after the the day after the settlement was rejected not a suit for damages for the excess judgment if if for example she was having to hire a lawyer or something like that i could see perhaps other damages accruing but not for an excess judgment that hasn't occurred because the judgment was for fifteen thousand dollars there would have been no bad faith there would have been no damages there would have been bad faith bad pilot had been bad faith i less than than the offer because bad faith is assessed at the time the offer is refused the damages occur from an excess judgement but you can refuse an offer in bad faith and get lucky the whole principle of bad faith law is you're not supposed to gamble but what if you are right about the valuation then the jury will determine whether you were negligent in turning down the demand which this jury did and they don't challenge the sufficiency of evidence for that finding on appeal now do you want to talk about the policy notice provision that they make the same argument really two ways say that the her failure to forward the suit papers breached the policy and terminated coverage and that her failure to forge suit papers was an intervening cause under tort law and and i'll deal with both of those but the overarching answer to both of those points i you cause your insurer to default you can't invoke that failure to avoid coverage or to avoid tort liability and remember we are all here to honor the jury's finding that geico is to blame for the default judgment they don't like it they argue eloquently against it all of their arguments are jury arguments and they are they are perhaps arguments why the jury accorded thirty percent of the fault about one slit the thing intervening causes a legal question or factual question i overwhelmingly a fact twice chian under georgia law and that's recognized in the principle solutions decision that we cited to you i think yesterday by notice of supplemental authority it's a decision this week from a panel this court under georgia law and maybe i'll bri straight to that issue since you since you raised it counsel reads from that decision the georgia law that says that an intervening cause is not sufficient and independent if it's probable or natural consequences could reasonably have been ant apprehended or foreseen by the original wrongdoer now if you look at the way that language is applied in context by this court and by the ga courts what probable means in that context is sufficiently probable to be reasonably foreseen it doesn't mean more likely than not and the consequences of a breach if you apply that probably standard you would probably eliminate most negligence cases it is not more likely than not when you run a stop sign you get hurt someone it's not more likely in the not when you engage in stellar torrie gunfire you're going to hurt someone it's not more likely than not that if you fail to light your apartment complex somebody is going to be assaulted but it is sufficiently probable to be risks forseeable and you're liable and if you look at the way this court applied that language in the principal solutions case it is in terms of foreseeability and the court held actually as a matter of law for the plaintiff that the intervening event is couldn't be couldn't break the causal chain because they were both foreseeable consequences and then they know georgia law has held that intervening acts were foreseeable in far more attenuated circumstances and they cite a case this panel cites a case where someone loaned someone a car with a bad door lot and the georgia court said yeah it is for or so a jury could find that they might try to fix that door latch with some sort of rigged up contraption and be hurt well if that's forseeable if that's a jury issue what we're talking about is clearly a jury issue here if geico had added a clause to the letter that they sent  harder case i would want to concede that without about go without going back and thinking about what else i might be able to argue in the record but i could i readily acknowledge that as a harder case now let me engage in the same thought experiment in a different direction let's suppose the letter was so crystal clear that everyone in this courtroom would agree that that you know this when we've got this we're handling this wreck with the attorneys don't worry if you receive suit papers you can throw them away something that even my colleague would concede clearly tells her to do nothing under those circumstances could geico possibly invoke the notice provision of the policy or possibly argue intervening cause to defeat its liability of course not they caused that so if you're with me they are then all you need to do is think question which is at what date are we looking for whether coverage exists or not you say we need to determine when whether coverage exists at the time the settlement demand of course it did they say whether coverage existed at the time of the default judgment lapse of coverage and so let me give you an example they cite a case where there was no bad faith because coverage lapsed because the insured didn't pay the premium now if for some reason that failure to pay the premium had been the insurance company's fault they said hey you're paid up you don't need to do anything else something like that if the insurer causes the lapse of coverage which is what the jury found in other words caused a lack of notice then it can't possibly terminate the insurance company's liability that's just basic contract law like if you look at the one beacon case they cite the one decon case was a case where the evidence did not support a finding that the insured was justified in delaying its notice to the insurer but that case recognizes that that can be a fact issue here the jury found her justified or at least seventy percent justified under the allocation of fault in doing what she did which was not forwarding the suit papers that that's the reason why this question about a cruel doesn't matter now it's not hard by the way to have a claim a contract claim which is what an insurance claim can be where you have a contract in place that they want and it's breached the contract terminates say of its natural term on day t and the damages from that that pre term anation breach don't accrue until later well under those circumstances you clearly have a breach of contract claim and it's no answer to say oh but wait by the time you were damaged the contracted ended no you caused those damages by your pre term anation breach which is what geico did here you don't have to go that far because geico caused the failure to give notice now on the certification question i do want to say this they have alternatively fallen back on that request the problem with their certification questions is all of them ignore the evidence and the jury's findings certify question the georgia supreme court you'd have to certify something like this if an insurance company negligently fails to settle for a policy eleventh's and then causes that's not going to tell you the answer in this case that is a hypothetical question of the sort you wouldn't answer and i don't believe they will answer for exactly that reason and the reason is and i know i've said this a lot but it's my most important point and i'll die on the hill with it which is the evidence showed in the jury found that geico is the reason she didn't forward the suit paper i cannot believe the georgia supreme court's going to hold or that you would hold that if an insurer causes an insured to do something that allegedly terminate coverage that they can then invoke that to avoid liability that's your answer in this case that academic question about timing can be decided in another case you say that the reason she didn't do it is because she was on drugs in and and out of it and threw it away no you the reason no your honor she said that she did it she multiple times said that she did it because the guy hours said they were handling the matter and that is pages sixty three dollars to sixty four dollars of the transcript volume two page sixty five  and look i would be tone deaf if i didn't understand that there are aspects of this case you guys aren't crazy about right i get that but what we're here about is whether these juries findings were supported by the evidence and they were and anything else in the case that  you might not be delighted about happened in the georgia state court system and it was resolved by the georgia court of appeals what about the district courts can and that it was important that geico should have known that a person and winds its condition perhaps would not be forthright about of a lawsuit so i know that the district court said that but that does not mean that was part of the jury's rationale and what my i would say that the evidence that judge wilson listed and that we highlighted in our brief w say that even without hindsight i didn't surance company could reasonably anticipate that a lay person like winslet who has a massive difference in sophistication experience from geico wouldn't forward the suit papers that is a finding that is supported by the evidence the the people if insurance companies would assume that anyone with a massive difference occasion wasn't going to send them the papers then insurance companies would never get papers right well i don't think that's necessarily true because i've got other evidence insurance companies don't always write letters that say we're handling this directly letters that don't remind the insured of their obligations and remember she was an additional insured she didn't have the policy they had no reason to believe she even had the policy language that if she had gone through in red would have contained that obligation but the other thing about this hindsight argument is you know they energy acted all the facts about wenzel the trial and they never said a request of any sort of instruction like by the way you know your honor don't let the jurors consider winslett state of affairs in deciding these issues there's not an error there that's relevant to this appeal the red lights on are there additional questions i can answer appearing not i will take my seat thank you thank you mr laurie mr wesson with reserve some time for a your original point in the page thirty four of our opening brief we cite an alabama case in the minnesota case in couch on insurance which says a majority of states follow the rule that a cause of action  but we're not i think that the issue here is i think it's quite a fantastic argument they're making in that they're saying if we send a letter that says we're handling this all says we're going to handle this directly with a lawyer  say i don't need to do anything else i can ignore soup papers i can ignore everything that is not a probable consequence his conduct in not accepting the policy not accepting the policy limits to me i mean if we have to we don't know anything about any special circumstances from his winslett he's just another insurer and if we tell him sure we're handling a claim they can then say why don't have to answer the superior i can just like going to fault despite what the summons says on its face i can let it go into default and it's all good that is a terrible position that is a terrible rule of law and the jury can't be allowed to say that because we end up here with geico have need deal with this put it plainly a fundamentally thousand four hundred and nine dollars knowing that less got the raise hospital in would swallow ten thousand dollars of that leaving with heard just two thousand five hundred dollars for future costs for pain and suffering after expected that the potential judgment would be an excess of the pop we don't know that judge because we never got the chance to defend the case and if we would have defended the case it would have been a two point nine million dollars judgment in a might have been less than thirty thousand dollars and it's fundamentally unfair to tag us with that number without having the chance to do what we were obligated to do in our defense and defend the case the arguments thank you counsel or will be a recess until nine o'clock tomorrow morning