good take your time no worries analytical construct and the supreme court's given several factors to look at to try to figure out whether this is an exercise of jurisdiction works for a substantial justice and fair play so answer if you would the argument that your opponents make that this is a foreign corporation the plaintiff is not based you're not based in pennsylvania  so there's really not an interest here in pennsylvania and it's just like in a society it's not fair it's fundamentally unfair to drag a foreigner into a jurisdiction where even the plaintiff doesn't have a significant well your honor our rights arise out of equitable contribution because we have two concurrent insurance policies correct we're well familiar with they wrote the policy for pennsylvania short order you ask which is a named insured in their policy and i'm giving you for the sake of discussion i'm giving you minimum contact ok so i assume for the sake of argument that we said you know what you wrote the policy or you and you adopted the local underlying policy into the global policy and you knew it was going to cover pennsylvania so assume we said ok that's middle contacts and get to the that last of the three steps is fair play and substantial justice their argument is liberty is not a pennsylvania resident they've got no you know pencil he's got no cause to say we're looking out for liberty and liberties got no call on pennsylvania and we're you know we're european we're belgian company leave us alone well i think we're going to danger yet pennsylvania has a strong interest here because had we not stepped up and paid the claim they're insured might have been derivative of the insurance and the insured which has a strong interest to ensure that it has the benefit of its policy speak to a society where the courts in the case not unlike this product case not sur but said look when you're dealing with foreign corporations these are these issues are just more serious more significant it's not it's not a white thing to call a foreign corporation jurisdiction will this current core corporation has significant contact with with pennsylvania and it's not where they just wrote or letters write or letters and a subsidiary that does business here a subsidiary where they directed that that subsidiary played place insurance for this insured they were aware of that  in pennsylvania right and they also had the other contacts of lighting other powers to ignore the corporate separateness because that sounds like what you're telling me no i don't think you ignore it but they they actually reached into pennsylvania and acted with their subsidy rate and then that policy was absorbed into their they also entered into a letter of comfort with the pennsylvania company which was a critical factor in liberty paying the claim with the recognition that there was a contribution claim for the actually entered into an agreement pretending to the contribution which literally live would be relied upon and me you've got to get some that's not what we're talking right but that level of comfort with with x a c s and and it was critical to the contribution and our payment under the policy that their argument is you've got t recorrect recognize is necessary for purposes of ensuring justice so when two people pay they acknowledged it in a letter of comfort they got involved in the local dispute and therefore why should we on a loss that arose in the pennsylvania pennsylvania insured which was identified in their policy specifically and which was both on the global level and on the local level why should we have to go to ireland where the lore is different on an equitable contribution plan that arises out of a loss in pennsylvania they came into pennsylvania they were part of both as a global policy and as the local policy and then they entered into a letter of comfort a nice course organised they didn't come into pennsylvania right there that's the that's the point we're circling round here  well i think they are independent if you stablished one then you have to stablish the other and here again given their contacts and also the fact that they have the right policies in pennsylvania apart from these policies they go to surplus policies they are registered surplus carrier they are in this jurisdiction they actually paid to broker spray it it's not it's not my question i'm sorry but my question is  i would say this also pennsylvania has a long arm statute specifically poor insurers who insure pennsylvania insured they may they may insure a pennsylvania short directly as a global company so pennsylvania certainly considers the fact that they're going to be subject to jurisdiction and they knowingly entered pennsylvania in that capacity in buying pork away in the policies and b that they're in essence they're subject to jurisdiction anywhere in the world where they're where they've got either themselves or a subsidiary that's got a policy i think it's more than that your honor because they wrote insurance for the subsidiary as the name insured and they're doing business in pennsylvania extensively both as a surplus carrier and through the seeding the policies it's not just a case where it permitted for equitable stoppel purposes are you saying that you're saying your claim comes out of the insurance well you're saying you've got a right and you're saying it's because they wrote the policy so you're claiming in effect contribution based on the policy why do you get the benefit but you don't get the burdens because it's an incidental benefit non aggressive benefit because had they paid their portion and we pay our portion nobody would have to try to reach against the other and what the pennsylvania law in general actually then recognizes is the respective arab league ations as between several insurers who have covered the same or do not arise out of contract when you just said that's kind of put the rabbit in the hat covering the same know we're not on the merits here but i understand their argument to be they're not on that risk they but arctic bought a couple of policy for recall from you guys that's why they got it because it wasn't covered by that axa policy so they went to were not filling a gap they have recall and strongs direct if their local policies do not have it which is the contention in this case so for purposes of considering this we're entitled to the benefit that there is a claim against them for that and we'll address that on the merits as we move forward but if even a macor a hill where the photographers entered into an agreement with corpus corpus w hill which ultimately the money went to for help and the courts adapts not to direct the benefit this is purely incidental it's happenstance that policy was not taken out anything to do with ours you had the u s subsidiary take out all policy likely unaware that they were covered by the government policy and now we're both here and again you know so it's the principle is equitable contribution which the which they must produce evidence out and clearly we were in need of policy was aware of the other at the time they were entered so there is no foreseeability so yeah but that's kind of a key point which is you need but i think the court even mcgraw hill and the and the strong policy in that case that they it's a prerequisite and they have to be proof of it and at the time we entered our contract policy neither policy there's no proof that how medica the court indicated with the sales represented one would know that the other was bound and even if they didn't know they were bound they wouldn't construe it as applying to them because when we're not in truth or under that contract we  we have an equitable right of contribution in order to ensure justice and took public policy reasons to have ensured step up and pay so we're basically having a situation where pennsylvania recognizes and the country recognizes to give this right a contribution to ensure justice and now we're trying to say you have a right a contribution because you stepped up and you paid and now you can pursue this other party who's responsible of it now you have to go to i want to do it under different law than the law that gives you the right to contributions it's not fair and it doesn't make sense ok thank you carol thank you  think here it's fundamental to the to the case because what due process is all about is allowing a party to structure their primary conduct and that's exactly what x a c s did here it has this global policy with  for a couple reasons st of all there's no direct contact with pennsylvania in connection with the policy write the policy which was issued to a luxembourg insurer it was grover by an irish broker ayaan it was issued by a french company out of their u k office it's governed by irish law there the judge and big global policy says if you're going to have coverage in certain places and you've got to have a local underlying the function of the contract you wrote became part of the global policy did it not eat the local underlying policy that actually u s issue did become part of the global  that's a global policy that's correct but the the how if you can name all the other countries but at the end of the day you established the order jur fares in a way that made a policy to cover risk in pennsylvania part of the global policy why is it not a minimum contact this is for you to have done that and to be understood to have done that in a way that makes you deliberately inserting yourself with the state not a contact that's incidental to it that comes in through the side door because what they're insuring mean then to have a local underlying policy be part of the global policy that's that if you hadn't done that maybe you could be arguing this with  with greater force it's hard to understand how you can say will you know we had nothing to do with that that's not us when in terms of the global policy it is part of the city it's absorbed into and incorporated into the policy and that's the reason why that's the case is for the benefit of the insurer it's because the type of coverage is provided is access or difference in condition so to i'm not always saying is that follows form to the underlying which is i'm not arguing the business wisdom of it i'm trying to understand how you can make the assertion that hey we've got nothing to do with that when you when you set it up so that that policy is part of by the terms of the global policy is part this local underlying policy from an access subsidiary that's one hundred percent within the the discretion of the insurer it as the policy says if you look at appendix page one hundred and eight which is the provision in the policy it says it's up to the you've taken the stand that this there's just no minimum contact here i'm puzzled by that because the way you've got your policy written that local underlying policy is part of the global policy so if you've done that then the argument you have to be making is it doesn't matter whether we wrote in the jurisdiction or not it ate it doesn't matter that we wrote in a jurisdiction as a subsidiary of the main insured for to this extent because we also provided in the contract that irish law governs and all disputes have to be litigated in ireland so to the extent there was any purposeful impalement of pennsylvania  due process requires that parties be able to structure their primary conduct that they be able to know where they're going to be sued and take steps to protect themselves against being sued in places where they don't want to be that's exactly what  c s did here it's a foreign company or as as the courts recognized it wrote the policy it's a global policy covering twenty five dollars different countries and it expressly included the form so actual cost because it didn't want to be held into court in twenty five different countries it's pennsylvania has no interest here there's no there's no pennsylvania resident here the only thing your colleague here across the rooms have got a pretty strong interest here it's got an insured and it's an insured it was caught in a dispute between two insurers you know the classic a i bought insurance for both you people and now neither of you will pay me what's going on here you know pennsylvania has and the same pencil he doesn't have an interest in seeing it that it's all residents who pay good money for insurance don't get on out to drive by their insurance company i think pennsylvania has a strong interest in that but that's not this case well that's that's the argument being made that that is exactly this case that you too wouldn't pay you to be your subsidiary and liberty there was a dispute neither one dollar was paying and so it took months and years to get people to show up and give money and it only happened after you x a c s said tell you what if liberty pays you will find out who always what later that you you involved yourself in the dispute you didn't have to but you did and that that's another step and it shows both pennsylvania's interest in this and it shows you a gauged in the process in a way that makes it rings hollow for you to say unfair or unfair that's that's the argument you've got to fight back i understand that argument i think fails because that if there was a lawsuit here that our dog us was involved in then then the interest  pennsylvania would would be apparent the the argument here is a is a hypothetical if liberty didn't pay honor its obligations and pay under its policy then perhaps pennsylvania would have an interest in protecting its insurer but liberty issued a recall policy it was a recall claim that had no defects to to the policy and it just didn't pay because it wanted to extract no money from other now you're into the merits why they say we did have defense which is you guys who were on the hook to you were on the hook too and that's the merits and we can fight about that but the whole battle now is where is that fight going to be so it doesn't help to go into the merits you got to stay up to the level we're at and say why is unfair for you in a pennsylvania dispute involving a pennsylvania resident for which your subsidiary wrote a policy which your corporate global policy ways and fear for you to face the music in pennsylvania that's the pits they're making to us but the most fundamental reason why it's unfair is that the only contact that we have was this policy right if you call that a contract to pennsylvania and i'll stipulate to your honor's suggestion in that regard the only contact was the global policy and that policy and that policy says we can't be sued in pennsylvania we have to be sued not so to hail a taxi ass across the ocean into a different legal system for the convenience of liberty who is not a pennsylvania resident liberty's not you know a widow or an orphan it's a it's a you know a large corporation it can sue and in ireland who wants to obviously would prefer to be here but that's a matter of convenience and that's that what the saudi fact recognized as hailing a foreign entity into this jurisdiction in the united states is not a matter of convenience to fundamental issue of international comity and it's a fundamental issue of due process and and  particularly here when x a c s reasonably could have no contemplation that it would be sued in pennsylvania based on a policy that absolutely requires that all suits be brought in our own question for you there are a couple cases that it's not on the specific facts but the impression that it's conveyed i think to the to the bar is that this the screen court is going to take a much stricter look at personal jurisdiction going forward that's all i meant by that the subsidiary of a of a of a global policy and it was a u s policy we have a foreign insure there and there was facts there that show that the the defendant there was existing litigation involving insure versus insurer lawsuits so that there was reason for them to anticipate being sued there and finally no form selection clause and the farmers insurance exchange case is key on this they said we don't have any problem hands number two is equitable contribution that's where there's some argument but paragraph ninety two to ninety four of the complaint in the count in count two say under the terms of the contract you owed coverage we get the benefit of back and under specifically the other insurance clause you owed coverage and we get the benefit of that that's not an incidental benefit that's the basis of their claim they can't prevail without it they've  liberty argued that the benefit has to be obtained during the life of the contract that there's no you know if you come to to sue on a contract or base your claim on a contract that's not the type of benefit that is that is acknowledged under benefit from that contract or two by seeking to enforce the terms of that contract or asserting claims based on that contract other provisions and that number two from the griswold case is exactly what liberty is doing here it's basing its claim expressly on the provisions of the acts of global policy and it can't do that without also accepting the burdens of that policy which is just to bring any dispute that it has in our house at the foreseeability forfeiture  issue you heard with your adversary said you have any response to that well they clearly waived ready it and the question is whether the court in its discretion will excuse the waiver or they didn't raise it i think they're saying we don't have any obligation to raise it that's just what they said when you have it and the fact that they're able to dispute this now and make some sort of issue a fact about it is based entirely on the fact that they didn't leave bill so for that reason it should be waived and it's also terror just not good practice it's not fair to this court not fair to the district court for a party to simply not brief the issues and then save it all up for for this court to deal with a certain it's or general policy so you can talk about the burden of proof for  by well pleaded allegations or that they're not contradicted by the facts or by factual proof that they've submitted that there is jurisdiction here so i don't think there's anything alleged in the complaint not believe so i believe if the if there's a defense raised they have to put forward some proof now the proofs could be they can rely on their complaint but if we dispute facts they have to put forward proofs and there was some discovery here right on the case obviously supreme court we are now in a different era we took depositions by telephone conference it's a global company which has now merged with a united states company there is no burden of very kamil stiction but i had this not a technologically based argument it's not you know look out the rack you lists our communications are today it's a it's a international market that's the pitch there me i would think it was wrong because there are a global company and they write in pennsylvania the right all over this country if they're a global company there's not a company that sap one port here that ended up in a car and i'm somewhere like that so they're in a society you could make the very same argument this society was said that its products all over the world including into california and that that principle didn't sway the supreme court they said we're not going to make them come from japan to california to deal with a company dispute that it's the other involving a california resident right but here here they entered into a interest in pennsylvania to have its insured protected and have the benefit of all their insurance the plaintiffs interest our interest we have to talk about we did not reach into ireland to  reached entirely but you reach in and now because you're choosing to sue them on the contract if you're going to sue him on the contract are going to live with the contract that is a contract that specifically makes good law clients as you'll see you in ireland so if you want to benefit the contract you carry the contract all the way through yes well i don't want to take him at that argument and start specifically with count one and count three which they say in his words are a laydown hand they're us ours arises out of privity with us so if they didn't have that contract we wouldn't have a contribution but it's a equitable right of contribution that is our only legal right here they didn't assign a contract to if they refuse so obviously we their rights their obligations are triggered by that contract that's what we're saying all rights attributed by equitable contribution to ensure justice with the strong public policy we don't i don't understand them to be disputed that i don't think i don't understand them you know to be saying that if you're right that you had a claim it wouldn't be the case if you're correct that you had some claim that us fact you did foresee that this contract had this form selection clause and it's not an incidental benefit it's central to it it's with the very thing that the courts have been telling insurance companies to set up your affairs they set him up that way and you a sophisticated party of all people insurance companies have to respect that it's not incidental it's central to the character of the insurance the global insurance policy we're not on or we didn't know about it they didn't know about ours your it's the definition of incidental because it truly happenstance there was these concurrent and it would be against public policy to have the being sure of that steps up and pays and then the court recognizes this str significance of that why does it matter they've been border berge with well it just goes that there at st i don't think having a form selection clause is relevant to foreseeability in terms of being in a jurisdiction because it has to do with your contacts and your conduct there yeah i was just saying that it's not inconvenient for them they're a global company and they have it even more united by the present i'm just you know this is you know when they're not asking nothing is going to pennsylvania new york and they are here we're not