i'd like to reserve five minutes if we may please the court my name is scott covered i represent plaintiff and appellant selina bryan their number things that just record judge clawson are got right in this case he agreed t extrinsic evidence proved that cigna received a claim from the hospital following this bryant's accident he agreed that mr brian achieve some success on the merits he also felt that there was no showing the plaintiff unnecessarily protracted litigation and cases from this court drastically cut mr bryant's attorneys fees by approximately seventy two percent this violated the struction the supreme court's instruction and sleep which required a quote clear and concise i'm sorry concise but clear explanation for the reasons for its field or for the underlying case a district court essentially said well i think of the district court ruled that mr bryant was not entitled to any attorney's fees beyond march twenty course was the entity that was that it sent collection agencies after mr bryant so on that date while cigna indicated that they would pay the claim mr bryant didn't have any indication from the hospital that it would st coming after her for the money judge becaus plaintiff's counts of cygnus counsel to our counsel which is in the record in a declaration they said that a multitude of issues remain to be resolved in addition to the issues that the plaintiff had said remain unresolved a multitude of other issues remain to be resolved including specifically whether cigna had received a claim to begin with so cigna said that the litigation needed to continue because it had terminations need to be made as to whether cigna had in fact received a claim and to that end discovery was conducted discovered that cigna did not object to discovery that cigna fully participated in including producing a witness and documents to a witness and documents to discuss the testify as to the what the document said and whether the documents indicated that cigna had in fact received the claim so quite the contrary they never moved for a protective order a motion to quash nothing of that resort they fully participate and the point of did not conduct wild amounts of discovery an attempt to increase attorneys fees they can do that we conducted very point of discovery we did a p m k deposition of cigna to see to have them testify as to what the record so they received and it p m k deposition of the hospital to mr x they could testify as to what their records said that's all there was no indication that plaintiff in some sort of as been  because case was over that we also know there are reductions for work on issues that were perceived by the district court as being unsuccessful i there are other generic categories of our issued a ruling that went against mr bryant she will appeal this case to the ninth circuit and so those fees because miss bright prevailed and she was remanded judge closets for him to consider the extrinsic evidence that w the eighty thousand dollars already know hospital bill at a discount and pay the hospital directly they had to pay eighty thousand dollars directly the you regardless whether they settled or the hospital bill and that what was wrong with good enough for you didn't prevail now well because the case law says that you don't have you don't only get compensated for the cases it's only for the issues on which you prevail you get compensated for all of the quote that you gave us in the opening brief the fear ward should not be this is from a case the fear ward should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit let is let against in good faith may raise alternative grounds for a desired outcome he didn't turn you down for making alternative arguments for an outcome you got he turned you down for making arguments for how come you didn't get the eighty thousand dollar claim you never succeeded on that so his said you shouldn't be paid for that part and that's not simply an alternative ground that's an entirely different aspiration which wasn't achieved well except for the eighty thousand dollars was not the only issue that was litigated at the ninth circuit the first and he didn't say zero on appeal that's correct your honor but but why isn't a reduction for the for the claim that you pursued unsuccessfully appropriate well one of the works can't be it's not like the work can't be he has no basis to argue that an entirely different our argument the question of whether they can pay the hospital directly or have to pay you is not the same thing as on the claim you prevailed under center but what i'm saying is that he has no basis  you spent eighty thousand dollars on this particular issue or you spent eighty thousand dollars where the exact quote was on this particular issue you sent this amount of money on this particular issue and so i'm going to cut that he didn't do that he just estimated amount and said i'm going to cut one third of your fees because you didn't  of your time was spent on the unsuccessful issue well that's not with all due respect your honor that's not the way the briefing works we are required to spend time working on the entire brief and that was part of the rush to be paid for the part that didn't pan out because it's not an dealing through you they deal directly with the person who is bridled the money reached the settlement and the cause of action was gone yes your honor but that's we didn't continue to be that did happen but to answer your question and to test your question regarding the grief it's not like so the ninth circuit had a lot of different arguments and for the judge to just carve out a particular amount of money because he he didn't even say this but i guess he estimated that that's the amount we spend on a losing argument that that basis is not offered any work when you write a brief you work on everything and you know you're not required to and that's not how it's normally done and you  haven't offered up any basis so what else can he do but to make the kind of estimate that he made your hours your hourly report doesn't segregate how much time is spent on each issue but you can't make that calculation based on what the thing is that we are allowed to and we're required vigorously advocate always on the court is not required to pay you for the part that wasn't successful and you haven't given the wherewithal to decide how much time was spent on the unsuccessful or let me start with that taken he says do you can test the proposition the court doesn't have to order you attorneys fees for the claim that was unsuccessful yes ok and based on what is the quote i just read from you from your reef doesn't support you well the fact that not you're not commission to overreach and if that happens then attorneys are going to make the most outlandish claims possible and pile up time and say but we won something and it's all in the same brief so pay me for the whole thing that's not go happen ok you want to your honor's but there's there is no evidence that we overreach losing is not necessarily overreaching but you don't get paid for what you lose on do you you can't really i think the hospital claim was pretty overreaching there's no sign that  had had any is getting any traction with anybody so why should the court pay you for that well because that's not always how it works as judge first noted a lot of times in these cases the insurance company pays the hospital i'm sorry the insurance good morning and may it please the court william donovan on behalf of connecticut general life insurance company your honour's we agree wholeheartedly with the concerns you've been raising with opposing counsel concern we have some concerns with your position to well i'm sure you do your honor but the law is clear in the circuit  in the mcelwain case that we cited that the district court cited that once they were aware which they were no later than march twenty one two thousand and eleven that the claim would be paid they should have submitted a fee application and this court now for a second time the district court and respectfully cigna should not have had to litigate for five years over spurious arguments everyone they lost on the merits plus the fee claim should be limited as the district court properly found when cigna proposed proposed to pay the hospital bill didn't say we're also going to pay the attorneys fees for spending accumulated today there were discussions with plaintiff's counsel about paying them a reasonable fee and much more than we had a bigger firm had build on this matter and they basically told us to drop dead but it's not that the mcelwain case is new they can offer to allow the played of to take judgment for his attorneys these and provide a release from the hospital we did make an offer of parties in which they refused to entertain any reasonable resolution of this matter and then as as the record is going the record that tells us of the march date that that plane it was assured not only the hospital would be paid or had been paid but that the attorney's fees  litigate this case we had no incentive to continue to litigate this case which it did you said we should pay the bill but we were in the option to claim that the claim was a hospital bill been given to the insurance company and lost misplaced whatever not paid so so the notion that that plaintiff's attorneys fees would be taking care of i really don't see anything indication that that that communication was made  nothing in the record your honor under mcelwain we believe the operative standard in the circuit has been for a long time that once a plaintiff is aware that the claim will be paid at that time they should make a fee submission they didn't share our bills with us we had no idea what bills they  racked up we offered them in good faith a multiple of what our firm had billed on the case to try to resolve and they told us to drop dead and then what they did was they persisted making numerous arguments as your honour's have acknowledged in the first time we were at the circuit the panel acknowledge they lost every single one they claimed we had violated a statute they lost they claimed that we had engaged in conduct the court properly found that the statute limitations of past they made this double recovery argument that borderline on being frivolous and both the district court and the ninth circuit rejected the argument given the facts of this case we believe that the district court's award is reasonable and it should be affirmed and there's no abuse of discretion the court should remember that judge clowes no ruled that it was astounding filed which is of course the intent to receive cigna sent a response begging them for information they ignored it they waited ten months and they filed the suit what did cigna do assume is the suit was filed they promptly research claim adjudicated the claim paid the claim and got ms bryant released five years ago five years ago all that was done and are the response from the other side what you just said and we never saw a penny from ms bryant in fees our view was that counsel had overreached had continued escapes for years and therefore they should be responsible for some of our fate there has been the district court declined  fees and i got to say pursuing that issue on appeal doesn't make you in your client look any better your honor they filed the appeal we file the cross appeal to keep the matter in play we would have paid the amount of the district court judgment and not burden your honour's or us or they don't want to be fair enough your honor but look i want to adjust the issue about the claim because this is taken on a life of its own we don't have to put our lawyer hats on or a judge hats on because we've all been in the healthcare system claim or processing of the cleanup did you find about the claim about the hospital do some research after ten months of silence after the complaint was filed with details as to the date of service and where ms bryant was treated cigna proactively contacted the hospital before discovery before any of that resolve the claimant got her released but there's been this misperception that somehow signal would be the only one would have information to prove a claim was filed and that's simply not true wasn't  name there were none of those details in the record there's a letter back from cigna expressing complete confusion as to what this was about asking for the details that they would have needed to process the claim so it is a truism that the claim wasn't paid until after the litigation is filed have attempted again in good faith resolve the claim paying them a lot more than our firm build on this matter and they told us to drop dead so so reserving our right because it was clear based upon very aggressive e mails from the other side that they were going to pursue this forever that we wanted to reserve our rights which we think was entirely appropriate to do under the circumstances we all know the purpose of a risk is to avoid litigation this thing never should have gotten to court the first time let alone get to the ninth circuit twice but your honor to get back to your question specifically about the claim right the hospital never produced it they produced some ledger a basically a checklist with a wrong number on it and that's all that's been produced ever in this case to suggest at cigna made a mistake in their claim actually had been filed the hospital didn't produce a claim if there had been adjudication of that claim as we all know we as the member plus the insurance company in the hospital would have paperwork regarding the adjudication of the claim they never were able to produce it mr bryant didn't have it the hospital didn't have it so we strongly believed and continue to believe that the error in the the judgment below is the conclusion that cigna received a claim when there is not in our view a scrap of evidentiary record to support that and we all know based on our own experiences in the health care system that multiple people would have evidence of the claim so you're wrong respectfully that the district court properly found their conduct not good astounding but bad astounding which resulted in this case being filed when we were here last time the panel was very vigorous in pointing out to plaintiff counsel that the argument that there should be some double recovery was completely out of bounds what we were disappointed by was on  on when we were here last time we thought that the panel was actually very interested in getting a full and fair adjudication of our argument that in fact there was bad faith on the other side so that there should be an award against the lawyers not ms bryant of course for prolonging this litigation and burdening all of us the record on every man found that they run reasonable found that their fees were reasonable we never got the opportunity to make the case number one on the claim issue and point out what i just did to you there was a summary ruling and we never got the chance to make the argument that why have they been litigating for five years when we took care of ms bryant and respectfully cigna stepped up and took care of mr bryant within a very short period of time after they finally had the information adjudicate the claim this is not bad faith by the insurance company this is not an insurance company that is not if you had the information i mean if you didn't have the information but if you did have the information and acted like you did then you got a differen your correct your honor and then we believe the ninth circuit the last time around already agreed with us and judge agreed with us as well so we're not at this point five years after resolving this claim even though we think that th ey're getting too much money they should get nothing we should have the right to pursue our claim at the district court we would be satisfied with an affirmative to finally put this matter to rest but we would also ask your honour's to consider why we think it would be  meter stops running and as your honour's pointed out to opposing counsel if they're going to continue to press ahead with arguments to lock merit they shouldn't be paid for it because if we have to pay for that no erase the plaintiff's counsel is going to resolve anything once they've got a point if they're going to keep making arguments keep letting the case going we're here reluctantly we would have paid the the judgment even though we disagreed with aspects of the district court's ruling but in summary your honour's for the reasons i've talked about it obviously if you have questions about how to get a piece that may be missing is his plaintiff's attorneys fees time for bringing to the court the evidence that was offered up with regard to notice having been given to the insurer we've talked about there was settlement discussion there was no offer of judgment what gives me confidence that as of the date in march plaintiffs knew not only that the hospital bill was going to be paid but the attorney's fees incurred to that point would be paid your honor respectfully we think that's an issue for the district court we try to settle it we did more than usually the court said zero for anything that happened after that date in march and that's what mcelwain teaches and we think the district court was right there so my question is you what ensure what assurance did they have at that point that they were going to have to do anything else because the attorney's fees were going to be paid your honor i'd quote back what  kristen said when we're her last time and it was echoed by the judge sitting by designation from new york they knew they were obligated to know under longstanding ninth circuit law that as of march twenty one two thousand and eleven when they're told the claim is is going to be paid it's resolved they've got to submit their petition that's what they should have done the court in its question is suggesting we have some huge burden and what when in fact i think we did more than we had to do we don't have to enter discovery in l necessary in order to extract the information about what had been submitted to the insurer because they were pressing ahead with arguments that they ended up losing on the merits that somehow this there was this double recovery argument we didn't need the hospitals testimony they wanted it to somehow try to show there was a bad faith negotiation between the insurance company in the hospital to resolve the claim when in fact that's what happens all the time when did you the hospital when it was your honor in the spring of two thousand and eleven it was right around the date for march twenty first or after the agreement was reached by the march twenty first date that's operative under mcelwain i think the check was technically cut a short period of time after but they submitted a joint report with knowledge that we had agreed to settle the claim which we believe is the operative judge clifton just to get back to your question to try to make sure i fully resolve your question right under risk it is not the defendant's burden to substitute itself for the role of the district court and agreed to pay an amount certain an attorney sees what the ninth circuit teaches us what the prior panel said to plaintiff's counsel which we totally agree with is once they know which they did by march twenty first two thousand and eleven that the claim will be resolved it's i it was over by that point so in essence it was to follow up on the questions you were asking opposing counsel at one point is an unreasonable for a law firm that says they're doing this pro bono to spend what they record as hundreds of thousands of dollars of time to keep losing every substantive issue after we've agreed to pay the claim even if we had done a rule sixty eight offer a judgment based on what happened based on their position the paste on the fact that they keep appealing based on the fact that we're here even though they got a generous award after conduct the district court said was astounding and reasonable that that would not have resolved iran or you know we did not share some of the unpleasant exchanges that we got from and we tried to resolve it but we don't think our good actions to try to get it resolved should be used against cigna they stepped up they paid the claim they have not produced any evidence that a claim was actually submitted they haven't produced a denial of a claim they haven't said if all that happened and they appealed we acted quickly we acted professionally we tried to put this matter to bed five years ago before this court the prior non circuit panel and judge klausner in addition to signal would have had to spend all this time money and effort fighting about to the extent to which they could in our view gabs the system and try to get it totally unjustified award so respectfully your honors we would ask that the district court's decision be affirmed and this matter finally be put to rest thank you very much we offered to your honor we suggested that as a we suggested x but i did briefing on the issue of whether or not we should have been paid and also whether or not we are entitled to attorney's fees we made that specific offer and that's in the record to council to say a that is at six twenty four where they said there's a multitude of issues left to be resolved in addition to that in addition to the issues that we raise they specific i said there are six twenty four they specifically said that that there are in addition to the two issues that we raise are a multitude of issues that they need it to be resolved including whether or not a claim was ever received now again they're continued to after going to collection issues that was on june twenty ninth june twenty ninth with the with the first date that year two thousand and eleven that was the first date that the hospital informed mr bryant that it was no longer going to be seeking the money from or add to the issue of mcelwain this case distinguishable as we explained in the papers on the date that the court in that case said you know to use the terminology of saying of the drop dead date there were no other issues to be resolved the defend in that case agreed and had written a settlement with the i r s to pay the money that the plaintiff asked there was no more disputes there here there were disputes there were disputes in the language in the e mails of the counsel that they said there are a multitude of issues so not going to not control here because in mack when there were no more issues but in here in their own words there were a multitude of issues including your own words in your own conclusion with a multitude of issues there they said well so we had said there possibly have been well this record they offered the e mails but they said it but i'm saying you council can review and you know what's to be done and what's not to be done two things went wrong in this case of four is your position one is a settled with the hospital rather than paying through three a firm will there's nothing wrong with they can do that and that made a substantial difference in your recovery because they did what they did but they i gather that this is not the most affectionate feeling flowing between you and the insurance company and they thought this is a clever thing to do and they did it and legally they can do it they can settle with the hospital and pay and they did settle and they did pay the f to that but was left well your honor if that's what we offer extracted briefing on the issue of whether that issue was proper and or refused to that date well i just look i'm looking at the reference you gave me the excerpts of record it seems to be a whole lot more about the payment of hospital issue a position where you describe the insurers position is reprehensible that it was about let's finish this pay the fees that we've incurred to date and walk away but it where is the offer that i asked you about that you gave me this reference that is that that you that you didn't petition for fees or seek to resolve based on fees today as opposed to maintain the litigation because you were hoping to get payment directly so i think twenty four the second to last paragraph this is an email from them they say aside from the issues you addressed which is the attorneys fees issue and the issue of expert i'd prefer of whether they should be payoffs or not so those are the issues we address they said there are a multitude of issues related to whether your client is entitled to any relief from the court including whether the claim was ever properly presented to connecticut general life insurance company prior to filing this lawsuit accordingly any expedited briefing is not only unnecessary but would be a inappropriate at this juncture we offered to stop the litigation in march two thousand and eleven but they said that would be inappropriate at this juncture where we don't in this place we don't have if you flip to the next page which appears to be the e mail that this one response to this appears to be from your client's counsel to the insurers counsel and most of this is what's talking about this represents about position about paying the hospital directly so you know i was asking you there an effort at that point to wind up based on payment of your clients attorney's fees for the efforts to date and what i'm looking at is something that suggests the fight here and so forth is going to be about paying the hospital directly a fight that your client ultimately lost and i haven't seen what i was really line to look for which is a resolution at that point in time based on paying your attorney's fees i'll note that cygnus busy denying any responsibility for paying any attorney's fees it makes for a general reference was offered a paid some but not required by law so i don't hear a position from their side saying we're looking around over that point in time either but my question to you is what is there that tells us that your client was repaired to wrap it up and instead of filing a petition for fees incurred today elected to do something other than what ultimately happened which is these this frolick to try to collect payment directly  to me like neither party was really trying to squarely focus on the attorney's fees to date issue and you were both engaged in fights over other issues well again your honor those we offered the expedited briefing that wasn't about attorney's fees that was about your demand that payment be made to you but if that was part of it with the attorney's fees we offered on two issues expedited briefing on attorneys fees and the and the and the issue of the whether we should be paid i think it's important to say that the judge clause or himself said there is no showing the plaintiff unnecessarily protracted litigation i think that's a very important finding that the court needs to consider there is no showing the pla unnecessarily protracted this litigation to get to the cuts that were made on the appellate brief the court also cut one third in addition that you said before we don't prevail on that issue that the matter was not complex but i would disagree also we only receive twenty five hours for the fees bills even though they're required two different filings one of twenty four pages one of eighteen pages and we had to vigorously defend against them that's kind of two thirds was what i think with reminiscent of the meat ax approach you have agreed to pay it your honor i think it's for the reason judge clifton noted when he read the actual document that there's a disconnect between what they're saying that exchange was and what it was really about from our perspective they were not letting go they were trying to manufacture other arguments to fight about they were pursuing a double recovery issue and that's what that e mail exchange is about but that exchange also includes a statement you offer to pay some fees but you have no legal obligation to do so that's a far cry from saying let's wrap this up  to the somewhat unpleasant e mails between my associate and their side who are dealing directly with the issue which he didn't deny we tried to negotiate a settlement we offered him much more than we had billed on this case they told us to drop that at that point your honor there seems to be no reason for us under mcelwain or any ninth circuit authority to say that at some date in the future if they ever get around to it we have to pay all their fees so i think that was what my associate was trying to communicate which was if you're going to continue on this we're not going to agree to pay for it and we don't think we had to pay for it under god thank you very much