appeal here the the court acknowledges our number on the amount of controversy but says that olympic steamship fees but add to the olympic steamship fees that he did terminations clear of legal error and the district court appears to have worked backwards from the five million dollar requirement under kafa to the jurisdictional help but just simply filling in the gap without any evidence that attorneys fees could ever reach that that number the court anticipate that the coverage issues may have to be really to get it again in federal court and so therefore the anticipate it but on a crude attorneys fees for that portion what then have to be included under limbic steamship the court what the court said in its order the court had no hell no hearings and heard no argument here through any of this proceeding so it's a little hard to tell but what the court said in its order was it was unclear why the judge twelve gra b six that there's a lot of things that are already here and one of them is what is the coverage question it seems to us that if you are going to earth guy who is going to argue that there's a coverage question that they should have to identify that they have the burden of proof here of saying identify the question show how it will come you know result and then put on some evidence under a bara of what those fees will be in this case there's there's no such evidence that that that number of fees could ever reach that level and it can't under washington law because the olympics teams that we've cited cases like mcgreevey and dayton watch and supreme court case that says clearly you have to segregate coverage for the coverage question which was litigated for under ten thousand dollars and at the beginning of this case from any other fees that might might be recoverable for the class action so if you segregate those that number is so small that it could never fill the gap between our number that the court accepted and the five million dollar requirement in addition there just simply is no way i'm amazed and surprised that legal fees could ever be the one point well your honor we have actually litigated this question against a number of insurers for a very small amount of money it's just a very clear coverage question it's all damages that are were legally entitled to recover it's you're saying it's very clear higher than one point three but not due to coverage just litigation of disputed claims based sure the the claim yeah the attorneys the total tourney's fees which would come out of the common fund not be added to it but come out of it those fees could be high but that would be part of our same amount in controversy that we've suggested that it appears the trial court accepted those would those would come out of that they would be added to it so sure attorneys fees for for a multi million dollar class action could be over a million dollars absolutely we would never argue that's not true but that's for the underlying claim not out of the total raise that and i t's only these added attorneys fees that matter here and we can't dispute the case laws as that you can add fees where there is a clear legal basis under washington law or the under state law for four separate legal to get coverage for which it paid you have to give the fees for that coverage dispute because otherwise you're not getting the full benefit of the insurance that you paid for that is what a lympics to me it's a very narrow rule that just allows you to recover just the coverage amount and mcgreevey directly says you must segregate that and you can only recover that so there is no evidence in this area and actually the drug judges orders as you look if the district court judges if you look at their or his orders what he keeps saying is a says it in writing many times the total fees in this case could be over the amount and it could be in seven figures but he never there's never the link how could the coverage action which is a very simple small thing that he says by the way at s c r two eleven he says the plaintiffs are right i could dispose of the coverage question easily but it is true it's absolutely clear on the washing the law there's coverage here and remember that our i'd also like to talk about in our complaint because of course we're supposed to look at that complaint in the original document for this purpose for undercover we it's under under insured mode is covered so the very definition of the class in the original complaint says if there's a coverage question they're not in the class only those just want to make sure i understand is to remain to the district court to make a evidentiary calculation evidentiary based calculation as opposed to what was presently on the record that's where you're on a look at the record did they put on evidence that would support a seven figure fear ward as a trial court as i say accepted or lower calf bound in controversy did they put on evidence remember  very telling and but can we tell that can we tell what the district court was thinking here because the district court says in a related and similar class action the court concluded that the potential for actual fees incurred could easily exceed the upper bound of one point six plus some change million dollars relying on the district court's experience in the mcgraw cases as i understand the record there was no segregation between coverage and claims issues and either so it seems to me that the error in this case if there is one is in the failure to acknowledge and potentially segregate fees under steamship olympic between coverage coverage versus claims and so district court have an opportunity to do that in the first instance you may be right that coverage disputes might not approach the one point three million dollars to cover the gap but that's the district court's  role in the first instances and i certainly understand what you're saying i would like to explain what happened in the gross so it's clear in mcgraw the geico said that the fees in that case not this case that case could be that number ok and the judge said oh well then you must have known that from the time of the complaint and he sent the case back to ok he used their number which was just you know came out of thin air and he said well if that's what you think the fees are i'm sending it back because you could have known that from the outset right so that that number wasn't really established on evidence that we presented or they presented it was a number that was just basically you admitted that's the number so i'm sending the case back to peers case pre court i don't believe that it meets a bara to pull the number from a different case that was never established by evidence put it in here stick it in to fill the gap and say oh look we're we're over the i could never that could never work and and last co heads put into this record now sufficient evidence to show that they're there possibly could be a an olympic steamship award which really is inconceivable of in seven figures that unless they have evidence of that  they failed to meet their burden in you you should remand back for a remand back to the spirit court which is where this this case really born this isn't a proper federal case this is another issue or potential area of additional factual finding and i want to see how you respond to that you proposed a number of compensatory damages and that geico proposed a number and the difference is about seven hundred thousand dollars or so that the district never really resolved the district except that the lower figure for purposes of this case determining kafa jurisdiction because the district court bought that any potential attorney's fees would more than easily cover at the gap  that way high it's forty percent higher than our number we showed the district court put on evidence that it's forty there they've they're over inclusive on our basic statement we believe that we established on the record we don't have a burden of proof here but we believe that we stay was on the record that he there forty percent too high and so that's why he accepted the number at the end now in their appellate briefing here they've raised for the first time a number that doesn't hit the katha no it's a page for about forty forty one of their responsive brief they've done another calculation a new calculation that does say that was never presented to the district court it was presented and then stricken by the district court and while we ask you to consider evidence that they struck that the judge struck of ours and we brought that motion and i couldn't do that so so that that's been stricken but but their own math suggesting they can't hit the kaffir without the attorneys fees in this case in that case being hundreds of thousands of dollars and again the only evidence in this record and we ask that you do consider evidence on this shows that it would be may please the court good morning my name's dangle fine i'm here on behalf of general there are actually two findings of fact that the trial court made below that you'll have to address and frankly reverse finding clearly erroneous we've talked a lot about the one point three four million dollars here on the one point three four million dollars was based largely on the judge's experience trying to predict how this case would work out and g limit judge without holding any kind of evidentiary hearing on this issue i can say well i've been around a long time and i think this is what he would a tell me the case is permissible yet i think under embarrassing the logic in express language of lacrosse and will bear excuse me they say that there is an on reported case of the ninth circuit from two thousand and two that squarely says when trying to actually still ran so what about that well i think that the most important thing for this particular case he went back and looked at mcgraw and frankly there is about twenty odd all insurance related cases that judge settle has touched or has been looking at he went back and looked at those and used his experience and came to the inclusion in if i may just the posture here's a little bit different than what  has suggested the court did make a finding of fact that there was more than six million dollars worth of damage is at risk in this case that finding in fact was based on rule fifty six like evidence that position s declaration evidence exhibits made that finding a fact post that finding in fact they may move twice for reconsideration in the concert in the context of moving for reconsideration the judge said ok i'll accept he didn't agree he didn't make a finding of fact that their damages analysis based on their interpretation of the complaint their downsizing of the complaint in order to fit it outside of katha they didn't agree that that was right his regional finding of fact stayed there he just said to be candid he just said i don't need to address this issue because i know based on my experience and based on the submission here also supplemented by the evidence of both above the five million dollars threshold even if they were to accept the smaller number which is dependent on redefining the class in this case so as i said those two finding effects of one point three million dollars that you'd have to reverse and find was clearly erroneous and the six million dollars plus from the original motion to remand on damages absent that the case has to be affirmed and absent both of those findings here i think what the model for this court to look at is the king county case king county case was fully litigated to fruition challenging throughout coverage coverage related issues and the entirety of fees were applied there wasn't a segregation and as at this posture in determining what potentially is the amount at stake for this court to determine or for it for the district court to determine that's the case  geico it's not only the general coverage language of the court but address saying there could be differences interpretation of the policy but also whether or not coverage was triggered by the named to name plaintiffs or the class reps excuse me the absent class members or whether or not the cut whether or not the damages suggested the injury suggested at the damages the injury suggested is the type of injury that's cognizable and washington la goes going to litigate appeal the coverage issues it's not just the simple case that they can throw out that and again the standard of care and that the standard here and that standard the standard here is not what was likely resolved is the point of suggested here the standard is what is potentially the amount at stake the reality at stake here and that is in fact the reality now like to address three misstatements made in their briefs if i have a couple minutes here the first misstated i ask you before you get to that even if you're right that the potential fees at stake could easily be in excess of one point three million dollars or let's say it's one point eight million dollars what amount of that is attributable to coverage versus claims that to determination that has to be made by the district court and as i understand the basis could be tied solely to coverage issue which is what the olympic steamship is all about because the washington courts try to segregate if you're able to do that in this case where coverage is more of a legal issue and then the rest seem to be more factual issues it seems to me that the district court could segregated and i didn't see any attempt to do so on this record you're absolutely correct that there is no attempt to segregate on this record but i think that that's a misreading of the way the olympic steam mcgreevy exception applies mcgreevy exception is the narrow and this is the flip of what the point of say if you read the cases and it's not i can't do the who shot who here you'll have to go back to the briefs their brief a thirty eight for thirty nine in our brief a twenty to twenty four to get to this but the exception under lympics steamship is very narrow it's the amount of fees exception and it's the rule under olympic steamship the general rule if a lit igant if named class members or absent class members if they have to fight it to win they get their fees and it's only if there is a separate and the only case under washington law is if there is a separate distinct hearing for damages only post the coverage resolution or liability resolution here so in fact the court did what's correct here which was not due the segregation promoted by plaintiffs below to separate out what he was guessing at it the way this case may again under the standard that this court has to apply here the way that this case may be played out is that geico fights coverage the aspects of coverage from today to appeal and that's the judge made his ruling based on that he says that you know in essence and i don't think underdark cherokee district courts are required to have a full blown evidentiary hearing on every issue they're there they're expected to take evidence and understand what's taking place here but they're also not expected to divorce reality at stake that's the language of the ninth circuit uses quite frequently and that's and that's what took place below the segregation does not have to occur to come to what might be at stake for the parties here the other thing i would like to say on the common fund evidence that was presented that's the type of evidence that might be available at this point in time and again there seems to be some divorce here that the common fund evidence where courts say that these are reasonable attorneys fees somehow doesn't reflect what might be at stake at this at this case i mean you have to have earned the common fund evidence the court has to make that fun finding and these cases either get resolved these particular series of cases brought by the same lawyers here is either get resolved by defendants winning on a dispositive motion or appeal or there's a settlement getting all the way to trial there is not an example for the court so the court the trial court did what he could to challenge that based on some sort of segregation that's not required under washington law frankly i don't think it's fair to the trial court getting back to the three misstatements in the record  the first misstatement has to do with the complaint and they repeated that misstatement here the initial and amended come one you want courts of appeals to be fair to district courts never heard of that we can record are excerpts of record at nine and twenty six to twenty seven that the class quote includes all insureds without use of their vehicles for a day or more at any point in time during the entire period that where they were without fact is supported by substantial evidence to get to that number they have to change the allegation they have to modify it and this court's decision and rock the supreme court's decision ols clearly bars the second misstatement is in their burden shifting argument they complain that the point that the judge shifted the burden that's not what took place here and their arguments based on basically they don't even lips they just omit the two following sentences that the judge said the judge took evidence on the six million dollars of damages he took the evidence of mr antonov cheez declaration he she explained how he got to the class size the judge accepted that and i'll quote the trial court quote more importantly he specifically addressed the failure to exclude these insureds from his a search from his search and to not a declaration paragraph fourteen open parents that are called the exclusion requires a claim by claim analysis plaintiffs failed to counter this evidence as i understand the way things are supposed to work and obviously you know better than me is that if if one party presents evidence the other side fails to counter it that's the that's the end and that's what on the six million dollars plus for damages absent any fees that's what the court found and then the last misstatement which is at page thirteen of their brief having to do with the state court ruling they they seem to walk a bit away from th misstatement they say in a state that the state court resolve the coverage issue that's not the case the state court denied a motion to dismiss there could be many grounds and frankly the trial court that may alleging might be a factual dispute as to whether they trigger coverage or whether they suffered a cognizable injury these are the issues they're going to be tried in this case and to suggest that coverage was resolved very easily resolved is b coverage issue could be easily resolved as well i don't believe there's a finding of fact in that this is the motion the order in the motion for reconsideration at the time of removal plaintiff's assert could possibly rewrite absolutely that's what litigations about both sides could be possibly right that in fact coverage could be resolved but again coverage is a broad issue under washington law under steam ship and i again point you to if i may exceed my limit if i may finish the answer the question i point you to king county in that case and how it plays out in reality is that all the issues the coverage and the coverage related issue whether there's a trigger to coverage whether that the injury sustained is a cognizable injury under the under state law for coverage those are issues that get fired out through a lengthy trial and if plaintiffs were to proceed you know it's a bit perverse that i have to argue this they were to proceed they would certainly argue that they were entitled to all of their attorneys fees  and you've got some additional time for about a council thank you very much you are just three quick points first of all this is not a downsizing the guy who continues our we're downsizing our initial complaint which i read to you says the class is this big for instance in the standard fire supreme court case there was a class that was this big you know seven million dollars or something and what the plaintiffs did was say oh we'll let go of the two million dollars of their say we're not bringing all those claims they said we'll let go and the supreme court said you can't do that because the class as a minister and what we're starting here were saying only people that guy could determine the laws to be covered under the and ensured most covered would be included so if there is a coverage dispute they would be excluded from the class right that's the first thing counsel read to you the second part he read he said who received payment to substitute transportation he was reading from geico during the entire period that they were without use of the vehicle he said we misrepresented that he left out the first part of the sens which is excluded from the class that's paragraph five point four or those who receive payment for substitute transfer i mean it's exactly we are being very honest with the court about what it is  i also want to point out two other things first of all what the judge did here would basically destroy that calf of five million dollar limit if you can just say ok whatever the number is in and he did appear to accept our number at the end i'm going to fill that gap if you can work backwards that's not the kind of reasoning that i think a bar a logical reasoning a bar requires they require this  filling that doesn't exist in this case and then the last thing i want to say is since the class only includes people who geico has determined to be covered they've actually paid the u i and claims in this case that it would certainly be the height of bad faith and the reason you've never heard to this moment geico tell you what the coverage dispute is is because it would be the height of  for them to turn around now having paid the claim and and claim there's a coverage and that opens up a totally different can of worms which i believe would be a separate cause of action or if another washington law for bad faith violation of their duties under that country this is a pure breach of contract claim we say they breached they said there's coverage they didn't provide all the coverage available that's all this is and coverage is really an entity or non issue here thank you very much all right we've got the argument thank you very much to both sites matter submitted for decision