freeman smiley and i was just formally substituted into this case yesterday for purposes of presenting this whole argument i think i must have a sense now of what it must feel like for a relief pitcher in a professional baseball team having just been traded to a new team to be asked to go in and i think with his new team behind him try and save the game so i'm going to do and i think do thank you the key and resolving doubts in favor of the party opposing a motion for summary judgment the issue is whether the district court was correct in including that there was no evidence before which when analyzed in the light of jigsaw puzzle to create a different puzzle picture than one he saw but don't you think so if we allow your client to go forward that really were were endorsing a sea change in the way th there's no question just stipulate it fact that it wasn't curtis movers that paid for the additional five hundred thousand dollars of additional coverage print or some number fo manipulated but the building through to go circle gold circle paid out and in fact the seven hundred dollars out on which apparently was a profit to curtis on their policy curtis didn't do this in the seller to investigate those duties were owed to the named insured i understand that your honor but i am saying is that you know i understand but i mean you could even though you paid for it you really can't create insurance coverage by third party agreement you can't alter the coverage the coverage of the coverage regardless of who pays by any arrangement among third parties you'd agree with that i'm in general but i have that's not the only fact we have here yes but then but then you have to get over that hump and actually imply a duty to directivity from the transcon pany to your client and that's that's why i think the direct to the actual to run your honor from the insurance company to gold circle and by a promise by any insurer to reimburse curtis for amounts they may become liable for either for  reasonable expectation of the parties in the intention of the parties and didn't have enough evidence perhaps to be clear on what that was but a million ordinary circumstance when one has a hires a assess home over to move their home or residence the contents from one place to another you are asked would you like to insure it mean you are your only opportunity to pay money to the moving company for there to be coverage to cover your your furniture or your household goods that are being moved and the way it actually works it is is that the coverage is coverage for the moving company against your claims if they damage your materials in transit but the expectation of the parties and certainly the buyer of that coverage is that they're going to have an ability to reach a fine that will protect them in the event that the moving company damages their goods in transit it's not going to it's not expected it's not thought of as being well i'm buying more protection for the moving company so that you know if i have a claim against the moving company the moving company is going to be in a better position to respond to my claim and that's just not the normal expectation parties nor the intent of the problem we have because this is being considered an appeal from a motion together in the right way the fact is the bill of lading blank area did not have to be filled in at all but it was it had a value of six hundred thousand dollars written then and that bill of lading and that addition to it specifically together with indorsement number four which was paid for by whole circle without without a contest specifically creates a picture of what at called circles intentions and expectations were by buying this additional coverage i mean it is to the point of somewhat and i don't mean in any way to be disrespectful of the judge was not had cases before in fact i'll be here before him tomorrow afternoon but i think there was a gap in the logic to think that anyone would voluntarily pay money to a carrier so it could increase its coverage it's solely for the benefit of the carrier with it but those are the reasonable expectations of the shipper and and the person to  the person trusting the contents to the shipper that does has nothing to do with the reasonable expectations of the insured is that the insured doesn't own other words you have to before you pay what was insured in this case was not contents insurance or property damage as we the suit thirty thousand dollars you want i think there was both a liability portion of this policy and the property portion of the policy i think that that is a that is something that needs to be focused on it would not surprise me at all the expected that goal circle would have insisted that both of the and sentience be added as additional issues words but again see that has to do with the commercial and reasonable expectation of the parties in stepping up and giving more money to a carrier for the purpose of additional coverage and it couldn't be more clear that this that additional coverage was for this specific property the to be moved on the specific date if it did maybe the moving company had the option of saying ok if you're going to declare a value of six hundred thousand dollars we're taking a bigger risk and we're going to charge you more and we decided to sel or well you know i think that's a reasonable thought process certainly i'm just not sure that it's justified by what was before you know which was very limited which was before judge wellstone below i mean that's what they did to expand maybe they're saying well we'll insure for five hundred thousand will bear the risk of one hundred thousand and  as much evidence as there could have been and perhaps should have been you know with the benefit of twenty twenty hindsight but what was there before me when all i'm arguing is that what was there before him and the reasonable initial inferences that could logically and rational drawn from what was before him could allow for an irrational trier of fact upon presentation of all the evidence to conclude that there was an intention to benefit such a hard stance against third party direct third parties to is against about facelifts against insurance companies other states including my own have gone the other way maybe my own family montana allows direct action and you'd be just fine in montana but but we're in california and california says no third party actions you get an assignment of the thirty first party bad faith case or in some rare circumstances when you're there's a it will allow third party beneficiary case facts and circumstances that that is the correct way that the law should be applied i mean i guess the legislature could come out and say flat out it doesn't matter what the facts or circumstances are ever  circumstance in any client there will be no and that's really not of her you know yes we certainly do have a strong line of cases i realize i'm swimming and trying very hard swim upstream on this but i do think that this court has the opportunity on a down over standard to reevaluate this in the light of the facts and circumstances known the concept of reasonable expectations of the parties and look at what it really has to focus on his is it possible is it conceivable that if all the evidence were allowed to come forth in a trial would there be absolutely no chance no way as a matter of  did it for this property damage and that points out the point your honour's have made earlier that this is liability coverage the policy does have property damage coverage but that's not an issue here the issue is just with the coverage is for the name shared curtis movers liability if any that's fundamentally different from the suggestion that this policy was intended to provide coverage for damage to his property property could be damaged it didn't convert the cargo to life of heart it's called cargo legal coverage didn't convert that into first party coverage such as in the shade suit case for example there was a first party policy that covered certain  described schedule property neck ace it was called stock in this case whatever property was involved in this case is not a schedule it's not part of the within the anything with property coverage what we have is exactly the insureds adversary the third party claimant suzi insurance company and says you should you not hand in this claim properly if you're liable for bad faith because we are some sort of a third party beneficiary and his policy the california might recognize its third party direct action against the insurer i think it would not exclude would not because this is no different from any other situation any other form of liability coverage automobile coverage for example  buy liability coverage and it protects it provides protection for the persons you crash into and persons you harm to whom you look a liability so that person could serve the same position to say you bought the liability coverage it was designed ultimately to protect me because i get the money yes it was for the implications if you take it in one direction but on the other hand i think there are some cases what you could argue that in fact that there was a specific third party that if the issue mind on this this may be one of them maybe the evidence is no duty by the third parties that is for payment that there might be an implied covenant imposed on that duty well in this case there's no evidence that there was intended to be a third party beneficiary because there is no evidence doesn't it tend to cover the pride property damage coverage for his property as opposed to increase the legal liability coverage for the insurer we've had discussions about the bill of lading that's not part of the insurance contract that's not part of any agreement that the insurance company was part of endorsements for if there was talk about gold circle purchased the policy goal circle didn't buy anything curtis movers did curtis movers had is an endorsement that raises the legal liability limit for a particular job and that's not to say that inherent in that somehow is a suggestion that we're going to provide property damage for this coverage independent of legal liability of the insurer that's fundamentally different risk because it probably could be damaged for example through no fault of the insured or beyond the contractual obligations of the insuring the property would still be damaged that's not covered in this policy it would be if there were property coverage because a legal liability is not limited to the persons involved in that movie it's chris movers general liability and listen that does not go then i mean if we resolve that that might be a factual issue factual company to provide property damage coverage for this move as opposed to providing liability coverage for legal liability resulting from this move and in fact the record shows that the insurance company fulfill that bargain it's thank you for the opportunity just court one more time with all due respect to the curious position i think there's a certain amount of soft street it's being engaged in to say well it's a liability policy it isn't to protect property the property is specifically referenced in the in the policy itself insuring agreement created the obligation on the part of the carrier that in addition to providing defense coverage to defending against any claims also deliver mr livery or damage or loss to the shippers property well the shipper is clearly goal circle that's very very clear from the bill of lading you know the idea is to create a fund that there is an ability to recover from without having to change herders around for assets and i think it's also inaccurate to say that this indorsement number four the purpose that much more general liability coverage absolutely did not it was specific to the property that was going to be moved on that specific date certain in august of two thousand and one was specific to the property was reflected in the bill of lading kurdish didn't just decide you know instead of having a one hundred thousand dollar policy or two hundred fifty thousand dollar policy to have a larger policy in general it was decided that you know our choir where to have coverage they wanted to have a valuable group of equipment six hundred thousand dollars worth there was an ability to obtain more insurance for against or at least the goal circle then i think it doesn't resolve that and the fact that there was a resolution of the direct state courts to be against kurdish doesn't mean that since you studio received all that it should have as a result of the actions of means that the case was resolved on a nine i need settlement it doesn't mean that there's no independent right of action and it doesn't lea and i think that goes together your honor i think i think there is that's the whole idea behind it sure it's just used to compensate for a loss by the once if the loss is determined to be thirty thousand dollars your only argument on the covenant is i didn't pay is most assuredly a place in the law and in the analysis for purposes of granting a motion for summary judgment to look to reasonable expectations and common sense and i believe that that be done here and i think if it is in light of the unique facts and circumstances of this case all we're asking for is that there's an opportunity to fully flesh out this case it may end up in the same result a trial but it should