it's probably over a million dollar exposure here so so great discharges its coverage in this case when with the duty to defend and indian harbor policy ever be trigger settle it with is satellite explained to me how other than in this circumstance they can settle it with the original plaintiffs without releasing your client as well well for example there's plaintiff cannot because greco to be legally obligated to pay its excess basically the spotlight is now on the access carrier which is why a lot of people assume most people for that it doesn't exist all the cases in texas which have directly addressed the issue with the exception of one have all concluded that with respect to applying twenty one forty two the focus is on and haven't seen a residency of the insurer even though some of the benefits are payable to an underlying plaintiff in this case there's absolutely no dispute that both the shard the named insured and a growth of the additional insurer are not residents of the state of texas and therefore it's wrong one factor one is not set even if this court were to look at and determine that for some reason create a law that is the payment to the and gray is a louisiana resident there's absolutely no context connection with the state of texas with respect to the issuance of the policy of the church and that's a key to the third prong was it issued in the course of the company's business in the state of texas and the rationale for all those says drought is really clear twenty one forty two can't have exter territorially effect and that's the way the courts of limited the effect of trying to apply texas law state taxes would ever be subject i slot that's not with knowledge like p p case that if a policy is issued to an out of status hearing that covers exclusively property in texas texas law should apply to that situation but that's not the situation neither one of us has disputed that factor two we probably forgot so that one's neutral so the real issue is what about factors three and four and the biggest problem with the district court's decision will actually  one place deficits on those factors when it should texas law is clear with respect to a multi state policy that the place of performance and the placement of the risk is not relevant in fact let me read from the coachmen case and it says in the context of insurance coverage case the fifth circuit considers a state with the most significant relationship to this view of the state with context of the insurance dispute not dead or lying lawsuit and if you read the has any identifiable interest in a dispute between the payer insured and its insurance company the state's only interest in the resident tort victims compensation and then if you look that moreover applying texas law courts have adopted the reasoning of comment a section one ninety three to hold that the location of the insured risk and the location of the subject matter of the contract are neither significant nor determin situation in texas texas law that the exact same factual situation occurs in louisiana and now all of sudden louisiana law applies and you're giving two major protg sions to the exact same policy provision that causes havoc in the courts of state cases for proposition and we have now i will acknowledge that wisconsin and louisiana direct action status states which have addressed the issue and both concluded that the payment your similar policy language or identical that the payment of policy limits in exchange for a covenant that you satisfies the quote settlement problem of the policy language and therefore extinguishes the  to say the let a geisha goes on and if the litigation goes on continues here your obligation i mean under the interpretation of a settlement has been no settlement litigation goes on your duty goes by virtue of your own power should terms because your duty ends only when there has been a judgment or a settlement and if you have not asked if there is no settlement here the key is if the insurance receives a benefit does that then constitute a self which is why continental is a up like old second of all if the middle truly over ruled it out then it would have to obligated because there was no release and as we don't consider that because it was raised below i mean it's a clear waiver of that argument which is really the argument that's being made here how do you get around that i would direct the court to the paragraph just before the footnote and that's that's what that paragraph says is if their release is necessary there has to be prejudiced so i don't think you need to get that far because in this case just like in just one there was no prejudice insured by obtaining coverage not to execute is that in exchange for policy it's second of all that argument reads language in the policy that's not and that would violate a fundamental tenet policy or contract construction to read in a term or put in a term that's not in the fall the phrase says saddam saddam our judgments it doesn't say release and we know gray meant that a release wasn't necessary because if you look at another policy provision dealing with one of the in third party beneficiary considered great it says there has to be an agreed settlement and a full release they knew how to put the word and release when they wanted  question was asked the other side if we were to agree with your position and in these high exposure cases you know wrongful death cases cases where there's clearly going to be well beyond the primary sure's cap of liability when this allow the primary if gray can't settle the case who can settle the case the excess carriers are excess carriers going to voluntarily jump in when they have nothing no skin in the game the answer is no they sit back we don't have to pay the duty  f it's not on our dime and let's see what happens and in fact that's exactly what happened in this case didn't resolve mediation it went on for a year and happy for the excess care is finally settled and so what benefit to the great good to their