the ground on which the court granted the summary judgment and no voluntary pain that issue from the insurance policy and the other one is the ground on which we believe the trial court correctly united summary judgment and that was voluntary payment closet the policy means when it says insurers should not assume an obligation but madrigal was doing at that point was getting out from under an obligation that have an obligation to pay millions of dollars in liability and when it made that agreement it no longer have that obligation so it was not incurring a greater obligation than it previously had therefore it did not violate the no voluntary payment clause or at the very least that would present a factual question of whether doing so constituted incurring an obligation secondly even if it did constitute incurring an obligation of the doctrine that no voluntary payment clause does not apply when the is forced out of economic necessity or because of breach of a policy provision by the insured by the insurer to make the quote voluntary payment quote here we have the issue of economics is there anything in the record concerning america's financial situation prior to the settlement that would indicate that they were rushed by economic necessity to settle as opposed to just facing economic pressure ye a declarations without a thought secondly the other issue is that they had an ongoing business in any event they faced a close to five million dollar obligation with a one million dollar insurance policy and there were force made effort declined so even after it had noticed it declined to startle them for them to say the madrigals were not under economic necessity and that there was no breach of the insurance compan court correctly the district court correctly recognized we seek an opportunity to have a trial on the issue of whether there was prejudice to three great from that i have a little difficulty with  moment and you're your expert middlebrooks declaration which is the most elaborate one the most recent one basically puts the settlement value it at three hundred thousand dollars and that's what he says a reasonable insurance company given an option to sell would have settled for so i don't understand bottom line given all that i just said why there isn't a tribal issue of fact on the on prejudice because even when the insurance company had an opportunity to settle for two hundred thousand doses that's irrelevant and here's here's why i think that's totally irrelevant the the opportunity to settle it two hundred thousand kima after the do with madrigals liability at trial so that two hundred rejecting a two hundred thousand dollar offer at that point has no bearing on the settlement value had there been time you don't have a prayer i don't think any court would say that as a matter of law the insurance company established prejudice simply by the fact of entry of the default judgment regardless of the numbers that issue would still be which is well under under there and nobody nobody has expressed there is no opinion in the record that that sphere drake will not have settled at that figure the only evidence in the know that they would have settled and that's would be a jury question that's what the evidence why because there's no evidence they wouldn't because there's no there in just that but we can see there is evidence because even after after the judgment was enter that in this case looking at the evidence in the light most favorable to all the figure wrote us that there's no prejudice or one thing we don't know is we don't know if the insurance company we can't you know if the insurance company's insurance company would have accepted an offer for twenty five thousand dollars before judgment but how would you know i would you know that is a trial well that's my that i think that's exactly the point we would not know that all orchestrated by the same lawyer representing both the insurance company and the insured so we have this you know this interesting added factor that it's judge reimers question is premised on the fact that because a default judgment had been entered and the settlement was made we can never know there's always going to be prejudice it's a matter of law then the attorney advising the the insured needs to make that clear to the insured you just said it but the issue with the attorney you're really talking about implied authority of the insurance company under yank her if the if the attorney theory of agency so if that if that is correct how in the does the action of the attorney get you anywhere you know i think you're on is correct i think i'm not i'm confusing the two issues that the voluntary payment and the prejudice let me go back to the prejudice because that's obviously what's troubling the court there's something else to take into consideration in addition to the numbers that the people talked about there are a lot of issues going to whether late notice  late notices prejudicial and whether late notices excused and there are many other issues that would need to be explored in a trial apart from the dollar amount that the case might settle for such as what was the relationship between the person that was not an issue in the summary judgment motion in the in the insurance summary judgment ocean and therefore we didn't know if there was like this voluntary payment thing coming up late that we didn't have an opportunity to raise it but i think it's one other thing that's interesting from the budget its point of view and then i'll reserve the rest of my time for rebuttal to the district court believes that it was inappropriate to measure the potential risk at either party assessment the district court believed the risk had to be measured against the one million dollar policy because that was the risk that the insured that the insurer faced chose not to settle and to go to trial and face the possibility of having to pay out its full policy and because it had an opportunity to settle for twenty percent of that later it never was it assumed that risk i i i think the facial expressions but you know assume the risk of paying the whole policy if it went to trial so it was facing a million dollar obligation it only could show prejudice if you establish that because of because you didn't get a chance to go to trial it would have on more than a million dollars and it wouldn't  include a pot posting an appeal bond under the terms of this contract which talks about a particular bonds that the insurance company is obligated to post under the supplemental actually insurance company construction i want i'm also relying on the on the absence of any good faith obligation under the circumstances of this case where the insurance company comes in with a five million dollars judgment already entered that the insurance company does not have to to factor cover that  would have prevailed in the action or that it would have settled the case for a smaller smaller sum then from that for which the insured ultimately settled the claim the word in fact is not would but could the insurer could have settled the case for a smaller sum than the million dollars all of the declarations all three of the declarations from experts show that the insurer could have settled this case for well under a million dollars to the district court went on to determine try to determine whether in fact there would have been a settlement of this sort but that it shouldn't have done because the only question under flack is whether there could have been asylum and explained the priest leaving under the would have analysis the district court erred in this respect but i thought has the not only the duty but the right to control the settlement and that includes the right to conduct negotiations and determine whether to settle if and insured is  unhappy with the way that defense is being conducted and think it's not being conducted properly then the remedy is to wait await the result of the litigation and file eight separate action for the insured is not allowed to do is to short circuit that process to settle without consent in a way that eliminates the claim which is exactly what happened here by waiver of the appeal rights and then come back with what  five thousand in the settlement discussion stopped and i think after that last model on behalf of medical directly negotiated with with the think about us and came to the settlement that said if you in this case that was not consented to by secure greg so so really there wasn't  generally courts the two parties are aligned in defending a case but in certain ways they can have different interests and you point to counsel's primary duty is to represent the interests of the insured in defending the case in this case and that that prints well stated in  didn't happen so if that did happen once as argue well don't know if that happened then you would have been kept informed of the discussions with the medical and presumably would have happened but the dilemma for me frankly is that i'm the one here and you're injured by the fact that a five million dollar judgment is staring you in the face theoretically although you have a one million dollar maximum policy obligation than any bad faith on the other hand if you knew about it through counsel and you can stand it to it that puts a whole different spin on i wouldn't agree if we consented to it absolutely no one's even contended we consented to it as i said other then by implication because the council we appointed negotiate it right there's no argument that we ever said that's fine we agree to that settlement i think there's consent that there's agreement that we never would have why would we ever agree both yeah it seems to me that council created a direct conflict by settling out magical and leaving the insurance company holding the bag and less  claim something else that's right that's right i guess so the trying to think what else what else to say i think that the circumstances of the of the settlement here have been have been explained and the fact that the insured ended up with no liability ultimately merit versus reserve insurance company a california supreme court decision it's an incident of the duty to defend and appeal to furnish an appeal beyond the citations on page seven of our reply br determined that madrigal had assets that could be used to partly partially satisfy the judgement there also interestingly enough a letter in the record from the attorney by virtue of their financial circumstances rather than that they made a voluntary choice to settle taking all things into consideration i suppose that's a question of fact considerable assets versus assets i don't know  considerable assets mean you have more than five million dollars in assets mean you have less but you have a growing business and there's a stipulation that you have the assets available to satisfy the judgment you also have insurance obviously you prefer your insurance to your assets to satisfy the