removed to federal court by berkshire hathaway it's a it's a fairly fact intensive case so if i can spend a moment with that in june of two thousand and thirteen  paul what he said well ok i really don't need an employee but we've casey in the summer time we have demands on our resources that we don't have the winter time being in jackson hole radio so  rymer was involved in the iraq in idaho in july of two thousand and fourteen he was driving a wrecker owned by big bear which was permitted under the independent contractor against big bear for back past wages and the reason that's important is because that goes to the wyoming workforce department labor standards division and they have a hearing whole for one hundred thousand dollars for damages that heat allegedly suffered in that wreck and then what brings us here today he also files for our files sends a letter berkshire hathaway making a claim under the under insured motors coverage of the commercial policy owned by big bear towing and the woodies in there the under that policy the insured numerous vehicles a tow trucks wreckers that sort of thing and who is the insured the driver of the vehicle under the claim you're you're correct so are you attempting here to assert duties and rights of the insured was rymer when those duties are not  you know the the the interests of big bear in an rymer work coincident for a while big bear didn't mind really that reimer collects under the under insured motorists coverage because it benefits them in some way but it is the manner in which berkshire hathaway accomplished that they created a liability for how do we ever arrive at that duty in your insurance coverage it's a it's a it's a broad least it's a compulsory policy it's a business policy there construed strict  compulsory policies are consumed most strictly against the insurance companies they did give would he know the call actually e mailed mr woody early on saying by the way there has been a claim made he responded within a day saying i didn't know that let me know here's what i know by the way mr reimers independent contractor and it appears in the claims pile is there anything in the insurance policy that changes the coverage under the un c provision based on whether someone is an independent contractor or an employee's so long as their driver of the vehicle know that it doesn't matter so i don't i'm having trouble understanding where this duty arises i understand and it it's it's a it's a very must see very unique it's a unique set of facts we can find a case anywhere close to this and again it if it occurs because of how berkshire hathaway accomplished its purpose which damaged the named insured big bear in woody and they did it like this they entered into a virtual three enters into release with reimer for the princely sum of five hundred and fifty thousand dollars which was quite generous on the release you might want to look at it to see if it you know if it's ok with you because this potentially affects your financial interests they don't know they don't do that we give them no notice and that's the stealing rather fiduciary you know i mean we need coverage we need this coverage to be within the policy i mean it would have been nice if they would have done that it would have been a friendly thing it would be good business perhaps but is it the court says it would have been nice it's exactly your point now it would have been nice it would have been decent fair and reasonable these are all they add to is that the courts use to advise big bear but the the insurance company can't bind the agency to a determination of whether somebody is an employee or an independent contractor well i disagree with that because something could going to collect delinquent workers compensation payments from an employer depends on whether work for services decides that the that you're an employer as opposed to an independent your beef is with the agency coming after you for delinquent payments because you say they're wrong we didn't have any obligation to make these payments because reamer was never our employee  was going on we could have affected the outcome with worker's comp but nothing in the insurance policy would deny mr riemer benefits under the policy if he was an independent mix doesn't let big bear know at precisely the time when big bear could do something to effect that you could say well wait a minute you haven't pick into the into account workers comp that your labor standards division in the same building just down the hall as already determined that robber was in town contractor so yes while it doesn't matter for the your amp coverage whether he's an employer or independent contractor it makes that all the rule of every time for in terms of what workers comp us and further to that mr woody just notices that is premiums double the next year he doesn't know that he did what's going on they do a last run and they see it and then he contacts bircher hath went omaha finally gets to and talks to  gomez and she said oh yeah we said here's the release don't have don't worry about it because the release requires mr rymer it does in this is actually attached to the complaint because it was such an unusual situation i want to get the facts in front of the court anticipating these kinds of motions which we occasionally do in the court of the e mails it does state that mr rymer was responsible for payment  she's a lawyer back in ohio so but that's not necessarily germane to why we're here today so our st before you will with with the district court  is it should this really we should really be here in a summary judgment decision if anything there is all kinds of facts involved here and i understand that the district courts that not saying the fact that ok well i'm not going to i'm going to ignore that and rendered says anyway but what we know to be the fact is she the judge could not ignore it because she relies on the delinquency to reach through to get around that i understand that but clearly erroneous in our opinion  with respect to the that and even then and of the favorable inference standard not only did we not get a favorable inference as we got unfavorable inferences pacifically the  the deal of business about the delinquency that just so it's i want to be clear about this big bear was never delinquent on any worker's comp payments ever in the history of the universe until until r and big bear creates this liability for big bear up until then they were golden so if you disagree it kind of says what they were delinquent and kind of a generic way but and they created it with workers compensation to division the time for deal with that is long past the time for a deal with berkshire hathaway is still here thank you disputes that mr rymer was intitled to make that claim he was in in this one shared in the policy by virtue of the fact that he was occupying a covered auto book and an auto covered by the policy at the time of the accident what on the ground that there were no duties berkshire hathaway owed to big bear no reason to tell big bear that this was going on that a claim had been made and that you're paying the claim what the claim is no duty is the district court found in as we pointed out in our briefing below there's absolutely nothing in the policy that can post such a duty there is nothing in the law that impose such a duty are actually able to find a case that's contrary to what you're saying and that was the case we cited to the court out of florida where they said no no no no you've got it wrong mr policyholder the insurance company does not have a duty to notify you that we settling claims of additional insureds simply because of the fact that you had a claim of the policy for the same coverage and because you're the named insured that's an even stronger argument that than what exists here factually we don't even have those facts they fit neither mode john or was that argued before the district court the district court rejected that argument because you have to show st at a minimum that you're an insured they can't meet that threshold because they was the most analogous case that we could find that involved would be to classically or to their case is different because in that case the husband was actually the one who was suing right act that's that's not the case here but i don't i mean there are some significant differences between that case and our issues significant but i'm not sure how much of a difference it makes because what the court was emphasizing here named insured on the policy as was the husband who asserted the claim the husband in that case was deemed to be a stranger to the policy even though he was named he was a stranger to the policy for purposes that claimed no duties whatsoever  a good faith and fair dealing think about what that might have resulted in it may have resulted in in our causing unintentional interference with the contractual negotiations who tween rymer and the department of workforce services negotiating down th paid more money back to workers comp to his detriment what they're arguing is if you had alerted us we would have informed you he's not an employee which information could have been passed on work for services and resolved all of this up front without having asked to then get a delinquency charge it would not have mattered he hasn't shown how that would even locke and his insurance company that's it and the lien that would be asserted against you i'm you i am carrier which would have been berg sure hathway in this case so that's the lean we're talking about they got satisfied to secondly that we're talking about the employer for being delinquent on workers comp payments made for work just compensation premiums that arise when payments are made to or on behalf of a worker that's strictly between berkshire or between big bear and workers compensation they determine that he was an employee they might have different standards worker's comp division may have different standards in determining who is in who is not an independent contractor but at the end of the day what we have not heard is why is big bear preclude it from going forward contesting a lien and putting on its case that mr rymer was not insured was not an employee but  an independent contractor if we had done that i think what that might have done would been workers can't go after mr rymer to recover all of the payments made to you on his behalf because they made a mistake in him by the way you are lying to us and thank you for berkshire hathaway for you know that we could remotely zero to big bear in the context of this case they didn't make a claim it wasn't their claim it was mr reimers claim and we dealt strictly with him as required by law we treated unfairly and we glued all other considerations because there were no other insureds in this case in the context of this claim so that would be my response to that your honor that  we simply didn't know when he duties to come to the named insured in this case because it wasn't there it wasn't the named insurance claim and i think that in the same would be for  the situation here and the in there's a duty good faith and fair dealing on the part of the insurance company not to deny a st party claim that is plain for benefits under the policy unless you have a reasonable basis for doing so so in the context of this case clearly big bear doesn't fit either of those molds so again as i just as i started off this court me a pro can be affirmed the district court because there simply weren't no duties owed by  berkshire in the context of this case in the context of this fit case to big bear merely because big bear was the named insured in the policy again for purposes this claimed they were it was essentially a stranger to the contract in no to whom no m the district court because again there were looking to create additional duties that were found in the policy which is contrary the cognitive good faith in fair dealing to berkshire hathaway was doing nothing more than exercising its rights under the policy which was to adjust and pay claims in accordance with the u i i am provisions of the policy and finally what they were looking to do is to create additional rights simply not found in the policy not found in the contract which six contrary to what i mean wall so for all the reasons that for all the reasons why that duty exists this court can simply conclude that they don't apply here for the obvious reasons that would be contrary that the public good faith and fair dealing with regard to the both than this new insured in this case in the insurance company so we would ask that the affirm the well reasoned decision of the district court and find that the decision was proper thank you thank you thank you counsel thank you both for your