connecticut we are here examining a summary of the granting of summary judgment in the district court on an insurance coverage action that was brought by turner construction company against aurukun surance company seeking coverage for claims made against turner construction in a case brought by colton senior housing in southern california  allegations basically where that there were construction defects as a result of that turner had liability there were many parties involved in the underlying case in connection with that underlying case it's undisputed th juric provided a partial defense to turner there is no claim for turner for amounts that were paid in addition to his event defense however the claim  policies on which it is admitted that turner construction was an additional insurer zurich moved for summary judgment on various grounds the court granted summary judgment on one ground violation of  the the first point that we want to raise is that the district court erred when it place the burden of proof on turner it was alleged as a special defense b zorak that turner violated the voluntary payments provision and indeed the policy itself on the conditions of coverage has a specific provision relating to that which provides that no insurance will accept that their own cost voluntarily make a payment i'm going to miss some superfluous language without our consent and therefore it was zurich's burden to show that turner voluntarily made a payment without consent of  of this matter is hard to novo so on appeal the court does have the ability to correct that by providing the correct standard of review and holdings or if through their burden of proof and we believe that because they did pay a million dollars on behalf of western air the named insured under the policy with regard to the voluntary payments though we think that the district court actually set forth the is clear on this did turner enter into a settlement turner entered into a settlement agreement with the plaintiffs in the underlying case yes they did it for a money they paid five point five million dollars was that done w expensive there is no document nor can i point to anything in the record that says the jury consented to that directly zurich did agree that the settlement should be entered into on behalf of western air where they paid the million dollars which was part of an overall subtle little global settlement so who are the purpose of this panel considering this appeal we should assume on turner did in fact settle into that it was done without zurich's consent i would agree with the first part turner did settle that is that there's no dispute as that but as to the consent zurich was aware of the settlement amount they did pay money on behalf of western era so that they knew about it they knew that turner was entering into that settlement they did not specifically consent to turner as an additional insured entering into the settlement there was an overall consent to the to the overall settlement a limit the need for this is a question eliminates the need for specific consent to your particular set of your clients particular so i think i can state that circumstances under which they are in forcible and we think that under california law and isaacson the court correctly stated the standard which is when the court on page twelve says when they saying that there's no issue of fact turn deuce no evidence creating a genuine issue of material fact as to whether zurich refused to make a reasonable settlement offer or accept the reasonable settlement demand we think that turner has presented sufficient evidence as to the first prize of that test that is they refused to make a reasonable settlement offer on behalf of turner as an additional insured what the what the record shows completely is made no settlement offer on behalf of turner and indeed the statements were made by stork that they would only pay on behalf of western air and not turn the insurance policies do have a separate separation of insurance provision and in that separation provide insurance provision they have to treat each insured as separate insurance affidavit submitted certainly point out that zurich did not make any settlement offer on behalf of turn with regard to the second prong of that task to accept a reasonable settlement demand again we believe that the court was in error in holding that when the it's undisputed that turner sent a specific settlement demand zork the issue is it turner gives york sufficient time to respond and we believe that that is an issue that goes to the jury in this particular case as the court found on page but again that would go to the facts and circumstances surrounding that demand for payment of the three point three million dollars and what the record shows is that there had been mediation is going on since october of the prior year the settlement was actually reached in january of two thousand and three mediation had been going on in the underlying case since october of two thousand and two in which zurich had representatives and the record even on the  portions which were not objected to the affidavits show that europe was made aware of the settlement and the amounts that were being demanded by the plaintiffs and given that background when it comes to the actual timing of the settlement we believe that that is an issue of fact that needs to go to the jury that's not to be determined on summary judgment as to whether that was reasonable time to give an opportunity to respond  i am not going to directly address all of the evidentiary rulings in striking portions of the affidavit i believe that those are set forth realistically set forth by zurich very specifically was we will not pay any money on behalf of turner as an additional insured there's no vehicle statutory or for case  evidence i haven't stated this very well i don't know what i'm saying i understand what you're saying and there is no either statute there is no statutory way to do that there is the case law that says that the insured has the duty to if you may think insurer has a duty to accept a reasonable settlement and failing that the insured has a cause of action against the insurer for amounts to pay you were where i come from arizona you couldn't do a settlement like this y the judge would bring all of you in and said it's either all of you settle or i'm not going to approve a settlement in the underlying case everyone did settle but there was nothing to compare to enable the judge to bring the insurers  and compel that settlement i would note that did raise as a grounds for summary judgment in the trial court which is not on appeal right now because it was and acted upon that the settlement entered into by turner to the record on the flip side of the question that i just asked earlier is that as a general matter do you concede that zurich was within its rights to tell the plaintiffs in the underlying action that probably within its rights to do that with regard to the coltan claims however it still had the duty to accept to pay a reasonable amount and to enter into a reasonable settlement on behalf of turner ok there are two obligations and i know when my time is coming a little bit short i would i just one other quick question like heard your argument that you say the general consent implies and i think it's it goes to the heart of the case there's three key points here turner never presented a five point five million dollars settlement demand to zurich in january two thousand and three for  consent to turn it conceded that today turner never asked for zurich consent to the settlement once turner determined that five point five million dollars was the settlement number tur failure to seek their ex consent in advance of its agreement to settle at five point five million breached the no barn terry payments provision of the policy under a long line of california cases turner cannot prevail in its lawsuit for reimbursement of the settlement shortfall from zurich because term i did not satisfy the condition proceed and obtaining zurich's consent to fund the settlement turner construction is an additional insured on policies direct american issued to western air by january two thousand and three zero had been defending turner under these policies put three years this morning mr dorn berger suggested that turner that zurich was only providing a partial defense that's not true what to zurich was doing here is very common in these types of insurance cases zurich was defending itself contractor western air and was paying a share along with several other insurance carriers of turner's defense costs i assume a resolution of right under reservation of rights for both parties turner in fact suggested the c ning agreement and suggested them out that is that direct pay and direct paid that agreement throughout the entire litigation there's no dispute about that the record at seventy four page seventy one shows turner's proposed cost sharing agreement to direct that was in addition to turner's that all colton's construction defect lawsuit against it in january two thousand and three without informing its defending insurers direct that it had received the settlement demand from colton for five point five million dollars that it was considering turner stead of the lawsuit without asking for their consent to the settlement and without asking zurich to fund three point three million dollars of it it was only after turner agreed to the five point five million dollars settlement that turner demanded that zurich fund three point three million of it turner's actions breached the no voluntary payments the provision state no insured will accept that their own cost voluntarily make a payment assume any obligation or incur any expense except for first aid without our consent and in that clause to be violated in advance of the actual payment of settlement amounts just not sure i understand your question well you've let us up to the point saying that apparently turner negotiated a settlement didn't tell zurich about it agreed to a settlement didn't tells her about it but what i was waiting to hear was whether turner had actually made a payment pursuant to that settlement without notifying her turner doesn't have to make a payment because turner  obligation terminal the answer to my earlier question is yes you've been violated by something other than actually transferring money yes your honor by boys agreeing to the settlement in assuming obligations under oath they violated the second and that's right you're ok it's undisputed that turner settled the case without seeking their ex consent turn maintains that it did not have to seek their ex consent because you're a kid breached obligations by refusing to agree to a reasonable settlement offer in some unspecified amount and at some unspecified earlier point in time however even if this court considers all of the testimony in the declaration of turner's coun trade sex even those paragraphs that the district court deemed inadmissible turner presented no facts to support a conclusion that zurich had refused to agree to a five point five million dollars settlement the not testify that he advised direct that turner had received a five point five million dollars settlement demand in january two thousand and three mr sachs did not testify that he had by direct in january two thousand and three that turner believed that a five point five million dollars settlement was appropriate mr sachs did not testify that he asked direct at any time to agree to fund three point three million toward a five point five million dollars settlement stack's did not testify that he gave direct the opportunity to accept or reject a five point five million dollars settlement at any time mr stats did not testify that turner recommended that accept the five point five million dollars settlement turner agreed to settle the case at five point five million on or about january eighth two thousand and three and then advised the wreck of this on january thirteenth two thousand and three at no time during those discussions was the right ever asked to agree to settle the case at five point five million or agreed to fund a large portion of the settlement what was the total social move its total settlement w five point five million what part of the one million on behalf of western heirs liability settle to decide whether to settle the case or whether to try it turner unilaterally took that right away from zurich by settling the lawsuit without circs consent a long line of california cases has consistently honored no voluntary payment provisions as recognized by one the appellate court in jamestown builders quote they are designed to ensure that responsible insurers that promptly accept a defense tendered by their insured thereby gain control over the defense and settlement of the claim that means insureds can not unilaterally that'll a claim before the establishment's of the claim against them  november on behalf of turner and also on behalf of western air so it had two different adjusters at those mediation sessions so the work was aware that settlement negotiations had been ongoing in october november so it was not aware that committed to a settlement with the plaintiff in the underlying action did it warn turner about the in v p cause the the record shows that the director only learned about the settlement after it had been agreed to the evening of january thirteenth that was a monday evening western areas senior counsel contacted zurich and said you know we have to settle the case that a million dollars in direct turner is going to settle at five point five with or without it it's turner had demanded a million dollars from western air we recommend that we accept the million dollars that was the first time that zurich learned of this and zurich consented at westerners request to pay a million dollars for the damages arising out of western heirs work at the project and it's their exposition throughout that that is the indemnity the whole of the indemnities direct approach to turner was arising out of western air that said oh by the way we've settled and now we want you to pay three point three million dollars is there a council told turner you can't do that you're in violation of the in v p caught in fact this litigation had already been initiated by turner four months before so once that occurred counsel spoke so turner was definitely on notice that director believed it had breached the n d p caught the california supreme court and group baldo observed that the remember that exact quote was but the case is certainly cited in our brief of think we're at a point where we understand your position and if this is already in your brief we've read your brief ok well your honor i think there's a couple of points that are important to make the following critical stacks are undisputed and they support the district court's grant of summary judgments or expat for its undisputed that was defending turner it's interrupt you but are these the same facts that you went through when you started your argument some of them are i think one point i would like to make is that it's important for the court to remember that turner understood its obligation to obtain zurich's consent to a settlement with colton why else would turner have spent the letter by overnight mail on january thirteenth two thousand and three is vising zrich of the impending settlement and demanding that through it participate at the at the and find it at three point three million dollars ok that it could not enter into this settlement because of the no voluntary payment provision i know of no place on the record that that statement is supported if it was indeed in a conversation between an attorney sachs it's not an attorney one other point zero was defending on a reservation of rights the issue under that reservation of rights is whether you nevertheless have to get consent to settle other jurisdictions not california because california does provision and then finally i'd just like to distinguish it's distinguishing everything changed down boulders is not at all on point jamestown builders was a builder paying one point two million dollars in damages to repair certain defective work before he ever notified the insurance company of any type of a claim it's not an applicable to a situation where not only is the under has the underlying claim been tendered and being defended but also where the mediation is going on and there is a duty to accept a reasonable settlement on the point of the from the should i do that on the insurer to accept a reasonable settlement on behalf of its insure there are no other questions thank you very much thank you and that are submitted