please the court morning your honour's i am adam davis here representing the appellant gabriel gant this court should reverse the trial court's grant to summary judgment there are several disputed issues of fact as to whether progressive discharge to duty to defend and settle the underlying case in good faith and without negligence before i start into the argument on settlement i want to go over one quick background point mr gant holds the claims of all four b defendants by contractual assignment therefore in this federal litigation mr gant asserts that progressive is liable for its bad faith and negligence in defending the burkes in the underlying state court litigation  the st issue we have raised on appeal involves progressive's failure to settle this court should st hold the progressive had the duty to make reasonable efforts to settle the case and on these unique facts that included the duty to look for any additional insurance that covered any aspect of the underlying damages of any cancer cases that support their position there are no kansas cases that go into that specific issue however the kansas law is clear that every case in this context is determined circumstantially for instance if the boland your case from the kansas supreme court unpacks what the standard is and bolen's are they say that you look at all of the circumstances of the case  determining both good faith and negligence so there's not a kansas case in either way on this because this particular pack fact pattern has not come up with any of the cases other than the two old cases that you refer to from other old they are old yes i know of any other cases those are the two cases we found this specifically deal with rooting out other insurance but there is a kansas case that we feel like is very much on point and terms of negligence and it's important to remember that both good faith and negligence are duties at issue here and what were you find the duty to go find another company that might also have a policy is there any evidence in the record that the insurance company knew we didn't tell of this other policy there's evidence that the insurance company knew that there were other policies as to whether they knew that this specific policy provided coverage is unclear but that's why the hopkins case from the kansas supreme court is so important because in that case they were evaluating this under a negligence standard it was a bad faith claim it was brought as a garnishment as a direct action what the plaintiff was arguing was that they were negligent in their investigation and what the kansas supreme court said is we are going to look at this in terms of whether the insurer what the insurer knew or should have known with due diligence  and under and the action or about the policy about the about the extent of the insurers investigation and little women you say the investigation of what and in the context of settlement the facts of the change other insurance other drivers whom would explain you show in that case the issue was at the investigation into whether to accept an offer of settlement from the other side so the argument was that they rejected that offer or they the insurance company rejected that offer without doing an adequate investigation the trial court agreed and then the supreme court affirmed that saying we're going to look at this on a just not really clear so i'd be maybe you can help me on this is that the insurance company sent a letter to the insurer eskin about other policies was told there were none that the attorney hired by the insurance company hired by progressive then met with the insured and the insureds attorney and was told there's no other coverage what would more could progressive have done what does it have a duty to tip to say that your personal attorney who's looked at this is wrong about whether there are other policies so to tell me what the facts are see if i've got the facts right and then explain what progressive was supposed to do it there are certain background facts that are very important here because st of all that progress is policy when it was two hundred and fifty thousand dollars and progressive voluntarily took on the defense of a business berk loyal that had separate insurance not progressive insurance and the claim by progress is own estimation was worth about five million dollars so there was severe i correct that progressive s the insured if there are other policies that are involved that could cover the accident was told no is that correct they asked if there was excess insurance now the big cup policy was not actually excess insurance  with burke's and their personal attorney is that right i believe that's what he testified to yes and of and the personal attorney said there's no other coverage for the saxon is that correct i don't know if the personal attorney specifically said  that but that was the jet that's what mcmaster told progressive after they had we don't know what the conversation was between mcmaster and the personal attorney and perhaps mr burke there's no evidence in the record about that conversation i'm not aware of whether we are not going to settle for the policy limits because we believe there is other insurance please tell us who covers the business and progressive never asked that question they never they never st found out who was coming and that they finally he's entitled to who is going to about this and finally did it at that point the burkes produced the policy and that's when we discovered that that's when it was discovered that there might be this other them insist on seeking or higher liability figure they would demand more money you're saying well they they might as settled earlier burkle eventually was put on notice years later they immediately offered their one million dollars policy limits because there was clear coverage under their auto policies the defendants would have altered one twenty five what's the evidence the plain would have taken one twenty five what is what given the fact that they rejected anything under five million later on what made the case so much more valuable to them in the say before you could go policy was coverage was discovered there are two parts to your honor as far as the evidence priest suits mr gant when given a complete hypothetical testified that if he was convinced that was all of the insurance that was available he more likely than not would have accepted that there is also evidence that he almost took the two hundred and fifty that was on the table because he thought that might be all of the insurance but he didn't because he felt like there was probably before the litigation discovery he was making the request directly to progressive over and over again to please tell us who ensures the business tell what's the record evidence you say that in your brief there was a letter mr lichens to progressive on june twenty one and eleven that asked about other insurance but you say over and over what do you have any other examples in the from the record it is then and i'm sorry i couldn't give you the exact page but it is in mr lichens deposition testimony that he continued to ask him during phone calls about that business insurance and he was never given an answer and hansel response and his deposition was well he didn't think that justin burke was in the course and scope of employment but us that is part of the negligence because a the record shows that justin burke was on his way to the oil fields that's what he told the police after the accident and b even if he wasn't in the course and scope of employment there is still the question of whether there's an auto policy that covers that regardless of whether he's and i'm still interested in your clarifying your position on the scope of the duty even those old cases from montana and oregon talk about simply a duty to inquire didn't mr hansel inquire right off the bat whether there was other applicable insurance to excess coverage and what we are saying is that there is a duty of reasonable diligence and that there is also a duty well let me let me just draw a distinction is there is there a difference between other applicable insurance or just other insurance because the business could have all kinds of insurance may not even cover automobiles so if the duty is to ask about any and all conceivable insurance that's one thing it it's another thing to ask about insurance that would be applicable to this accident so we don't have a kansas case we have these old montana and oregon cases and there's still this question about whether there's a duty in the st place and even if there is what's the scope of it and it doesn't seem to me been very precise about it did you would be to ask about insurance that would be applicable and what we know here didn't didn't mr hansel do that i mean he sent he sent the letters to justin burke he sent the letters to his father and then he talked to  on the foam that's all on the record and there was no response about her applicable insurance well your honor that gets into the question of whether that duty was breached and we say there's a duty to search for a political insurance and then they can certainly argue to the jury that we sent this letter and we retain macmaster to do this and that was sufficient an argument would be well again as asking you who is ensuring the business and progressive be that they have to be diligent in determining whether the additional insurance is applicable not that they have to search the world for it but that they at least need to ask the business carrier when they have assumed the defense of that business and your honour's i'd like to reserve the remaining me please a court joseph of saying on behalf of progressive northwestern the court is entirely correct would you clarify the record regarding what efforts progressive and its attorney made to determine whether there was other it sure absolutely i'd be happy to progressive here on a whim to extensive efforts here within ten days of the accident it wrote letters not to one burke but to both the father and son that lettering quired do you have any coverage there's been a represents a excess covered he did not say excess coverage what he said specifically is do you have coverage which would be excess of our policy the progressive policy was primary and you can have other primary policies as you do a letter of coverage that would be excess even though they're both primaries he did not say do you have other excess coverage he said do you have coverage in excess of our policy so what progressive did was within ten days write two letters and they didn't they have a duty to obsessive have a duty to do that absolutely not there is not a single case in the history of american jur prudence putting that duty on an insurance company company and judge mathis and it wouldn't make sense because the carriers at the mercy of the insured the carrier only knows what it's told and hear it asked multiple times orally and in writing through lawyers through multiple lawyers and to answer your question judge kelly progressive learned about this policy in february of two thousand and fifteen not before that and there is no duty because in short the insured paid thirty thousand dollars a year for this policy and what's important for the court to note is that at the time this is all going on in two thousand and eleven there's brought into this case and mentioned in till the sept until september of two thousand and fourteen so this goes beyond just a duty they're asking him to disclose a policy of insurance issued by a different insured to a different i'm sorry by a different insurance carrier it happened in september two of them fourteen in september of two thousand and fourteen burke oil your honor had been a party to this litigation and there was some consternation as to the relationship of those that when they filed suit you know they filed suit in may of two thousand and thirteen but b m d cooperated ventures became involved in september of two thousand and fourteen and just to close the loop on that judge had been involved the lower court judge judge got it got frustrated as to the interrelationship of these various companies and essentially said they're all bric oil but what can you with the up what duty it is as follows all the stablished in and you pull a microphone over a little closer sorry about that all undisputed in the record here's what progressive does within ten days as they say they send out this letter they call mrs burke within that same june town two thousand and eleven timeframe she says cancel says i called her and she said there was no other insurance the case then goes to mcmaster progressive hires him within three weeks and ultimately progressive meets with james campbell that's the burkes personal lawyer mcmaster i said progressive mcmaster meets with james campbell and they go over your honor not just the bit go policy they go over we have discussed other coverage we have looked at it and determined that no other coverage applies he sends that letter macmaster to the it just read progressive hansell campbell is copied on that letter the burkes are copied on that letter and the letter affirmatively says this policy does not apply but it goes beyond that at that same time in april now of two thousand and thirteen john ambrosio who is a lawyer representing justin burke in the criminal case arising from the accident writes the burkes a letter and here's what the burke said the letter says it says quote all of your other carriers on notice including your company's insurance carriers and despite that they never do that they don't disclose this coverage even in discovery but here's the linchpin of all of the on the record it is all in the record and i just add to that one other one other document in the record that's the letter justin burke and they're claiming that that was asked early on and there was never a response to that from progressive it's not true your honor because we did even more than that we sent them a letter saying tell us about all insurance we didn't a policy that may provide coverage in excess of this policy at the request was broader than that the request was what insurance company insured the businesses that goes that's a broader even if i accept that your honor that's all answered by the fact all of this was looked at all of this was analyzed this issue was and it missed two lawyers including the burke's personal lawyer who had been involved in this case from the very beginning looked at that and told progressive the coverage doesn't exist and judge robinson said even if you had said that was made known to you have accepted go into the saying it does i may go into it up saying it does exist that's the other fatal flaw in this your honor is because the lawyer made a mistake it's a legal malpractise case so we have this assignment within a glenn versus fleming agreement that tries to transfer to the gantt essentially the burkes malpractise case from misreading the policy and that's what judge robinson alternately said there are so many legal dead ends in this case that even if you get past what progressive did and what they did was exemplary and over the top and more than any insurance carrier does without a duty but even if you get past that their own lawyer said the policy doesn't apply and there's zero evidence anything would have happened if you would known about it here's why the lawyers didn't demand five million dollars lichens thought it was worth ten million dollars  thought it was worth twenty million dollars they negotiated at trial at mediation between a range of six to ten million they asked the court at trial for fifteen million eight hundred thousand and the lower courts said where is the reasonable was was there ever a time during the litigation when one million two hundred and fifty thousand would settle this case his answer was i can't really say one way or another question you've heard about was on redirect after i was done cross examining this witness they asked well would you probably have not settled and he said i probably would have the st answer he gave to a direct question as to whether that much is true your honor except here here's here's where the whole thing collapses of its own weight this was never about insurance this was never about the big go insurance even in the initial stages of this litigation it wasn't about the big go insurance it was about this lawyer mcmaster had a scorched earth defense and he hurt the burkes the only problem is there's no evidence that it caused any damage it did not cause any damage whatsoever so here's where it collapses of its own weight when get learns about the bit go policy in february of two thousand and fourteen and they learn about that policy they do absolutely nothing they don't put bit go on notice they don't try and make a claim they do nothing and now they're trying to say well we didn't have the policy they were interested in iraq a tory in february of two thousand and fourteen that said this is the bit go policy this is the bit go claim number here's the bit go deck page and now we're being told that this policy is the end all and be all of this case that we should have known about earlier but when we didn't know about it we did nothing with that information  thing they did nothing with against lawyers did nothing with that information ultimately when progressive is finally advised of this policy a year later in february of two thousand and fourteen lawyers hired by progressive at that point could go on notice that's how bits go became aware of this so not only does progressive ask all of these questions and i understand your honor about the business insurance letter and the fact that the business insurance letter that question may not have been specifically asked but hansel said at the time the letter came in i had already hired counsel for the in short something progressive was not required to do right so that's a good it's a good question judge and one i'm prepared to defend progressive aggressive hires mcmaster here's what the lower court found st of all kansas law requires that you hire a lawyer competent to handle the factual allegations of the complaint the court said that this lawyer represented most of the major carriers in kansas and listed them in the order said that he had thirty years of experience that he had tried more cases than virtually any lawyer in his area of kansas that he had handled thousands of cases is what mcmaster said the lower court said he had handled hundreds of serious wrongful death and personal injury cases this is one of the most qualified lawyers in kansas and what they're trying to say well he had this settlement incompetency settlement incompetency st of all that's an extension of kansas law and just law says hire somebody who's competent to handle the is that progressive the plaintiff was able to come up with an affidavit and letters from three lawyers that they made part of the record those affidavits in three letters generally state hey we found this guy difficult to deal with a settlement standpoint we found him difficult to deal with but when you're one pack of those allegations here's what they say the man that this is they went out looking for lawyers the one lawyer files an affidavit it seems like as a favor because the st thing the affidavit says is i have limited experience with this lawyer the next letter from a lawyer is one that's delivered to progressive two years after mcmaster has been hired so then we're left with letters from lawyers in the same law firm that say over a thirty year career in an adversarial business two lawyers in the same law firm had difficulty with this lawyer but here is where that inquiry ends judge robinson said you're talking about settlement  competency that's not what you're saying mcmaster did you're saying he misread the bit go policy you're saying campbell the personal lawyer misread the bit go policy that's a legal malpractise claim so the judge said even though i think you are expanding competency under kansas law the competency europe you're pointing to this alleged settlement incompetency which he found they didn't prove in the st instance is not why that case didn't settle the case settled because of the failure case within the policy limits is that correct it's actually an excellent point your honor all those cases they complained about there was never a nickel of excess exposure to any progressive insured and all of those cases settled within the policy  thank you thank you for the time we would ask that the court affirm the well reasoned and well written summary judgment by the district court th not true that we got the whole bit co policy at that point we only got the declaration page is what set off a months long fight about whether we could get the entire policy regardless that is a fact dispute if they want to try to claim that our firm i ok that's fair characterization the the state court judge is what i was referring to who was specifically annoyed with mcmaster and his dishonest statements to the court or before you sit down and i'm interested in hearing what you have to say about one thing we haven't talked about but it's your argument about the joint representation of the burkes and the conflict issue as you are white white in the conflict waiver take care of a couple of points your honor and th waiver itself is not in the record but as quoted extensively by our experts brian writes and the waiver itself does not actually describe what the conflict might be it just says that they are agreeing to be i don't believe he interviewed the bursa how does he know what transpired between mr macmaster and the burkes and securing the conflict well he has seen the waiver itself and know he's seen the waiver but he's saying how could how could it be annoying waiver well how could he make an assessment of that if he doesn't know what the conversation once it's truly is know what the conversation was but the waiver on its face does not show that there was in any way a knowing waiver and the the other key point there burke whale isn't even mention and i know they say well b and b doesn't come in until two thousand and fourteen that's just another name for the same company burke well as involved from the beginning progressive assume their defense and the waiver talks about the three individuals and to us the most important point is the conflict between justin burke and burke well because if burke loyal had had its own counsel from the beginning then burke oil's counsel would have put on notice and there never would have been a lawsuit because that would have settled