feedback in the courtroom chief judge rotor and it's clear it's all right counsel's villany the think and talk at the same time and we hear him say something and then we hear him say it again through the speakers all right the place to begin is almost five months before this complaint was filed on november seventeenth of two thousand and four b w g sent a letter to monitor the managing agent for the insurance company advising we would not be defended we were not asking for a defense in this case that we had put them on notice but we did not want know which is which reeks of the cooperating law and that leads me to my next question i'm not sure we have appellate jurisdiction i don't quite understand what happened in the trial court there were two counts that were brought in this declaratory judgment action claim for relief which was the duty to defend the issue and close the case and without addressing the second plane for relief the argument advanced by the close the case it's not a technical term final judgment is a technical term we need a final judgment and if there is a claim outstanding that has not been decided we don't have a final judgment now it's possible of that because the claims were planted in the alternative that once he decides one claim he need not reach the alternative claim and that we should read his judgement as final and as i'm necessarily so well it's still a strange circumstance ordinarily if there's two things two causes of action plan and there were two causes of action plan in this case and there are some i mutually exclusive which they certainly could have been the failure to resolve the second one doesn't give us a to be quite right prior experience with the monitor which we allude to in our briefing because it's to be very concerned about how they are going to interject themselves and and exercise absolute control over again it's a prior experience in an unrelated manager and unrelated matter with his monitor managing a ok briefly what do you want us to do and why briefly we want you to we would like you monitors or control soldiers to control our our defense so there is no direct or immediate harm so you want us to want to remand with instructions to watch abstain dismiss the case to stay the end of the day we're going to come to you and you better pay that judgment that is simply contrary to all notions of insurance law in the state of california and we do have a right controversy here there is a natural controversy they say that and insure has no duty to defend until the defense is tendered we disagree we think policy says we that carolina casualty has the right and the duty to defend any claim to which the insurance twice the district court correctly found that this insurance does apply here obviously everybody contends that applies they contend that we're going to have to pay the judgment at the end of the day and the district court said based on that contention on their part that's a tacit admission that the insurance applies on their part and it does apply because of that reason so we are entitled to a determination that we have the right final judgment with respect to both counts and in the case your honor i'm not sure exactly how we deal with that situation i'm not either that's why i'm asking i mean it's a very curious usually we don't have a public jurisdiction until judgments have been entered on all active counts and we don't have that here counsel for the insured has represented that the district court did dismiss the second counts and frankly i have to you look carefully at the order to see whether that is in fact the case thing on count one count one you're saying hey we've got to defend this and follows from that that you have to indemnify if there's some kind of a lot of villainy that attaches and count to that says hey we're out from under everything how did you walk away from that what would you what were you intending to do by pleading this and the alternative i just don't get it your honor the second claim we never anticipated when we filed this action that if we got a determination from the court that we had a duty to the right to defend the right to appoint defense counsel that their position was going to be we don't care we're still not going to let you defend we didn't anticipate that so we filed our motion we thought it determination that we had the right and duty to defend the court agreed and their opposition they said well we're not to listen if you hold that the insurance company has the right and duty to defend we don't care we're going to go on continue and continue to defend ourselves anyway and in our reply brief i said well the court has the power to put some teeth into his order to deal with the situation because we have asked for declaratory relief the court has equitable powers in our prayer for relief we asked for the court to award such other and further relief as the court deems just and proper and here at the court did put teeth into its order by saying under that first claim for relief if they don't let you appoint counsel then you can use this as a defense and any later filed coverage action so now we think we do have a defense in the event they come to us and asked for an indemnity we can say now my tentative answer at least to the final judgment question is answered by the documents that you can find one ninety eight and one nine nine of the excerpts of record we have a minute order and that there's a little hole here somewhere but this is case closed on six one two thousand and five the facts about this case terminated case closed signed by judge frank see them around page one ninety nine this is the judgment page decision by the court judgment is hereby entered in accordance with the court order of case that strikes me as what he did at least by necessary implication was he dismissed the second plane because it was alternative he didn't quite say that but that's what i think that's how i would construe these documents it would regulate agree with you i think that's the correct interpretation of what happened and again we pointed out in a footnote of our police brief that we would deem the second cause of action to be dismissed without prejudice because we don't to be precluded from you know making that allegation under the cooperation clause if we have to do with the end of the day but we don't think we're going to have to because we think we now have a judgment that allows us to decline coverage for any judgment against them and it's and so are you trying to intrude into the defense we would be happy to have jumped in and defended at any point in the game but unfortunately we were never allowed to do so by the insured not only not allowed but resisted correct game of chicken anything else the less you have any further questions no i don't think we do you have any thirty second responses to that thirty seconds on friday the whole point of this case the insurance company under california law state of california law cannot avoid coverage for indemnity if there is a breach of the cooperation clause unless it proves substantial prejudice and the test for substantial prejudice under california supreme court authority is that there is more probable than not there would have been a different result the better result in the underlying case if they had their own counsel  still representing yourself in it yes your honor and as a matter of fact as we have devised the court in response to the court's inquiry the defendant's motion for summary judgment of out of court cases is scheduled for intending to see this through setback lewdly absolutely i think it would be inappropriate we made it clear to them before five months before this lawsuit was filed that we would not accept the defense and if you win you're out from under if you lose then you face another action for him and then you can raise the no prejudice in the action direct ok gotcha thank you very much the case is just argues ordered submitted good luck to both