right to determine the course of the litigation and you have a contractual right to ignore the exposure that you're unsure as to the images i believe there's not only  view is you're obligated to wear the exposure to bad faith well i don't know that yes i actually think technically you are because i think you violating the rights of any public policy if you didn't are you are you is the scope of your duty compensatory are too obligated to think about the whole case you know i don't i really don't think you are in fact the cases that we cited in our brief from not from pennsylvania unfortunately there's no binding pennsylvania precedent on this point but there and equitable settlements of claims in which the company's liability under the policy has become reasonably clear now is that if if  if liability under the policy has become reasonably clear and here it was recently you didn't even defend on liability when you went to trial so it was clear there was liability is a example it's it's very clear we acknowledge this under pennsylvania law that if you're going to exercise your contractual right to litigate a case rather than settle it and you expose the insured to an excess verdict on compensatory damages covered compensatory damages yes you are at risk of facing a common law contractual bad faith cli but that does not apply there's nothing in any of the regulations or the statute or the bad case that you it says that you have any duty whatsoever with respect to claims that are not covered what we're going to have to predict what the pennsylvania courts would do about this what pennsylvania case or cases points us to the conclusion that you would like us to reach well in the brief we cited the bad cop and wilcox case in which a judge reddick reiterated the principle that you know an insurance company the heart of the insurance bargain is that in return for the premiums that it was cvs the insurance company is going to pay out a covered claim and it has t and whether to settle whether to litigate a claim and that's really the heart of the organic doesn't get to the issue here the issue here is whether in consideration of that right that it has whether it has to take the  they didn't ask you to settle the punitive they just asked you to gauge in good faith negotiations on because on the claim on the on the case which you failed to do so is is it your position that  even if there was a bad faith here there there should have been summary judgment because the only damages for only from the bad faith were punitive damages which can you know maybe you should put it this way do you concede that there was a bad faith here oh absolutely not your honor ok but a jury found that there was bad faith you're right that's correct you went to a jury  jury said you were you failed to carry out your responsibility to negotiate in good faith in this case why should that jury verdict stand because the case should have never gone to the jury in the first instance why ok let's let's say if the theory is that there was some flaw in the negotiation process that the negotiations were that's the question does it matter so you're saying it doesn't matter what the negotiations were and that's exactly what i'm trying to get at here mr walker the question here is were you obligated under pennsylvania law to negotiate in good faith your adjuster was wrong by an order of magnitude the jury said fifteen thousand him more of an order of magnitude you can go both twelve hundred independent judges judges looking at it said it was six plus times more than he was willing to go he never budged off the first offer of twelve hundred right couldn't a jury have looked at that and said that's bad faith why couldn't that go to  jury well that shouldn't go to the jury because he burdick came in under the policy limit and under those circumstances all state has acted in conformity with the contract and it's done everything that you can short contract you know your answer that there would be no damages that the insured has no as no claim yes but you're you're you're you're arguing can't be that there was no duty because what you're what you seem to be saying is there's just no duty there we don't have to negotiate if it's if it's clearly going to come in under the policy when it's been we've got no obligation to talk to be able side at all that your position i think that's a fair reading of what the yeah what the contract rights are well we're not talking about existence of talking about chua's a fiduciary duties giving rise to tort liability under pennsylvania law which requires going to a statute i just read you question is what are we to understand from the statute that says you're obligated to negotiate in good faith you seem to be saying if it's clear it's going to come in under the policy limits we don't have to do anything if that's true what is th you mean well first of all i think in this instance if you look at the negotiation process it's a two way street ok we made an offer and we demand we made it possible there because now you're arguing that the jury was wrong by saying it's not your own and that's that's not helpful argument here they said you negotiate in bad faith your argument seems to be it should never have got to the jury i'm asking you to defend that on the basis of what the statute access verdict liability case what that case focuses on is did you make a reasonable decision to try the case to a verdict under the policy law that's really the principle with th statute has to do with access compensatory damages and the assessment by the insurance company at the time of settlement as to you know kind of rolling that rolling those dice you well know that you quote the insurers duty of good faith included working cooperatively with insurance throughout from both defending and attempting to settle the entire case with real consideration given to ensure its concerns because of its exposure to the uninsured not any different in this case you could ensure wasn't any more reasonable and in resolving the underlying case in that case if you didn't do it he chose to roll the dice and if you roll the dice the risk is there's an excess compensatory and then you're subject to bad faith and if you roll the dice that you're winning and you're not subject to bad faith why does it really come down to our prediction as to whether the pennsylvania supreme court will stop the majority and the or were the pennsylvania supreme court i thought the distance in there and i get back to the question why in pennsylvania law would point you case  point you just say aha pennsylvania would in no way say that the insurer has the duty to settle the compensatory part in order to minimize the insurance  law based on existing precedent and if there is no binding case and there are cases that clearly say you have the right to roll the dice that's also a reason why there was no bad faith here as a matter of law so even if you get over the threshold of what how does that stick to the question that's that's the first question isn't whether or not she needed damages or insurable everybody in the room and the district court judge and the magistrate judge all said they're not insurable the question is whether you had some duty here to negotiate in good faith and whether that duty than the unit is some kind of emotional distress or damage to mr sorrels reputation as an independent contractor nobody would hire him again something like that and it entertaining cause of the jury verdict well yes correct and i do want to get back to the judge's order because i want to focus on the second argument which has nothing to do with the duty to negotiate and you need to do with the colorful language not before you get to that answer question about the goshi if you've got a duty to negotiate and you're found liable for breaching that duty and that you failed the contract would be compensable right well under under a common law contractual bad faith claim compensatory damages are available less the birth center case course of its conduct which the jury had then found with bad faith yes under that particular claiming there would be those damages would be compensable harm caused by the conduct itself because of it under the bad faith part the very first thing they cite for their parts of the cause analysis and of course because just you know that's code for their policy reasons why we won't let this but we're alive cause the subject of liability the very first thing they say is that it's it's negligence they had faith here it's a failure thing it's a negligence on the part of the insurance company and it seems to be that they way and think it's important to waive the negligence the insurance company that it is against the egregious conduct sure and say you know this is out of balance under pennsylvania law however the cases  well it has to be that you recklessly disregard your lack of a reasonable basis ok so that's the case then you have you have a distinctly different circumstance for you don't you because you don't just negligence versus recklessness you've got recklessness versus that change the calculus i really don't think it does i think the issue comes back to it is this proximate cause point in and i think you really do want to get back to my second argument because even if you concluded that there was a duty to negotiate and it had been breached and somehow that he was completely separate and apart from the from which he would have component of the underlying claim you still have the issue  the gap in the law i'm missing i'm missing the only because you're going to the point the jury was given this on the assertion that you failed to negotiate in good faith on the compensatory i mean it was the district judge arguments would you're assuming we got past all this that you were in and we thought and we decided no no it could go to the jury was your concern about the influence on the liability phase of the the case goes to trial and the outcome of the cross is a damage award that was well within the policy limits but as a matter of we were all given that outcome there cannot be a bad not allowing them to escape the element and the point made also in asm and that that the imprint driver must not be allowed to get a windfall at the expense of purchasers of insurance transferring his responsibility for punitive damage to the very people that driving public to whom he is a menace if we say that insurers are to cover punitive damages does that not mean that and sure is are going to have to take into account in pricing policies the the potential that that they have these truck drivers out there to do bad things and they're going to have to be paying for it if if they don't settle the case and they're punitive are two answers are joined on the first is that i suspect this court likely will not say that insurers are legally obligated to cover punitive damages the fact of the matter is they are not oh absolutely definitely not allowed to even if the policy doesn't say that but i would respectfully suggest that there are true compelling issues here quite apart from that one because the reality is that this court is not going to do that the two o damages whatsoever what's what i don't understand your point what is the whole point is this the entire argument that allstate is making is based upon a different set of facts not these all state is arguing that the jury or not should be allowed to compensate my client on the bad claim from the first trial they didn't not of heavy the point is this insurance and kind of what this whole thing would mean an insurance company when it decides what it's going to negotiate and what the right number is looks at all the facts of the loss of dollars and cents need medical reports etc etc and says you know what you know we think you know given what happened here this is resources that if we are going to hold an insurance company must also factor under the policy if they if the insurance company is also going to have to consider the likelihood of punitive isn't going to have to venture into an exercise that that borders on it's really insuring against the punitive another was going to have to look into the conduct look into this isn't that out of the realm of what pennsylvania w do what you say it must do and that is when when settling under the policy it must take into account the potential for punitive damages and it's and its failure to do circuit cases which it my judgment answer your question i want to know about pennsylvania law well it is my belief that the instruction in pennsylvania law comes from  your access the entire defense they must consider the entire case so there is no case we told us there was no case which suggests that the carrier has an obligation to pay punitive damages nor is there any case which suggests that the carrier has an obligation to pay a premium i'm compensatory damages because of the threat yeah but that kind of that's that's exactly the point put words in my colleague's now but that's the very thing we're wrestling with here why you can't ignore the reality that if you say to me in surance company you have got to settle this thing taking into account your insurers interests which include your interest in a reading unit of damages that you will cause them in order to me basic economics you know eight we could say there's no case that holds the law of gravity exists but it exists whether there's a case in it or not and we know that in the real world sophisticated actors take account  risk so if you say to insurance company you will have to take consideration of all of the interests associated with this case not just the covered compensatory  risks associated with excess right ability and risk associated with it is risks associated with other compensable so once you put that on the table they're good a factor in a risk factor in a price associated you're suggesting how can it not result explained to me how it cannot result in the insurance company and hence since the pass it on pricing the public at large bearing some measure  as if you dropped a brick from a building it will fall to the crown because i support jock's up the promise i do not accept the promise that insurance companies obligation to accept the entire defense will necessarily affect the price and strategies believe but that is true i believe that although they made this closure supportive suggested that just one has in fact they appeared as the only counsel for the defendant to trial and they made all the arguments that were made and they did not insist that  in both side or the carrier paid all the damages and burst out of the carrier st paul agreed to pay the excess verdicts but the supreme court of pennsylvania said that any damage whether to motional distress reputation whatever where's your claim what's your damages and i say well you know they they paid everything but i don't think they really negotiate in good faith i'm going to get bread out of court and the brutal killing of a court if you aren't able to establish goes to trial and there's evidence of punitive damages and the jury comes down with a verdict that awards punitive damages are those damages a result believe that judge jones analysis was completely consistent with both souter and with the carpenter case that asking i'm asking to strictly evidence required right now ok strictly entry point would be district court gaijin an analysis of whether putting in front of the jury when it was considering liability not been physically considering liability but there had been a jury verdict could be not if that jury hears fifty thousand dollars they're going to think damage at fifty thousand dollars except they didn't but if he's the injury that flowed from the failure settle that's exactly right ok that's that the jury decided they decided the question of fact that allstate was guilty of bad faith and they decided to impose unit damages are the pennsylvania statute a fifty thousand dollars that's what they the facts and the just coincidence they don't really need to hear what the fifty thousand dollar amount of the earlier in the end of his number is and i judge jordan it's much easier for me to answer your last question than this one and that is your last question was because they have to hear the fifty is that would be easier that is to allow them to make a decision about bad faith and then to hear about the damages which flow from it what i do not accept judge jordan is this i cannot accept the suggestion that after hearing all this evidence about this abom an excess verdict case the bird was paid by the insurer some point relatively quickly but after to trial so how doing was trigger counting is not true unless there is an excess verdict so it's apples and oranges and finally as to fifty thousand coincidence well it's it's not a coincidence if the jury had not heard about the fifty thousand dollars i don't think there ever would have been a second phase of the trial because i don't think they would have found that the settlement negotiations were in bad faith i think the two are unwilling it's like a yoke in the weight of an egg they're all in there together they're all mixed up when you say you scramble them up and the only way the jury reached the they heard was that all states adjuster came in with a twelve hundred dollar offer and never moved off of it after there was an assessment well understanding i start from the position that in a situation where there's a compensatory verdict within the policy limits that it should never go to the jury in the first instance i understand your position i think i understand it and it's just a question is you could basically right here public policy considerations are extraordinarily strong and this case he's perhaps one of the least sympathetic cases for a plaintiff that there could be the plaintiff got fifteen thousand dollars he thought his claim was worth a try he's already gotten more money and to have to consider it is a reality i absolutely believe it is if they if the rule if the pennsylvania supreme court came down and say you can be held liable in bad faith if you expose if you claim compensatory claims are really only worth ten thousand minus the meaning a hundred thousand punitive god knows what could happen with peanut days we better settle this for a lot more than ten thousand dollars because we don't want to face the risk and i