purposes of today the insurance policy which was issued by state farm provides as follows it says that if you have a you have you i am claim that we insurance company will pay compensatory damages for bodily injury and insured is legally entitled to collect from an undershirt uninsured motorist the policy says that the insured and the state farm must agree the answers to two questions one is the question of legal entitlement and the second question is what are if assuming that there is legal entitlement what are the compensatory damages that are entitled to from the tour fees or who is either uninsured or under insured that's what the again the state farm out itself to do in the vast majority of cases what happens is  that someone makes a you who i am calling the insurer does and there is a discussion and negotiation takes place whether or not you are represented by counsel vast vast majority of cases  situation is the very very rare instance as in what happened the current case which is that there is an agreement reached there's litigations the case goes all the way to trial and you have a determination by a jury in that case as to what the amount of those compensatory damages saw it's up to the insurance company to negotiate in good faith interim reach agreement that's what they said that's what they found themselves to do now what we have here is is that in the course of that discussion negotiation because of course both these claimants were represented by counsel during the course of that negotiation the insurance company state farm said we are deducting five thousand dollars because we paid you under your med pay a separate coverage we paid you the five thousand dollars worth of ducting that from the amount that we're going to pay you under you have now the problem is is that at the violating this color on a statue there is absolutely no correspondence and says that the ok did not end at some point there was a decision made by your client that she didn't want to dance around with more negotiations they agree did everybody understand when state farm tendered the check and she deposit that was it that was for everything or did she think you know i'm keeping a claim alive against these people great question and the answer is that if you look just simply the correspondence of the company said was here's sixteen thousand dollars to quote some of the client that's the term that was used there but there are as is the record we have no release whatsoever there wasn't any indication that this was form final that you couldn't bring up any other for this so that's a little bit different than the other the other plaintiff you the minute miss checks a little bit different in the sense that the company said in its final correspondence point there is is that you've got is you've got this offset that is taken in violation of the law that's what you know it and again because that's of course the other point of the conversation which is that at the time that this was being decision calderon is retroactive or not ok but for purposes of the discussion as to the impact the we have to assume that they were doing something they were taking it off that they were disallowed from doing under ten four six zero not now the point is when you say that's all you're get k you can say that you can say welp except for the fact that it potentially leaves open if you've got further injuries on the things that happen you know there was no indication is christianson that you would be able that's we're tendering this with the understanding that this is all you're getting you're getting nothing else and your client calls it hey i want to deposit this sure if you thought you have an additional claim because ultimately your claims not going to be just for five grand it's going to be for bad faith probably in some things that might come up are you going to tell your client yeah go ahead deposit it don't worry about the know you're out of look i mean the understand has you're going to have a conversation with the client about whether or not you take the money and whether or not you're not going to take the money and over five thousand dollar amount and you say maybe just maybe there's not whether or not we're going to go ahead we're going to litigate the rest of th and you might have that discussion as you say with your client but the upshot of it is is that the mere fact that you took that money doesn't mean under these circumstances that you can essentially waive if you will if we're going to use that term  it which is why i want to make that very clearly make clear and i thought that i had i apologize your honor which is that that's why it is illegal if in fact you find that the law at that time was as with the determination by a jury as to what those compensatory damages amount are that that's all the calderon ball and then instead because what happened here is we have this negotiation which occurs in the whole huge vast majority of cases that that the panel used on the court of appeals opinion in airlines in the answer is your honor is that what we had asked for and we can continue to pour the court that even though we're having this argument today that the court abate any kind of final determination in this case until we've got a certain situation that's pending in the airline case that this a petition was filed in the beginning of august of this year that you wait until we see whether or not the the airline case and they said that you know we can look at that if we think that that's a good predictor of what the supreme court's going to do but i think it is i think with this panel should do is wait until we see because we will find out i think probably within the next month or two whether or not the supreme court is going to accept the airline case and that's going to be very important to have a lot of impact if in fact these they do accept it because it is now the supreme court and then we prised they're dating until you find differences that what they're going to do is assuming it's a big difference and saying that's what they're going to do well i don't know what they'll do we are supposed to let them know within five days after the supreme court has ruled on the circuit ition whether or not they're going to you know what they're going to do i would i would hope that if the supreme court accept it because i think you panel needs to hear with the highest court has to say because again that whole distinction that we're talking about the question of whether or not we were talking about you know the merely where there's been some kind of ultimate decision by a jury as opposed to negotiation that's going to be decided in the airline case of the supreme court accepts the kits and i think that that met here because we do i don't have an accord and the reason is because as i talked about the promise under this agreement is that we're going to agree there is not a substitute of performance which is required under colorado law for you to have in the court so what if there was a release which would you we would have a case here oh no absolutely we have a case we hopefully i can say again just like the court if you since apollo's is a good example where there was a release i would hope that we would wait and see what the supreme court wrought of the highest court has to say about it because but again no i mean the release tells you something different because again you can't have a release which is in violation of the law of public policy state of colorado and so that's the that are going well i mean in this case at the time it happened it would have been over and something that was disputed because the case and the color own case had not been decided yet so if you had a release in this case it wouldn't be the same as if you entered into a release today that violated the law and there's a lawsuit in there right away that's very good point because state farm has acknowledged that since the calderon decision that oh no  we have changed our procedures now and we don't take offsets we've instructed our people not to take we're putting in thorson's our policies with respect to not you click ation provisions the upshot is that if that's the case again it gets back to judge holmes the point about if the decision applies retroactively ok in other words that the death something that should have happened they should have been doing that for the eight years between two thousand and eight  to your honor is that it's an acknowledgment that it should should apply in the context of a negotiation in other words it's not just simply they are changing things so that now when you negotiate with state farm they're not taking the offset and the upshot of that is is that you know there's is that it's not as though this is a change in the law that has in his pelvis unless you say that oh it's not retroactive that's only going to be on the prospective basis which in our minds i judgment the defenses of settlement in accordance as factual i do know will review we respectfully request that this court affirm that ruling the undisputed facts below showed that both miss miss check and miss christiansen through their attorneys voluntarily settle their disputed you am claims with state farm for a compromise amount of money that they greet you after negotiations back and forth between the parties importantly they did so with full knowledge of two things one that state farm s you claim included a five thousand dollar meant a offset for benefits they previously received because at that time the insurers and the and the lot that time seemed to enforce those kinds of net pay offs have provisions in po course knew it and they had already lost the cold case of the appellate court level when we settled our case so they knew it was an issue they nonetheless accepted stay firm summon a months without ever reserving the right to seek additional u n a m benefits based upon the ultimate decision in calder own well pendants now opponents now make three arguments in an effort to undo those settlements first they argue that a cordon satisfaction that doctrine is an applicable here can they say that there could be no settlement without a written release and third they say that the settlements violate colorado public policy as expressed in called around and therefore a divorce of i'm going to take the third first because judge holmes i think your question about what do we do with mccracken is really on point mccracken and our line before it and every other courts who have considered the public policy issue the public policy idea that they raised here th also looking at what they predict the supreme court might do that might be different than our one they rejected it on several grounds not just because our line sets it looked at it independently and by the way as this court  that there was no public policy that outweighed the public policy of colorado in favor enforcing subs there was nothing in the settlement that suggested there was an undisputed amount that we agreed that was o because that's what the insured would be legally entitled to collect from the uninsured drive that we then after the fact agreed to a number and then deducted the med pay off that that's not what happened in our case like in mccracken and like in our line like in every other case the carrier too can do a count them and pay off when setting the evaluation range and making it soft but there after it was a free wheeling the goshi ation between the part and all the parties did was come to an agreement about  certain the state farm would pay in settlement of the claim and i beg to differ with mr levine about the nature of the correspondence that went around those negotiations and when around the settlement payments if you look at the letter is we want one hundred thousand dollars for and i'm quoting full and final settlement of all claims which she may have arising out of the auto accident the parties then began their negotiations and state farm went back and forth making offers and every time they made an offer to dismiss jag they'd documented it in a letter and the letters always said here's our offer or settlement offer to bring this claim to a conclusion and at the end of the letter it said and the settlement offers  inclusive of all damages known or unknown and any liens assignments or other statutory rights of recovery no one could mistake that for anything other than what it was what it what it we do it is so much unusual language in mischief there is no release requested with this payment when you decide to paper what was it what was the import of that language the import is simply that we didn't require like some of the other carers didn't mccracken in our line we didn't require a formal written release that had to be signed by all parties we simply documented the fact that the settlement in the correspondence back and forth between us and the claimant or claimants council and that's perfectly legitimate in colorado and colorado you don't even need a writing i was not suggesting it was illegitimate suggesting how it is whether it has any impact on the the knowledge of miss missed check that this was a final payment and that's what i'm getting to because i want to read the final sudden letter that accompanied the check the seventy confirm our agreement suttles any and all claims under the uninsured motorist coverage with state farm arising out of the accident in other words we didn't require a formal release because we didn't need to we could document the settlement of the correspondence and we did and that was part of state farm's claim procedure but we made it clear in the final letter enclosing the check that said one final satisfaction that it was just that so there was that was happening she was represented by counsel correct she was represented by counsel and then you full well about the and they knew full well in fact that they knew that we were taking the offset as part of the initial offer exam remind me on this letter to the letter go directly to dismiss jack or did it go to her counsel what your counsel and we did request for admissions during discovery that said nonetheless accepted the money this mistry cashed the settlement check with no protest or reservations whatsoever mr christianson a little different but nonetheless the son would offer letters were the same they always said this is in settlement of your claim to bring it to a knowledge and ability to do that and this is important because the other argument about mr levine is making about the court in satisfaction not applying here because there is no substitute formants judge member rejected that and rightly so because the performance under the u i in provision of the policy isn't simply that the parties need to agree about the compensatory damages that the claimant is legally entitled to collect from the tortfeasor that's on it under insured it's different in that it says we either have to agree on the amount of those compensatory damages or we litigate it and when we couldn't agree remember we were disputing with them all along with those compensatory damages were because a large element of them was general damages which are subjective by nature and subject to dispute so were that there was a big range of some of the negotiation authority because of that subjectivity and so we could never agree with them about what the exact amount was that they were legally entitled to collect from the tortfeasor so rather than litigat which was alternative to under our policy provision you either agree with us or you litigate rather than litigate all the parties just said we'll pay you a sum certain settlement and we'll be done that's what happened no more fussing around  judge carson's term that's exactly was a term of art it is a term of art and that's what mccracken picked up on in rejecting the public up policy argument mccracken said this isn't like the crawl case they rely on the call for the proposition that the settlement agreement violates public policy and therefore it's on a forcible but would mccracken said about crawl is a crawl isn't the same because in qual there was a bilateral agreement between the insurance carrier and the claimant about the value of the  they agreed it was thirty thousand dollars the y m limit in call and then the carrier worked in a supper geisha provision under the relief trust agreement that said but if you collect any money from anyone else we get fifteen percent of it and they thereby reduce the you bilaterally agreed upon undisputed amount of compensatory damages of bias some equal to fifteen percent of the recovery that was the evil in crawl that led the supreme court to say it violated public policy and mccracken says that isn't true of any of these other cases including ours here today because there was no bilateral agreement as to what those compensatory damages they were legally entitled to collect from the tortfeasor would be there was instead a some of them out if you'll take x will all go away and that was critical to mccracken in distinguishing call because mccracken had no problem with the offset being taken as part of some women to go shushan zz and then coming to some some certain so long as that some certain wasn't then further reduced by the men payoffs and it wasn't here it wasn't a mccracken it wasn't in our line it was not in savalas i can go on and on and but all the cases that they file post called around where every single court has said the same thing in that circumstance there is no violation of public policy there is no violation of color own and the so of it to that point just like mccracken i mean there is no need it really would be no need if we adopt it to decide on the retroactivity  of anyone exactly right and that's what mccracken said in a footnote because by even having this discussion about public policy we're sort of assuming ritter activity which we don't agree with but it's sort of beside the point because if you agree with us that there was a subtle man or this case it was unpublished earl i was published with more verses and can check overseas metropolitan casualty insurance company same panel that decided our line and it didn't have to address it because they said you first raised retroactivity retroactively because we've already considered the implications of culture around in deciding that it doesn't violate public policy so that's correct you can sidestep the whole issue if you determine as we believe that there is no while in violation of public policy owed colorado is one of those jurisdictions it doesn't follow the u c c about that and says we don't care about that if you cashed the check even accepted the accord it's now satisfied your dot so the research case was and by the way that was merely a dispute about the amount owed into the contract in our ether it was there was a contract price and the customer believed that contracted did something wrong so they didn't want to pay the full price and there was a back and forth negotiation about it and then the customer offered a discounted  and by the way everyone's hung up on a cordon satisfaction we both settlement and according satisfaction it's either one it's both of because we not only have a settlement reflected in the correspondence accompanying the supplement shack but we also have substituted performance in the way a compromise amount we're going to pay to resolve the you am benefits rather than agree about compensatory and human just thank you for your time here are the most you have any further questions