court my name is valerie moore and i represent the pennant golden eagle insurance company i don't intend to take up a great deal of the court's time because i i really believe that golden eagles briefs have more than adequately addressed the issues and probably can help hold on for a for just a moment i've got a question there and i'm not sure we need to deal with the other insurance clauses that's always an interesting exercise and i don't know if we need to reach it without a scene after truck insurance exchange my problem with this case is it looks like it was all over it was several goodbye case and each insurance company chipped in some money for the settlement and they were done it was close and then the settlement comes apart and one of the insurance companies doesn't tell the other one they hire a new lawyer and it look like i used to do it sure it's defense to me it looked like it was churn the lawyer wrote over one hundred letters i would have would have written maybe a half dozen of the outside and i couldn't figure out why they were doing all this work me think it really didn't matter whether it was tendered because one insurance company might have said no not that lawyer which they have a right to do under the policy so i'm just wondering why the lack of  tender the lack of any notice when the defense began after the settlement fell apart doesn't kill the liability for defense costs under their policy was triggered for coverage for these claims and no there were they greedy and they paid and that's all they had an obligation to do right i don't believe so i believe under the d n i they had an obligation to reimburse fact a week or so after it first learning in june of one nine hundred ninety eight that some other end carrier that being golden eagle was going to step up to the play it automatically turned back and relied on its other insurance possible we don't have to pay anything he has where access despite the fact that we've already admitted we're primary silly we're settlements that didn't wrap up any obligation for defense costs leading up to the first settlement if you've done settlement that only had to do with some payment of money by golden eagle and that's the agreement on copyright where who was going to hold the copyright who was going to get a little bit of money for some of the work done so what would what was december first there's going to be a trial at the end of january two thousand and one and told me that golden eagle had to have made that notice for only one purpose to let federal know that defense fees were going to be incurred were had absolutely nothing there is no evidence in the record below and that federal asked well what happened in the settlement who's defending it what are the issues everything it did exactly the same it had in the beginning it intruder challenge a condition precedent to exercising their rights under this coverage section give to the company written notice as soon as practicable of any claim made against them for wrongful act that's between the insured and the company that has between the insurance company and that notice had been given and when golden eagle called it that was the same notice that with a revival it was the same wrongful act being alleged it's one that had crack that there was notice before trial that sort of didn't make an overt claim for contribution so what other purpose could there have been for the notification and why wasn't clear under truck or at least some artic notice at any time that the insured was making a claim and that truck may be called upon to pay any of that or that there was a potential for contribution i think the truck is read too narrowly if it is he also did not inform me that eagle would be seeking contributions from federal for defense costs incurred defending either television or unity in the underlying action that he also informed me he was reviewing golden eagles coverage case is round peg trying to fit into the square hole and it's primarily because there was no test and insurance companies all over the country quite frequently get notice on the eve of trial indemnity at all either directly to the claimants or in the form of contribution it was a complete stranger to the litigation from which credit then came back and said give us the money back from a case of either way you never knew about so here the notice was not as soon as practicable and even though notice did not give federal the opportunity to turn down the choice of defense counsel as its policy entitled the two nevertheless a got noticed on the ev january of nineteen was that both fuck insurance and federal insurance were told this case was over and so what i mean you got a notice before a trial and what else what was the notice all about you were told then th everything was back on the table two years later first so what what were you what in the prior activity of federal did they do as to controlling the course of the litigation that all we c or you know what's going on with the attorney but you have some duty of inquiries we're going to exercise in this right and there is where the record is not complete well this is a summary judgment is and for summary judgment purposes we received a telephone the california supreme court talking is superior to the truck court of appeal case that that is in fact the modern rule that is between the get summary judgment motion decided by judge and carol in this case there was no reliance on the other insurance clauses did not play a role in the determination of whether or not and each one of them since this insurance executives to any other sort of course just take it over and do it equitably and i thought truck insurance exchange was not about other insurance clauses it's about notice as a condition precedent saliva via the insur we received a telephone call two years later before the qualifier and the national notice oh that is not actual notice that the case has been reopened back in time when federal could have done something with the case let's talk about what you could have done something about it looks to me like what you could do something about is declining to accept a particular defense lawyer so long as your refusal was reasonable you can't  declined consent because i'm reasonably without what was the issue with defense counsel here there are two issues one of the issues is that when we were involved in the eagle took over in defense of the matter they assigned one set of lawyers to represent both of their insurers this is the sort of case how does that impact federal this is the sort of case where you have an officer of a nonprofit entity who is alleged to have entered into a contract on behalf of the nonprofit entity and who is facing personal liability truck recognize that there was a conflict between when you misspeak it really gets confusing like golden eagle recognized that there was a conflict between the two individuals offending there to ensure and agreed to have separate counsel in june of  hundred seventy however after federal was out of the picture golden eagle then had new counsel come in representing both defend then and what's the problem with that i mean in one sense it looks good because it's in terms of having her right to be that be her employer oh so you're saying federal protection tellus and not unity and when you have one lawyer for both tele send and unity it means that it's hard to tell us and to blame it on unity and get off the hook herself that's correct and the net result was after judgments already entered and the remit or were then put in the position of having to protect our insured hell of a sudden judgment was against her also and that's why we then contributed somewhere in excess of forty thousand so you're saying it's really immaterial because the first time when you did get notice and you consented suggested that they would like federal to pay for a portion of the defense costs that have been incurred by there to ensure unity enceladus so you don't have is your position that federal  the same provision a consent clause to infer expenses and that is one of the bases that they found because trust in that case failed to give notice that it was going to see contribution then was not entitle to equitable contribution from unocal and that's one of the exact same provisions that we have in the federal policy that was not complied with and that you know garvey ok i get the point buna guard is clearly a change them or did it just say the other insurance clauses don't count and the court can equitably change them the latter and it's also i'd like to point out that a there's a substantial difference between the other insurance clause in the federal policy and paul you know that we get to the other insurance clauses but when i'm trying to do is sort out the two things i had thought that there were two different things notice provisions where the courts keep them and other insurance clauses where the court's freeform them and i'm wondering if start changes anything about that i don't believe dart does and those provisions are still concerns considered as are other provisions such as provisions requiring seeking consent notice me and if you're going to make our insurance company pay you have to tell us about it early enough for us to do whatever it is that we have the right to do other insurance means if you have any other insurance they pay first we pay seconds and since every company usually says the same thing that's a logical possibility on the differences for our policy and why just on other insurance in general and why we do not believe our or c s e or the other cases really impact our position none of those cases involve serious other insurance  whereas on the federal side we are reimbursement policy we reimburse the defense for any have consented to being incur and there is a limit the limit is our five hundred thousand dollar limit of liability and because of those interactions between the two policies that we have in this case the other insurance cases and the new line of cases such as that in with guard are not really applicable  matters and then it kept up communications right until it was instructed by its defense counsel by the defense counsel for seat belt that the case has doubled the golden eagle was paying all of the defense costs and the golden eagle was participating to a small degree in the settlement so that your position lot of when all of that was happening federal didn't know it was going to be there was a quick run of the plane many for the fence cars against the press and our first notice of that was september of two thousand and one so what the federal seumas liability would be them for the pre settlement period on the fence cost nothing nothing to the heart of what you just said which is that that's troubling all of us i think is the notice if you use taking the position that they were never federal from day one was never given notice that they would be looked to fo another kind of defense criminal defense lawyers call it the saudi defense some other dude did it on the civil side it's the same thing happened it's really bad and somebody else was responsible for  and what the federal says is the first time there were separate lawyers so they could use that defense barbara tell us and i think her name was she could blame it all on unity say i'm just following orders here and it's the firm that i work for the nonprofit that i work for that's responsible the second time there was one lawyer for telus and and her employer so she can't blame her boss anymore and let the jury hammer her boss and let her go sharing lawyers with her boss that seems really material to me and that's a function of not having highly noticed as soon as the someone falls apart so that they could have a say in who defense council was t well when that was not in the record your honor is whether or not there was any agreement between barbara tell us an annuity or whether there was any difference between their liability or not and i think it is some of some of the documents and the proof sure that's the liability defense none of us know when michael well the blame somebody else defense is is just not available when you're sharing lawyers u