all right good morning again case number seventeen twelve eighty five mccracken ursus progressive direct insurance company story for starting court couple of minutes late this morning i was with her driver who visited every stoplight be reduced by that out from any other coverage including but not limited to legal liability insurance medical payments coverage health insurance or other uninsured or under insured motorists vehicle or was that statu knowingly to the council whose whose client died the agreement or not knowing i don't know that there's evidence in the record well i mean will presume lawyers still the law but i mean did was the client represented by point it is with with you know seven or eight related cases in courts throughout colorado that deal with similar issues so yes i think that would i think that's warranted in this case it's sort of holding the case in advance there's a difference between a right and a lot that regulates insurance company conduct i don't think the un statute get insured a right to not have it but i think that it's the legislature saying insurance companies you can't do that and i think that's a i think it's a critical distinction in this case that it's not it's not a negotiation that should ever take place is you know if an insurance company saying well i'm taking this that off and you have to waive your right in order to receive the benefits that this contract settlement and the answer was we don't know how many cases are there any cases now are you asking us to do something that has not been time if it has not been done to my knowledge i mean we've got these a number of of actions you know they're all considering this issue and they're at least at the trial court level they have all been decided similarly which is just you know really spars so i do i do think it has to be considered i mean for the first time but getting to i mean your point about the difference between a settlement agreement and a judgment i don't see a big difference between what happened in these cases where they were they were settled and cal and so there was a it was important to both of the district court that just the love they said it was you could have gone to trial right but in truth doesn't happen if specially in the u n context and it's were doesn't have to go to trial to get the benefit they're entitled to had they gone to trial i'm fairly confident the result would have been the exact same thing that happened in calderon which is you recover with a recovered judgment kalar and then there was a remit it or we did actually result in liquidated damages or where there was wasn't really about the amount of you know i am coverage that was available it was about what they wanted to settle their claims what amount were they willing to take to settle the claims and so i see a distinction between this and say i'm taking this reduction that the legislature says like i can't do you two parties can't negotiate around the last ever and i think that the roof at the time they were negotiating if they weren't negotiating around the law and called i haven't been decided i mean it was it was an acceptable interpretation was me consists interpretation so they were at that time negotiating around the law for that and i disagree i mean i think that the rhetoric that's where the retroactivity you know comes into play statute well i think the two are very closely related and right which is why we and this issue was raised in argued extensively in both factions consolidated actually let me ask you this question was this case settled for fifty thousand dollars and then the insurance company took a set off at the time they paid the fifty or was it settled for fourteen thousand up then the set up becomes  insurance company set the amount of fifty thousand in the negotiations the insurance company said we were ten thousand set off therefore we exactly what you know that's exactly what the court of appeals held in calderon is that the supreme court said we're not counting and you know we're not counting that interpretation of the statute that this is a you know it's lower than the limit in other words not what calderon stands for so i would say it what about it all three cases are the limits fifty thousand they are not no i don't i don't believe so but what are they i mean help us out i mean  so i would agree that you know we are talking about a case where it's less than the you know less than the limits of that of the coverage but that calderon's so that's not the way we interpret the amended you and step you know whether this is you know whether it whether there's a difference in treatment and whether an insurance company can take that off limits when the amounts in dispute early amounts and it's going to be recovered less than the amount of the insured limit that's withheld from rejected panel has any specific questions actually related to us a that i cannot answer he is available i think i can start out by answering the question that they handled physically ask about the limits of each of the specific policies and i can and they get literally got a ruling that said your non duplication provision in your policy does not violate public policy so progressive for example as i as an organization said ok we're going to go ahead yes absolutely absolutely agreed with us and not until the supreme court did they say you know what we disagree right and so that shows that you didn't act in bad faith but it doesn't win you the case well there's no bad faith allegations understand that but that seems to be the argument we have good reason to believe we are on but that doesn't carry the day absolutely not nor would you know if i was us because you brushed up against something and i'm just curious what the the insurance that still insists that happened is that still your position progressive would not that would not adjust the claim that way today post colorado right so the position that changed the claims adjustment position has changed the supreme court may have a new opinion and that opinion may be retroactive but they decided to pocket the consideration that usa and progressive gave them in order to walk away from the right to sue and that contingency that's why releases are so important or has to be finality to them and both parties bargain for that risk and that's why it's so paramount that this court honor the finality of those releases books as you've never col an affirmative defense and it's affirmative defense played by both progressive and usa and in progress and case we filed as well the six motions saying you failed to state a claim because you don't have a claim that you have released that claim in the a case they lied about they brought a rule twelve emotion for judgment on the pleadings saying you don't have you don't have the ability to bring this claim as a matter of law because you have released the very claim that you brought so the issue  similar allegations there are five that pending in federal court and four pending in the state court the five that are pending in the federal court there are two that are before you today right so you are caught up on those cases there are three that are pending in the federal district court right now and there is one pending that is in there is it's the allstate case and it is then there's been a recommendation issued by the waiting for org opinion by judge moore but the context of that case is similar to this one in that there's a recommendation for dismissal isn't really so if i had a crystal ball i would assume that case would also end up here one way or another on appeal but this is where i think it becomes very critical and then i go to the state side the other two cases that are pending in federal district court that have their ability to come up this way are two consolidated cases filed against state farm and there was an order issued yesterday by judge bremer and i got a case too late last night to file a notice of supplemental authority but i plan to do so today although i did bring copies some happy to hand them to you today if you just like to see a copy of it but i can leave that to your will help inform your decision hopefully but the reason i think this is interesting and also i think a good argument for why you should not consider why you should not stay this case in look for guidance from the colorado a state court is because that if you the issue that was raised in front of judge bremmer is not an issue at all that pending is currently in front of the colorado supreme court so judge brinn were dismissed the consolidated state farm cases based on a court in satisfaction so the two state farm cases moved to settlement and a court in satisfaction which is a similar issue to release but it's not a four corners contract interpretation like we've argued here and like all faith argue below which is something that's coming up here so i'm assuming that question about that i'm some decimal confused if it is different then than what we have here to the court and satisfaction argument why does it matter whether we i'm confused by how you're connecting a small wouldn't still make sense for will make any difference whether we would hold on to the sure i think i think for a couple reasons number one right if it is this court is going to have to make its own determinations on these issues anyway even if it even if it stays but i think what  that the public policy of colorado doesn't doesn't have any relevance when you're talking about the four corners of a release and even judge rimmer said in his order that colorado public policy didn't come into play when he was considering  satisfaction which means if you go with the release direction or you go into court and satisfaction there's no reason to defer to colorado judges when colorado public policy didn't come into play to trump consideration of these affirmative about things out but we are on a very tight schedule this morning so i won't do that yet judge phillips just to get to your point i think it's telling that in the in the arch well manner they took a different position below thing that that under this rubric they could still do the same thing as calderon and be you know insulated from liability how do you have there on public policy i think it is i think it varies on public policy hugely because  under this framework there is a giant gap in public policy law ok and so essentially now and in this act it really terrifies me because what is to stop an insurance company from taking any of the other actions that have been invalidated by the colorado supreme court to trial the noble cause and just incorporating it into its negotiations they will we don't believe you're going to recover that much mr insurance so we're going to offer you a thousand dollars unless you take this case to trial you have to sign release is that ok statues and the purpose behind them i think the answer have to be no or to let it potentially allows them to continue this conduct as long as they get a generally switch they require in every case so that it is very concerning and there is a there's a