with the parties and to as shown in amendment number four number two the punitive damage exclusion term is partially unenforceable against overton as to alabama's law and fundamental public policy because it would exclude her sole remedy for death based on negligent conduct and finally number three overton's claims concerning as c s post sale conduct should pass through the bankruptcy if they do not implicate the seller your honour's if i turn to point number one which really goes to the definition of punitive damages we start st with the minute number for se a and amendment number four assumed product liability claims and this would include death winds based on all chrysler's negligent conduct and assisting didn't interpret ing the contract should guide us the punitive damage exclusion is the given that the agreement didn't find the term we apply its plain meaning and how do you respond to the argument that alabama five hundred and fifty years h interpreted the statute to award only punitive damages well your honor i think it's a multifaceted response here i think st of all when we look at what the alabama supreme court i though the ag does not call these damages punitive there's there's no dispute from i've that the alabama supreme court has called these damages communities and secondly your honor we don't dispute that the alabama supreme court has said that they do have a few native purposes but if that that doesn't in the analysis here be called at the end of the day what we're seeking to determine is whether under this contract this punitive damage exclusion was meant to exclude the specific type of damages brought about frank overton and the way that we seek to interpret that is by looking to courts interpretating undefined terms and if you look at alabama courts and how they've interpreted piano damages as well as new york courts and even the nd circuit analysis of what constitutes the essential terms or the say we're not going to accept liability for damages that have a punitive purpose and know you're on how can we read how can we reduce the contract and intent to assume liability for damages that have a punitive purpose i think it's because as as a discussed earlier s t a assume product liability for old viper's negligent conduct the the intent was to exclude law building for outrageous conduct international import i see of a very different dynamic at play in the courts interpretation there and it seemed to be undercut actually by other at similarly time in the that's one hundred and fifty years that alabama has had a public policy of not calculating you know was setting a dollar amount to compensate for the debt and for kind of understandable reasons but statute that expressly carved out alabama wrongful death damages so that is a manifestation of the legislators intent to treat these damages differently than traditional punitive damages the other thing that i would note is the fact that if you look at even those insurance cases and we're talking about public policy here the issue is it's where a a party either an insurance company or even in a bankruptcy setting seeks to enforce their contract in the state of alabama and they soon will have billing for another party's negligent conduct but then they and that would be for death but then they turn around and stick to eliminate the sole d remedy for that debt the alabama supreme court has made an alabama courts and federal courts and make clear that to do so would valley alabama state law and alabama's fundamental alabama public policy and why at the very least you should merit certification to the alabama supreme court the alabama does not require insurers for example to insure to issue any particular policy but they cannot assume liability for those accident because mere injury excluding liability for those that cause death and the rationale behind the public policy is the same one that animates the prohibition on taking out a life insurance policy on a stranger namely the state does not want to in would your honor i for one think they're these old b s or chrysler vehicles are still out there on the road we would hope that they if that having this punitive damages liability potentially hanging over new chrysler said it would failure to warn with respect to some that was in the car right so you could still have the plane for their own kind of but that if you can't go back and manufacture cars that have already been manufactured by the predecessor into the in the past that's true enough but i think they're still they would still be better off at the end of the day if somebody dies rather than if they live in the or merely maimed  an old chrysler vehicle and again it's that imbalance that i think it's really problematic it's the sort of grotesque incentive referred to by the supreme court in the moraine decision for example it's why we have wrongful death statutes in the st place so day like you we're dealing with a liability assuming contract and whether it's deemed an insurance contract or it's deemed a sale order the same the same bad incentive is not going to be given contract then we think this is sort of a prime case for certification because the issue is outcome determinative you have it's one absolute we we wouldn't be asking the alabama supreme court to interpret alabama law we asking the alabama supreme court to interpret a provision in a bankruptcy document right josh and i think that might be the case you're looking at the st issue but as to the nd issue again the public policy and whether suing that f d a is some interpretation of the contract is correct the public policy question the nd question is the state and that is well could have serious interpretation of amendment or be enforced in an alabama court and i think about alabama supreme court is best positioned to answer that question to the extent this court is still uncertain at the end of the day and for that reason we think certification would be proper here all right thank you we'll hear from the other side to introduce and acuity uncertainty into what is a straightforward issue applying settled alabama law whether the bankruptcy court sale order and the master transaction agreement approved by that court  unambiguous f d a did not assume any liabilities for wrongful death claims that include any claim for example or the recent you know there is this i guess i'll call it quirky i don't know if that's the right word this unusual statute that labels these damages as punitive or not the statute but the courts interpret in the statute consider these to be punitive but in any other state or in most other states there would not be a bar right it would not be a  damages for wrongful death and that's where the one hundred and fifty years of binding alabama supreme court precedent comes into play it was right push ups and it seems what we're talking about here it still is a three hundred and sixty three sale under the bankruptcy code that has nationwide import and you know being true whatever kind of pressure there was because of bill out and what have you this amendment was entered in order to make sure that people who were harmed by old car co were compensated and only punitive damages are excluded and i just wonder i feel an uncomfortable with a nationwide policy the competent to everybody except sixty three dollars sales that we ought to consider the fact that juries are surely compensating for the loss as well as punishing no matter what gloss the courts and i will bama have put on that for  for old chrysler vehicles complete exclusion we were assuming nothing the state of alabama got notices that water they did not come forward and objected that time maybe on behalf of torture victims the claim to sparked it and those objections and sixty three sale and that is critical there are important federal bankruptcy considerations favor the terms of the n p a being enforced regardless of the outcome on these particular facts it is critical that f wouldn't we i think i think this th circuit in that particular case can't be distinguished on the on the fact they are which was they were interpreting an insurance contract weather service sure but really what they're saying is accepted other situations where courts have recognized that punitive damages may be awarded in particular circumstances under this statute in particular circumstances where there is not compensatory damages  i think your honor the question of negligent conduct here right because what we're i think that is the issue that has been perhaps this statute i think what we're hearing from alabama is that i unique in some way that is what the alabama supreme court has repeatedly dealt with the fact that punitive damages notwithstanding the fact that compensatory damages are not available and negligence not available these general earlier this morning that what the purpose of this is to ensure from the album a point of view that there is no cap on those damages just like regular punitive damages that is precisely the issue as a present prevent homicide and to punish the culpable party so i would suggest your honor we very well might be dealing with a situation that is unique and maybe in shall go forward basis to address judge carney's concerns maybe this is clear that the contest alleging support the wrongful death claim all relates to the design manufacture distribution and sale but the ickle which are all pre sale issues and that is that is clear from the damages demand wherein the damages demand in the complaint the plaintiff sought to make an allegation specific to s e s post sale conduct on the personal injury claims and not the wrongful death claim to the bankruptcy court but in this has made clear that to maintain any independent claim against se eight the proximate cause of the claim has to be due solely to the post closing conduct and there is nothing wrong with the way that the believe that that's consistent with the bankruptcy courts view on that issue that particular issue and where that had been decided and what is right i mean if you have all that after the files and whatever of the original chrysler company and you discover some defect in an earlier manufactured vehicle and so you're in possession of the knowledge and you know more anybody about the risk you're saying nobody nobody would bring a position with respect to that is our position with respect to the to these collect and but again i don't believe that you shoe has been presented on this appeal but i do think that the lower courts were perfectly within their within their honor a few points as it relates to post so conduct we did a less of those claims in our complaint we brought them up there or argument at the bankruptcy court we mentioned it in our briefing at the district court and we fully briefed it here before the bankruptcy record had newness your honor i absolutely i do believe the district court did have notice and i think that you know when we're talking about what we're really talking about is the application of state law as it relates to  villainy originally i would just note your honour's that i'm in that number four constitutes a significant change in intent from s t a from the original master transaction agreement to the amended amendment number four and i that that change in intent is significant here nd thirdly there's this reference to s t a being subject to unbend of lab building another few things one master transaction agreement does not bar  cap damages to we've noted numerous cases in alabama and within the region comparing alabama's negligent that a long haul dep act burdick's to regional verdicts that are based on damages and if i thought if i removed the names of those states and where they originated from you and be able to tell the difference but you could tell the difference from is if you looked at the right case we quoted in our briefing which is based on the alabama wrongful death that but was awarded based on want misconduct and that was significantly greater than a negligent space wrongful death that that is measured they saw in the conduct which is