they must have known how exciting your presentation involved just two young men who are lifelong friends driving home in one falls asleep while driving one reached the corny male mc yes i read the letter nothing the letter says that i may negotiate the amount of the consent judgment letter only addresses the propriety of entering into as an agreement in light of the exhaustion the policy limits i will work with you in bradley on the other terms the agreement cannot participate in the go she says to the amount of the consent judgment there is a consent there is a judgment entered in state court against rather that inferred and in favor of david medicine caught on his judgment in the courts of the state that serves as the predicate for the action that was brought under assignment agreement by mr coffee on against auto owners that case proceeded up through pretrial conference at the pretrial conference judge advised us that his apologies he had not quite caught up on the case yet and that pretrial conference became a two plus hour impromptu summary judgment hearing at the hearing the court asked for additional briefing on this relatively novel issue of the judgment that we've been proceeding under all this time was an evidence of an excess judgment against the insurer and it can't be anything else there is an exhaust in the policy limits and then there's a thirty million dollars judgment entered against their insured her agreement now the court struggle with the idea against their insured participate in the settlement agreement weren't required to as i read the record those are two different things you are so here's what happens the case is presented the claim is presented to auto owners they have an opportunity to settle they don't settle by the time suit gets filed and sue gets filed mr ledford calls auto owners just her and says what's going on i just got sued it's july th two thousand and fourteen it's three months post loss this young man is paralyzed he's lost a kidney he's had broken bones burns you told me you're going to settle this case what's going on at that point the adjuster or the record says oh my gosh how this happened i'm following all this on facebook i don't know how this happened oh my gosh weeks go by that's all you're good fairy fets not at issue before ok what's so what happens is the case goes in litigation two years litigation goes by which auto orders participates on behalf of their insured defending bob ledfor with one attorney and brad for that for with another attorney maced may of two thousand and sixteen they go to mediation with miss mclean the adjuster who is handling this case the whole time and at that point the conversation becomes look three million dollars is not going to be enough anymore let's arrive at an agreement that florida law supports that says will settle with one short and then we'll we'll do a consent judgment against the other and then we'll bring the case against the insurance company it doesn't resolve their over the next series of months the parties all communicate and auto owners are born into it personal counsel mr callahan and mr o'bryant for bob's r v they are writing letters to auto owners saying please participate please give us permission please the insured and the insurance company in privity which other while this defense is going on the insurance personal counsel for both of the insurance is repeatedly communicating with the insurance companies saying we want to resolve this to protect the insured please do this the appoint the two appointed defense counsel miss mozes is appointed by auto owners to defend bradley ledford and she's writing to the adjuster saying we should do this we should protect the in short it's in his interest to do so and that leads to a september rd tw sixteen letter in which they say ok we'll pay the three million dollars the way you want but if you want to do the excess judgment that's up to you and your personal counsel appointed defense counsel and not one person on behalf of auto owners testified that that letter meant anything other then and i quote we told him it's up to him and his attorneys decided what to do in that regard quote what we were telling him is that is that you know if you think it's in your client's best interest and a way to protect him it's up to you guys that's what auto owners said this isn't a case like you see some the citations where behind the insurance companies back they secretly negotiated deal this is a case where over and over again over the course of months personal counsel and appointed defense counsel reached out and encourage the insurance company to participate in the insurance company's alternate response was we'll go along with what you're saying it's up to you about the consent judgment a condition of the auto owners pays its three million dollars to get bob bob's r v out and then as a subsequent good condition the judgment is entered so it specifically in that agreement which is in the record it says payment by auto owners of the three million for bob's r v is a condition to this agreement so not only was auto owners aware of it and mr frohman their court representative confirmed it is the position that they were aware of it subsequent to the execution of it auto owners ratifies it by making payment in accordance to the agreement and then standing by while the appointed defense counsel goes to court and enters the judgment this did not come up in the case  as an affirmative defense wait a nd this is not a valid judgment this doesn't form the basis this did not come up until the argument at the pretrial conference so the court concluded as a way of just vote in disposing the case the court concluded that there is no evidence of an excess judgment against his insured which facially is not accurate there is a judgment entered on december th two thousand and sixteen against their insured mr ledford in the amount of thirty million dollars it doesn't get much more access than that what is the evidence in the record of damages other than the the thirty million dollars agreement oh there's a there's a bunch they've litigated this case for two years the court references i believe in his order that there's testimony and we certainly saw it in our brief it was testimony by the plaintiff's expert on valuations that his economic damages alone would have been twenty four million dollars yeah but what i'm looking at on april rd of two thousand and fourteen which is what i did right april seventeen internally and and to their insured mr lead for the senior they admit that ledford r v is one hundred percent their insured one hundred percent live over the course of the next weeks and by their own admission by may twenty seven they recognize that the damages are going to exceed the available coverage they are aware through information they have in front of them through information to getting from their insured that  we're going to take care this we're going to tender the policy limits that doesn't happen there is no explanation given for why through may through june if all that i mean one thing is that she keeps writing saying i need  medical records my th she writes and says i need medical records but you don't actually need medical records to determine that the injuries are so severe that they're going to exceed your policy limits there was no question there was testimony about the agent is not you don't need a medical record tell you that's been exceeding the policy limits and ultimately then they didn't get policy limits well sorry ultimately they didn't get medical records they got a a lien statement for three hundred some one thousand dollars but here's the series of events july th mr ledford sr his girlfriend call the adjuster and say i just got sued what are you doing july st this document comes the mail it says there's a lien from one hospital for three hundred and eighty six thousand dollars august th and this was absent from the court's recitation of facts aug th personal counsel mr o'brien calls the adjuster and says or writes the adjuster and says you told you knew from day one that this ag that this accident was going to go over three million dollars i agree with you right and everybody knew from day one that all of that there were there was no excess carrier here well there was there was a one million primary and two million excess but there was no coverage be on the three million no no coverage beyond the three million what is it your theory that auto owners  did that made them liable for the excess they failed to settle when they couldn't should have done so which is a question of fact all right for the three million bucks absolutely never going to take three people were all lawyer it up in this case that's not true you want to record dozens all of that  table the three million dollars earlier this case would go in a way that is the undisputed testimony that is just pots i don't understand how i can respond to that if that's the testimony from the father in the son and that i was just going in the car i overstated that but it adjuster and said what's going on i need and he did settle i mean what are we doing with this and she admits miss miss miss mclean admits that she did not offer him money he felt he got the runaround he was told repeatedly by his testimony and this is in the order the court in the order cites this testimony that he was told several times don't hire a lawyer if you get this judgment entered or you had read entered yes  we go back to a jury and the jury gets this and then you try good fairy or bad faith that's correct your honor and is it your position that this liquidates damages yes your honor that's what the purpose of this is on on one of two pro are owners get to prove that it was unreasonably high and collusive well they didn't actually plead that and actually in the hearing that led to this order the judge asked them point blank you said well you're not contesting the amount are you and one lawyer said yes and one lawyer said no it was a little confusing ok but yes they have the opportunity haven't they never hire an expert on this they never put any testimony in saying it wasn't reasonable remember this goes to put it down because the way along florida works it he didn't look at the but at the hearing it was obvious from the pleadings that they weren't really contesting the reasonable of the judgment their own lawyers had evaluated as being a figure case as high as thirty busy or four thousand and forty or fifty million dollars this was there was a tragic case they did not hire an expert or have any other testimony in the record that no but you're asking me during the candidates to the hearing to the summary judgment so forth in the run up to trial because this was the pretrial conference which was to try to case next week discovery was closed they had never disclosed an expert as to the amount being unreasonable or not made in good faith and that's how the burden shifting works in florida the proponent has to make a promise facie showing it was reasonable may need faith usually through an expert and we have an want to testify to that effect and he did and then the burden shifts to the insurance company or the the opponent of the judgment to prove it by the preponderance of the evidence that it was either not reasonable or not made in good faith and they had no senior and mr coffey on the younger they both testified that up to june th when his father was calling saying can you please settle with us can you give us the insurance proceeds they would have said the case and but for the adjuster telling them giving them the runaround about the amount not agreeing not saying i can pay you three million and don't get lawyers lawyers and take a bunch of it don't get lawyers that put them put him in a mood to get a lawyer and say we don't trust you anymore we're not confident in the final lawsuit that you  there are only three ways a rd party can make a bad faith claim the court recognized this in an exhaustive discussion in a twenty six dollars page opinion the reality is that you can't make a power claim without an excess judgment a power claim presupposes an excess judgment and the only way to get an excess judgment there are three ways under the supreme court law of the state of florida in pereira you can have either the classic case which is a verdict in excess of available insurance limits which we know didn't happen here or you can have a cold and hungry mint which they admit didn't happen here or you could have a cunningham agreement which obviously didn't happen here what happened here was that there were two insurers one insured was a corporate entity allegedly presumably with deeper pockets and one was a seventeen year old boy who was a permitted driver under a policy the seventeen year old requested that the insurance company pay all of the proceeds available to the corporate entity in exchange for release and they did so they then because they had not only duty to defend but a right to defend and they had to defend their insured they said we will also continue your defense without reservation they did everything they were supposed to do to protect their insurance judge anton reflected in his order that now what appellant is trying to do is turn a rejection into an acceptance and they just can't and i think if you look at judge and turns opinion on page twenty two to twenty three it says a settlement between the insured and rd party plaintive forecloses a determination of whether the insured would be exposed to liability for damages in excess of the policy as contemplated by the policy and florida law and that's the point it goes on allowing such agreements without the insurers authorisation to provide a basis for bad faith would remove the safeguards promoted by florida courts how does it do that you see if he still has to promote prove his bad faith claim you know your honor you can't get to a bad faith claim unless you have something that the insurer did to cause the damage and in this case there's no excess judgment the only way to make a bad faith claim is to have an excess judgement which is defined as either a copeland's agreement excuse me an excess judgement or functional equivalent there  why isn't this a functional equivalent because it doesn't fall into the criteria for the florida supreme court your honor you need either a verdict in excess of the limits which we don't have here or you need a cult's agreement which they admit we don't have here or  agreement which is something that the insurer agrees in this case it was the exact opposite a cunningham agreement was sent to auto owners it had their signature line on owners refused to sign that agreement saying instead if you are asking this to pay all of the insurers and that's on behalf of the corporate entity we will do so we will also continue your defense without reservation they did not sign the agreement and they would not sign the agreement and the ultimate agreement that they entered two best friends driving a car home from spring break for thirty million dollars without any verdict and no basis for the insurance company because that that agreement didn't even contain all the owner signature it's not even like it was there with an extra it was removed why was it removed as your honor pointed out in question and it was removed because they did not agree this court has said that several things one in zurich there is absolutely and for that matter the florida supreme court in burgess there is absolutely nothing that requires the insurance company to agree to be liable for amounts in excess of their available coverage you have that's fine but you haven't agreed to that you can agree to anything in terms of them your honor there's no excess judgment to which to agree the only way to get an exit there are only three ways to get before to get a bad faith claim and that is what pereira stands for and that is what judge anton found that you need a classic excess judgment which is a verdict in excess of available limits or you need a coincident or cunningham agreement they don't meet the threshold to bring a bad faith claim which is why i suggest they have refiled in volusia county a case vs bradley ledford the person with whom there's already an existing consent judgment i believe conceding the propriety of judge and tones order that they just have no excess judgment here on which they can proceed to a bad faith claim but would you save all you know your your client as well as your opponents climb lots of unnecessary time your honor i think there are several parts to your question i want to address them all  we need to look at the facts of this case the facts of this case are would not even come close to that situation that you're suggesting ok for several reasons one retain counsel in this case brought in a rd party the barrier company that was referenced earlier that barrier company was liable and paid a multi one million dollars dollar settlement in exchange for a release i don't know who would have been at fault retained counsel in this case testified that they were always discussing what percentage would out the fault in fact he had raised in the underlying action a defense of jointed venturer that survived motions that he was going to present to a jury where he thought there was a possibility of an actual defense verdict and least as to his clients so we have no number we may say that you may believe that this game but you may believe it was an excess claim of excess of three million dollars but without an excess verdict we have no claim for bad faith that's the whole point of florida's protections otherwise ed two best friends couldn't enter into a consent judgment any time they thought there weren't sufficient proceeds and then just take a swing at the insurance carrier to pay the rest in this case we had a barrier company with tens of millions of dollars of insurance but that never went to trot nothing went to trial there was no verdict even though there was a complete defense offered without reservation of rights and the insurance company has an absolute right to a determination unless there is a co and where they agree through a cunningham agreement you're at your position is that these three avenues of the exclusive way of ten of may of testing you know there are no hybrids there  and said i recognize the footnote but this is certainly not the possibility that we're talking about and that goes into the pretty argument and the chief judge of the northern district of florida recently said with regard to the  pretty argument is readily apparent because if you follow the pretty argument it says if the insurer doesn't if the insurance if the insurer refuses to defend then they could be liable under a coburn's agreement because the insured is left to their own devices but if the insurer does defend then they're liable under pretty argument which means there's never a need for a cunningham an argument because you never need the insurance company to agree it's fallacious it doesn't work you cannot box the insurance company into a position where at any time to best friends any claimant and any insured can enter into an excess consent judgment and deem the insurance company liable for that amount you don't meet the threshold of bad faith in the absence of an excess judgment or the functional equivalent thereof we know there's no cunningham agreement we know there's no copeland's agreement everybody submitted that so what we have is no verdict in excess of available insurance limits and that is what usa jennings says you need in order to get a classic bad faith claim of an excess judgment i have one more point of the court has no further questions on that regard we all know that this court can affirm on the grounds judge intone raised so eloquently in his order or in any other ground and i would just put forth to this court that in his opinion judge and tone sets forth all the facts necessary to find that there was no bad faith in this case what we have in this case and this court in able in five joe has said multiple times that an insurance company has an absolute right to investigate and as judge martin pointed out earlier an absolute right to see credible rd party documentation before investing in during their investigation before making an actual decision on value in this case i agree the injuries were severe but the question was do we know and when the adjuster went to the person instead legal the question came back was is this in is this paralysis even permanent what do the records say immediately upon receipt of police report in this case the day it was received the st which was the st time that auto owners knew of the address of the injured party the day they learned of the address they sent to that you on april th the father returned that authorization and he it was signed david cawthorne and it was circled parent and so in their duty immediately the insure turned that into the hospital and said medical records please ok and the hospital in fact there it was even better they say they served a handwritten fax note with the authorization saying please get me these as soon as you can we really want to get this gentleman some help and we need the records in order to do so they then said if there is a cost please tell me in advance and i will bring a check i will pick the records up personally and panel mclean the representative owners stated that she was going to drive the hour and a half to pick up the records of a mystery no said that had the policy been put on the table earlier all the  accepted the three million dollars and that opportunity was lost because of this that and the other i heard him your hon did he speak the truth i don't mean to be flippant i know that in this case the father said well had they offered it we'd have taken it but they never offered it but if you look at the e mail exchange what they specifically said was st of all you look at the it's that testimony in that regard and panel mcclain said i was so thankful having left my cell phone number with them previously that finally i got a kaufman and i discussed with him the need because of the rejection of the original authorization because the hospital said i can't give you the records it's a conference now eighteen is what eighteen so we're what happened was the it came back and the e mail exchange that followed was thank you was a pleasure talking to you she testified that as soon as they had that conversation she was so excited she was going to get a release an authorization for release of records she wrote back here's another copy of the letter i am looking forward to the release so i can move forward he writes back and says i read your letter it says settle the insurance portion of this what does that mean she writes back and says we would write a check to mr kothari in exchange for release of our insur spend as you deem fit and he writes back how much with a check before she responds there's three million dollars in coverage the next thing you know a lien notice comes from optum no number  lien notice just says we're here she's never received a medical release she writes back immediately and says can we please have a copy the medical release i'd like to get that soon she didn't know they'd already su and that was the problem your honor they this court allows the a duty to there's a duty to investigate this court allows an investigation and this court has said that you need credible rd party documentation and you have a right to it was good faith issue was was the briefing on the good faith issue before the district court closed in other words had both parties had the opportunity to put in into makeup of a complete summary judgment presentation on good faith yes your honor i believe that judge anton heard good faith testimony but the was no bad faith in general but there is no threshold to get to bad faith because all the owners never had an opportunity to get an access judgment and florida law is clear that you can't have an excess judgement unless it's the insurance company's actions not the insured the insurance company's actions that caused the damages in this case as your honor pointed out it was the two best friends and their counsel that decided on the consent judgment auto owners took no part in it and under florida and federal law had no duty to take part in it and there's absolutely no obligation for them to enter into an agreement to pay more than their contractual policy limits i see that i'm over my time thank you thank you thank you very much i'm going to stick to the record most of that conversation about the rd party and the and the the barrier come that's not part of the record it wasn't part of the record up on here on appeal what we're talking about here is there's a lot of reliance on pereira footnote seven says we do not intend to limit the types of bad faith claims that may be brought in other cases to only the case law discussed in this opinion we discussed the case law only to determine whether the principles from prior bad faith case law may be relevant to the facts in this pereira specifically says in two different places we're looking at very specific facts for this issue which was the interplay between a series of carriers two of which settled one didn't but there was an excess policy way beyond the settlement amount prayer was limited to its own terms and it says in but note seven we're not foreclosing other opportunities this court recently in brandon versus geico addressed one of those opportunities seventeen days seventeen days and did a loss to the date of tender in the courts it's a question of fact go back to the trier of fact and see whether there was a famous other one that could and should have done so that is the standard where the insurance company given the tally of the circumstances fails to settle when it couldn't should have done so and  one of those hybrid you talked about judge parker was an issue because what happens these days as i explained to the court is what happens is the carriers say ok i agree with judge parker's theory that as cunningham said as the supreme court said in cunningham a long time ago it doesn't make sense to spend all the time and money trying cases when you know the real issue is the bad faith and insurance companies very claimants very rarely agree to the idea of let's try the bad faith case st and then go try the case so what they do is and what happened in brennan and other cases that have been before this court they allow the insured and the rd party to enter a settlement agreement they waive any any policy defenses and say we'll use that to quantify now we'll go try the bad faith case and not once in this case ever did auto owners say wait a nd you're violating the policy wait a nd you're breaching your contract to us by entering this agreement wait a nd you're voiding the coverage they've never said that they've never complied with any of the statutory requirements that say if you are violating the voluntary payments lack of cooperation xah some celebrity clauses we have an obligation obligation in time we tell you and more importantly in mid continent versus american pride this co held not only does an insurance company have an obligation to tell you they have an affirmative duty to get you to cooperate here the opposite happened the record is clear they were asked by everyone involved including their own appointed defense counsel can we please do this and the best answer they got was we'll go along with it you deal with the judge it's up to you if you want to do the judgment and we'll go ahead and after that agreements entered we will ratify it by paying the conditional three million dollars under the agreement and then we'll stand by silently while you go out and you get a thirty million dollar excess judgment you cannot define the existing judgment of florida law as anything other then a judgment in excess of the vailable coverage thank you thank you it concludes our cases for the day will be in recess until tomorrow morning at nine o'clock