potentially a trial and maybe another appeal not exactly why cases like the annenberg and chang says you can't do that well if we go back and have another trial i understand the practical reason why both parties would like us to resolve this case now just seems to me that we don't have jurisdiction to resolve this case now in our case law makes that pretty plain i believe this case is war in line with james  james here we also were opened up front with a district court that stipulation clearly stated that we were dismissing the remaining force in the claim in order to appeal immediately and that that portion of the claim was only there before the court because  confess because of the timing i have not had an opportunity to pursue whether that has been recognized by any court as permitting a court of appeal to assert your stiction over the appeal but that is i don't know from you and we've heard their brief was if absolutely necessary i'm willing to do that at some time in the future so i'm i'm a little concerned about whether that's sufficient to give us jurisdiction that the case was to remain if we defer this case waiting to see if there's going to be such a stipulation well i mean that means you'd like for us to apply it on the issue first but we don't we don't have jurisdiction to  on anything if we don't have jurisdiction so we're kind of in a catch twenty two here and i appreciate your offer i produced for shade the predicament both of you have this case doesn't justify going back and forth between the courts but we only have the jurisdiction we have and so we hear the possibility of maybe something will happen in the future that would fix this problem but that's not probably enough for us to go to the bank with so piecemeal review on the one hand and the danger in this case plainly isn't final when you've got a summary judgment a partial summary judgment and you've got the claims sort of shoved to the side with the label of with prejudice that wasn't with prejudice so under our case law seems to me there's no question that we don't have jurisdiction over the cases it stands now they have offered to fix that and i appreciate that and that fix might work but that fix isn't in place yet so chicken in the egg you'd like us to speak first but we can't speak of we don't have jurisdiction so we may have to point back to the egg and say if you guys want to do something that gives us jurisdiction not speed but until then i don't that was based on a legal issue that isn't applicable to the lost wages claims that it was based on the the legal issue as to whether arizona law allowed or contemplated that that the accident or to address jurisdiction first your honors i understand after you know looking after the case in the order how you know and all that although the parties did dismiss the case with prejudice the parties agreed to reinstate the root the sole remaining state has offered to go ahead and dismiss the sole remaining claim of loss of earning capacity and i understood that that was an affirmative offer in the letter brief that so few are willing right now to dismiss the loss of any capacity and so i think we have an agreement but  what i understand you're honest to be saying is that we may have to go back to the district court and put that agreement on the record there rather than simply put it on the record in front of your honest day to just to dismiss that so loss of earning capacity claim you know it will take a pragmatic approach to finding jurisdiction in finality situations where something happens after a nine final order that renders it final and here you know both the state and usa are willing to dismiss that loss of earning  claim so we can have this issue teed up right now i confess that civil procedure was not my favorite class and law school so i've i feel your pain let me be very clear about this because i look at the letter brief filed on behalf of the offer by saying if necessary to preserve this appeal so on and so forth and that's why i suggested seems to me the solicits a decision from us on the jurisdictional question that says ok yeah you've got a problem in which case plenty of offers to do something and i don't think we can offer that advisory opinion as to jurisdiction so let me put it to both of you is this an unqualified agreement between the parties that the what i call the so called with prejudice dismissed claims are actually dismissed with prejudice not conditioned on us saying that otherwise you've got a jurisdiction problem i can it's going to be easy for you to say yes so the focus really turns to well i guess we'll have to figure out if that works and i ask you a question about the merits it seems like i'm not sure we're going to reach the merits but in case we do i have a question about them  damages and i'd like you to explain how that would work if there was delay and it was intentional to let someone die so the pain and suffering damages would not be good would it be possible to get punitive damages for not paying pain and policy preventing you know this this idea that you know insurance companies are going to wait out plaintiffs that are near death to avoid paying these types of damages the public that's the be a public policy argument which is insufficient to defeat the plain language of the survival statute the other is under the herald's from case punitive damages do survive and so if there's a plain allegation of punitive damages that's going to survive you're still going to be assert your beach contract in bad faith so what happens though if the only thing that we should have been paid that wasn't paid was pain and suffering and now pain and suffering damages aren't good but you're saying punitive damages might be to avoid this incentive but then how many punitive damages can you get because usually it's like you can have a multiplier more than ten but now there are no damages i don't even understand how this would work sure there would be a underline recovery you'd have to have a full recovery from the underlying tortfeasor from the liability and so there would be some damages that had already occurred arising out of the personally in personal injury which is the crux of the you i am claim so those damages would support a punitive punitive damages award and i don't understand so say so the medical expenses have been paid but pain and suffering had not been paid and there was litigation over pain and suffering that they drag out so that the guy dies so now der is a law let's say the underlying limits were fifty thousand dollars as they were here those were collected i submit to you that that fifty thousand dollars damages could support a punitive damages claim even though they were paid so there was no problem with that part of it well i think i think what you that there has to be some sort of underlying damages to lead to additional punitive damages and i think the underlying punitive damages here be the ones are already paid because essentially what happens is it insured gets credit for the fifty thousand dollars or whatever the underlying limit side to fifteen fifty or one hundred and so i think that could support the punitive damages against the insurer and also i would say that your honor that in personal injury cases it's kind of questionable whether these these multipliers are as clear cut in other in other types of cases and there are plenty of bad faith cases in arizona especially you know there is recent cases arising out of property damage where there's very small damages sometimes less than a thousand dollars in which significant peter damages have been approved so out so i think that you could have significant punitive damages the other thing i want to say is that this case is a little bit unique this this you know if you're on a rule that the survival statute applies to beach contract in bad faith claims you know a lot of cases arise out of collection of the minimum underlying limits which in arizona i fifteen thousand dollars so if a plaintiff incurs even a moderate medical expenses a little bit of lost wages some lost earning capacity and they have a allegation of punitive damages breach of contract in bad faith claims are going to survive i submit to nine times out of ten this case is just unique because he recovered the fifty thousand dollars underlying liability limits and the only surviving economic damages are forty one thousand dollars therefore the original tortfeasor is no longer and under insured motorists there's no u i and benefits or bits of contract damage is allowed and there's no bad faith damages because only economic damages survive they disclose no monetary loss there's no one paid policy benefits anymore after application surviv