before we begin following any cases i will advise the attorneys that each side will have approximately fifteen minutes to present argument and from if you telling me save up some time for rebuttal so we will it if both attorneys would have to identify yourself for the record mr after request to save three or four minutes for bottle of sure ago or more and out of the liquidation of constitutional came to guarantee funds presence in the many piece of litigation one of which is this particular  statutory and penal piece of litigation created virtually eighty years ago in order to both well primarily in order to protect your decision was that group of benefits offset the amount of the claim right our position is that in the funds position i should say is that that the value of the plaintiff's claim in the dram shop portion of the litigation is the fifty eight thousand and change which is the statutory number from two thousand and nine that sides agree that that is the maximum amount that we're talking about we're not talking about first party insurance we're not even talking about a negligence action we're talking about a statutory based action right the status is same last injury virtually inexistent legislative history which unfortunately we don't have to help us either that says that the weight that the dram case the judge then collects information on set offs and those acts or produce the verdict and we also have the dram shop statute which limits the maximum limits to fifty eight minus any other settles best that the defendant are and what i view is that if my client got well that of my three clients here ms miers is the one most seriously injured so let's use miers as an miers takes her case to trial and she gets seven hundred fifty thousand dollars what i believe is called the law and what prior dram shop cases with or without involvement of the fund have said is that strong bet verdict she will have reduced any money she's gotten from other sources of income i say that doesn't make exact sense that you'd have to have the funding both and the ball offset from her verdict would be any money that she's gotten from other sources and she's also subject to the statutory limitation on the value of the so she could get five million dollars if she's recovered three hundred thousand dollars or in this case two hundred fifty thousand dollars from row number of her policy and another one hundred in thirteen hundred twenty thousand dollars for health insurance policy that get up to fifty eight thousand dollars and change up to the two thousand and nine limit if a verdict is entered against the dream here and that's the that's to calculat and there's nothing in the amended act and that says anything about any attempt to adjust the dram laws or fifty eight is reduced by whatever's like right the way the statute said talks of insurance policy and well i think it matters in this case because i've got a million dollar insur this is with by forty six cents by forty six cents the funds obligation and this is the other choice provision that we're laboring under today it says the fonz obligation under section five thirty seven point two shall be reduced so what do you believe the funds obligation under section five thirty seven point two with i believe the friends obligation is to act as though they are in this their obligations well plus their their obligation is to pay up to the limits of the right and what we're seeking is a calculation of the set offs and inclusion of the set offs after the dram case has been decided enough inclination there was after reading several of the work the stop cases is when you're with a worker's comp it's just don't know exactly what the whole exposure is going to be if you have a permanent total loss you could have somebody collecting two thirds of their pay for forty fifty years if there are unfortunate enough to be injured at a very young age and then the legislature i think simply decided to put the three hundred thousand dollars cap in place in a situation like that's not fair it's we just don't know we don't know how long the person's going to live we don't know if we're going to get better and so on and so forth i think the argument to the contrary works as well if your feet yet if that's one of you specifically  i've probably read it a hundred times mr president i can guarantee you is read it a thousand times that he's are you that probably a thousand times more than i well way it was certified because there's a substantial difference of opinion what are those two i mean what is there that you know what we have now the trial  griffin the same thing well i would say right off says group health insurance i would cite the fact that there is no law at all that says that the presence of the guarantee front takes this case out of a fifty sixty seventy year old long calculation of trenchard's and took the reason for the and he's getting fifteen and now the jury has decided the value of his case his offsets apply for someone to the act and it was better not they would even apply under there's another case that has been moving along in the southern part of the state that where the guarantee fund and plaintiff's attorneys are at odds over this issue also with that and the judge was made aware of of that and so request for a three zero eight certification that would simply judge when when we said before a judge plan again and it was with judge johnson was it legal the motion i had a case where right to plaintiffs if they're going to get i'm going to lose this my two clients or two points are going to get a four hundred dollars a six hundred dollars and one lady who isn't going to get any more money at all so the last thing i want to do is spend fifteen thousand dollars on doctor's depositions and try cases where i had nothing so we thought yes ye e i did find it ironic in closing that the he summoned versus white case which is a supreme court case was cited by judge johnson against me in addition to wrong at the lower court level where is that the hasan in language talks again about policy the insurance policy and not the  value of the claim necessarily and we're talking about in this case a million dollar policy of insurers now i think i've made myself clear that that's not what a my expectation shop there but there is nothing in the changes made to the act in one nine hundred ninety seven and nothing in the legislative history and nothing that's happened in fifteen years of case law that takes this case out three decision which i mention the only by way of picked up in the related case that cites those cases as the proper methodology for calculating a dram shop was well the trial judge will be informed of whatever money says the plaintiffs receive and in this case she received a total of two hundred fifty thousand dollars of under insured motorists and bodily injury money and then another one hundred one hundred thirty thousand dollars in health insurance money so under rob that number i believe is a three hundred thirty seven something so subtract the three thirty seven from the seven fifty and that present you with that has been decided since the amendment of five forty six from ninety nine cents that was a question that i was asked a moment ago now give me a case the insurance companies obligation and from what i'm seeing here is the obligation is actually limited to fifty eight so in order fifty eight thousand so in order to that phrase to be meaningless the wrote a believe that he there's there's nothing in the amended act that does anything to change the anything to change the methodology of the dram shop back and to allow a set off in this type of a situation leaves it completely eliminates the reason to have a dram shop at any rate it's not even applied fairly if i was a victim of an automobile collision and i had fifty thousand dollars of seventy five thousand one hundred thousand dollars of under viable dram claim for thirty some odd balls i think the the application of that interpretation is illogical and it doesn't move to protect the public which was the initial reason for the damage up there in the first  keep a successful plaintiff from becoming a bar owner if they'd let or not they wanted to pick up a poem for my plants are interested in anything other than compensation in addition to their under insured motorist plus their their you for the defendant happily you covered a lot of the ground i was going to cover but to get right to the basic proposition what does what does section five forty six application and the insurance life building should be reduced by that amount in a dream shop case the funds obligations the insurance liability it's either authority that kind of sets the dream shop act apart from all these other what we could finish and  rock that was a twenty thousand dollars settlement of the policy then after that happened the company would itself and then this fund came in and said well look you've got one hundred twenty eight l c d medical issue it's recovery and that section five forty six refer sas under other insurers it says the funds obligation under section five thirty seven two shall be reduced by other because it doesn't that what it says is the funds out of a geisha under five thirty seven point two in the way i read five thirty seven point two is the funds out of cation is the lesser amount of the policy limit or three hundred grand it doesn't say or any other statutory kept them a while so my question is and they could have said that they could have said the fans have the patient is three hundred thousand or any other statutory kept it is less but it is the say that it's a sister a hundred thousand so since it doesn't mention the dram shop there are any other statutory why isn't the appropriate calculation three hundred thousand last other insurance collected and if that number is still above fifty thousand i don't think that the fifty thousand judging by thirty seven point two is that covered defini thousand write the claims remains the cleeve if we take a case to trial and it comes back for ten thousand dollars against the insured of the insolvent carrier the fund owes ten thousand dollars that that's the our position really to sum up is that we believe it is a bold leap of faith made without statutory or common law forty or the fun to say that the value of driver they do what they can do they get money that they can get then they try their case against the bar knowing full well if their their lawyer is paid attention to the law  they're not going to double recover and if they have not been fully compensated based upon what the jury says their claim is worth and they're presenting the balance of their claim against and solve a carrier that is covered by the fund then they ought be intitled up to the limit of the statute and there's a reason why when the dram shop back was written there were certain amounts picked y over y the amounts or i wasn't around in one nine hundred thirty four a i guess i'm happy to say my father tells me i should be happy to say and those numbers go up with the c we know small amounts but the dram shop act is not meant to provide millions and millions of dollars even the most horrible horrific of incidents and that the fund is arguing in this case is that if i present my client presents to them a that claim is automatically worth no more than what the statute says it's worth on the day of the last forget about the set ups and we don't interpret five forty six  after nine hundred ninety seven is saying that we are asking the court to follow the procedure that has been followed for many years in dram cases have a jury calculate what the plaintiff's los are and whether or not they have are entitled to recover anything quite frankly from the tavern or the alcohol provider and then they have