warning me please that the court my name is warren campbell and i represent harry placement centers inc which is referred to throughout our papers in this what's commonly known as h r city this matter of originated sort of the against h r c after dell corning filed bankruptcy an h r c continued with its cross complaint and tell it was the state couldn't be elected and then filed a claim in the bankruptcy court against  against h r c and strict liability a trustee filed a motion for summary judgment saying that it couldn't be held strictly liable it was hotly contested by baker the matter w continued by the court twice and when we appeared to argue with the court determined that it was premature because dow was now being sued and brought in as the manufacture the the pleadings that baker filed a first amended complaint was filed by baker h r c file that this first amid a complaint included all of the causes of action but added a cause of action for fraud charges he filed a demur and it was sustained as to the filed bankruptcy that morning the as a result the matter was stayed and each r c ultimately settled with make her to avoid going to trial where it alone was in the in the si for both the negligence cause of action and the strict liability cause of action h r c was unable to get a finding of a good pay settlement because of the bankruptcy stay after it after the settlement which is l included in the record including lots of resources particularly including that there was no agreement as to how much of the settlement for eight hundred eighty thousand related to economic damages and how much related to non economic damages there was also no agreement as to how much related to which particular cause of action the delco of dell corning being in bankruptcy the only way that we could approach them after defective product the matter continued with discovery being permitted while both matters both claims were not consolidated for the purpose of discovery they were treated that way and at one point in time the bankruptcy judge in michigan recused himself and the matter went to the eastern district court in detroit and judge hood handle that and then she transferred it with the read the consent of all of the parties to the central district southern division the judge taylor we continued with discovery dell filed a motion for partial summary judgment now as motion sad h r c how can you come after us requesting an equitable indemnity we understand that if you were in the stream of commerce that you would be entitled to do this but you're not because you weren't a retailer because  the law is clear that you can't you couldn't have been a retailer well your honor our position and that the court granted that and and after the court granted it we entered into a settlement that dealt with the remaining position has that under the law we're not that's not an element of the cause of action that we have to prove we don't have to go in on our claim for indemnity and prove that we're at fault in anything we ed we  law says that we're it's enough that we were sued for it and that we that we contested the issue and it was hotly contested so we actually think that it's enough that we were sued for it and we had to settle to get out from so so adversary in fighting our attempt to to establish that we were not a retailer of the product and in his in the opposing papers we filed two motions for summary judgment in the posing  we didn't disclose that they included this dow corning previously five medical and he said that turned out in the very place an industry to work very well so we sold the original product was over two thousand dollars and the cost to maintain  which was required if you wanted the warranty the cost of maintaining it was only two and a half percent of the purchase price mr baker bought three of them in addition well we did not start a announce that we would  sell the the adhesive because we took the position you can only get the adhesive here we sold small bottles of what was called no tape that was that was three fifty five medical at that and he saved that was bottled by a different company issues that the players were pursuing that said this is really they really were this is a part of a product that they that they sold us and so it there were there were those issues if i didn't matter to to them to baker then they would have to find we're going to let you out of it but it did and they thought about it and we ended up with with dow corning in bankruptcy with this day and here we are we're going to trial  we we obviously we were involved in putting it on and obviously there was a claim there for negligence we we took the position that you know there were only two people that were in that room mr  and our styles and our stylist says that she didn't if she didn't cut him or newcomer pull anything if she did she would have felt terrible she would have known about it and she scrubbed his head with alcohol afterward and it would have stopped and so she didn't believe it well there may have been something that happened but what the case on the other side of the case which was large had to do with the product the adhesive the driving age and for the he said it was freon and there had been prior cas negligence yes we felt that you know we would we do we would do the best we could to defend then we're also being turned out for strict liability and they are our position in our cross complaint was just you know obviously something happened to this dow corning hasn't presented any cases that say that we're we're not entitled or indemnity were we settled the suit against us absolutely none we present the present at the three main cases one of them has to do with the situation  that's a very interesting question and judge taylor's court we had begun the the work for that and we presented papers but what we believe is that we would have proceeded to trial and and the the finder of fact would have made decisions one with respect to whether or not h r c was negligent one with respect to whether or not the product was defective then we believe that the trier of fact would have been asked to determine what what percentage of the cause of the injury to baker was related to the defective product and what percentage to h r sees if there was found negligence negligence then you would you have lawyers who would testify as to opinions about exposures on each claim you know what we in vision was that we would we would present instead of just proving up to the settlement that we would present  evidence through depositions because mr baker had passed on as to his claims and that the jury would make a decision based upon that those and live life experts and other witnesses and the jury or if it was going to be a jury trial the jury would have made a decision and they would have found those issues just as if the dow corning hadn't filed bankruptcy and if a trustee had settled before were and they would have decided how much of them were or were for economic damages and how much for non economic damages and then it would be a matter of arithmetic and a mathematical calculation to determine to the extent that h r c let's say h r c was fifty percent responsible for negligence well it's a joint and several liability for the economic damages and i'm certain that the judge what is that ok i value your responsible for fifty percent if if there was a strict liability finding an h or c you're responsible for fifty percent of the economic damages now you've got to pay them back to fifty percent or some proportion based on what the jury found the total damages with respect to the non economic damages if a trustee was fifty percent responsible and we believe that the court would have said you don't get for negligence you under proposition fifty one you do not get any indemnity for for a non economic damages you pay those in a settlement that they're yours or the part of the injury that was caused by your negligence but with respect to the fifty percent again in our illustration that was caused by the strict liability you're entitled to equitable  indemnity because you are considered to be in the stream of commerce because you settled the case and you're not required to prove it in this case is an element you settled that the claim against now and so you're entitled to full indemnity for that not only is record certainly it's clear that if you're in the stream of commerce you're all fully responsible and generally the manufacturer almost full indemnity to a to the wholesaler in the retailer so that was clear proposition fifteen wasn't designed at all to deal with that situation where the liabilities basically established by the law it was designed to deal with a situation where independent tortfeasor cause  injury and so to the extent that the jury found that mr baker's injury was caused by a by strict liability or a defective product we believe that if that to that extent  theories well you're either with the the question that they would be asked would be simply you know taking the entire amount of the damages to be one hundred percent you know what percent was caused by you know if you cases that we reviewed when we were preparing and met with judge taylor one of them just frankly said you know the cases go so many different ways you basically have to fashion you know how you're going to handle this and you know in an equitable thank you and what the judge are some cases and say that we can just establish the eight hundred eighty thousand that we paid and that's you know that it was a reasonable settlement and that's that's the amount i think oh i have another question for you counsel i'm sorry i have i may be taking over certainly would be issues and that's that situation particularly how the i'll do it in its manufacture and utilize that product but it would it was sold and manufactured by my view it can they would be strictly liable as as would be if the and he saved or whatever was used in the break mechanism i would suggest that they would also be strictly liable and then there would be an issue as to who would hold whom you know equitable indemnity or or some sort of comparative fault so if that's true than if if your if your client sells a hair system and it one of the parts of that system is what he said then if that is your client they're not complaining that what we're asking is unfair it's because in the end there would have to be a determination that their product was defective and if we did something wrong with the the product that would all come out and and it would be fair  but what could have happened is they could have just dismissed with prejudice and then we're no longer ever going to be hit with that claim and we could assemble a case if that happened we would only be here dealing with we wouldn't be here but if that happened our only exposure would have been for for negligence and under proposition fifty one we're not going to get noneconomic damages indemnity from now we if we pursued and we resolve the economic damages part  so that's not fair to the other thing that's really to me is really the proposition fifty one wasn't designed to interfere with anything like this it had to do with the deep pockets and it's very squarely set out in the statute it's dealt with a situation where somebody or the state maybe is five percent responsible for some days you know that the road maintaining the road and a drunk drivers are ninety five percent but the drunk driver has no insurance and so the state has to pay everything and that's what that what it arose out in this case it has nothing to do with that it has to do with we paid something that was dallas or sponsibility error and that's what our claim is and if it's determined to be responsibility we should be reimbursed they shouldn't get to walk away and say oh we're going to credit you know and they paid some money and we want to pay them with they should pay us what the credit would be if they got a judgment against them and that's what we're looking for the other thing is that the in the cases that were cited one of the major things was the public policy promoting settle and how can you know how can can set the the benefit and purposes of settlement be be furthered when people settle they don't know what they're settling and it should be that they're settling what they're being sued for and put in a position that alstead oh you don't get indemnity and last year or this can be strictly liable as a retailer so now you need to present evidence that you're strictly liable as a retailer well we probably have a judicial admissions through our motions for s that we weren't a retailer but that wasn't the issue the issue was that we were stuck in state court with a very aggressive plaintiff them and plaintiff's attorney that were coming up with numerous theories as to why we were a retailer and we settled the entire possibility of bakers ever been able to maintain a strict liability claim against h r see h r say was primarily engaged in providing services he could no more be liable strictly it's difficult for me to understand why it wasn't printed but it was premature but that's what the court decided the court never came to grips with what that issue was it wasn't as if the summary judgment should have been granted it should have been granted because there and that they're facing at least theoretically the possibility of exposure and they go to settle the case as most cases are settled and why are they right in saying look that's at least some component part of the settlement because the claim still out there facing us well i can make the argument but of question my question is this it seems to me that the negligence issue is pretty well covered by the california law but i'm having trouble have the issue as to whether they active in and made a good faith settlement of what they thought was an exposure as opposed to a looking at how we would decide on the question i have a question whether the party staffs not that they would have to but whether the parties have failed themselves off the night circuits and services and if there's any interest of the part counsel for both sides were involved and the decision was made that to go forward with the appeal and the arguments today thank you you thank i agree that the effort