to that argument be made in this particular proceeding this is a case about whether you want things done the right way or the wrong way here in mc did everything right they went out they thoroughly investigated this loss they they concluded that they believe the fire because they had a theory as to law but if you run this out all the way and we start a plan made whole in this context then first party insurance carrier never has any incentive to settle it's insurance claims and recovery from energy i think think i it's important we're calling is made whole doctrine i think we need to look past the words and look at act what's actually happened here you know football means one thing in america need something totally different everywhere else in the interview was their fault or to simply seeking to recover that money so i think it's i think it's an error to even call this may hold because that's not what happened i cited in my brief there's ninety six arkansas cases on lexus that have the turn made a hole in them  same question right riley seems to be the case everybody considers yes or significant and riley is all wrapped up in in lean concepts yes or this is not a lean flame or is it no it's not insured nuts or or or with the in the comp situation of cern again as a problem a brief this is a situation where it's not the insured and their carrier fighting over the money it's a third party attempting to you know so an insurance contract context of a case where would you such as this were lean is not being asserted correct there's there's not a case either way and that's the point of my brief we have these nine six cases and not a single one of them goes into that and  you know i'm mostly a sort of because you don't need to lean but you you may you may need to prove in this case that since you're standing in the shoes of the insured i can i can understand arkansas  requiring you to prove or the evidence to support the notion that the insurer has been made whole well and again i do think this notion that that the true judicial determination has to be before you bring your lawsuit that never brought up well but the council i mean i judge local is right that there's no cases the directly addressed us but reilly the language of rally and that's that's what's concerning to me i think that you may lose under the language of riley it says and this is the way talks the insurers right there's not a crew which is why the district court said it's not party to use the word accrue as here and then it goes on and says that complete recovery by the insured must occur quote before the insurance an easy answer here to all of this which is if you can introduce proof that they've been made whole you could you could you could send it out to your insured and say to that two hundred i don't remember thirteen thousand three thousand i remember exact amount did that make you whole do you have any other claims or injuries that you want to you want to address where you can get some sort of judicial declaration this is not tough to satisfy and we could disagree about what riley says in particular mothered incorporates that lean or non lean concept but it's a pretty easy fix to go out and do that and then and then provide that proof why didn't you do that why did i don't do that or what why did you counsel do that who are really am see it is generally not do that  select they they advise you of that because as i recall there is a some sort of pretrial paper i don't remember exactly what it was that basically sad you know work we're going we're we're going to possibly assert the made whole doctrine here so it's not as if you didn't know that that was coming yes  if that isn't a if that isn't a record that would permit a jury to find that the insured was made whole i can't imagine what would be and i specifically made that argument you're on you're correct as to the real property damage the check was one hundred twenty five thousand dollars and change mr blakeley test in his deposition and it trial that he only spent about thirty six thousand of that money to almost completely repair his house so as i understand we have a record we have a close and of trial motion practice yes or in which the court disregarded what the evidence would show with regard to made make coal and dismissed your claims gently because there was no judicial determination before the suit was filed yes or i would also point out that interview made that motion ramifications to arkansas law would be massively expand in this doctor and apply it in a way that's never been applied their whole law firms and their practices you know property damage subrogation that's all they do to my first question yes or it's your position th payments i couldn't get it settled the plan to file suit it goes to the jury on a verdict form and what happened is is the jury awarded less for the lost wages than the carrier had paid them right are like a thirty thousand dollars difference and the trial courts they will want to set this off against the pain and suffering and the appellate court said you can't do that that's on liquidated you can't put a number to a number you can't put thirty grand to my back pain you can does not exhaust the made whole doctrine the second purpose is to prevent the insurance company from so to speak jumping ahead in the line jumping ahead of the issue which is our case and  fully compensates and and insure should not recover any payments that should rightfully go to the insured so that he or she is fully compensated so the part that's over that's all part of double recover i mean that's the that's the second part is not a part of double recovery because that's what ari are lasered both what what what is what is wrong with litigating in in this case where the insured was made whole what where does riley prevent that the current of if it really clearly says that the insured and the insurer are perfectly free to to make an agreement that the that will that will damages if it's just a property case and the only question is whether the property damage coverage paid exceeded the property the remedial expenses but that can easily be litigated fairly easily no because they're the master of their compliance they sued for repair damages the blakely's could say for fair market value to munition which may be more the blakely's under arkansas law could have sued for discount for an annoyance which could have been more than the actual cash value they were see from this insurance scholl sure but but you know that's not that's how you litigate either that either they put the there they put the blakely on the stand or you depose them now somebody deposes or and here's the missing lay under arkansas law a suburb getting insurance company cannot recover more than they paid under the policy so the blakely's may have three hundred thousand dollars in damages that would be required to make them oh e m c when it rings the lawsuit in its own way it cannot sue for more than they paid under the policy  it's that e m c can't recover from your client unless there is a finding that the insured has been made whole that are not a preacher not a prior judicial determination a until that determination is made as the lien arises but it can't be enforced it's all it's all eat it's all lean because both because there was a line form both the insured and the insurer wanted were attempting to recover they have to go to court and get a determination that the blank lisa been made ho to ensure that they are not going to collect the rest it should properly go to the blakely i don't understand why you don't do it in this case you can third party the blakely the this missile i thought you disagree with the counsel of counsel i thought agreed with me that the only basis for the dismissal was the determination was not prior to suit motion if they had not proven that the blakely's have been made whole therefore they did not have a right to recover and subrogation and the court granted that motion to put but because it it consider that e m c was asking the court to make that determination at the time that our motion was from a if you'll recall the course said that it found that that would be prejudicial to the defendant and she was not going to take up the issue of whether the blakely's had been made whole at that time in other words the court said you've waited until after you rescued and after the defenders vita motion i'm not going to determine at this time whether they've been made whole that this leak rate this issue rules pretrial right the question of whether there had to be a prior judicial determination or was it hers why was there a trial if there had to be a prior judicial determination why did there have to begin a trial yeah if there had to be a part of if the if they did if e m c didn't have a judicial determination of may call before the case was filed why did we have a  right and the obligation to determine independently whether there was a case or controversy to be tried in her court she did make that ruling until after they rested and i did not sure i'm just that we're talking about article three standard that the district court intended to use standing in the exact same way maybe i'm wrong about that but the porter said standing in about horse read it read it as a defense it's an absolute defense to the action the action fails to a claim unless you have the existing judicial determination people say standing you know call that standing it's colloquial if him will but by my own what am i why isn't are three different numbers that we're we're dealing with number one what e m c proved it trial which is just thirty six thousand dollars not in total damages and cost of repair before a second fire happened to burn the house dow more than what they paid and repairs before that fire has done her house keys or isn't that a talent please i'm sorry it isn't that supported by the talent decision i'm not sure i'm not sure of the reference for discomfort and annoyed so that's an open ended category of damages so we're computer trying to compare the amount that would make the blakely's fully compensated for all of their damage that e m c has only pervan in his case in chief thirty six thousand dollars is being the same as the total quantum of damages that would make the blakely's whole they are not the same in those article three standing is dismissed without prejudice i don't think that a circuit court is obligated to look at that issue or has not been challenged in this issue hasn't been challenged in this  right the fact that the court dismissed with prejudice has not been challenged winant part it would depend too on our scanning analysis what because i think that you might be wrong if it's article three standing we can correct it and say without prejudice no matter if anyone makes you you know brings it up casualty insurance policies and according to riley there's no right to sever geisha rising under that statute unless the insured has been made homeless so i think there's an argument that there is no statutory standing here and those cases are to be dismissed with prejudice so i believe there was an adjudication this isn't just simply article three standing they did not meet an essential element of their bur settlement or an agreement by the way a settlement would be them getting with their insurer and agree we'll split this up fifty fifty or sixty forty something like that all of that would take care of this requirement and their ri they failed to do so they tried their case they were rested and at that point in time their failure to do so was fatal to their pay so we believe the district court properly dismissed without prejudice i'm out of time take it i would start off with what the court's order has judged loken correctly picked up twice in their judge shaky says that she is dismissing because prior to this lawsuit being filed there was no judicial determination that they i think this is another reason they've waived their right to increases position with the damages but we litigated this case for two years depositions in three states multi day trial out of town just didn't raise this issue and they could have filed th dispositive motion if under their motion and the judge's ruling it was required prior to this this lawsuit being filed out of a slam dunk in regard to the thirty six thousand dollars that's that's incorrect statement e m c paid out one hundred twenty five thousand dollars that check was put into evidence it can go and recover that whole amount of money that's what it paid i know him and he i think ali was saying was at thirty six thousand is the evidence of what was paid to repair the house i guess before the second fire and not necessarily everything that the insured might claim if it brought a separate action but that's not correct one hundred twenty five was paid completely to the likely that check was put into evidence he had only spent thirty six at the time saying there but the talent case that's another you i am bodily injury cases farm bureau of the talent is i believe what you're speaking of and again this was totally different these are liquidated damages and a battle between an insured and their insurance carrier over carrier can go back assert a lien against a potential settlement that's not what we have here like i said football means one thing in america i mean something else the rest of the world work on this made whole it's not made whole just wrapped up again with my waiver argument litigated it never raised it and then the there their damages argument what's what's the proposal here is i mean you know it's i mean i guess your point is if you don't raise it in your motion to dismiss it forever waived even if you are because they viewed it they viewed it as a failure proof yes or the district court you standing loosely but you seem to suggest it might be a failure proof because had they come forward with a settlement agreement that that maybe there would have been up there although you  say that she had been dismissed at the beginning but she says twice in the words in the very last paragraph and it's in the middle paragraph on the next to last page prior to they did they failed to obtain a judicial they knew there was no judicial determination all on that was that they deposed mr blakeley a year before that they misunderstood the law maybe i mean they thought it was a failure of proof that turns out it's a precondition does that mean they waive it forever because they bring it up after you rest case i think that the combination of what happened in this case the continuing to litigate against the carrier because i don't know your argument was that the court made no ruling on failure proof when the when the at the conclusion th trial in which case the remedy is obviously a new truck yes or the her ruling was contingent on the fact that there was nothing done prior to this trial this lawsuit being filed which had nothing to do with there was never going to be proof that what that that happen anything else around it thank you and your counsel argument has been helpful and if they get under advisement