to the insured robert miles applies to the underline loss in this case which was a car wreck in coastal rica the essential facts aren't really aren't in dispute at all as to the as to what happened robert miles was in coasta rica he went to a local alamo franchise and rented a car a suzuki he drove he opted to purchase the optional insurance coverage through a company called  personal injury coverage for third parties injured in the course and operation of the vehicle mr miles was driving the vehicle with his daughter in the front seat and a passenger mishan to mercer the appellant in the backseat he left his line of travel and went in front of a bus there was a catastrophic collision that cost mr miles his life hannah mercer was catastrophic lee injured in the wreck she made a claim for under the policy under the umbrella policy and geico has filed a declaratory judgment action saying they got the policy does not apply were here because the district court mis read and misapplied the policy language and concluded that exclusions within the quality to this policy applied and provided and took away coverage for the gaika umbrella policy nobody nobody asked the district court to apply kosta rican law to the interpretation of the qualities policy right everybody was following georgia law yes it is agreement that georgia law applies and under georgia law all state the grades case excuse me contract and you start by looking at the umbrella policy and you look and found out what it says about who an insurer has and it says insured means you the the named insured under the policy and it says with respect to a motor vehicle  such person is insured only if the motor vehicle meets the definition of auto in this policy nobody is arguing that it does and is insured by a primary auto policy a primary auto policy mr miles had a guy co primary audit policy which does not apply because it's got a territorial exclusion so it does not apply the quality to us policy that he purchased is a primary auto policy it states what the coverages are it says this is two point three of a policy on page twelve this coverage covers as a result of a traffic accident the extra contractual civil liability incurred by the policy holder or driver that uses the vehicle and that as a consequence of that use causes injury and or death to persons no question is an auto policy the declaration sheet identifies the suzuki vehicle as the named vehicle there's a specified amount of coverage on the declarations pay and the policy applies now the reason the district court and or deaths of person of persons that the insured vehicle causes to third parties when they depend economically from the policy holder because they are relatives of the policy holder in any degree or type of relationship or because they are at his service upon occurrence of the sinister or else when they are occupants of the vehicle well the district court and geico just the lips total of this exclusion and they didn't mention the financial economic the economic dependence portion of the brain of yours and your argument is that the clause when they are occupants of the vehicle is a modifier of the initial clause that says when they depend economically from the policyholder absolutely on or otherwise the economic dependence language makes no sense and if you read it it say that it relates back to this language because it says third parties that's the broad one and then it's there's a qualifying language third parties when they the third parties depend economically on the policy holder because they the third parties are relatives of the policyholder or because they the third parties are at the service upon occurrence of the sinister or because or else when they the third parties are financially dependents are occupants of the vehicle otherwise that knows why but why does occupancy of the vehicle have any relationship to economic dependency class of people that may not fit into these other categories that might be economically dependent you can have a person economic dependent person is defined in the policy more broadly as any person who is dependent upon or have another this is more limited as and there's a class of people that this would fall that this would apply to you could have an occupant of the vehicle that's economically dependent who's not a relative or who at the time is not in the at the occurrence of the sinister which is also defined the policy you could be you could have a ward you could have a migrant worker or an employee at a factory or somebody that is economically that it's somewhat vague on this point and georgia law is very clear that if there are any ambiguity in exclusions or it is gives me in a policy is to be construed in favor of coverage and against the person or the entity that draft the policy which in this case was geico exclusions are strictly construed against the contract against the the entity that prepares the contract in this case guy code so if there is any ambiguity on this or else  language then that must be construed against against the law against gaika the other point that the district court relied upon and found that there was no coverage as they impose an additional burden appellant or on this miss mercer and said that appellant has not shown that quality to us has been forced to either pay or state a position as to coverage we have been dealing with this in costa rica and in that as presented challenges of course but this additional burden that the district court places on us is nowhere found in georgia law  georgia under the graves case to establish a promise face a case on a claim under a policy of insurance the insured must show that the occurrence was in the risk of the the risk insured against so in this case mr miles very fortunately purchased optional auto coverage to cover automobile wrecks that specifically the risk that he was insuring against and the thing that ultimately happened that cost him his life and severely injured miss mercer it says that primary insurance which is what we're arguing this policy is means insurance for which the minimum required liability limit is shown on the declarations which it has and which is payable on behalf of an insured for liability for personal injury or property damage so pay a bolt the court interpret that to mean that we must show that it has been paid or they have to state a position as to coverage but words are given that word unary meaning and interpret in these contracts and if you look up payable in black's dictionary of course we cite this in our brief payable manes may be payable without being do so ordinary words ordinary meaning payable means means payable does not mean it has to be do we have to show they've taken a position on coverage so the district court misapplied the exclusion they placed a burden which doesn't exist in georgia law and the final exclusion that they that geico is trying to for material damages suffered bad the insured vehicle and the injuries or death of the driver and or the occupants of the insured vehicle and less occupants civil liability coverage has been contracted where you go to occupant civil liability coverage which geico did not do and did not mention in their briefing and it's on paragraph two three three civil liability for damages to occupants and it says this coverage includes as a result of a traffic accident the civil liability which the policy holder incurs and as a consequence of such use there is fault negligence causes injury and or death to relatives inside the compartment stall or cabin of the insured have forty four one we did not the burden of proof we did not the burden of proof is on the party asserting coverage under the guy co policy if they want to proffer the college tuss policy and saying that it's payable a primary policy and the burden is on them to show coaster wakin law would win i don't disagree with you on that but did you ever tell the district court that they had met their they had failed to meet their burden because costa rican law was not provided did not how how have you no way that issue well i'll mention that only because i don't want to leave the court with the impression that we believe that georgia law applies to a coaster where that's that's all everybody argued to the district court and i'm perfectly willing to argue it today because there's nothing else to argue under georgia law clearly right that is correct no coaster rican law that has been noticed to the court or something you're going to none that you're going to provide that is correct and so but i can point to the terms of the colleton us policy and apply georgia law to show that this mercer has not met her burden of proof of showing that there is coverage under that policy that would permit it to be  mercer who was who is not here today saying that he is negotiating with colic to us that's all we know that we objected to that affidavit the court said for a number of reasons it's probably should not be admissible even in summ judgment stage but that even considering that affidavit the burden of proof had not been met there is there apparently is some negotiating that did go on i know that there was a demand made on call i toss as early as august of two thousand and fourteen for ok the exclusion says in part not the exclusion i'm sorry the umbrella policy says in part with respect to a motor vehicle such person is an insured only if the motor vehicle meets the definition of auto in this policy and is insured by a primary auto policy right that's directs the relevant language of that portion of the umbrella that is correct ok it doesn't say and is covered by a primary auto policy it says it is insured by and it seems to me that there is no dispute that the zuki was insured by the qualities policy but if you go further there's a definition in the con in the payable had they met the burden of showing that there is any money payable under the under the coastal rican policy nothing while they they certainly if that affidavit was an excluded they have been shown that quality has has denied the claim but they have a burden of showing that it is in existence we don't have to prove a negative they have to show affirmatively that there is a payable policy that can qualify they have not done that there is no acknowledgement by us in the record that this is a payable policy the only thing they have is an affidavit from the rental car agency saying that it is potentially payable here we are three and a half years later and there's been nothing beyond that but how do you how do you transform insured into covered saying that an auto is insured under a policy doesn't mean that an auto provides coverage under the policy because there may be exclusions for a given event clearly an auto is covered but there is no payable insurance that could meet the climb here crime if you look at the definition of primary power but i but but i'm not even getting to primary auto policy i want to know what you mean by why the got what the guy called policy means through the words insured by it or not the same word says paid by or providing coverage under it says insured by and that vehicle is certainly insured by the quality us policy is it not it is but you've got to drill deeper and insurance means insurance for which a minimum required to live below the limit is shown on the declarations that is in existence here however b which is payable on behalf of an insured it means definitely payable i'm not even absenting there's no evidence it's even potentially payable when you look at the policy itself ok well i want to know where you get the definition since is a defined term in the policy where r d you get the definition of payable from a war do you suggest we go get it from potentially are payable means if there is coverage under the policy then the money than the than the benefits are payable i understand that's your argument i want to know how you get there or you want us to look to see what it means under georgia law well i think under georgia law when when you look at contracts you can look at the common ordinary meaning of terms where there is no  company you just look at it here think you think georgia law payable means that there is definitely coverage although there might be some dispute us to the extent of damages yes that is what i would say it's not payable of that was if there is coverage payable if there's not coverage it's not pay up and now three and a half years later there does not appear to be coverage nothing has been paid there's enough evidence in the record that coverage has been accepted and therefore it's payable in an amount to be determined we could live with that but we haven't even gotten to that point is this really a rightness of your argument it could potentially be a being able to show that there is coverage payable under that color test policy and that it does qualify as a primary policy guy co would look at it so if tomorrow the primary it doesn't matter the other exclusion doesn't depend on whether or not you've been paid or not paid we are relying on the payable primary policy definition that is what you are now relying on the exclusion of one of the exclusions the district court used and that is the the exclusion for when third parties are occupants of the vehicle you have relying on that you're giving it all we are that's one of the collet us policy i'm saying there are no exclusions under the guy co policy under the c tossed policy but that's the reason why you're saying it's not payable that is correct so you're saying in fact we're wrong in our interpretation of that policy if in fact khalid tosses oh no we don't we don't construe our policies here that way and are able to show that to the satisfaction of geico and perhaps ultimately to accord if it's contested then then that would suffice but we're saying they haven't met their burden of proving that there exclusion granta rule sixty motion to set aside the judgement no i think it would be talking about an entirely new case yes something that he and you would give up any any claim of bar or rest should independent basis was that the exclusion in the policy barred miss mercer from receiving coverage under that policy it right side it correct it sided that is saying it does not appear to be coverage in the current us policy and therefore miss mercer has not met her burden of proof that there is coverage payable under a primary power that's a different that's a ruling in a case that serves as a bar going down the road if she comes up with additional new evidence at some point in the future that has not been looked at by the courts in this case then i submit that could be considered at that point but there is no evidence at this point perhaps it's a rightness issue that there is any primary coverage payable so then this this is this is worthless to you this lawsuit when is worthless to you until that policy issue is determined by college toss we don't think college costs will ever accept cut as that's not my question to you my question to you is this piece of paper this judgement is worthless to you it doesn't prevent you from being sued again until quality makes a decision that's definitive one way or another in costa rica i think it prevents us from being sued now and for and for ms mercer to say we're labile for bad faith for not paying their whole demand so she's not a first party beneficiary the contract she's asking for a lot do a t coverage from mr moussa state right here saying there is no coverage mr miles a state for any claim presented by her at this point geico has acted if we have the gist of the district court affirmed got properly in saying there's been insufficient evidence showing that there's any coverage of the policy we're not acting in bad faith that's one with the declaratory judgment under georgia law because it was a demand that geico cover the does indeed someday pay out a look for that i don't see any limitations like that i don't want to ban guy could of that but my reading of the policy does not disclose any limitations issues in that regard and this is a declaratory judgment geico is in essence really a neutral party if there's coverage is coverage if there's not there's not so you know we don't really have a strong interest one way or the other we want to know where you want to tell us wh states in the guy co policy the one that mr mouse had if you travel at the united states you must obtain the equivalent of your primary insurance so i mean this was not something that should have been a surprise to anyone and when he got the primary insurance he had a selection of packages this is clear in the in the college toss policy and in the alamo affidavit packages from basic to premium he selected the basic the premium coverage would have covered claims of occupants of the vehicle he did not select that coverage so he did not select coverage that was the equivalent of his primary policy even though arguably he should have inquired further and where that is found in the quality us policy if you look at the optional coverages referred to win tables at pages one the record one ninety seven and the record two thirteen six different packages are offered and described in the record at page one ninety six only the premium packages are for coverage for military against occupants and if you look at page one eighty two one sixty two excuse me of the record this policy is a basic policy to the basic policy did not provide coverage for claims of occupants that is why to this date callie toss has not paid or indicated that this coverage is payable and therefore does not qualify thank  you guy who stands up there and says they're not acting in bad faith and yet they for the first time in this years of litigation they suggest to the court that kosta rican law applies when they've never raise that issue would argue that issue in any way or form i would suggest that is bad faith god could also does not mention on a just as obvious as it's plainly obvious that costa rica law applies it would it would determine whether or not that prior primary coverage covered to provide insurance in a situation where the issues before this court that your honor we've all conceded are governed by georgia law and interpret in these guy cope this guy cohen balla policy it says if an occurrence results in personal injury or property damage and is not covered under the terms and conditions of your primary we understand your we understand you're arguing about that that the policy lot that guy goes policy language with is a different provision that hasn't been addressed or i'd like to if i may their point seems to be what has to be payable which means it has to be paid the policy the underline policy has to pay before the umbrella becomes in effect that's not true under the policy this other provision on page four the limits of liability says if an occurrence results in personal injury and is not covered under the terms and can build normally normally excess coverage of the umbrella policy  first paid was service i mean that is normal insurance policy practice and the way they drive chosen to draft their policy is different their policy says if the occurrence results in personal injury and is not covered under the terms and conditions of your primary policy but is covered by this policy the umbrella it says we only pay those damages which exceed your retained limit which is five hundred dollars so they do have a provision that they provide where you get your primary policy which is a quality policy in whatever reason it doesn't pay out they still provide coverage under the plan language of their of their policy the the other point i would make your honor is the in response to opposing counsel is there is a territorial limit mr miles had insurance from geico for the umbrella as well as a geico auto policy there's a territorial limit that just says the policy applies only to accidents in the united states it does not say you have to then go and get an equivalent of insurance coverage policy with all the terms and conditions if you leave the united states and purchase the optional coverage mr miles purchased the optional coverage there was one hundred twenty million cologne which is about two hundred sixty thousand us dollars in coverage at the time his coverage of the us was three hundred thousand so roughly in the same ballpark of coverage and georgia law provides that one of the one of the things the courts should look to interpret in these contracts is the does the insurance contract read in accord with the reasonable expectations of the insured when mr miles is buying auto coverage there's no exclusion in there for  passengers or occupants unless they're relatives we talked about that and his reason why expectational is that the insurance he's bought will suffice while he's overseas and that the umbrella that he has bought and paid for will also pay the covers that it's promised to pay last last point i'd like to make in the last few moments the court does not have to rely on quality to us stating or firm in their position on what the contract says the interpretation of a contract is a matter of law for the courts to decide if there's a dispute in this case it's almost as if we need to wait for some magical words from quality to us to say yes we accept it no we don't treat this they've made offers and we've is a different a different different animal their civil justice system but that's eretz regardless the court can look at the policies applying georgia law which we've all agreed apply in a court can determine if there's coverage or not you don't need a quality to us insurance adjuster to tell you that there is is a primary policy that satisfies the requirements of the umbrella policy and if the primary policy doesn't apply primary insurance then they pay up to their limits less the retained limit of five hundred dollars so your honor we would ask that you hold geico to their promises that they put in writing and that you find that there is coverage under the umbrella policy  recess until nine in the morning