jay sever on behalf of national casualty company welcome to the world crazy world of competing other insurance charges this is a case brought by national casualty on appeal  so real fifty eight is i understand allows a deputy clerk or a clerk to enter a judgment to enter a judgment for court without direction in three instances one is where the jury returns a general verdict and here there is no jury one is where the court denies all relief and as you know that's not the case here is relief was granted to some extent with regard to some claims and then the last one is the court award only cost or some cost for a sum of money you're on of the the court considered the evidence that was was provided by the stipulation the stipulation itself was not some form of stipulated around that i think maybe you can address it for me the problem is before discipula high the court the court instructed the parties to go ahead and you know and file a motion that i can decide on the papers that i can make these decisions i can grant partial summary judgment whatever no such motion was filed so it's clear when you read documentary you know that's what appears to be missing to me after the stipulation is entered can you tell me why that's not the case why we shouldn't look at what the court said before the stipulation was after and note that there was no further court activity after the stipulation was entered so it does not appear that the court enter a final decision at that point all of the evidence that was potentially relevant was present in the court and the court i think purported to enter of a final judgment based upon that evidence but by the interim council i'm sorry are you  that the the courtroom deputies judgment that reflects on the face that it was entered at the clerk's office and not by direction of the court somehow accomplishes what the court said it was going to do when it asks for the stipulation and if so how do we reach back conclusion i don't think we can read into the to the clerk's office motivations i think the best we can do is to say that the final judgment was was entered appropriately because the parties had provided the evidence to the court upon which the court could make the decision on the evidence  and it and it really is simple evidence as to the amount that were added issue the amounts that were issue were fairly simple for the parties to stipulate to because they are there are very  clear and obvious that can be done now if the council i'm sorry you know you're right that sometimes if there are just calculations to be done that are obvious as to what they would be that we can go ahead  and assume that that that that's what the final decision was the problem here is that there are different calculations different pro rata share these different points and six relations so i don't know that we can do that and there's no formula that suggested in any case by anything the court answered book for the stipulation was final so i if you could i'd like it if you could address that and then nd if you after you address is is simply the that we the parties assume that the court took the stipulation understood the factual recitations in the stipulation and therefore directed that the final judgment be entered  and so i think that's as far as we can go into reading into the mind of the district court but but i but i can tell you that again whether or not there are different for rada analyses within the stipulation again it was the party's intention that the district court fully consider each of those based upon the evidence for each record presented as to whether we could do something similar so that we  if in fact there is a jurisdictional problem here so that we could make clear as a factual matter that this this information a should be taken into entered i would i would hope that the th circuit has a mechanism where they said essentially take this step that they think is necessary here but but i can't cite to you a specific rule that would allow final orders injunctions where would we derive our jurisdiction from to do what you're asking which is to get some sort of limited remain and to ask for a fact finding on what it meant and i just where would that come from where we  of of course we have made clear our belief that there is a final judgment and that it's appropriate but i think under your hypothetical there would not be a policy rule that little allow something different but on the merits of the argument assuming there is a final judgment for appeal your honor i think the bottom line here is pretty simple that the georgia law requires that you apply the specific everything but but list the policy number of the of the other coverages that are that are applicable here they they they very specifically stipulate that they are access to from the national cash the for years there's no question that nothing would make national casually happier than to delay that payment date for the judgment that is entered in the record which is document number  seven the states that it is a judgment order to the judge that the parties have stipulated to the stipulated facts a request for interest final judgment sixty nine that came about through a very back and forth exchange between the judge and the parties where we had sent the judge the stipulated series of facts judge question whether they could be amended she wanted things to be corrected and it to make it so it would be acceptable within retracted the stipulated set of facts the judge the judge's clerk own clerk then said this is what the judge would like to file in relationship to that judgment since you have stipulated the only thing that remains in dispute between the parties was the prograf a ruling judge reaffirmed by judge may everything and on its face it doesn't state that it's done pursuant to the clerk other than prepared filed with the clerk's office clerk of court by rebecca bachelor which is judge in a courtroom  asked there seems to be a step missing between your stipulation and then something coming after that where the court said i except the stipulation and award costs that that's going to be missing right understand is the notice of stipulation that was signed by the parties and discussion with the court an argument with the court and drafting what the court and communications as to how the court wanted your honor if if if the parties and i understand the court has to make its own jurisdictional decision the party certainly are in the position that i've stated that court i know that my clock is ticking and it's and it's important that i address the issues state farm versus home express lee stated that where primary insurers seek to limit their liability if there is other insurance than those clauses are irreconcilable and pro rata applies if you read specifically the st line of the national casually policy it says this policy specifically x is short has other both parties policies clearly use the if term irrefutably if the if is not met they are primary policies neither policies can tend to get any form or fashion that if there were not any other coverage available that they would not be primary so these are purely primary policies who are seeking to elevate themselves to excess position if there is other insurance available pro rata law clearly applies  does not change one whit and it's important to note in all the arguments put forth by national casualty they seek to talk about their policy saying well we are excess whe there is insurance available then we are excess and that applies to any striper level of insurance there is no question in this case that both parties are seeking the access status if we were to additional language gain in the substantive difference not one should we identify the national casualty policy by name when we say we are excess all other insurance is that nothing there is nothing that is added to the plane elegant and the insurance is available it's a complete red herring to talk about language that says available or collectible both policies are clearly collectible policies to paid on these types of losses before it is only when this issue came up and they decided they were going to take this position that we have a dispute and we have a stipulated set of facts under sixty nine dollars doctors sixty nine dollars where they clearly state that they will pay over four hundred and eighty thousand dollars that is clearly collectible and available insurance to the southwick said look when you look at it and boil it down it comes down to the same basic understanding of the irreconcilable rule the american casualty policy was access to any other insurance that did not limit itself to primary insurance mag's policy said it's contentious another policy named insured specifically but in the end it comes to the same result both primary policies were seeking to be excess of each other and maggs policy was not a true we agree merit with american casualty that those excess clauses reflect irreconcilably it's a red herring to play the reason the st rule that is national casually sometimes argues once you read my policy i versus well of a where they cited the previous not i don't have time to quote the judge he would have been one circuit it's a chicken and egg don't play that game also whether collectible or not has been rejected in philadelphia honor so getting to the to the issue the real question here is are these two provisions that we're looking at reconcilable or not and georgia irreconcilable that is what the f b i is telling you they've set it in their papers they just said it again that cannot be the rule it cannot be the rule because it violates basic contract interpretation law that requires you to give effect to policies if it can be given effect but also the law that makes clear that the more specific governs over the more general to be very clear this court has held in the mag case that was just cited to you but the mere fact that two policies contain excess clauses not mean they are irreconcilable it doesn't mean they're irreconcilable and so the question here that the district court ignored is can these two provisions the reconciled and the answer is very straightforward and they can be reconciled because the language in the g s b a coverage document makes clear that it is a very very simple attempt to make access the d s p a coverage when there is a valid and collectible insurance well that is not at all what the  provision says the n c c provision actually says this policy is excess whether the other one is collectible or not and that this policy is meant to be access over risk pools and and this exact kind of situation so those two things are reconcilable it's not a red herring because the council is in the open in hope and there seem to be well not be exact same language whether collectable or not and so i think that those two provisions in houlton are very different from and there was no attempt obviously as there is with national casualty in either of the two provisions  say in terms of looking at the irreconcilable rule on one hand and looking at the law is georgia that requires that you give specific interpretation and that you have to give the contractual meaning and not just hold that the find them if there are other insurance clauses to be in conflict they did that based upon the facts in front of them and the two policy provisions in front of them were from my perspective pretty much the same the be partly because they both use the word available and i think that makes it very different that you know this court i think has said what what i'm trying to say which is the fact that you you merely have to access other insurance cause doesn't mean the well i know it starts out as access to any other insurance including risk pools that's exactly why thank you counsel i think we have your argument and we will be in recess have a great weekend