their four cases that inform the decision to from the georgia supreme court one is the whole case the other is cotton states versus brightman and what they say in combination is that there is no duty simply policy limits there is no duty to negotiate that was the innovating principle on the two cases the control the disposition of this case that's right but it the what you didn't have to be able to show is that the offer that you got from the plaintiffs was not capable of acceptance and my question to you is there may have been plurals and singulars were mixed but in the letter the estate was mentioned as well as the wrongful death i perhaps not artfully done and i believe the big part of your argument here is that you couldn't you couldn't settle under those terms because there was always the possibility that some looming complaint against the estate would be filed second and my question is why wouldn't have been simple enough just to write and clarify and side just making sure here now you main both the estate and and the wrongful death claim why wouldn't that have been a reasonable thing for the insured to did two reasons your honor first it goes back to b offer doesn't going to settle the case within the policy limits there's no duty to negotiate which means there's no duty to pick up a phone and ask for any clarification but you talk about set up saying gotcha isn't that sort of a gotcha from your point of view determinations you look at the circumstances surrounding making of the contract and so forth and why wouldn't we look at the circumstances surrounding the april eighteenth demand and for he goes on to say  either accept the offer unconditionally you can't do anything other than to accept it without variation those are the words from frikkie here what you have is a letter where the lawyer writes a letter and he says on the one hand i represent mr camacho do you agree if you look at the extrinsic evidence the communication between the parties that you would come to the art determination question is what objective evidence extrinsic evidence do you have outside the letter that would lead you to the conclusion that the letter was only referring to one line because we only have we have to guess your honor under oath only one time correct the way you're asking for it when you're framing the question the answer is yes but we don't need extra to go ok we have the language of the of the letter itself and in the letter and and so was being settled these later letters that same shit or entire concern was not the a stay that not at all your concern was the limited liability verse in general limited release versus general lease so it makes it harder to believe that you were truly confused about the estate business when all the letters after that suggested there was no confusion at all on the part we step back and preface your question judge carnes remember what the duty is here with regard to the insurance company the duty is to protect the funds of the insured and what nationwide attempted to do was protect those phones the way to protect those funds under the circumstances of this case where the insurer was convicted of vehicular manslaughter where you knew there was going to reasonably believed that there would be a wrongful death claim a survival claim and a dram shop class client which actually materialize but you're saying the letter was a set up it was ambiguous and you couple things militate against that one in the answer to the complaint you admitted that the letter was an offer to settle all claims that's one two in the demand the letter says we make this good faith offer to settle all claims three damages can only be realized by an estate in georgia so i would think veteran adjusters are lawyers would see this is for not only the wrongful death but the estate so again going back to judge carnes and judge black what will what other than what seems to be pretty clear and what you originally said yeah it was all claims suggest that that's not the case now after after jury verdict against your client it goes back to the judge when it goes back to the text i mean the text from the lawyer says i represent two parties for two separate claims and then specifically says i'm going to only i'm going to see the policy say it lawyers do this all the time he compounds the error by going on to the second sentence and once again refers in the singular one claimed the one client but braitman i don't understand your assessment brightman that gives the safe harbor that says on the things we can control we settle so why wasn't that the answer because what brightman says remember the circumstances here the offer or here in a time limit of demand has all the power all the control and all the leverage right so i'm limited  meaning he gave you ten days after eight months that there was there was somebody who died so that you had eight months of this adjuster talking to people get in all kinds of facts so it's not time limited it's not like oh gosh we haven't had a chance to investigate it is it is but it's important because that offer is essentially at that time was take it or leave it other than if there's an if there's not a an unconditional acceptance of the offer as m you come back to reasonably and say i think you mean both climbs but i want to clarify that you mean both clients and we will settle we'll give you everything if you mean both climbs please clarify we don't say that if they don't come back at that point then you've got a good argument that you acted reasonably and they were setting up but if you just stand need and in fact your agent was three days late she didn't do anything at all then it's harder to see i think to attribute reasonable ness to the behavior of the insurance argument the difference in the general in the limited release but that was issued that was created because then the demand letter comes in and it doesn't purport to release the estate claim and that has been an issue of contention all along that with a nationwide was consistent for the entire time to protect its insured under the circumstances of this case a vehicle or homicide you had to have protect the protect his funds and his assets you needed a release of both claims and inde ication for a contribution claim i see that my time is running short i'd like to address the damages issue quickly and the standard the damages here what the what the what the plaintiffs are asking this court to do even though no georgia supreme court case has ever held that damages as a matter of law or of the excess verdict here a such a rule of law would completely upset the entire port system the tort system is based on compensation the question is did what's the money that would compensate mr park the insured here and here there was an eight point one million dollars judgment there is zero evidence in this record that in fact he was going to have to pay anything like that there was no evidence here if in fact such a rule of law is applied without variation without any consideration of financial circumstances of the insured thing would run afoul of the united states constitution that cannot be constitutionally applied and eat up to you what's your best case on a farm versus campbell your supreme court b m w versus gore and that if the insured doesn't have the money that might be come liable to the insurer in a bad faith then they can bring a bad faith claim  so the only way the insured has to pay eight million dollars in a judgment is if the insured has the eight million dollars if the eight if he's judgment proof he doesn't need that money and any decision any along with them are trying to we think change the law from the negligence for which an insurance company should be able to be held liable and can be held liable under the law they are trying to claim or what we think sort of pined for an on this because i think that the letter speaks for itself without really arguing i would just say that the letter says what it says with course we've highlighted it here but it sounds like the court already knows that in the very first sentence of the demand letter  says dear miss wilson who's nationwide just in this case as you are aware are from the macular farm has been retained to represent mr hayes who's camacho in relation to the wrongful death of stacy camacho then the second sentence of this five page letter says we also represent the estate of stacy camacho relating to injuries to stacy camacho etc as a court as already pointed out in the damages incurred that were being settled to settle both claims include the estate klein which is at the bottom of the damages can only be in a state klein there was just no confusion the demand for settlement uncompromised says quote we make this good faith offer to settle all claims plural within a reasonable time and that's a quote here's the kicker on page four speeds will be held in trust until all necessary court approvals are attained for the settlement of the estate of stacy camacho there is simply it wasn't ambiguous it was  and suggest putting that aside and i have an academic question this under georgia law can you use extrinsic evidence to construe the letter and the terms offered in the latter the language you heard me read from the frikkie case would seem to say you can but i want to ask you the just for a negligence climbing is is found in the contract what's the contract say what's what was the offer and so the way i'd like to answer this because i think it's the clearest way to think about it is if nationwide would just sent one but it could called up according to experts and just said we accept but if they just send some you know one sentence we accept then this letter that mr mack to the right would be a contract and it would be enforceable so long as we could tell what he meant to say ron it would be enforceable against him and against the camacho's because he was the drafter so if there was any ambiguity if one one wanted to create an ambiguity or if there was one it would be construed against get there unless there's a true ambiguity you know that's not true and that's why i started on your position and i might even agree with your position i'm not saying either way but assuming there is an ambiguity rive can you i think that you could i think that if one side or the other went to a judge and it would be a judge question our jury question and wanted to enforce the contract then and there is no ambiguity yeah you probably could bring extrinsic evidence in peril evidence under contract law what would that evidence be in this particular case well timing is everything in this case and nobody ever said anything from nationwide about being confused as to who mr mcaleer represented or being confused as to whether he was going to settle bot claims with his wrongful death letter the other extrinsic evidence is this before mr mcaleer was ever hired there was a lowball ninety seven thousand dollar offer which judge totenberg described as part of the evidence that nationwide was jacking the camacho's around and during that lowball offer they wanted to settle and wanted a general release to settle both the wrongful death and the estate klein that was just never an issue it is one of the fabricated issues in this particular case judge totenberg and her order denying the motion the emotion talked about fabricated issues and one of her footnotes they fabricated these defenses when they finally realized that they should have accepted that reasonable limited liability release and again timing is everything all of these issues that nationwide braces on appeal here raised in the trial court are after the fact timing is everything they did hire an expert judge blackest as you know that even their expert admits that the raising of this issue about all we must have a marriage certificate we must have a state papers we must be sure that lanes are taken care of and cetera all of those issues oh i'm sorry there's another one we must have mr parks consent all of those issues were not raised to mr mcaleer until after they that's right even if we didn't have the sub issues but the sub issues are totally manufactured and insurance companies that we see there's evidence in this case they do this when they know that they're going to be or could be on the hook for a big case that they blew because they were trying to save themselves money which is what they're doing to try to get favorable terms for themselves that's what they do so ok they can negotiate as long as they get a settlement protect mr park but when they didn't get what they wanted for your position i s miss wilson who was the adjuster here in duluth got a directive and i think the directive actually happened after they realized that they missed the time limit number one and they took a highly unreasonable even bad faith position on insisting on a general release to try to save themselves money did it also benefit the policyholder if they could get it of course it would have benefited mr park too but it really was for their benefit all that by the way is kind of explain it's like well gosh they're here they're they're trying to offer their money what about these terms all of that actually is explained in what how is it the nation why does saving itself money would you encourage these mentioning opposing counsel that let's say that opposing counsel day to rights banks isn't just a little concern here wan make sure they're settling about this day and wrongful death and if i don't hear from you i'm going to send your answers you're not and i'll turn you down but if you say you are if he had said that kind of letter and plaintiff's counsel had not responded understand would agree at that point that that you would be in some jeopardy because you have not clarified in that hypothetical we might be in some jeopardy in that hypothetical doesn't act like advance in jeopardy right because you'd be as tacitly indicating you aren't settling alkaline i think it could be possibly be read that way ron and that's where they start getting worried about setups well yeah and of course the question about this particular case is was there set up there clearly wasn't i mean the letters clear and course was an impasse that occurred before the letter and let's all remember you know the again time is everything in the case seventy some days later they decide to go ahead and accept the limited liability release after they already realize from an earlier telephone conversation that  over a general liability release vs limited liability release it's entirely possible i'm confusing florida law and georgia law but if if they had written back to mr made clear and said we don't we don't understand this would that be construed as a rejection of the offer or you know these days i don't think there's a case that neither party cited because i'm not sure that it actually hit upon some of the issues raised by nationwide but southern general versus well stars a case that was decided in the court of appeals i'm sorry i can't give you a side but i think was so it was decided within the last four years after that actually was helpful to the insurance company that well there there's a damned if he did damned if you don't or for insurance company on that one they're lanes and i say well we really gosh you know we need that those lanes taken care of in the line now and the insurance company case is ok i will give you all your money or next thing you know they're out the lanes and healthy that case that case causes me some qualms about the insurance i am mentioning as an officer of the court in response to judge williams question i don't think was cited by either party but that case merely holds that the insurance company can ask a question about whether liens are going to be or how liens are going to be handled and that sort of thing they can ask that question without counteroffer and and that has been termed by judge diller in the court of appeals in that case as being offering them a safe harbor  terms of at least trying to address the indemnity questions on behalf of their own insured but it doesn't really hold that liens have to be taken care of there just has to be some discussion about it and there has to be i don't want some address if it's asked about this i'm sorry i don't want your states supreme court case that case emanated from the state of utah and that case was a case that addressed punitive damages in the context of an insurance bad faith case in an insurance i guess an insurance negligence case in that case there was a million dollars in compensatory damages and one hundred forty five million dollars in punitive damages in our case in this case we are only dealing with compensatory damages there was not a punitive damage charge of course i'm sure the court knows this but it's not a punitive damage case what the united states supreme court said in campbell was compensatory damages in that particular case it was not exactly the same and what they're really saying is look heart had no money park was never going to pay as this is just a real when fall for the plaintiffs keeping them out of course they lost their his wife i'm not saying that was awful but i'm financially this is a windfall for them because he was never going to pay it anyway but it would have parked here you know and so what's your answer to that well the what we're hearing them say is you know an insurance company under those under their law to their law on damages an insurance company doesn't have any obligation to somebody who's poor to try to protect them from a judgment i mean insurance laws and bad faith law and negligence law against them is just not available to poor people that's only available to rich people we think as a matter of policy that's wrong but we also believe that the court has already spoken on this the supreme court has already spoken on this and brightman versus cotton states or cotton states be brought in excuse me one of the cases that both parties cite not only did the court hold that an insurance company can be held liable for negligence of bad faith but the court held that and insured or their ass in a in this case it was an assignment and so the comanches had an assignment from park have as a matter of law compensatory damages equal to the amount of the judgment the judgment was is was proximately caused by nationwide because nationwide unreasonably failed to settle this case at the expense of their insured that's what happened in the case and the law is clear they can be held liable for their negligence in that regard at least at least to the judgment amount and so we think the law is clear my time is up and i would be happy to answer other questions if the court likes  mr kenny on that damages issue how would you carpet up how would so well mr partin have a lot of money we only have to pay maybe he had fifty thousand assets that's all we have to pay for mr parker how would you apportion how much you have to pay for a person that obviously couldn't pay this kind of money that he could pay some of it this is the way you do it your honor this is that this happens all the time in tort cases so for example let's follow that the facts of this case all the way up until the point of the cape in the trial in the federal court plaintiff has the burden of proving the damages ok here they've got an eight point one million dollars excess verdict the question is now if mr park can pay that then it could be a substitute for any other proof but if in fact he can't they they need to be able to prove that sold for example they don't have to go in and i don't know we know he's not of us here can i don't think by that so we know he can pay eight point one million dollars that if we hadn't we figure out then what he could here's what you do like you do with any able to pay on that eight point one million dollars judgment if the answer and a lot of cases we cited in our brief from other jurisdictions go down this road if in fact he's got assets for example of two hundred thousand dollars that are collectible that's what he's here the point is compensation to him what do we need to compensate him and if he is judgment proof he doesn't he's not exposed to eight point one million dollars and so the question is what is he exposed to what is what assets are vulnerable to that eight point one million dollar judgment so that their line policy is that bad faith cases can only really have any any traction if you're rich if say under our tort law the law damages applies equally to rich or poor middle class it doesn't matter there's one principle of law and the principle of law is what would it take to compensate the injured person here and if the answer is two hundred thousand dollars  hundred thousand dollars if the answer is eight point one million dollars the answer is eight point one million dollars but the rule of law that they're asking this court even though reitman did not hold as a matter of law you're entitled to access to vote but what they want you to do as a sitting is a federal court declaring georgia law is that always an invariant it's never changing but the measure of damages will always be an x x verdict we're guard less of the ability of the insured to pay and under the application of this a point one million dollars mr park that would be an unconstitutional deprivation of due process of nationwide and i just don't believe the court wants to go down that road thank you thank you