coverage progress you paid the one hundred thousand because it was one vehicle wreck clearly the fault of their insured but they declined to play the uninsured or under insured motorist coverage on the basis of a policy provision which said that if they pay as much as twenty five thousand dollars the minimum composure insurance will limit on and but that the insurance company is required to offer right coverage unless it is rejected in an amount equal to the why below the limit which his case was one hundred thousand over three hundred thousand had declared invalid because they're contrary to public policy i'll be very candid with the court and should just to you that i think i have a very tough row to hoe making a bad faith case out of this i'm not completely sure that her present firm was involved in that i'm sure she can address that well let me ask you this you you both have asked for certification to the oklahoma supreme court you did not what is and it involved in oklahoma statute also involving public policy right i do well then it's our obligation to divine what we think the oklahoma supreme court would ultimately do with these arguments in the statute you agree with that we have to wait for the you agree that you have that option but you also have the option to defer those my concern is years ago when i was a younger judge on the court i divined what the oklahoma supreme court was going to do and two years later they told me in my mind even ation it was not worth a hill of beans or they went just the opposite way and that created no more litigation so they're more educated about that well i appreciate that because we have two cases now and i think you both agree we have two cases now in the th circuit that involve identical issues with one federal district court state high courts have different attitudes about certification but issues involving uninsured motorist protection have been accepted for certification from this court by the oklahoma supreme court in the past is that correct yes let me leave inside one here exactly ok so you wouldn't expect them to be hostile towards certification i don't think i can almost guarantee you that your punishment will be hostile if they're very good about promptly responding to morning your honour's don't care as for progressive northern and with respect to the other case that we've been referencing which is mckinney it's one thousand dash ones or sorry six hundred and twenty seven progressive direct is the other insurer in that i am representing progressive in both of those cases and the underlying facts are almost identical and the statute or the language of the policy is identical in both policies of course best laid plans are great until you actually hit the battle lines so i was going to start with some prepared remarks but instead since we started with discussing the potential of certification i would like to address that if you know mind your honour's as your honor knows your honor crafted the questions to be submitted to the obama supreme court and ball and so with respect to in the event the court decides to certify this matter to and this issue i would say that the language of the certification issue that i proposed in the response to the opponents is somewhat broader than it perhaps should be there are a couple of issues and all wrap back around to if you certify the issues i think should go to the oklahoma important and class two is important the them being class to insurance is why hartline is important progressive is not relying on the rationale of hartline and recognizes that the heartline decision did in fact interpret a family member liability exclusion it was not the same as us and in fact in heart mind the injured parties husband had rejected us so hard line progress completely understands was about liability however just as a policy who was the author of the heartline decision recognized at that time that there was an increasingly integrated interplay between insurance and liability insurance and un insurance and then two other statute because there is no judicially early legislatively crafted fix for when an insurance company does not abide by the statute that is not included in an in the recent thirty six and because of that the may court determined that if an insurance company failed to offer us and thereby transgressing the statute the fix was to provide two thousand five hundred and fifty dollars at this time which is the statutory minimum liability limits they provide un in an amount equal to the statutorily mandated minimum liability limits and in fact in many what the court said is that it is the intent and the purpose of u n coverage to provide un coverage in that amount the statutorily mandated minimum now that's all important because progress is policy and the way it's written does what on the liability side it's perfectly permitted to do and that is it excludes liability coverage for named insured class one insures the people who bought the policy the people who bought the policy and the people who live with them under hartline can be excluded from recovering any liability insurance as long as they get a minimum of twenty five from us what the heartline decision said is we don't care where it comes from we don't care we don't care if it's liability we don't care if it's us what we care about is that you can have this exclusion but it's only valid in excess of the statutorily mandated minimum so what progressive did with respect to liability coverage was it says if you as a class one incher named named richard a resident relative someone who bought the policy or is a relative of the person who bought the policy if you're injured in a liability situation where you're the passenger and the driver you you don't get liability coverage in excess of twenty five dollars it also goes on to say if you've bought un coverage you get the full amount of un coverage we're just going to handle it like a liability claim because what progressive did when it drafted its policy was it understood that the person driving the car isn't insured too and so what they do is have i bought a policy with progressive and i've got a one thousand three hundred dollars just like in this case one hundred thousand one hundred and four per person three hundred dollars per accident under the progressive policy if i bought it and i was writing as a passenger and i was injured what happens is i don't get i get the full limit of un coverage that i paid for i get one hundred thousand dollars for my injuries but they're going to handle it like the un claim because then they can get a release for the driver who is also an insured other insurance companies do it differently other insurance companies what they do is they say if you've but you don't get liability you just get it as us and we're going to handle it is us the reason that that's important is because the proposition that the plaintiff stands for here and that the appellant wants the court to accept is that a class to insure he paid nothing for the policy is entitled to more coverage than a class one insured who did his position is that lane in stone who are only covered under the u n provision of the progressive policy because they were passengers in that vehicle they according to him get both the liability in the u when the class one insured doesn't the person who bought the policy if they're injured in a single vehicle accident or an accident where they get ly a liability under the policy and they're both to get liability coverage in their human shirt they don't get both and that's perfectly acceptable under oklahoma law that's why heart lines important if this was a class one insured who stood in the shoes of lane stone this would be a there wouldn't be an argument it would be perfectly fine under oklahoma law because the class one insured would get the benefit of the one they purchased but they would get it an as a liability coverage and they'd get no liability coverage they would only get one of these now there's some concern does that mean they pay to premiums well st of all laying in stone didn't pay any premiums and lane and stone want this exclusion to be deemed invalid because it violates public policy while under oklahoma law public policy as a rationale for invalidating a contract provision only applies in situations where it clearly tends to injure public health and i'm doing this because i don't want to paraphrase this morals or confidence in the administration of law or if it undermines the security of individual rights with respect to either personal liberty or private property the plaintiffs in this case are class two insured who didn't pay anything for the premium so the question is this the public policy if  are they are their individual rights larger than the person who purchased the policy well can i just yes ma'am here i appreciate what you're saying but how does that relate to certification  sir that brings me back around yes yes your honor that brings me back around to if this is going to be certified there the language that i had used in my response i believe is a little broad what i believe that the supreme court should focus on is two things one with respect to a class two insured and as the supreme court pointed out in ball there is some flexibility with respect to class to insurers in terms of some gray area as to what they're entitled to so number one does their the six hundred and thirty six dollars and the public policy embody by that statute require that a class two insured be afforded more coverage than a class one insured would be intitled to and that's what's being asked to happen here and number two under the very specific facts of this case in which lane and stone not only received one hundred thousand dollars from liability both of them also had a recovery under their own u purchased by their parents but they both had un coverage from their own policies and because of that they not only were covered four times the minimum amount which is what mays says the purpose of th the amount that that matches the liability insurance and that's just not the case as ok so let me jump in would you do you think that that is a question that we as the th circuit should be deciding of you're focusing on how the question is framed i guess but i just i'm wondering your basic position on whether the case should be certified and if you or if you think we should decide the questions that you're post coverage under the policy that does not violate the public policy of three thousand six hundred and thirty six dollars and the body of law that is that we've relied upon makes it clear it makes it clear because number one under hartline a class one insured would only be permitted to recover one of them as such a class two insured there is nothing in there the six hundred and thirty six that indicates that a class two insured should be entitled to more coverage than a class one inch or so so the answer i guess that you if we decide this case that you would want is that the public policy of oklahoma could not favor giving a class two insured more coverage class one yes your honor and that's what and i absolutely in the other thing i would point out is that in our briefs it was and he said it is much an argument there's a there's a lot of discussion number one about the premium i think premiums are red herring because these people didn't pay a premium  and it's only in very rare situations where this exclusion comes into play all right number two while the public policy of liability insurance has been articulated very clearly to say it's for the innocent injure party and un insurance is slightly different they both they're both geared towards the same thing and that's protecting the innocent injured party with coverage that has been made available to companies supposed to follow and they offer you want them and that clearly and anticipates that you may not be available there will be exclusions in this case public policies not offended not going to we're going to certify this issue so we've gone in and we've decided the issue and they will close court says that this pamela well that it does involve that seemed to me like a whole so could you tell me why you did not seek certification or honestly with respect to this case i can say that i wasn't certain we were current to win it at the th the at the level i quote it is settled in oklahoma that insurance policy provisions and definitions which purport to condition limit or dilute the provisions of the uninsured motor not been somehow repealed or or amended the sling about the named insured getting less coverage than the passenger is a red herring if they get less coverage of it's because they had the bad judgement to buy that liability not the you him but the liability coverage from a company like progressive which has an exclusion that car and i don't think i'm paying on those premiums on my policy so that those children riding in my car can be denied coverage because this