and the next case is well sellers versus a nationwide mutual fire insurance company and mr turner is here for a nationwide and mr edge is here for the apple  nationwide mutual fire insurance company the district court erred when it denied nationwide motion and limited because with that denial it allowed the plant as to present evidence of damages that a u s district court previously ruled manifested prior to the nationwide policy period to put this in context this case is the rd installment of a trilogy of cases about the defective destruction of the seller's house st there is the state court action where the seller sued their general contractor mr gardner and the sub contractor mr durham who is the nationwide insured  the nd case is the declaratory judgment action where it was determined that there was no coverage for the property damage to the seller's home because it manifested before the nationwide policy created and then the rd is this case direct action in this case the sellers filed a one count complaint against nationwide under two thousand seven hundred and twenty three to seeking to recover insurance proceeds and recovery under twenty seven thousand two hundred and thirty two depends on the insurers obligation to its insured so in other words the analysis here is for the sellers in any capacity whether individually or as gardeners city to recover under the policy nationwide has to durham coverage for those damages and in this case it's undisputed that nationwide does  enter into evidence damages that the court a u s district court had already ruled was not covered under the nationwide policy  and i'm certainly comfortable with limiting the analysis to the sellers as governors ask me because even in that capacity nationwide doesn't any coverage obligation to its in working my way through this there was the argument that the sellers as governors asked again the could our standing in durham shoes as it pertains to coverage and durham had no coverage and so that argument was made prior to the trial and so i think that addresses that concern so this issue about coverage to durham was brought up prior to the trial in the motion and lemony the adequate representation portion of the privity was specifically addressed when i argued that it was the same agree that there's been no contention that my friend and colleague mr edge was not adequate in his representation of the sellers in the initial case and they haven't made any contention that they were in adequate counsel obviously because they're not so the adequate representation portion of privity attaches and going back to the sighting of of the taylor case that would set out the six different ways that privity can attach as far as the full and fair opportunity to litigate portion  addressed you are correct that i didn't make this point on the motion to reconsider so i think that corrects any lack of error both about how there was a lack of obligation nationwide a lack of obligation to durham and we have to look at that analysis and i think if you go back and look at the some court's decision in like state farm versus king sports which tracks the alabama supreme court language the fundamental analysis always comes back to what is the obligation to the shirt and for instance in the king sports case this court denied the injured party coverage under the policy because the insured had breached the cooperation clause and it never got to whether or not their damages were covered and  kingsport case in the alabama cases you know nationwide versus files in those cases that are cited in the brief what they all show is that before you look at anything you have to look at whether or not coverage is owed and in this case there's no dispute that for these damages the property damages to the seller's home there is no obligation  nationwide to its insurer mr durham and once that is then there's no coverage and so there's no coverage for the sellers individually there's no seller no coverage for the sellers and their capacity as garners as neat and in fact the assignment did occur prior to the well before the summary judgment in the clear tory judgement action so what that means is if you read the trial court's opinion granted the motion to reconsider but then denied the motion lemony what she says is that garners day in court is sort of the primary concern but what this court has held and the alabama supreme court is held when it looks at these issues is that it's whether or not an obligation is owed to the insured and in this case because there was no coverage the sellers as governors at sydney can't recover in fact the sellers individually took a consent judgment against garner four hundred thousand dollars then they took all two only took a judgment a consent judgment two hundred and fifty thousand dollars against durham for the damages that term c in the trial of this case judgment was entered for two hundred and fifty thousand dollars so we know that it was entered for the property damages to the seller's house and we know that nationwide  no obligation to durham for the damages to the seller's house because of the clear tory judgment action because there was a judgment on the merits nationwide's duty under the law and alabama as far as i know all the other jurisdictions to bring all parties into the litigation which it believes have an interest in the outcome nationwide was certainly aware of gardner it had been in the litigation with gardner as representative for durham since two thousand and eight and two thousand but wasn't the prior to place in fact one of the things we looked for was trying to find any case in any circuit that dealt with an assignment where all legal claims had been assigned from one nationwide in this case is the reverse of the legal geometry in which every other assignment case dealt with any court that i can find exists in so far as was pissing off of them and i simply cannot find any legal authority to support that proposition in fact it is nationwide continually points out the order in the declaratory judgment action order the court was very specific in that order to say that because this arose the decades the default judgment against durham arose that no other federal law isn't isn't the court required to make that determination based on the alabama law reform is alabama because of the coverage action heroes and an  they claim is the substantive legal relationship they look at the language and title it requires and that relationship preexist which it did not in this case is a sign that did not take place  to the actual litigation does it does not but i think when you look at the examples that judge ginsburg gives in the opinion it does clear that up song she talks about the idea was sufficient to create that legal relationship but it was there was a discussion of the adequacy of representation and i think that the argument made by the person in the st litigation has to know that they are acting in a representative capacity period and then there is the idea that there have to be special procedures in and people with the do share relationships so the supreme court has made extraordinary narrow window in terms of adequate representation if there's going to be closed effect attached to a non party like garden was here again it goes back to the idea that nationwide failed to nine guards in the original and back action had they done so we wouldn't be having this discussion is simply an effect because in their in their brief they argued that the district court failed to apply alabama's quote expansive privity they also argued that in their motion to reconsider the motion in limi all points of all the time the standards i saw in the initial brief and you can maybe answer this which is it specifically says that the district court campaign took the initial grief the district court failed to address whether any of the six exceptions to alabama's expansive definition are pretty apply instead its entire analysis was based on a few terminations that gardner as an affine or could be not bound by the seller's prior action however the court failed to apply alabama's expansive view of pretty that's in the initial break fail to point out what difference and alabama wall as opposed to the federal would change any outcome in this matter said they turn around and then again arguing the title exceptions in fact if you look at the record of the oral argument for the motion in limine e counsel for the sellers states that they are seeking indemnification for the property damage to their home and the court even sort of summarized says ok that would be property damage to their home and the response is yes ma'am the court he personally didn't suffer or you don't know the proper damage right so they are seeking recovery for the property damage to the seller's home and the court itself knowledge that the question becomes when did they have pretty well their last transaction between each other was in october of two thousand and eleven the motion for summary judgment wasn't filing to the until two thousand and twelve so by the time that the issues were truly litigated garner had given away his day in court he doesn't get a day in court because it's owned by the sellers and after he mentions the default against dumb he goes on to talk about how it dresses all the coverage issues between nationwide in the cellars and all of the coverage issues that exist in this case there are no coverage issues that are addressed in the judge greene opinion that was obviously adopted by judge propes and at the end of it as he  sailors failed to point to any evidence recently supporting such a distinction between the genesis of the damage so he's talking about property damage their home the very next sentence he says nationwide is entitled to summary judgment  and they it was the same lawyers in the same courthouse looking at the same issues in so that they adequate representation portion that establishes privity even either of the defendants with reference to the subject matter of this action the subject matter was the property damage to their house that was litigated it result in a twenty four page summary judgment opinion and verdict in this case was for the exact same thing that was addressed in judge green's opinion as this case is under twenty seven thousand two hundred and thirty two there's they can't recover because nationwide has no obligation to durham and in the courts analysis of the federal courts analysis and the alabama state courts analysis is always what is the foundational obligation and completes the arguments for this morning and the court will be in recess until nine o'clock tomorrow morning thank you