implied government good faith very dealing is plainly and centrally premised upon our allies rescission and recruitment lawsuit this this action and therefore it meets the standard was and is no breach of contract claim as for a millennium tower you know what you may or may not know it was a major piece of litigation in san francisco with a lot of parties and so there was a massive global settlement being negotiated l approached in july so after this lawsuit and bile approached us and said ok we have an opportunity to contribute x towards the global settlement and it looks like the primary limits are going to be a little less than that based on the burn rate will you agree to contribute the necessary amount to what we anticipate i think in that time it was seven hundred and fifty thousand ended up being a smaller number and again within a day or two we reply and say yes we will do that on a reservation rights that claims as as we noted several times we elected a judicial rescission process here we are handling the claims as if these policies are in force and seeking the judicial remedy of rescission i don't know what a carrier can do that is more i guess appropriate as far as respecting not putting the insured in a spot a carrier certainly has a self help remedy available to it if it chooses went don't think that's quite right because i think for their side of the coin which is our bringing a rescission and recruitment claim was was somehow malicious or in bad faith they need to beat us st and then that claim isn't a position to nor did way to say there's not a dispute or claim or controversy as to congress so that's a distinct claim and we did not direct the slapp suit at that claim we directed the slapp suit at the bad faith counterclaim because the if they don't they don't seem to be they don't seem to be the kind of thing doesn't seem to be based on the fact that you filed a lawsuit the counter claim seems to be because of what you did whether they're right or wrong that's how they're viewing well and paying under a reservation of rights while i linger a judicial rescission action for judicial guidance and saying if we win we will get these monies back so you're saying yes  we taken the self help approach and i would say not just listen to the policies but deny the claims on that basis as well there's no question they would then have assuming markel ultimately exhausted its primary policy is of course  much do their counter claim if you lose on the merits what how what effect does that have on their counter claim well that the carrot same as pled not much because we are is outside the pleadings we are treating these policies as enforced and therefore if we lose the rescission case the policies are in force and we in fact have been making the payments that we deem would be i would have had the policy suit setting that aside i guess we got faced and we lost our recent case could they then go to a jury on some kind of damages theory to say are recession case was a source of damage to will harassment a nuisance value and everything else of the case which is which is why they filed it increases it dramatically more than the prosecution of your case last the expense of filing the slapp suit and bringing the appeal depositions into all sorts of things where what you're really saying here is you guys did us wrong by filing a lawsuit against and show you what they're really getting at would all be essentially provisional work product type several of your colleagues made and i concurrence was the point of the kind of claim is to drive up the transaction cost and an expense on the plaintiff and that is an interest is protected by the slap loss and so guidance what kind of law that we are out millions of dollars on this case where we think we've been defrauded and if we don't win we'll never see those millions of dollars again if we win we will but as as of right now i don't know what carrier who you know that believes they've been defrauded in the application process can do other than what we've done and it just is not proper for someone to say your lawsuit appellants the lang parties because the court's questions this morning we're all focused on the merits not its own jurisdiction i want to start with the merits but i do want to come back to maybe a minute or two at the end  f the jurisdiction point and i want to start with the court's questions because they put the finger on exactly what is wrong with this last theory supreme court that a cause of action does not arise from protective activity within the meaning of a slap statute merely was a wrongful act is carried out a privileged communication instead you have to look at the elements of the cause of action to find out what is the wrongful lapse that's being alleged is it the only if it's the privileged lawsuit absent or alive filing filing their lawsuit it very well may have your honor and that goes to judge by these questions as well lyman could have sued even without this complaint remember if you look at the r once it's the six thousand one hundred and sixty eight which is a portion of the counterclaim that details all of the acts that are alleged to be bad faith there's several things in there that could have been the basis of a lawsuit without our allies complains recall that the california courts have held that if you on reasonably delay in seeking rescission if you wait and see how the last plays out and then your insured after oh we see that this loss is turning unfavorable there's a case called haley that describes this process as host claims underwriting and points out that with the weighted it's harmful to the insured i'm confused by your argument you started off by saying that langan could have food with out without our ally filing its own lawsuit but now you've just told me the by waiting by waiting lawsuit it's waiting to announce the rescission decision langan thought it was covered it's waiting to indicate that you've got some problem some alleged misrepresentation if you look at the haley case which is the one that done in a letter or could have been done on a lawsuit the lawsuit was not necessary essential part of that but even if you look at the rescission claim in the complaint itself could give you a simple example that brings this oh suppose your homeowners got all your life savings in your house and your house corns down in a fire and you are in desperate financial state and shirt says well i'll cut you a check for what's owed under the policy but over by the way we're going to file this judicial action for recision and you will find out if you actually get to keep the money until you've spent the money to defend the law different things and why in alleges they were entitled to the form and remember also that the california supreme court has also held that if you have to incur legal expenses to secure your ball asked what's a carrier to do they could have funded that settlement without strings attached they could bath and in that case lying in would not have incurred the expense faith whether bad faith will be a factor in their favor but the fact of filing the complaint alone does not immunized them from the bad faith claim because think about it if that were the rule but that would mean every insure would announce every coverage decision in a complaint rather than via letter to immunize themselves from the tour but the california supreme court created the tour of bad fa out of recognition of the special relationship and the fact that insurance uniquely vulnerable when these losses occur so if they're sure doesn't step up and does not step up unconditionally they're id noted it is the flip side of the saying just you they're just they're saying oh it's perfectly reasonable what we did we funded the settlement you know all we're doing is asking a court to decide if not harming you we're going through that process we have a different take on that situation we say we were owed that settlement funding on conditionally and to bring up a rescission claim when you've got no fa whatever wins on that issue is going to resolve the whole case if they win their right to rescind that's going to get rid of the bad faith claim but they don't get to kick it out on the front end of a slap ocean like this it's for the fact finder and i think we understand your position trump the only one that's on the in between situation a plaintiff out of offended situation but they didn't discuss the critical point which is the new unity from suit rationale which gets you in the door in the st place only be raised in a rehearing on bach i don't think that's how this court's interpretation of its controlling precedence of discretion works i think that works if you've got a decision that actually examined the issue but i don't think it works when the decision  cannot disagree with the prior panel on the merits of the jurisdiction i just don't i just don't feel i just goes to the equities i mean i just i just i just don't see the reasoning or for the jurisdictional argument you're making back even if you're writing on a blank slate is all going to be decided together the term and in the wash that tells you that this issue cannot possibly be an immunity from city there's no reason for this or to be you can't meet that requirement so if this court were to take a fresh look at the jurisdiction issue i think it's a very very hard sell for our ally but i don't think about by president either and if i could just say one thing about the lincoln is incurring cost to defend against the rescission count on the recovery of money well that very much tracks progressive west a case we discussed at length and lang and simply failed to discuss because they have no answer to it old republic another insurance case where the carrier paid the claim alleged fraud and sued to get it back and a court of appeal dismissed the counterclaim of the litigation privilege so there is and 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