entered summary judgment against mr in this is morgan based upon a finding that although there were genuine issues of material fact if some summary judgment was nonetheless granted on the bad faith claim on the theory that it was somehow why does it make a difference in terms of damages if you aren't going to get this close to the dollar calculation come out the same as  you came back to my understand correctly and said wait a minute judge if you found a breach of contract you've got to give the middle east a dollar and he says ok i'll give nominal damages of a dollar so it really isn't true i mean what you said i true probably but if we were to look at what the court did we know the court said you're entitled to zero damages period maybe that's wrong but that's what he said there be any difference between that on the contract claim and the  basis that there was somehow a distinction between how damages the standard for damages under hawaii law for contract law and tort law and that would be that was my question and that the just focus on the thirty thousand dollars i think the kurds among other things well you have not made any effort to indicate that  she comes in and says no i have thought prior title but i've got prior rights and therefore they cut you off your rights can't interfere with mine you automatically if i understand it you settle that claim there could have been a better settlement it's too bad how do we deal with that did you make any effort to show that this was a reasonable and good faith settlement of that piece of litigation i know on appeal you know why we made an effort to show aren't any information that would say what the value of giving up your right to appeal the state courts determination that you weren't entitled to a deficiency judgment we presented the entire record the and that issue as it was a matter of why it was very clear was not even disputed in chicago totals we've seen here there was also was part of that record as part of proving up the deficiency judgment exactly to the penny how much that deficiency judgment should have you had lost in the trial court so the value of your right to pursue an appeal is not going to be equal to the value of the deficiency judgment you didn't get so the question i thought the what the value of the claim is if it was going forward a judgment because actually we thought we thought one thing would have been speculative as to what the other side might have settled before because we had the other side fighting tooth and nail making three appeals to the wise supreme court ranking moving for reconsideration on every owner was to pay with that was paid what was owed to the morgans that was her promise that was a promise to make it directly to the morgans which is that's the standard definition of a third party beneficiary if you have th to say you are the claim that if she then had to pay off the lender over which she had total priority would have been kind of problematic when again i and what the judge did when he when he made the ruling you you're referring to at the trial level he thought he was applying arijit general he was dismissed reading it you have about a minute left if you'd like to re they would have this court believe that they did not have a full and fair opportunity to present their case at trial regarding their damages second they would have this court believe that they ok we'll settle this case you give me the cadillac and i'll dismiss my appeal and you guys keep title what's wrong with saying the chicago title i had to get my cadillac to settle  title i see those as entirely different scenarios one in one instance what you're talking about is you've translated dollar bills to a cadillac yeah stead of instead of pain for her title claim dollar bills you pay cadillac yes for her title claim yes or title can't yes that's not what's what we're dealing with here we're dealing with here is whether or not the failure to defend and that's all this court decided previously counsel says you decided it was coverage that was not decided all you decided was that chicago title breached its duty to defend that does not expand the coverage in and of itself does not mean that simply because they didn't defend they are liable for all things that might have occurred in the underlying case you have to still go to the issue of you did not say she was appealing on time so actually right ok so there we are and they got the thirty thousand dollar claim which arise out of a totally separate contract let's say that and they still give over thirty thousand dollar  if that was what it was take my exam with a large you have come into my world you come into my world and say i'll tell you the world that's what happened because and i'm glad i may sound like i'm repeating myself shift the burden to chicago title we would have gotten through there they failed to do anything all they did was throw in invoices and the pleadings with no testimony about a connection between one and the other there in fact is nothing in the record that would connect one to the other is because we're now talking about yes if that happened we still would have been able to convince the court that chicago title was not responsible for what they gave up because of what they gave up it miserably there is no dispute that what they gave up was a claim that arose out of something that was not covered by the attorney's fees one is this thirty thousand dollars judgment which was a court order that said during the pendency of this foreclosure case you have to pay into court and amount in equal to the money that you would have paid under the agreement of sale that's what that thirty thousand dollars yes it's called undeposited rent in various places but really when you look at the record the judge is saying i'm going to make a deposit the money you're supposed to be paying monthly under the agreement of sale and i'm going to make it pay it in the court i think she paid some she didn't pay others that's that thirty thousand there are other claim is this claim for the in some way of some time the ones that didn't get dismissed if they had managed to get over their burden of proof at trial in the district court we would have then been dealing with are they entitled to these attorneys fees are they entitled to recover from chicago title the thirty thousand dollars for the payments out of the remit of sale are they entitled to recover this never awarded judgment for money that you agreed to pay under the agreement the sale and the point is that the second two are wholly dependent upon the agreement to sale the those claims are rising out of the agreement of sale it's really no different than if there were multiple insurance policies involved in the same coin you can't recover under one policy under three other fifty if it's not covered under the you gave up this thirty thousand dollars thing which didn't arise on the title you can't possibly recover thirty thousand dollars from chicago title because it didn't arise out of the title that's what i expansion i'm saying you've got the title claim that's the cover just on title click ok the question is will i have to pay thirty thousand dollars to settle the title claim why isn't that  if i had to pay thirty thousand dollars cash to settle a title claim on appeal why is that not covered i may have misunderstood what you asked just previously if you were talking about the pure circumstance where someone pays any form of consideration or value we can be a cadillac it can be another claim it can be your lottery ticket that just came in last week that's worth thirty thousand dollars what difference does it make i guess i'm having the same difficulty as just fernando's because i don't understand why it matters what the nature of the consideration is what the source of the dollar amount or value is why does that make any difference if the question is what did you give up to settle a covered claim i suppose it is because you have these three discrete things w the which they didn't recover from didn't sell either the thirty thousand dollars for the unpaid rent and the on awarded judgment didn't they did not even provide any evidence to the district court that starts the promise of the whole thing that they gave up the thirty thousand dollars judgment to settle the title  difference and forgetting for a moment whether the form of the consideration for selling it under hawaiian law is there any difference about what needs to be proven for a settlement does with the morgans have had to come in and say prove that it the other thing that they gave are in both instances they have to provide some evidence that it's not just same obviously because it's a different animal but they have to at least come forward and provide some evidence that that  was a reasonable and a good faith so that's as to the settlement issues the settlement of the giving up the judgment on the attorneys fees they have to at least come forward and show that they incurred hours that they had that they did some work they have to show what the rate is for an attorney doing a residential foreclosure and they have to show that the work described in the invoices is related an allocation after question where you would say yes you defended the title claim but there was also some other legal work in there so this and this and this is you know committing ourselves here and too few hours over there and that sort of thing works case which talks about attorneys fees as damages and the shark case talks about what is necessary to prove three species in a contract case and the hawaii case is put the burden on the the other let me skip to one of the let me ask you one other question along that line if there really is irrelevant can they claim that the magistrate judge said he was go case and then didn't is that a ground to send it back to him and say look do this thing right it's the right result the judge reached the right result the it they did not come forward with any other evidence nor did they ask for a rule fifty six in the affidavit saying that they had not sufficient time you have to develop that evidence they never asked for that there's no evidence by clear and convincing standard that there was something more why does that lead to conclusion we dismiss your bad faith claim and counsel responded yes they do the same damages so why is that a basis for dismissing the battle of the court the court is not obligated to go forward on duplicative claims that they've got we knew there was a breach of contract it's the same dollar amount it doesn't make any difference whether it was this breach or that breach or this breach it doesn't make any difference whether they breached the cover of good faith and third dealing or they've breached the duty to defend it's the same dollar bills the court was told it's the same money so advice to you that i see through negligence intentional wrongdoing gross negligence and stress and emotional distress and all the damage  can be exactly the same the court can dismiss three of those and they can go to trial on one because the next right the ninth circuit said one of those is already established one of those breaches is already established so you've got a breach we had known that california law wasn't going to be followed then we could have put that evidence on but we were not on notice to do it once we heard the ruling we asked to reopen so we could put on reasonable  evidence just a reasonable salability which we think is on the record anyway but we think but we asked for an opportunity to do put further testimony on with respect allocation reasonable us and that motion was denied so what happened here was that the