case there was substantial evidence during the trial that he had to substantially curtail his activities as a surgeon through his nurse miss corcoran but in a boneheaded attempt to keep working he continued and but that you know if you would have just admitted that i think his claim would have been denied and we would have been here and i would have been on the other side talking about the substantial damages that the insurance company was  in disagreement with as it is the jury found at least a portion of his testimony credible because they awarded him a substantial amount of money for emotional distress i think the issue is true physical condition and i think that that was obvious from reviewing dr cohen's testimony at trial when he was asked whether or not he could state to a reasonable degree of medical certainty that dr sacks is not the same bill he said no when asked whether or not dr sacks could continue working as a surgeon under all the pain medication that he was under he said no so there's no question that dr sacks had legitimate problems that prevented him from from doing work and meeting that he met with the california definition of total disability the question is is in the statements that he made the ones that that he didn't make that were untrue and again  unclear as to how many those were his claim went on for for a period of years each month he submitted a statement that california law i think it's the erica case that indicates that each one of those is in effect  question is should whatever percentage of rise of mistake months regarding his ability to work his actual work or his computer data whether that's sufficient to let this insurance company off of paying him his eighteen thousand dollars a month and they talk or struggle with that and i you know believe and i cited the case law that in the case that the clock or did not have ever sent the the unclean hands the instruction to the jury it was objected to the trial court could have made the same determination itself what  did was actually a question on the verdict form was and there was and the jury found that he had acted with unclean hands cracked tell me if you would i have i am struggling with this argument and i have gone around and around on this why is the jury verdict in your opinion inconsistent well it's inconsistent because that's just sort of lay this out make sure i understand they found in favor of  appellate on its fraud claim and the damages that were awarded were eight hundred forty four thousand dollars plus a little bit more which i understand is the exact amount that your client received  benefits and waive premiums they found in favor of your client on the breach of contract counter claim and awarded zero in damages and then they found in favor of your client on the breach of good faith and fair dealing counter claim and awarded two hundred sixty six thousand dollars for mental suffering anxiety humiliation distress and then they made the finding that he acted with unclean hands why is that inconsistent for several reasons first of all in order for the jury to find that the insurance company breached that contract insurance case they would have had to find that benefits that were due were not paid so having found the benefits that were due were not paid then it's inconsistent for the jury to at the same time say that the insurance company is damaged by the amount of benefits that it paid that's one inconsistency the second inconsistency is on the bad faith the duty of good faith and fair dealing in order to reach that on the california law they would have to find that the that the insurance companies withheld better benefits without probable cause or what benefits are we talking about there was only one benefit one type of benefit that was available here and that was his monthly disability benefit payments thirdly under california law in the reagan case future benefits are part of the duty not given the opportunity to make that decision as far as future benefits because it was mistakenly over objection placed in the b to contract special verdict form questionnaire so for those reasons  the verdict form is inconsistent and the judge was just a is this a in your opinion is this a special verdict or do we have essentially here a verdict that as a general verdict questions sent to my bachelor general verdict in my view i believe it's a special verdict and that's because if it's a general verdict we don't have the legal authority to deal with inconsistencies do we i think the law is that that generally a question for you you're such a fool in your argument you said that that your argument about why you think the i think you said that the the jury said that the insurance company was damaged to the extent of their payments it made it correct so  explain to me again why where is the jury say that well i know they were live damage figure that seems to be roughly in that amount but did they say they were in those days was to rican tense for the payments that have been made or are they say that it was for something else the jury didn't say what it was for but prior to the jury being instructed we stipulated as to the amount of back benefits the amount of benefits paid to dr sacks and the amount of his waiver of premiums so that was that the figure that the jury was given was a stipulated amount and that's what those who amounts represented so i don't think there's much question that's what they were awarding ok thank you  and going back to the general verdict form i believe the law is that if it's a general verdict form and there's no objection prior to the jury being dismissed and in the ninth circuit i think the rule is when counsel is invited to do so or to comment on it which i was not in this case counsel is not in this case then then this court does have the authority to look at the general verdict form and determine whether or not t inconsistency and again the trial judge was very conscientious and he struggled with this we had a couple hearings on it and he indicated that for the very reasons that i just set forth as to what california law is about damages in the types of insurance cases that i hear he had a problem with the inconsistency and the possible in consistency of this verdict from last year or the other questions i think i'd like to reserve my address and i'll try to touch on those unless the court is satisfied that it is so necessary when we start with the the inconsistent verdict argument this court has said time and time again that its duty under the seventh amendment is to harmonize the answers to very questions whenever it is possible any plausible understanding that makes sense of the verdicts requires that the verdict be upheld and i would cite the court to wait for says ford motor and the los angeles not have pacers to promise examples now mr sachs makes two different inconsistent vereker i can use the third one that mr bebee referred to is really an instructional argument about the future benefits and i'll take that on separately and under white feedforward i think these verdicts are perfectly and easily reconcilable mr bebee premises the argument on the assumption that the jury could not have found breach of contract and breach of the duty of good faith and fair dealing with are also finding that he was disabled now to quote the court and wait before that's a plausible reading but it isn't the only possible reading and he needed to be the only possible reading in order to overturn the verdicts now if you take the jury instructions to which he did not object and the verdict form which he helped draft these verdicts are perfectly understandable the jury simply found that he was the one who was not this able to the insurance companies breach the contract in other ways that are not material to the resolution of the claim and some of those ways were set forth on the verdict form in the in the discussion of the that said claim and you can look at those it would be page two ninety three service of record where they list the four that they want to focus on and if you look at some of these it's pretty clear that they have nothing to do with the ultimate resolution of the claim so that kerry could perfectly perfectly easily have said yeah they didn't handle this claim particularly but it didn't make any difference to the outcome so no damages for breach of contract because the breach of contract instructions say that the purpose of damages is to put the  in this case that would be that in the position he would have been but for the breach so didn't agree send the question out on out on this issue whether they could find a breach of contract and award zero  so i don't have any problem with inconsistency is it relates to the fact that they could find that this that your client mishandled the claim and still find that  sacks committed fraud and that your clients entitle to receive back the benefits and way premiums that were paid what about the issue of whether or not the breach of contract finding that there was a inconsistent with them well i don't know i struggle with this council well if you told me with that help me with that finding a breach of the contract  counterclaim just seems to be i mean i don't know why the jury did that well and they made arguments about certain things in the claim handling the claim handling is the point of the contractual obligation of the insurance co you're saying it's part you're saying it's part and parcel of the of the good faith and fair dealing there is similar binding if very similar are there were a bunch of things we were supposed to do for example there was this discussion of the terminations letter says you have one hundred eighty days to appeal this but we brought suit in less than one hundred eighty days and they made something of that at the trial so that may be a technical breach of the contract but it really had nothing to do with whether or not he suffered injury as a result of the  they did and i'm tempted to read it this way which is consistent with where you want to and the award zero for breach of contract understanding which a contract i mean did this all him money under the policy and they say no he was disabled but the award a fairly substantial amount of money based upon the handling of the claim which is independent of whether or not they owed the money and consistent with us we didn't owe him any money in terms of policy payments in terms of benefits that's what that's why you got all the money back to your side the mineral make sense to me yeah and that's our if that's our position  bebee referred to in his argument and i'd like to start with the fact that the so i comment was not adequately preserved under rule fifty one and i think that will come as a surprise to mr bad but  explain why he said to the court when this issue came up and this is at page three forty six of the excerpts of record my understanding is that is sad prevails on the breach of contract he's entitled to the breach of contract damages up to that point but not future damages and the judge responded no but if the contract calls for the disability payments so long as he's permanently disabled if he is permanently disabled then he would get those benefits in the future those are contract damages and mr bebee responded right and never make clear that he was affirmatively objecting to including future benefits as an element of contract damages then after a judge will actually instructed the jury he asked the parties whether they had any objections to the instructions as read that's page three fifty of the excerpts and mr bebee raised only one objection which had to do with one sentence in the bad faith instruction so that i think plainly led the judge and us to believe that he had no what objection technique or the other instructions now in any event this error if it was an error was perfectly harmless because the jury actually reached it as an antecedent issue you know usually it's the defendants who want it to be left until fate because they may never get to that stage and so it was actually a benefit to their side to have the jury asked to award future benefits on the breach of contract claim and the jury said no no no  no damages for that so in light of that expressed finding it's inconceivable that the jury would have awarded him damages for future benefits if only it had been placed in a different place on the verdict form and i also want to point out and this is not in the brief but i think it's something you consider you can consider it's undisputed that he had by the time of trial lost his license so he could not actually be entitled to any benefits in the future anyway so to me it's an entirely moot point now the second instructional argument that dr sacks raises to do with the unclean hands instruction and he basically it's kind of hard to parse it apart from the brief but he basically makes three arguments about this instruction and again i think we're going to find that they're not adequately preserved under will fifty one he argues first that the jury used the instruction to find for the insurers on the fr claim second the instruction gave the jury quote free reign to apply the unclean hands defense to bad faith claim and third the jury should not have been instructed on unclean hands because not all of the conduct was related to saxes inequitable conduct so as to now at the charge conference mr bebee referred to an objection he made the day before which was not transcribed you'll find that a page three forty three of the excerpts but from the context it appears that the argument that he made was that unclean hands is not a defense to a bad faith claim and that the judge disagreed  but he never argued any of these three points that we're talking about today that the jury might use the instruction to find for the insurers on the fraud claim that it gave them free rein to use it on the bad faith claim or that it wasn't adequately limited to related conduct and if you wrote it so he didn't say any of that to the court and under rule fifty one the objection has to be specific so i think that easily wipes out this entire argument but in any event each of the instructions each of it none of this arguments is valid because the instruction actually forecloses all of the three complaints makes it says that it is a defense so therefore it couldn't be used to help the insurers on the fraud claim  and never told the jury that they were supposed to do anything other than say whether there was an unclean hands and specify what the purpose or what the implant clean hands entailed so there nothing in the instructions to suggest that the jury was supposed to use the finding and indeed we know from the bad verdict that it didn't use the finding to wipe out the bad faith so  and then the third complaint is that if the instruction wasn't adequately didn't adequately apprised the jury that the conduct had to be related but in fact it says it on its face and in any event it wasn't the jury that was making that determination so that's the on clean hands instruction now to the answer to the jury's question about the whether you could have zero damages for breach of contract and as we pointed out in the brief california law and the restatement of contracts both say that you can and there is no case cited by dr sacks to the contrary so and if you look at the jury instructions in the verdict form it it's clear that they contemplated that the instructions treat breach and damages as two of the five elements of the claim and then the verdict form separately asked did was there a preach and were there damages so  answer was consistent i'm sorry go ahead no problem the judge's answer was consistent with the instructions which again mr bebee never objected to and the verdict form which  award of contract damages there would have been no discretion at that point given the jury's finding so it really made no difference that the cross appeal if the court is interested in hearing about it o is about the judge not using the unclean hands finding to wipe out the bad faith damages and there's basically two arguments is raising here the first one is the judge's rationale which is that the conduct wasn't sufficiently related and i think i the court takes a look at the california court of appeals decision in the kendall jackson first gallow case that should dispense with the trial court's rationale there the court of appeals says  jackson that and this is a quote from page nine seventy four of the opinion in kendall jackson misconduct in the particular transaction or connected to the subject matter of the litigation that affects the equitable relations between the litigants is sufficient to trigger the defense and that case in that case the court held that improper marketing practices by gallo deezer wine competing wine makers were sufficiently connected to kendall jackson's trademark infringement suit against gallo to justify applying the own clean hands defense in in gallo's action for militias prosecution so and so that was taking a very expansive view of what related means and the court said that neither analogous case law nor the equitable principles underlying and clean hands doctrine supports the narrow rule that gallo is arguing for we think our case is a four c r i because here the the acts of a legit bad faith that were on the verdict form that the jury potentially could have found to be the basis for the bad faith award were in typically related to the very unclean hands with which dr satz came to the court he was making a claim for benefits while deceiving the insurers the insurers mistakes handling is claim you shouldn't be entitled to anything in terms of mental suffering anxiety humiliation emotional distress and so on because he's himself active so badly there is just direct words the jury dr sells sacks made false statements conceal facts and so on well the jury knew all that but the jury having decided to award him two hundred sixty six thousand dollars despite that argument was not the end of the matter it's not the end of the matter because this was not for the jury to do the jury was just asked the two questions was there on clean hand what was it the judge then has to apply the jury's findings and and then so the judge had to undertake this determination was it to patiently related because that was not really even though it was in the instructions it was a separate finding by the jury so the court had that the side was this or wasn't this sufficiently related to the bad faith claim and so we're submitting he was mistaken and given the decision in kendall jackson that makes sense what was the never take the found its way into the judgment in this case was that the amount of the eight hundred plus thousand minus the two sixty six well if ultimately that there would be that set off if we don't right dale on the cross appeal if you know of prevail on the cross appeal so if we just do this traction you know your client will end up with a little under six hundred thousand dollars well unless you give him some money and the other kids we're going to wind up with nothing because he's managed to supreme all of the assets but that's not the quarter this is we're talking about putting your earlier case the earlier case i mean he needs to win some money in that case for us to get some money in our case oh i see the case we heard small yeah oh i see i mean we can't find his money so maybe maybe you can get him to find it for you and we've been trying trust me i comparative bad it's a different option and the premise of the whole thing is you can't compare insureds bad faith which is treated as a breach of contract to an insurer's bad put faith which is a tort and that really has however if you look at the full transcript where he makes the assertion that i agreed with the judge that the future damages should remain where they were in the contract the actual court  language by the court no but if the contract calls for disability payments so long as he's permanently disabled and if he is permanently disabled they should get those benefits in the future dozer contract damages but there's a stop there he goes on cuts me off basically and what he says is what i'm talking about now is just breach of implied covenant of fair dealing we had the emotional distress stuff that's when i said right to the question of do we have emotional distress stuff time but when when the verdict form was actually offered by the court did you object to it no i did not object to the diverted form because i thought that my prior objections were already preserved and then it would be futile to reraise and at that point in time i mean  judge was pretty adamant it doesn't really come out from the transcripts that these were tonto racked damages not bad faith images just again i hate to belabor the point of the inconsistent verdict but the problem with trying to reconstruct this verdict is that to do so one has to assume that the jury just disregarded the instructions on on damages well the argument is that that is i mean we have to see if there's a plausible plausible support for the for the jury's verdict here and the argument that's been made is and i  found it to be compelling and actually sort of straighten this out for me it is possible for them to find that there's been the jury to find that there was a breach of the contract if you if you take that finding in connection with their finding that there was a breach of the good faith and fair dealing and so they that's where they come down on that they decided they're not going to give you any damages your client any damages on the breach of contract instead they're going to award client damages for mental suffering for breach of good faith and fair dealing so you know i mean that's not to me that's since possible i understand that but in order for the jury to do that they would have to ignore the following in the context of a claim for breach of contract after disability insurance benefits the contract damages are limited to what the insurance company was obligated under the policies to pay but has not yet paid what are you reading an instruction i'm reading from the instructions read that one more time share in the context of a claim for breach of contract as to disability insurance benefit the tancred damages are limited to what the insurance company was obligated on the policies to pay but has not yet paid on words if you read the monthly benefit it was but but what you just read seems to me entirely consistent with my interpretation of what the jury thought it was doing that is to say yes they reached the contract by which they mean as i get further down they reach the implied covenant of good faith and fair dealing but given the definition of damages you've just read they have no choice really but to say what damages as defined there which is a benefits old zero because he is not disabled so zero damages as defined but breach the implied covenant two hundred sixty six thousand dollars is a perfectly consistent which is consistent with the finding on the fraud claim awarding the appellate damages and their answer to the question regarding on clean hands it is consistent with that but it's inconsistent with finding yet a breach of the covenant of  good faith and fair dealing which requires a withholding of contract benefits without probable cause i mean there it is well you know as i look at this case i think your clients reading of the of the winery case of the jackson kendall jackson case the court and you side of the case is in my briefs is required and this is what judge you did to review all the evidence which you did he asked for the transcript and weighed the equities and that's what he did and what they're saying is the abuse is discretion and finding out and determining that the equities favored preserving the two hundred fifty six thousand dollar