of jurisdictional issues you cleared up by a twenty eight j the issue with regard to the bankruptcy but if we look at the complaint here we've got an allegation of where  domicile which doesn't help me for the citizenship of the company so i'm going to request another twenty eight j to tell me where it is incorporated and where it's personal principal place of business is as opposed to where it is if you would do that and then the other problem that i have is the resident see  and again we are dealing with dahmus island not citizenship and i hate to be picky but we've got to determine our jurisdiction and there are ways that we plead these things that are there is a dispute it otherwise we can just take the information from one that i don't believe will be a dispute the court is aware this involves an insurance coverage dispute or arising out of the fence and settlement of an evanston agreed to fund the settlement of the underlying suit in reliance on the representations contained in the no kids policy applications that it too submitted to evanston facts in the case  district court federal district court seeking a declaration that the claim was not covered under the policy and seeking recovery of his defense costs while that action was pending  evanston funded a settlement of the underlying suit the amount of two hundred and sixty thousand dollars mediately there after the evanston amended is declaratory action to suit seek recovery both of his defense costs and of the settlement payment on theories of unjust enrichment and claimed miss recruit ripped misrepresentations in the policy application which have been submitted by me look at ken let's start with fraudulent misrepresentation because that's the main that's what the district court ruled on said that the complaint stated it calling for fraudulent misrepresentation doesn't it state a claim for fraudulent misrepresentation the issue is what damages are recoverable under the allegations stated in a complaint so you can see that the district court properly granted default judgment the fraudulent misrepresentation and concealment claims and you're limiting your appeal to the damages question that's correct ok on a reservation of rights but that's only an issue for looking at unjust enrichment right that's clear just conceded that the district court's decision stands on fraudulent concealment so why we  need to look at on just enrichment don't we go right to damag other just rich would claim under the ethical mining one of cases and under the under the claim of misrepresentation but your argument about hecla all goes to the unjust enrichment claim and what i think judgment  i'm struggling with too is if we accept and affirm on your arguments that pertain to fragile misrepresentation we reject your arguments about damages which have to do with cause ation why would we even talk about the unjust enrichment claim and the whole issue of whether hecla and that doctrine extends to indemnity well both issues  misrepresentation there is no limitation there's no limitation on the hackler a concern with unjust enrichment doesn't apply to damages for fraudulent misrepresentation like morath if you concede that default judgment was properly entered on fraudulent misrepresentation then we jump over all of your arguments about what damages you can get an unjust enrichment and we're just talking about fraud damages if i do can the courts question correctly it has to do with the interrelationship between the unjustice richmond claim in the fraud  there is no in a relationship or apples and oranges except that the district court seemed to base its footnote on unjust enrichment and it was just a footnote on its findings on the fraud cling which was different to me but  i don't recall that the best answer i can give is that as to both claims which which are totally separate and unrelated we are simply seeking review  court of the district court's entry of judgment for the settlement and there's two separate boxes so to speak the box the unjust enrichment boxes whether colorado law would recognize a right to recovery of a settlement payment made by an insurer under an unjust enrichment why do i care if you've conceded that their judgment was proper as to fraud don't we're not and we just skirt around all of that this and and say what are the damages that are appropriate for a fraud claim is it your argument that you can't get the settlement in payment as damages in the fraud claim to do exactly that and what do you rely on for that and they want those a isn't a question of whether they were approximate proximately caused by the claimed misrepresentations in the policy application and your opponent's argument is if you hadn't lied to me we went of issued this policy therefore we never would have been based on a mis identification of the issue here the under black letter law fraud requires damages resulting from the plain truth reliance on the representations by the defendant the representations that issue here are the statements in the policy application that was submitted before the policy was issue in their complaint that they would not have issued the policy had the had the true facts been know whoever is a different question as to whether or not they would have settled at the time they agreed to settle interrupt but i did the declaratory judgment proceeding that was pending at the time that they settled not only argue a lack of coverage did also argue what ultimately became the basis for rights which generally applies to coverage that they also reserve their right somehow to proceed with the fraud claim is that makes sense generally reservation of rights means we're going to go ahead and and in this case we're going to go ahead and settle but we aren't reserving our rights because we don't think the policy the cut the terms of the policy cover but eventually we end up with a verdict here but decision based not on coverage at all you see i'm saying that reservation of rights just really kind of confuses me here because the reservation rights pertains to coverage generally in the not to the misrepresentation on the application because the that issue and i have two minutes if i could reserve the state of incorporation and the kind of heartbeat of evanston one is virginia and one is illinois and i can't remember which is which one i want to put in it twenty eight j ok but we need to know those things to determine our jurisdiction as far as the issues that i mean a kid has raised i think judge mchugh hit the nail on the head we're dealing with two entirely different claims one claim is a fraud claim based on misrepresentations that predated the policy which led to the policy being issued those are on a separate track the what i think counsel thinks of as a more juicy or coverage issue that has not definitively been decided by the colorado supreme court is the reservation of rights issue and whether  settlement they were well aware of the fact that this policy had been obtained by fraudulent representation is that fair i think it's fair to say that they they believe that there that there may have been fraud involved that the difference between what happened at the time of funding the settlement and as we stand here today is that there's been an adjudication an insurance company is always wary of jumping the gun because of the hammer cause of bad faith litigation and although it may have believed that could you could you clarify what you mean jumping the gun on an action to avoid the policy more the policy or to deny coverage or to deny the fence sitting in the background as always the unreasonable efforts of an insurance company which carries with it trouble damages that most insurance companies don't want to get involved and i think during the hearing in the district court evanescence representative testified to just that they're very they've claims and so at the time they funded the settlement yes they believe that they're going fraud they're going on even because they play right they knew that's not correct they the original complaint was strictly a declaratory judgment complaint there was not a claim for fraud it was only after the settlement of been funded that a fraud claim and an unjust enrichment claim were added the initial complaint also involved a different party there were two cases proceeding the same tax of the amended complaint dropped a party one of the defendant then added the two claims so although there were there were suspicions that there had been fraud going on there was nothing proven and they didn't want to go on suspicions and deny coverage and tonight i indemnity and instead they followed heck was reasoning and and funded the settlement under reservation rights but that is distinct from the fraud i think we heard based on the court's order from the district court as well as concessions made today by counsel from you know  there's no issue regarding the fraud this court doesn't have to get passed doesn't have to get to the issue of hackle it doesn't have to get to and just enrichment it can stop at fraud and i mean a kid has conceded all the elements of fraud and said we're only discussing damages but if you read the trial court transcript they stipulated to the amount of damages and so the case law is there they're questioning causing i think but causation is a factual issue and they don't get to question causation reliance and causation are both actual issues that were decided when they default they don't get to question in relation to damages whether these damages were caused by the the particular damages you're claiming i reliance i think they could challenge as they have the damages that flow from an unjust enrichment claim where arguably the colorado supreme court has not been defined when we're talking about fraud fraud damages are clear the as soon as they bound coverage based on the misrepresentations and can fraudulent concealment from you know it they were put and locked into the contract and once they were locked into the insurance policy all of colorado law governing insurers actions under the policy came into play the duties of good faith and fair dealing with a hammer cause of bad faith litigation evanston was under all of those as soon as they found coverage all of that predated the binding of coverage all of the fraud and so as soon as they were put on that track they were under those obligations they had no due to cation regarding the fraud and so when that when communicate demanded settlement they had no education saying that there was definitively fraud and so they funded the settlement those damages flow is approximate result of being bound to coverage based on the misrepresentations from a practical perspective evanston did the best it could do it acted in a reasonable and what the colorado springs court would hope all insurers would act like under the circumstances it protected its insured at the time it protected the tort victim at the time and then it decided to quibble about coverage and reimbursement afterwards but it could have it could have decided the sin is it had a good faith defrauded it could have rescinded the contract write it and the insurance company in any situation can rescind the contract now whether that is consistent with their duties of good faith and fair dealing under colorado law that settlement saying you're playing a dangerous game if you don't settle and so i think that that's very important when we're talking about unjust enrichment and if the court gets there i think it doesn't matter for fraud i think the fraud is open and close if we get to unjust enrichment though that does matter when you start to look at the different case law across the jurisdictions and so there are cases that point of site certainly where at and that i'm you know evanston sites where the fact that it's the insurer demanding the settlement is important cases that point of site there are some where the insurance company demands a settlement or it settles the claims without the knowledge of the insured or it settles the claims over the insurance objections that is a completely different situation and those courts in different jurisdictions with those facts came down differently every court that deals with that follows tech was reasoning and is presented with a factual situation where the insured is demanding the settlement and the insured is threatening bad faith have come down and extended the right to reimbursement to settlement payments unfortunately not in colorado right what not definitively i think there's no practical difference between a reimbursement for defense costs and a reimbursement for settlement in fact if anything i believe the th circuit said this it's easier to get to reimbursement for settlement there's more policy considerations and play for settlement there's compensation for tort victims which isn't present do reach that question i'm kind of perplexed by the fact that this case presents an entirely different scenario to with respect to the hecla extension argument and that is here all of those cases that i could see in colorado or otherwise are based on the idea that the insurer reserved its rights and it reserves the right spaced on the issue of coverage being whether i reason and your reservation rights letter very clearly talks about the coverage issue but eventually you don't succeed and you don't have a judgment because of the coverage issue that was never determined by the district court you only have a judgment on the fraud with respect to the application do any of these cases that you've discussed nationwide have fraud in the application process and a fraud finding as the deal with that it wasn't you didn't cover it fraud in your reservation rights letter you talked about coverage and you don't have a no coverage finding today and that's what those hold those cases are based on is no coverage not a void contract that is a wholly separate issue and i'm everyone seems to accept that this analysis some help lies but i don't see a single case like this if you had a judgment on the coverage yeah we could talk about it but you don't i believe we do have a i believe the district court did reach the coverage it didn't offer here i mean when saying that it was there was no coverage you mean because of the contract that's what we did not because the country ok maybe i'm not understanding so there was the fraud misrepresentation issues but those were not where the court came down on the coverage issue the bigger issue was it was outside the professional liability wasn't that on the doctor it was on the i'm not sure you needed it decision on coverage to reach it well these cases all are talking about a reservation of rights and your reservation of rights was not based on the fraud in the application your reservation rights is based on lack of coverage assuming the existence of a of a policy that was that line and i don't have the cite in front of me i believe the that there is case law where you don't need to include all the bases for denying coverage in reservation of rights letter that you that it doesn't need to be all encompassing if i understand your question correctly does it even matter i mean if there was fraud you have a right to damages caused by the fraud and whether you reserve your rights or not you've got a right as damages  think the inquiry before this court ends that fraud if this court goes beyond fraud and we start discussing the unjust enrichment i think a determination of fraud even then serves as a coverage determination because as the court can see from the policy itself that is a main exclusion in the policy and so i think when we talk about cases from other jurisdictions where they where they find it i think other jurisdictions would follow what the district court has done here i would draw the court's attention to perhaps the most  case we came across and that would be out of the six circuit the heller rich decision it is almost identical to the factual situation here where the insured reserves  r the insurance company reserves its right to seek reimbursement the insured acknowledges that but objects to it and the settlement is still funded and that court did exactly what the district court did hear it found for the policy  reasons that that settlement reimbursement is appropriate i think the one other issue as my time is winding down to address is the motion to certify again if this court stops that fraud there's no reason to reach the motion to certify to the extent the current supreme court would have taken in this case the scholars from court would have not viewed it even as an extension but just a continuation of the incentives that it wants to give to insurance companies to protect the insured to balance the interests of the insured and the insurance company so to the extent this court reaches the end just in richmond claim there's no basis for submitting it to a motion to certify or to certifying it to the supreme court also because of the fraud claim it's not outcome determinative and the two courts that have wrestled with this certification under similar circumstances would be heller rich and grand point that's the th circuit in the eastern district of tennessee and they both declined to certify the question to the supreme court action by the plane to be reliance on the representation of concealment resulting in damage to the point of the damages awarded will for fraud or the damages proximate  reliance in that that sufficient to supporting awarded defense costs because the issuance of the existence of the policy of the time the underlying cases filed obligated evanston to fund defense of the case however the issuance of the policy did not obligate evanston to fun agree to fund the settlement what you are asking us to do is to add facts to the complaint meaning a fact of when they were discovered the fr but we're dealing with this on default judgment and i don't really think you get to do that we're not trying to do that your honor there's there's two issues number one the it's the legal causation issue in other words was the agreement to sell caused or prompted by reliance on the met representations in the policy up location of smith the answer to that question is no and also there to answer the court's question directly the complaint itself did not state that they had settled in reliance however during the default hearing evanston did acknowledge that they  knowledge that they were on notice from the allegations the underlying complaint is to the possible misrepresentations in the complaint i have five seconds i'm over sorry