recovery versus monroe guarantee but just as important court my name stephanie patel thank you very much for hearing us today i represent the appellants and this case is not nearly as exciting as the one you just heard this is insurance companies fighting about money and we believe that we are entitled to twice the amount of money that the district court awarded us and that's why we're here we have two primary issues for the court today one is choice of law georgia versus michigan and the second is really the interpretation of insurance policy language and it's primary versus access carriers and whether primary policies need to pay all of their limits before an access care has required to contribute so th opinion that michigan law applied the district court here erred when it switched to georgia law that would be great if you did it was my understanding that law of the case went up the chain in that state or superior court court of appeals and when it jumped to federal court wasn't one hundred percent convinced it would carry over but i do think the principles underlying that decision are or that theory would be important for us to consider and that is our primary argument here that all along all of the parties to the case agreed it was michigan law the insured and the insurance companies who issued policies to michigan companies expected but as i understand it that case was about monroe's coverage is that correct correct it did not cover the issue of how all these policies how the payment should be divided up amongst all these insurance companies  policy corrected hadn't gotten to that point yet we were stablish in coverage first it was a breach of contract in bad faith action that's true so how were how are we dealing here with legal issues that were actually or bind bind us the sciri implication decided in the form of proceeding which is standard because in terms of the parties in their previous who would be involved in it obviously in monroe and the access carrier or excuse me it was just monroe the primary carrier who was involved in the court of appeals decisions it did no it's not all of the issues were addressed in that opinion that's absolutely correct and in fact that's why we were not one hundred percent sure that law of the case or even collateral estoppel would jump in in this instance and we really didn't make those arguments we weren't sure that we could fully support them technically speaking but the principles behind those i think are significant and many of the cases that we have cited discuss that what are the expectations of the parties what are the expectations of the insured and the insurance companies and here because we did have policies issued in michigan to michigan companies that everybody agreed was michigan law from the court of appeals down to the parties and to the district court in this case halfway through the litigation until to a spa day he revisited the issue must have had a really good staff attorney who found the frank briscoe decision and some of the cases coming from that you're not arguing that because the parties agree that the court couldn't reach that issue and decide which law nobody wanted are you i can say that that the district court could not or should not have undertaken that analysis but we did in response to the court direction to submit briefing on the choice of law issue find several cases where the parties agreed that a different state's law applied and that was up held and we found cases that discuss and they're all cited in our brief they're all we found cases where the expectations of the parties the insurers and the insurance companies was important and if they had agreed or a specked in michigan law applied that would be upheld in fact my gal versus mccurry which is an eleventh circuit decision from two thousand and five it was very similar there was a discussion about michigan versus georgia law and this court found michigan and one of the reasons was because that was the expectations of the parties they were issued you know to  michigan companies under very similar facts so i think while the judge probably should have been correctly reconsidered the issue and discussed it under our facts did not need to change it there was no public policy concern there was no reason to revisit the issue none of the parties asked the court to revisit the issue and we just didn't see why it needed to be done with but there is georgia law that says that under georgia choice of law rules the georgia court will apply statutory law other states but not common law so what's your response to that issue well our argument all along was that as i read the frank briscoe decision which is where i believe all of this began the exception was was carved out really says statutes and decisions construing those statutes so when another state statute is involved and our contention here is that the michigan statute bad faith was involved it was pled in our amended complaint for breach of contract and bad faith it was attached to the complaint it was argued throughout the litigation and in fact judge hall in one of his three opinions in this case specifically found that the michigan bad faith statute applied to give us twelve percent interest which is really why we want michigan law to apply because we want that twelve percent interest based on monroe's lack of payment for years and years and years now but let's see even if this  i don't think that matters in terms of the michigan bad faith statute because i think that courts reasoning on the automatic twelve percent interest a lot of sense and i think it was correctly decided and if we are under  case would be over at that point we would prefer michigan because we want the interest but even under georgia law it's not an action for contribution among joint tortfeasor it's an action of contribution when you look at insurance policies and what the language says and that's what i think is very important here when you look at the two primary insurance policies that apply in this case they both are for the same amount of money one million dollars they share program which means they should share equally and when we look at monroe's policy the policy it's pacifically says we will pay on behalf of an insured all sums that this a policy applies to ok and we know that this policy applied to the judgment that was rendered in this case back in the superior court of columbia county so when we look at the policy language whether we're talking georgia law or michigan law when we read that we say ok this judgment applies to this policy it doesn't talk about how many insurers there are how many defendants they are what percentage this insured owes versus not insured it so even if michigan law applies what do we look to i did cite several cases in my brief about priority of coverage under michigan law and it is similar to georgia in that you look to the policies within the same tier of coverage which would be the two primary policies that would apply first and you would compare the language of those policies and if they are for the same amount and they share pro rata which ours do and they are for the same amount then both primary policy should pay the million and exhaust in that tier of coverage before you move up to the access level which would be the next year of coverage well the problem was that the primary monroe only covered two and the other whether the other insurer covered all four was never addressed bolo although judge paul did touch on that in his analysis but yes to answer your question the monroe cover to renaissance and nouvelle but again i would look to the language of the policy that doesn't specify payment of a judgment or application of coverage based on number of insurance or number of defendants it's all sums that an insured must pay to which this policy applies so your argument is that because the judgment was entered jointly and severally that it doesn't matter both primary cures were on the hook that's correct for a bit yes because the plaintiff could have gone to any one of those defendants and recovered the whole thing from any which one of them and if the plaintiff had as an example if renaissance was the only defendant with insurance coverage let's say it i see my time is expired we had just finished answering this question if none of the other defendants had insurance if they were insolvent or somehow uninsured i am quite sure that the plaintiffs could go to monroe and say what do you owe on this judgment you need to pay it on behalf of renaissance and it would be for the full million and it shouldn't be any different because it's an insurance company trying to get that money back th please the court my name is stephanie glick often i represent the pelleas in this matter at its core this is not a contractual interpretation matter this is a contribution matter which is not an action in contract but an action and tort so if we look at this matter starting way back in the beginning this is the fourth court that has actually seen this case if we look at that this matter was before the district court on diversity as georgia law is used to determine conflict of law in a diversity case in georgia procedure and remedy are governed by the form state again georgia we can't forget how this case came about in the beginning this was a third party action to the tort case brought by renaissance sometimes referred to in the briefs as our ass but it was brought by renaissance against monroe guarantee as a breach of contract and a bad faith case under georgia law for a denial of coverage that is what was argued up to the georgia court of appeals after monroe one summary judgment on that to the columbia county superior court renaissance chose renaissance represented by opponents council residents chose to bring that as a third party action to the tort action that's typical and coverage cases a lot of times those covered cases are brought separately and then what happens is the insurance companies remove it to federal court i don't know for sure but the reasoning behind bringing it in a superior court action as a third party action is typically to keep it in that superior court so the company can't remove it to federal court because a pure course a better venue particularly in columbia county for an insured person's insurer so they made that choice they chose they could was a tactical reason and now it has backfired on them because now it became a diversity case so it wasn't the can you answer my my law of the case doctrine question that i posed to your opposing coun the reason that that doesn't matter on this issue is because this is a contribution case ensure vers ensure contribution which is not an action and contract is an action in tort but the problem is it's it's wrapped up in the toward case and the matter started as you say in columbia county filed as a third party cross claim as i understand it that the court decided to try the personal injury portion of the case which resulted in the judgment but then the matter went from that court to the georgia court of appeals which then holds that michigan law applies remains it to the georgia superior court then gets removed to federal court so it's all the same litigation and that's why i'm struggling with how could the federal district court even sitting in diversity after removal reverse a determination by the georgia court of appeals because if it was michigan law that applied because it's a different action once it got remitted back to the georgia severe court the action became a contribution action the insurance companies u s fire interstate fire added themselves as plain and then they brought the their claim for what they called reimbursement which is not a claim under the law of recognized claim against monroe and they added f c c guy at that point judgment in the tort case had been entered already and it had been paid by the insurance companies renaissance no longer had a claim residence had no damages they received a defense and they received indemnification they had no damages so they no longer had a breach of contract claim that's viable but the action all proceeded and maybe just as a matter of the actual proceeding of the same case number from beginning to end as their right it did i mean i realize they realigned the parties but they didn't reopen a new case and assigned a new civil case number for contributions and does that matter i don't know so if i don't think it matters to be honest if michigan is used to interpret the contractual interpretation because we don't even get to contractual interpretation to two we recognize that this is a contribution action because it is in diversity regardless of the which law is used to look at the policy taking taking the insurance policy interpretation out of it we've got a contribution case in georgia court whether whether  contribution is issue it's a remedy under the law and under the choice of law and conflict of law in georgia procedures and remedies are to be determined under georgia law so the remedy the choice of what remedy it is whether it's a subrogation case which is a contract action or whether it's a contribution case which is an actual action that's something that there is no dispute and there has been no dispute in the in any of the in any of the briefs that is something that is determined by the forum state which is georgia so if we look at this subrogation not a viable claim in this case in georgia several gay it is when the insurance company would step into the well i don't think so i mean i think georgia law applies i think the frank briscoe case is on point and i think that the court can make can apply that law to this case no i don't think that applies but i think that if subrogation case and if we are to assume that that michigan law is going to apply to two contract interpretation it is a subrogation case we still have to look at the remedies under georgia law the idea that georgia law would apply to a contribution action what they challenge was the application of georgia law to the contract interpretation question is that correct correct and in fact they flip flop as to whether this is contribution or subrogation if you look at their one of the restocking a fifty seven they say this is not a contribution claim or not a separation claim this is a contribution claim up up in this court there they're saying oh it's definitely subrogation because it's a claim against them we didn't insure them you can't sue you can't sue us for that and then the other the other issue is if they step into the shoes of run over who they paid on behalf of they potentially would have a claim against renaissance who we didn't show for but they can't do that under the frank briscoe case for another reason in that case that case not only address choice of law but also address the fact that you can't be segregated against a cohen shirt you basically can't sue yourself for money because they also insure renaissance they can't be segregated to or know those rights and then sue renaissance so once we get to the fact this is clearly a contribution action and judge the judge of the district court got that issue correct then we get to the contract issue then we get to the how do you allocate among the different insurers and that issue doesn't really require contractual interpretation and i think the law in both states in terms of you look at it by both states i mean michigan and georgia the law that says you look at the plain language of the contract you it's both the same so what we have here is we've got a total judgment of around two and a half million dollars we have four defendants with joint several with a joint several verdict now we have argued since the beginning that that should have been apportioned but but it wasn't if presuming that the court's not going to go back and apportion it now as we how would we do that i mean that they understand that our current georgia law the jury is asked to make an appointment at the same time it makes a determination of liability so without reopening and retrying the underlying personal injury action what's wrong with the district court doing a little rough justice here and saying ok i'm going to give twenty five percent as to work it out that way i mean what what  secure case that's cited in the briefs they actually did go back and have a second trial on liability and it would be it would be the insurance companies fighting over which defendants are liable but they're the only other way is is as you said that the equitable way would be to split it into shares which is what you do with joint several liability so we assume that it was split into shares and i do think that it's fair it's not the ideal on our side of the table but i think that is a fair and equitable way to split it if we split it into four shares of around six hundred thirty two thousand each then we have monroe obligated to be to pay half of the shares for their two insured and then you have the appellant would get pay half of the shares of the mutual insured and then the entirety of their exclusive insured to address the excess what  opponents would like to do in terms of the primary in excess policies is they would like both primary carriers to put in all their money before it reaches ax but it nor is the language in their own access to interstate fire access policy hit which they quote on page twenty seven of their brief which states that the interstate fire policy kicks in after underlying insurance in quotes is exhausted underlying insurance is defined anything in an insurance policy that is in quotes is defined it is defined as a scheduled policy the schedule policy is the u s fire policy so the minute the us fire policy is exhausted per the words of the interstate fire policy that is when interstate kicks in and our states not connected to whether or not monroe tenders it pays all it all its limits there wouldn't be fair to the interstate insured and it wouldn't it wouldn't munro's not in a contractual relationship or any kind of relationship with interstate so if you look to the plain language of the interstate policy that is where you see that it does it kicks in as soon as the us fire and no other policy is exhausted so the idea of having both primary policies have to kick in their full million first just doesn't make sense when you when you read the language it was that language that cross that language in quotes that is in page twenty seven of their brief was completely ignored by appellants so in closing and lester any more questions because this is a contribution action under georgia law which is a tort an tort an equity and not an action in contract pelleas don't believe that the whole choice of law issue with regards to contractual interpretation kicks in until after at most until after the the the shares the country contributed shares are split up among the four torture users and then and only then it would it would apply to interpret the contracts of the various insurance policies not in terms of coverage because that's already been decided but in terms of who goes first and who goes second and it is clear that the that u s fire goes and when u s fire is out of money when they have their limits are exhausted that interstate fire kicks in monroe guarantee goes when rose out of money then actually c i that excess over them kicks in in this case because monroe to answer the question judge tell man both primary policies kick in in this case contrary to our police argument because monroe had to insured with the judgement rendered  trial that monroe flat out refused to defend no reservation of rights no deck action flat out denied coverage which was found to be wrong so number one monroe does not get to complain about anything that happened at trial or anything that transpired with their insured pleural at trial because they chose not to defend and wrongfully denied coverage they should have defended and in fact we did recover defense costs from monroe because the two primary policies were supposed to be defending renaissance and that case has been resolved so there's nothing for you to hear today but where we have not been able to agree is whether the full million dollar on the primary policy should be paid and for the reasons that i stated earlier they should because the language of the policy does not limit payment to number of insureds or number of defendants or anything like that are excess or should never have been required to pay until all primary policies were exhausted not because we covered these people or these people or they covered these people or these people but because monroe insured renaissance and nouvelle who had a judgment against them their policy primary policy applied to that judgment and that should have been satisfied so what generally answer to do i do think we look at the language of the policy and i think it results in what i am arguing which is all suns that monroe must pay for and insured to which this policy applies and the judgment was two point five million dollars that renaissance a new bell said monroe here's my judgment for two point five million i have a million dollars in primary coverage and they have said no we're not going to pay that we think we should only pay frankly zero as what they wanted to pay but ultimately judge paul came up with the six hundred thirty two thousand and i understand how he did that and rough justice may well be the answer to what that was but i don't think that's the right analysis to use because when you look at the monroe policy it doesn't limit what they pay by anything it's all sons and insured must pay once the judgment is rendered the insured then goes to that carrier and says you need to pay this it's a million dollars because if if nobody else had coverage they would have had to pay it so i don't think it changes at all so i think what we tell the district court and what we would ask the district court mand is to say you had a thorough well reasoned opinion but we think michigan law should have remained the applicable law in this case because it was michigan law and should have stayed in michigan la this was a subrogation action to which the bad faith statute applies as judge wilson mentioned earlier and by the way renaissance the insured under monroe's policy was always in that case with a bad faith and breach of contract action even when it came back to the superior court of columbia county from the georgia court of appeals renaissance the insured was a plaintive with a claim for bad faith and attorneys fees and all kinds of other things so now at this point we are nine years into litigation with a wrongful denial of coverage and absolutely no penalty to monroe for wrongfully denying coverage and that's why we really want michigan law and the bad faith statute to apply in this case and i think it can be done by simply saying we're not going to reverse the georgia court of appeals we think it should a state michigan law it is a subrogation action for breach of contract under michigan law and you get twelve percent interest because otherwise monroe is rewarded for their bad behavior throughout this litigation and refusing to not only defend their insurance but to pay anything on their behalf until we got so that's what we would ask you to do and we thank you very much for your time in the court is adjourn