you all to our court this morning hopefully we will not be as foggy in here as we are out there three quick observations first judge newsome and i wanted to take a moment to introduce or you may not know our visiting judge david e bell he's a circuit judge on the tenth circuit united states court of appeals where he has served with really great welcome again joe thank you my pleasure a second observation you're probably familiar with our time clocks but if you are not you'll notice we have a green an amber light green of course means you can much appreciative third in last as you proceed with your arguments this morning you may safely assume that we've had a chance to briefs record excerpts and in many counsel used this prior panel decision as a roadmap and a template to try the case in fact the district court said in its ordered its own review here today that the evidence was substantially the same as that presented its a rejection limited evidence of a simultaneous settlement with another insurance company came in to show to at least two different one that there was it was a nearly identical settlement agreement or terms of settlement that they were reasonable to be met by an insurance company under the same timeframe and at the same involving essentially the same circumstances and second and perhaps more importantly to rebut the defendant's central defense in this case that the plaintiff counsel the claimants counsel was unwilling to settle and therefore was almost a bad faith said several months after the jury verdict in favor of the plaintiff finding i can get in bad faith the district judge in cold reflection reversed herself regarding the evidentiary admissions she had allowed and policed properly a validate that it's the burden of the movement and that follows from rule sixty one as well tell me as i have well so let me just just follow up very briefly so i guess i'm looking at a case called advantage telephone that says when a party seeks a new trial on the ground that the jury was  was not swayed and it's impossible to conclude substantial rights were not affected and what's interesting these are the opinions are fairly difficult to decipher sometime in terms of where the burden plays a role and obviously as you pointed out there's a difference between a case where let's say on a motion in limine a decision was made to exclude and then that's the issue will here we have the overlay of the new trial grant so you have that discretionary wrapping around the package but it doesn't in my view change the initial burden on the movement to show that there was substantial prejudiced by the introduction it in any event even if the court believes it that's the appropriate standard we submit that we can satisfy it here because there you look at the factors for example from argued obviously the papers that they didn't meet both but i don't want to rest fully on a burden of proof thing i was i mean our position is that under even the more difficult standard of abuse of discretion because i understand the institutional value of deferring to reflection is better than him i will admit that isn't always true in the course of a trial but sometimes a little distance helps or no question no question would let me ask you the question this we we all agree basically on the standard and it's a substantial burden that yes navigate what is there about peaks handling or the claim that would tell  coverage that it did not insulated from bad faith and the letter if you look in the record from claimants council holden to pete he said that the amount of the damage to the car and its contents exceeded the value of the ten thousand dollar property damage policy that's the only evidence we have in the believe of the amount and as a result from day one both insurance companies were on notice this was a catastrophic accident a death in a brain injury which was never going to be held in this they assumed the defense of personal injury which was the case in oser but assuming they didn't do that they would never face liability be on the property damage which they knew was fairly kev and actually i disagree with that reading of the oath there's yeah i did yeah ok so our reading of that case which is fairly explicit i think in the opinion especially in the hilary case that it adoption a flaw is that if the circumstances present insurance company with a demand and offer to settle for all just as happened here and as it happened in that case hilary then the liability of the insurance company in the event the settlement doesn't get consummated in good faith is for the entirety of the day so you think that the claimant can convert a property insurance into a property plus p i insurance simply by offering to a property insurer they were going to give you a broader release and you might otherwise want when we're going to release you not only from all property claims but for all claims i wouldn't say that simple thing they can convert a property insurance into an all insurance i wouldn't make it quite that simple your honor but the effect is the same by offering to do it and then the insurance company acting in bad faith having been found in bad faith in that circumstance florida law says that as a matter of law they are exposed to that additional liability for failing duty to protect you there you are arguing that even if the property insurance company never does itself assume defense of a personal injury claim as i rest on the oser case yeah and the hillary case and in our view it can be fairly read for that in fact it's explicit in the opinion and it is the only florida law on the subject geico has never submitted additional difference because the circumstances created a duty right it basically common law principle that order well i suppose you can pull somebody out of a serve to try to save them and once you are a volunteer you can sometimes pick up duty to complete the rescue that you started your after the trial by saying i'm not a fan of these cases and summary judgment which a prior panel this court reversed a decision that really help us in deciding whether she abused her discretion no it is not your honor and with the limited time i have before i sit down and like to just also explain that the fact that the peak evidence was not a substantially prejudicial factor in this trial let me just articulate a couple of things that i think if there was error it was harmless first of all the jury was never told  evidence coming in especially through an expert which could be potentially influential or during closing argument by place counsel that peak represented the standard of good faith and any departure from performance meant dicho was bad faith that was what the district judge was concerned with and she policed that line during trial and trial counsel was very careful about not going over that line it was a cleanly tried case policing the line that you draw on emotion  ruling second of all only three documents came in those are relevant and we haven't talked about the other side of the coin to show what was unquestionably the defense theme of the case that plaintiffs count claimants council mr holden and and the claims were unwilling to settle that's an affirmative defense that was put in in the answer it featured absolutely prominently throughout the trial and even if you discount the importance of this evidence of the other settlement to the plaintiffs affirmative case which i think judge marcus is what you were primarily focused on the other side of the coin was in this case and it loomed tremendous so there was even a jury instruction on that defense as a result it was imperative for entered after the second trial in this case the standard as i believe judge newsome pointed out is an abuse of discretion it is an incredibly high standard for my opponent to succeed on his appeal he has to show that the district judge literally had no basis for granting a new trial and he cannot meet that standard the grant of a new trial comes close with a presumption of correctness to this court the district judge is obviously in the best position to weigh the evidence of what impact mendez case but it wasn't but i believe as judge marcus said sometimes it is helpful to be able to look back in cold reflection to realize you know i made that same mistake twice now nevertheless it's a big deal when you set aside a verdict or your own it's a big deal when you set aside a jury verdict no question real judge powerful reason for doing so absolutely and she had powerful reasons in this case for doing so when the judge allowing acids out that yes or would it not be fair to say that it was a discretionary call that could have gone either way yes i think so was one cabbie on having sat there and listened to the way that the place was presented the evidence having seen the way that this was using a comparison to the jury or basically they said over and over and over with pete got it right he did it right pete did this had geico done what pete did we would have settled had geico done what pete did we would have settled pete hired lawyers geico didn't when looking at all of that it is inescapable that that evidence had to have swayed the jury's decision the second trial is the best evidence of that frankly well and yet you do agree that there would have been no reason is that this is side if the evidence was only yes that the plaintiffs could could and did settle with baek for property damages i'm sorry your honor if the evidence were limited not to all the lawyers hired and all the investigations and all the prom e of filing stuff if it wasn't what pete did except that be settled the property claim or the damages would you quarrel with that evidence coming in to the record you would i would absolutely judge we cited two four cases from state of florida there were three federal one state all of which hold the same proposition you cannot allow the claims handling by another insurance carrier to come into evidence to compare claims handling the plaintiff has not cited  single case to the contrary because none exists and that's because the standard by which we determine whether bad faith has occurred according to harvey versus geico a brand new supreme court case burgess vs infinity from two thousand and four these cases say that the focus is on the conduct of the insurance company who is accused of bad faith it is not on the focus of the climate's attorney or the climate and not on the handling of a claim by another carrier so all four of these cases the mendez case you state of levine johnson be geico hilson versus geico all of these say we are not going to allow you to introduce how another claim was handled to use that to suggest bad faith so i think that's that's judge a question that amount is not the same thing as how i think it's a problem judge to let even that in for this reason in this particular case the property damage claim was worth about twelve thousand dollars that was twenty thousand dollars in combined property damage coverage between mr waters coverage with p and geico is ten thousand dollars property damage claims now the plaintiff has said this evidence was critical to show a willingness to sell well what that asked this court to believe is that a plaintiff who settled a twelve thousand dollars property damage claim for more than it was worth that that somehow is evidence that they were willing to settle a bodily injury claim worth forty five million dollars for twenty thousand it does no such thing that's simply absurd to say that one supports the other there's no there's no way those to those two things correlate but that's what they would have you believe and that's why the evidence is not relevant even to the point of just when they reached a settlement with peak what does that tend to prove or disprove in the case nothing all it does is confuse the jury inject irrelevant matters and create prejudice against geico because it suggests where you settle with them well yes for completely different reasons and for a complete record and indeed they said it would geico for that property damage claim to  in a way the the it was kind of a misleading situation because the judge basically ruled that that evidence of geico could come in so i mean the attorney is saying gee if we limit it just to that if we put aside whether they went beyond what was really authorized but just a distressed fight about whether there was a settlement i mean couldn't they say something about we've kind of been sucked into this used you told us on the motion in limine ruling that we could put on this evidence now you reversing this because we did what you told us we could do you mean  perhaps it was unfair to the plaintiff's attorneys and the underlying yes you are yes mr up i don't know that i can that i can speak to that judge i don't think that it was something that was let me put it this way i don't believe the use of the evidence that she allowed in was proper i believe it was highly prejudicial and the reason that i believe that and i think that the record bears me out on my belief strongly but she said they could have used that when she ruled on in lemony she said that now is our review of abuse of discretion different if a lawyer puts on evidence that's wrong we say ok and then the court says because of that wrong evidence i'm going to reverse the trial do we look at that differently depending on whether that evidence came in because it had been approved in advance by the court to come in those are versus whether it just came in cold so you're saying the ruling on in lemony is not irrelevant factor now no sir and it's not in the reason for that is is very straightforward if you look at this case we as versus city of boston a rear versus fruit off of that we cited for the standard to review it specifically states that a court can grant a new trial based on legal error and that can be the court air and both of those cases say that the district judge should be granted the discretion to correct its own legal errors and what your honor just described is a classic case of a district court making a legal error on a motion in limine th resulted in an unfair trial and then correcting that error and those cases come to this core cloaked with a higher standard of review for abuse of discretion if you will them or it might be based on something else so in this case what judge i was given what judge buckelew did was correct an error she made at the motion in limine stage and that's why i disagree your honor and said i don't think it really matters because i think you're talking about a scenario where she's correcting her own air and did it cause the opposing attorneys to go into all of this evidence well it perhaps may have that may be why they went into it but it didn't change the fact they should have it was highly prejudicial and judge buckley was correct to read me again with the standard we all agree that we were view the district court's ruling on a motion for a new trial for an abuse of discretion we all know that that means if the court made a clear error of judgment or applied an incorrect legal standard then we have an in our case law is clear it's clear pretty much everywhere as from let's dig down a little further into we've said have we not that we more closely scrutinized the courts grant of a new trial than a denial of one and of a quarter grants of such motions less deference than dials that would be if their statement as well would not that is correct your honor or even though we characterize it as an abuse it's abuse of arguably different character or specie then if we were looking at the denial right yes i agree judge you suggest that florida law will use the word categorically and we may have used that word ourselves as a little troublesome isn't it because it's so incompetent but let me say it in this fashion there's been no case to you to this panel where there was comparative claims handling allowed because we don't allow it in full and these four cases that i've cited in our brief all stand for that proposition that you can't do this and there's a good reason for that florida law informs us as to whether insurers conduct is bad faith there are at least a thousand or more insurers in the state of florida and there is no one claims manual guiding all of their sailing all of that my only point is that it would be erroneous to say and there are none that have been cited in the right but the way i read your brief was to say something more than judge nuisance that i read you a brief to say it's barred period is a categorical absolute bar and that seems to me to be wrong well it's one thing to say it a never happened and it's another thing to say florida courts have prohibited it expressly judge we will stand corrected on in ain't never happened because i couldn't agree with you more it hasn't and one of the things my opponent says is that well it depends on the facts in area it's a factual driven thing well in every case where the facts are was examined they decided we're not going to allow this and in every case that that's happened the reasoning behind it has been because we look to florida law we don't look at how some other carrier might have done something and that's the crux of the problem in this case and why it was so prejudicial is they simply took a property damage only insure who had no bad faith exposure for this forty five million dollar judgment and compared the fact that the plaintiffs settled with them and by the way the plaintiff attorney was the one who made the decision that they got it right they of basically what was allowed to happen was he became the arbiter of what is good faith in florida by declaring pete got it right i heard that over and over pete did it right he can it's team of lawyers got it right i gave the same demanded to insurance companies one did it correctly did it wrong so he became the standard if you will for florida bad faith by using peek as his example compared to claims handling and then it didn't matter what the law said anymore the jury was completely confused thinking that if we didn't do what pete did then we're in bad faith and that's why it was highly prejudicial that's why a new trial was warranted and that's why i'm respectful of judge buckley did not abuse her discretion in granting a new trial and despite counsel's personal attacks on the judge would certainly have no place in the decision making today there is nothing to suggest that the judge lean this way or leaned that way her order was a string lethal or she cited example after example after example of where the plaintiff improperly drew claims handling comparisons and then held them up to say this is why guy goes in by the vien which is which is really the the only case you've got that's very relevant because one's a federal case you cite four of them one is a federal case one is unpublished one is  a two of the maybe in two or two of them are unpublished so the only published florida case state case that you have is levine and levine it was simply a question of whether the judge had properly balanced the probative versus prejudicial value and the court said the judge properly balanced it you know we know we get balancing cases all the time and people always cite precedent to us this way and that where the balance came out this way on that case so we when the other guy says the balance another case came out the other way we went we all know that the the balancing cases are not is hard to find a president that really ties the hands of a judge in a balancing case because they they vary so much i agree or on one hundred percent of that's reason why as judge mark has pointed out perhaps saying barring categorically was a little bit too zealous of advocacy but in florida every time this has been determined or being considered it has been determined not to be admitted and we believe that that was a proper decision in this case and certainly if that's the situation it is just not appropriate to say that judge buckle that familiar with what exactly a triple dog there is i think i get oh oh c'mon you've never seen a christmas story ok you're talking to the light pole ok yes yes that doesn't happen that often in florida where yeah it is true there is no opposite effect and we submit that the law that does exist that we would rest under is an umbrella here of the admissibility usually through export of industry custom and practice in florida insurance bad faith cases c and d here's how it's done this is what is the custom in state or i question this what is the difference if the expert then says here's a particular concrete example of another company what it did met industry custom in practice that's what mr no did in this case that law in florida creates an umbrella under which individual testimony where relevant and where not unduly prejudicial policed by a district judge  ely can come in to illustrate for the jury a concrete example when it occurs in a circumstance that is substantially similar putting aside the question about the legal difference about the exposure to bad faith of the other company on the other side of the coin where the affirmative defense of the case and this is a tremendously important distinguishing factor from any other case that they've cited which is gone the other way on the fact none of those cases have a situation where the pope or the opponent of this evidence is  sailing the proponent of the evidence to say that they would not have settled the case and where the evidence that the proponent wants in is the best evidence of proof that they wouldn't which brings me to the question that judge a bell and judge newsome asked which is case that the claimant had put forward a reasonable claim that was clear that was acceptable that could be met within the timeframe met offered like that goes to could have settled and the peak because it was such a similar claim prove that an insurance company could have settled the claim during that time arguably but more importantly and different from that is the argument which is from the perspective the defense or argument in this case was that the claimants council and the claimant were not willing to settle they were never going to do it no matter what we did no matter how well we treated the insured they were going to do it because they had their reasons and they made it very explicit in the transcript it was to make money and to try to get us to be the deep pocket aside from the fact that that's question one for the law when the defense does that go ahead i'm sorry i mean the common one is you can't tie the arm behind the back of the opposing party and not let them put in the terms of the settlement the x what happened why mr holden said well these were the particular provisions important to me clear affidavits of no other insurance a release that was limited just to those drivers not to any agents which potentially would implicate under florida law to the should review the abuse of discretion of granting a new trial differently if the error that the lawyer made had been invited by the judge in the first play i do not i do think that there that the ruling shows that it was reasonable for that evidence to come in and the district judge believe so throughout the case i but we've looked at this issue under abuse of discretion somewhat differently if the rationale for the that the evidence is insufficient as opposed to the trial judge concluded that she made a mistake about an evidentiary hall correct and in the first ins things are scrutiny is of different character and perhaps more intense than in the second instance we've said that repeating that is correct and to the extent that there is a citation to that case which involves that in our brief that's not as applicable and so you're correct we're under the less deferential which are the more deferential standard right of those two even though it was a jury verdict that was vacated it was vacated not because the jury's finding true but when the court looks at the range of evidence that came in that goes beyond the fact of the settlement with big and we submit is essential to put in evidence to rebut the defense theme of the case regarding what plaintiffs are claimants council was thinking there are virtually i think four mentions of peak's lawyers and that falls within the umbrella of what is appropriate industry so for those reasons we think that there's a sufficiently unique set of factors in this case for the court to reverse and reinstate interdict thanks very much thank you both for your efforts and we'll proceed with the next case which is raymond guillen versus the united states attorney general