york granting the defendant's motions to dismiss what is at its heart my client's under insured motorist or you i am claim i trust that the court is familiar with the salient facts of the case this appeal is really all the interpretation of some relatively new amendments to the virginia you i am statute and the subrogation statute that goes along hand in hand with it although fully released with no further possible liability ms peters was required to be named in our complaint as a release defendant pursuant to that virginia you i am statute which requires that any litigation against your you i am carrier be presented to a jury as if it's the underlying motor vehicle case not as if it's a breach of contract case or breach of duty case against your you i am carrier the district court found that because that release the full release of ms peters did subrogation notice required by the virginia you i am statute that the proper remedy was there for a total dismissal of my clients you i am well i am you say that there was a duty in the liability insurance a key to inform and it wasn't just your client who had to inform mrs peters but if that is so you insurance company which had nothing to do with that if mrs peters was not given notice and she has a right to say i don't want to accept the settlement ambles terms and was not given that that's exactly what is going on and so that she is out of the case and that the question that remains is just a simple contract action between you and the uninsured or others just to clarify not my client's position that us a duty to my client my client amended to clarify that the liability carrier could send this notice simply avail itself of the of the protective benefits of that statute therefore ms peters and her liability carrier by sending them this notice the duty is to her you're suggesting the district court should have ordered us a to send notice i'm suggesting your honor what we're asking this court to consider is that the district court's send the notice to mrs peters what we would like for it i would you want the case to continue in that you want the case to continue but what relief are you looking for are you looking for an order directing u s a to send notice to mrs peters what the requirement would be your honor that u s a s duty to defend would continue unless and until it satisfies not even a party to usa has certain obligations under the virginia statute that the case would be remanded to the district court and that their duty to defend would continue unless until they satisfy the nose requirement which would be consistent with  declaration on ruling with respect to us obligations when usa and is not a party to the lawsuit so how can a district court do that how can a district court order any relief with respect to as counsel consistent with the b or b reyes case that we cite throughout virginia and then there would be motion practice in the district court i expect between auto owners and the liability carrier as to whether or not their duty early  for any obligations that may be there so if she's fully released why is she in a lawsuit she is contained in the lawsuit in name only as it is continued in the lawsuit if she accept that opportunity as part of the release if she is notified that you can't expect her to be in the lawsuit when she signed a complete release and she hasn't been given notice of the terms of that so why is she there why isn't this now a perfectly clear suit between you and the uninsured motors which is still there and that's a matter of contract then the question of whether vat can be brought in new york or has to be brought in virginia or in michigan or something is another question and you know it may be constitutionally you could still bring it in new york but that's the argument that has to be made before us a leader is named pursuant to the statute in name only and if there is some being presented before the virginia senate right now is presented on january th that would enable my clients in virginia to sustain a claim against their owners or motorists carrier for bad things that hasn't yet passed the legislature but it's yet another in the lawsuit that would be brought in her name and she has not agreed to that and rd and so it's sort of subsidiary question as to whether she was given notice that you have to cooperate because you know if if she understood that she had a cooperate and she might have offered less money because the deal would have been left i respectfully disagree or out of the  extinguished and the only avenue that they could possibly be reinstated is if she wants unreasonably failed to cooperate with the defense but if she is not in the case now for whatever reason the defects to it were done is this still a tort case that can be brought in new york because uninsured motor insurance is that we will defend torts cases all over the united states or is this simply a contract action between you and that insurance policy that your client and the insurance policy that they've done which is been subject to what ever limits there may be i'm not sure whether that's constitutional or for i'm not into lenience because if it's just an i i believe i agree with the district court finding that if this release issue did not exist or if it was satisfied in orders provision then auto owners included and have to appear here to defend the case the contract causes of action were included in the claim it was unclear to us whether or not the court would apply new york are virginia law those contract or bad faith claims i conceded i believe that they are may please the court my name is hilary banker and i'm here on behalf of defendant appellee kathleen peters the plaintiff commence a school case in the northern district of new york against my client for negligence and bodily injury have pointed out she was given a fall and final general release which released her from any and all liability for losses or damage of any and every kind or nature arising out of the motor vehicle accident of september t sixteen this includes any potential subrogation claims based on this alone the complaint against miss peters must be dismissed plaintiff now states that peters was only maimed as a released defendant pursuant to regina law and the contract for under insured motorists coverage with auto owners however in this case she is not subject to suit as a release defendant because the release did not have the mandatory language required by the virginia statute plaintiff acknowledges that the release did not contain this mandatory language but basically claims that well that that clause should either be disregarded or as the court pointed out usa should be forced to send the required notice now belatedly to ms peters to advise her of her responsibilities under the virginia code they argue that this notice is actually intended to protect defendant peters but that is not the case if the notice was properly sent in the release miss peters would have to cooperate in the lawsuit give a deposition participate in discovery meet with the attorneys and it would be a very large obligation on her point on her part to participate in this underlying moment to al if the notice is sent to miss peters that opens her up to a subrogation claim right now with the language of the generally she possesses there can be no subrogation claim against her there is no responsibility to participate in a lawsuit in cash yes your honor i believe there is because what the statute says is if she unreasonably fails to cooperate now the duty to cooperate is not the duty to pay any money it's correct your honor but my position is that if otto honors deems it whatever she fails to do if she misses a deposition if she fails to return the defense attorney's call i don't know what they might deem to be non cooperation much money is involved in this whole thing the usa policy was one hundred thousand dollars which is involved how much of the injury image here and i'll be honest i have not done any dive into the plaintiff's actual injuries or what the claims are  because we made a motion to dismiss and i didn't have enough money is involved it may be in your client's interest mutually with that of the plaintiff here for the it to agree to accept you but i'm wondering whether that may not relieve everybody of incurring many thousands of dollars with a geisha expense and and put everybody in the position that the the genius that you apply to people should be and be have ms peters my position is that she already got the remedy that she bargained for she bargained for a general release she she bargained for no further obligations to participate in the lawsuit she has problem if the insurance company asked if the insurance company could be compelled to agree with the basis of the terms of the insurance you know what i'm concerned with is the subrogation cost because right now we know that ms peters has no further obligation to pay any money whatsoever the other owners could bring that subrogation claim against her now even if she is able to establish that her failure to cooperate was not unreasonable she still has to now defend that lawsuit that subrogation claim hire a defense lawyer do all those things which as we sit right now she does not have to do it with plaintiffs obligation to ensure that he could make a claim under his honor because she could have rejected the settlement and been liable in other ways or she could have accepted the settlement with those conditions but your position is what she was diminished simply by the fact that some people failed to give notice to mrs peters and no auto owners agreed you are not in new york but you know that's really in the constitution in a mighty heavy way in a situation where after all your client had agreed to be sure that in new york contract against it it agreed i understand that and i'm just wondering if the fact that they had agreed to be sued in a torso which would be identical to this but with the addition of the president as a participating party mrs peters why that isn't enough to say hey at least there's a constitutional now we don't have mr peters in the case mrs peters was not provided notice and therefore he cannot keep it as a precondition to the virginia statute she would not provide a notice in there for him not be part of the claim and therefore the only claim that pointed had is for greta contract plaintive does not have a claim against our owner on a duty to defend indemnify the underlying motor vehicle accident that is an entirely separate claim which i agree with your honor the the stage of course it does and it does not follow that the owners would submit to jurisdiction pursuant to a breach of contract claim on a contract that was entered into in virginia with a virginia resident michigan corporation thomas filed or authorized to conduct business there were to any and under no circumstance did our owners contemplate the possibility that it would be food directly under this policy in any other state other than virginia and provides the section of the virginia code which it is the section at issue which is very bizarre policyholder would have to go and look it up in the virginia yeah i would i would agree that yes it would look at the code because if it's it's incorporated within doesn't it i mean you're given notice to be somebody in another state somebody represented by a lawyer i'm of the state has the syria situation and your policy has a condition  and that the condition is spelled out by reference to in virginia statute which a lawyer in another state may not have easy access to i suppose you know in the  an unfair consumer preferences statute in virginia but i guess that's a different and i would disagree because the contract entrant into bridge in virginia pursuant to virginia law so it is expected that two parties enter into a contract within the state of virginia would contemplate that if specially when it explicitly provided in the contract you look at the policy before you issue a sort of claim you read the policy give it to your attorney is there a plain language that's rude for insurance policies and region seven against plain language requirement i'm not have to be written in plain language that people can understand it who are not members of the bar is there a statute in virginia to provide for that yes i don't know the answer to that your honor but i believe that this policy in particular is very clear believe when you enter into a contract and i don't take it your argument is that what ever that statute to read into your policy remains a matter of contract between you and this and that that being just a matter of contract even if that contract would have required you to tell mrs peters or do something of sure is a contract issue and is not a court toward issue which you agreed to have tried in new york so that as jacob said that's another issue it's an issue of what that contractual suit where it can be properly brought can claim that you made a violation or not but that doesn't help your whether this contract is in new york absolutely and it would actually go in favor that performs because the virginia new your cat's no interest in educating these claims he claims well whether new york has an interest in the due to his claims or not is a matter of convenience whether you have a duty or a constitutional right to be free from being in new york doesn't really depend on whether new york has an interest in the suitor that's a rebuttal really sounds in equity in some of the things that the court talked about we were very careful in settling the time because it was a valuable claim my client was very injured in his motor vehicle accident he's had two surgeries a lumbar and a cervical fusion in his forty's and he's looking at possibly being in a wheelchair very soon so what we were very careful of settling this case it was a very valuable case owners had this release before my client saw this release iran was released by auto workers and the statutory framework that set up in virginia is for the benefit of and contemplates that ms peters be protected from subrogation that her carrier be released from a duty to defend and that the liability claim be able to be settled quickly with no prejudice to the other insured claims what we have here under the district court's interpretation is all of those benefits everyone intended to benefit peters free from subrogation auto owners has a mechanism right now where they are not owners but her liability carrier has a mechanism right now where their duty to defend could be extinguished but my client is not able to use the under insured motors coverage that he has paid for as a loyal customer all this well why aren't think perfectly capable of doing so either in michigan or in any place where a owners to credibly pursue that claim your honor and i agree with the court there is not right now in virginia a mechanism for directly suing under insured motorist carrier for bad faith or any kind of breach of contract claim the only mechanism to prosecute this case is to me why can't you make a breach of contract claim whoever the statute  says that you cannot maintain that type of action there you must use the statute and name the release defendant in name and pursue the case i believe the intention of the legislature is that the case is presented to a jury  no discussion of insurance claims and at that point if there is an award a jury verdict in excess of the liability coverage the award is automatically vacated against ms peters and is in for subordinate the under