talent had withdrawn objections i wasn't getting to the law yet i'm just talking about the record  so the only document we have to look at to figure out what the effect of paying the money is is the partial summary judgment yes your honor ok so we're not for that and now what is the case that says sending a check pollution exclusion the destruction by government order and the suspension of operation rests and my thinking is if you've already paid for all that stuff even though you might not have been obligated to then we don't have to decide ok so what you're saying is to say that really critical whether you get the money back but there can't be punitive without a breach of the contract bad faith plus fraud and all that other stuff a california requires and you're saying number one we didn't preach it at staphylococcus bacteria and all kinds of other bacteria that are deadly if you get an infection our bodies are covered with them babies are infected with them at the moment of birth all fruit all vegetables everything  canadian consumers when you get one of those letters based on what the handbook says assuming we take notice of it which we have not decided yet however did the district  that handbook in front of it they did have a handbook that goes to those two interpretation of the contract which we believe is a matter for the nobel consideration in this court but perhaps more importantly we believe that that certainly the jesters when they looked at it when when i w i'm my sole response is going to be about the substance of variance the decision on the motion for summary judgment mr pyne will respond to all the procedural issues and any other issues brought up before the court this is a simple question it was every level of the scale of this case what does the pollution exclusion mean what is the weird lamp so i thought you were in great shape on the pollution exclusion it struck me that you had a whole lot of trouble with coverage for suspension of operations and you also had a problem with destruction by government order i don't know what you're supposed to do if your product is recall except destroy it i mean so it's cheap really i mean  good conduct of this company save people from being injured like it's not on i i don't get why you don't have a good faith dispute about suspension of operations actually looks to me like they're probably right on suspension of operations and i don't get why you don't have a good faith dispute on destruction by government order but let me first start with suspension of operations the suspension of operation tissue most raises the question over the math over the amount of damages because the conduct in denying the plane as to the property that was lost which was a substantial portion of the claim alone is a basis for the bad faith finding a basis for punitive damages on the suspension of operations what they say the position that they took was that they looked very a getting on the property was not was not something that required the suspension of operations there was no evidence to support that the evidence was very clear from the from the other begins to spend operations while they suspended complete operations of that portion of their business here but that's only one portion of their business it's not they didn't suspend their operations they just quit selling the seafood salad for a couple of weeks but they continued selling the salsa and then clam parmesan and this also was made the same room they have basically three lines of and they can they situation here it has to be clear plain an ambiguous you have a situation where their own people interpreted pollution exclusion as not being a political not once not twice but three times and under set to separate portions of the policy and you have a situation where when they wanted to exclude bacteria they knew exactly how to do it they said in section after the policy where they wanted to exclude bacteria that they were included contaminants and bacteria and virus here i'm like slave in the simplest it's being schlieben on the grounds that there was no settlement here in fact if you look at d r page one thirty three that's the final pretrial conference order and there's two things that are striking about it first of all in paragraph k it says following the court's ruling the parties agreed on an amount of benefits four hundred fifty five thousand which were then paid etc and then plus interest five whole five so this is clearly the settlement this reflects the settlement that the parties agreed to and elsewhere the record makes clear that this is a compromise of disputed amounts because there's two hundred thousand dollars in lost property claims and four hundred thirty five and proper in suspended expansion damages was like six hundred thirty five thousand in total and they compromise on this the other thing that is striking about this particular page of the pretrial conference order is that at the bottom it says the stipulat reserve the right when they want to reserve rights they did not preserve the rights here this case forced flatly within the flavor and role and so any issue about whether there was a breach of contract on any of the three points they raise i think have to go out the window and counsel saying well we're leaving the money on the table so let us argue it the point is when they didn't allow this item to go to judgment and become part of the judgment and they paid it before that this became collateral stop the caught up on this issue they don't get to let that happen and then come in after the fact and say well we were just kidding or whatever i'd like to now turn to the smithsonian doesn't go out the window yes  in terms of the government action exclusion from the letter from canada looks an awful looks smells an awful lot like it's the government's telling me you better get that camden and they never did any of that and it's a very important why is that important i'm thinking in the absence of somebody telling you a recall doesn't mean you have to destroy the stuff any normal person would think you'd better destroy the stuff small fraction that's very important second of all i think the canadian letter if you look at if you do grant tradition those and look at that document the canadian government distinguishes between voluntary recalls and mandatory recalls in the language we quote in our brief yeah if you don't do it voluntarily they jump on you would both be well we don't know we don't know that that's the case what we do know is that if they think it's something that merits a mandatory recall they have procedures to do so and they didn't employ any of those procedures in this case and furthermore if you look again at what they what they thought and what they believe when they were just in this claim their own document their own investigator went to the plant and he wrote in the file voluntary recall he didn't write mandatory recall etc all of this is after the fact rationalizations for what we're doing i took that is what my father used to describe as army procedure i want three volunteers you you  you and i mean you get a letter from the government and says your product fits his recall notice and it says your product will make people coverage for suspension of operations i don't see where operations are suspended it looks like they're just proceeding normally on salsa negligent parmesan they're proceeding on those that were for the record shows again th is why they shut down the operations that's that's what triggered the to the two week just on the plant was that the equipment itself is reflected in the the investors report doing that correct in thinking most of the money is actually the suspension of operation and it looked to me like there was a letter from my tele that said you know it's four hundred thirty five thousand dollars i think the figure was for the suspension of operations let's address that because there's also a two hundred thousand dollar figure give or take for exists croyde product so we had total claims of about six hundred and thirty five thousand of those claims the defendants because they want to be able to argue good faith to the jury that i'll tell you what we'll give you four fifty five let's call it a day so that's what they did and it's impossible to back out from those numbers what portion of the four fifty five what for the two hundred thousand dollar property coverage versus what clark was really for thirty five spend it operations now they're the one that made it impossible to push that out they're the ones that said we'll pay this will compromise this claim we won't let it go to judgment we want to appeal left and then after they do all that and they argue these facts in the jury now suddenly they want to take here and have you back out these numbers and attribute all of them to one claim and just ignore the other claim once again isn't it true that if they have a good faith dispute on the business interruption as suspension of operations and also on  the government recall that that's enough for them to avoid bad faith let alone and i'm allison fraud i don't think so at all you're i think that the the entire genuine dispute doctrine is that it's a genuine dispute good faith is really good maybe it's not and after the fact you hear of lawyers every day you know that a lawyer is capable of arguing either side of any subject under the are now relying on they brought face that letter on the attempted just judge baird's words attempt to contest into believing that we were not entitled to anything except for the fifty thousand product recall expense that everything was covered under the fifty thousand liability so that's what they were just trying to cause these other things came after the fact if we hadn't if we had just gone away if we take in the january fifth letter and said oh well we tried and i guess we lose becau thousand liability these people never even thought about pollution exclusion they never would have thought about government recall all these things come in after the fact that's point one point two is the was a point i think those made earlier they take hundreds of or inclusion exclusion language that exists that same language exists on the product recall they think to check some part of a product we call expects they pay two checks under that coverage and another check for january fifth letter you're crazy you're wrong you're reading this wrong this doesn't cover property etc and once they realized that and their files show that they had this the desire not to pay the six hundred thousand dollars claim and this is a big claim and they kept on saying how we're not going to pay this claim and then we come back and say well the way you tried to con us didn't work and so we have this other one so i think the answer is it has to be a legitimate genuine dispute at the time has to do with the believe that the time believe there is a i think the language the language they know that they use the past tense but i want to but that's not a holding and i want to know if there's a hole before somebody argued no it's it's ok if it's after the fact somebody else said no it's not ok if it's after the fact and they help one way or the other i don't have it at my fingertips but let me point you to other people for your talking to i think is even more important when we say the reasonableness of their decision must be evaluated at the time they were made thank reasonable to say we don't have coverage the other can be a question of whether they have smart enough lawyers and just years to write coherent intelligent letters in other words their investigation could show that at the time they denied coverage they had a good faith reason to do so and the file could also show that they wrote an incoherent have poorly expressed letter that did suspend that they never looked at any of this what you have just quoted comes from trial testimony well after all the events in question occurred another important point i forgot to make before with regard to the suspension the business of spen even if we assume for a second that you're right on this and i disagree for the reasons set forth in the case that says partial is enough and in our case we're talking about the single biggest part of our business giving i d over  overs and i don't know the record doesn't show that but but but the record does show that the people of south protection was the single largest part of the company's business but even for a second if we could zoom that that's correct what we have here is that would not be grounds to deny the showed the farmers did no more here than assert its legal position reasonably and in good faith however because other evidence in the record would have supported a finding of bad faith the supreme court affirmed the bad faith findings and the punitive damages award in that case like why thomas alley which is the case that they trumpet in there are entire thing on if you look at the whole thing in thomas alley it points out the parts of the record show there's a near near and mere negligence going on at cetera nonetheless and bottom the court affirmed the judgment there is well i'd like to talk about campbell even sure that's hot on everybody's mind and i have two minutes left with regard to campbell there's a few things difficult i have to begin with the observation that the language in question is different because the court actually could have overturned it based on the fact that so much of the case revolves around not utah activities but let's take the dick the face value and deal with  critical things about campbell first of all we may not even have to reach and i don't think we should in this case because an alternate consideration campbell reaffirms t x which says in five different places you don't just look at the actual harm you look at the potential harm and in p s o there was potential harm that ran into between one million and eight million dollars and the supreme court in affirming the five hundred twenty six to one ratio said given given the potential harm that could have occurred ratio is a relevant in this case in our case likewise what we have is nine hundred thousand dollars and out of pocket losses but we also have the fact that the insurer knew at the time that denied the claim that there was that there was a written letter written if you don't help with expeditiously we're going to have trouble continuing our operation so they knew that the potential harm in our case was i tell it to go out of business which obviously would have run into the millions of dollars once you factor not obvious to me i have no idea was that shown on the record what's shown in the record is that they lost one hundred twenty five thousand dollars for suspension of operations for two weeks and i believe the record also shows that sometimes going out of business saves the stockholders money this business is losing money every year and it's just doing business to support the hoffa sers  through a fluke it so happened that our company was incorporated rather than just a partnership and therefore we were not able to seek and they got the windfall benefit of the fact that there were zero emotional distress damages in this case numbers counsel i realize you're out of time but i've got a question i want you to answer i would love to know and i hope under california thirty to ninety four to get the punitive you need clear and convincing evidence of oppression fraud or malice right and  us by writing these phony excuses that they thought would make them go away she also pointed out and i think you're bound and let her findings are clearly erroneous you're bound under this that this  also under cooper industries to review these only for an abuse of discretion she also found that the insurer when they did this was well aware of the facts that i tell it was an upright area financial position because of more vulnerable position because of what was going on and that if they didn't do this there was a danger that they would be forced out of business and if you read the account of the standard california bad paper unitive damages cases they're all similar there are cases in which the carrier knows that the person needs the money that they're entitled to it and the carrier comes up with ways to refuse or to avoid or to delay paying a third or on the thank you counsel thank you very much result and then finally to suggest that the january five letter was the end of the story is simply wrong that completely ignores that on january for the broker knew that we were continue to investigate the claim the broker knew this the business interruption two years it's not it's not a year it's not the months it's a two month period when you need it and we originally made the first product recall expense on november twenty sixth just a month after the claim