eighteen decision so i think that the discourse decision is best read to come to the point that there are some actions that are going to all the could be characterized under state law is being direct but for purposes of i twenty four g or n and the court citation ghassan dots really confirms that and what significant i think about gas is that it's actually not a respondent superiority assert instance a vicarious liability as your honor was referencing inst that the nature of the torchbearer is that it is actually against the employer because it has retained control and it's in action about negligence against that employer nonetheless the court put it in the box of being to repeat it because it's an  we certainly put some balance really but we did it on both sides right and you could have a direct and depend remit of liability you know at the same time and that's with those cases point up and but you know on liability for her it's directly caused by the tortious conduct of rd party it's beyond its role and it put marilyn casualty into the latter category if we're looking at the decision quickly actually doesn't decide the question of whether the claim burden parent in fact or theory is derivative or not it specifically reserved the question and addressed the separate issue of whether it's arise by reason  is the inter the court absolutely did sent benchmarks on both sides terms of what could count as derivative and what couldn't the one that it gave was the following ceiling tile example and i think that example is instruct because it's an instance in which the the defendant's alleged liability alleged duty is totally disconnected from the debtor and it's simple it's noteworthy that that the nature of that theory the nature of that duty would be basically  premises liability theory that you are an owner of a premises so you're responsible for things that happen on it the montana court and footnote twenty of the decision specifically addressed that when it kicks off as an example that it's not like the treatment or a action because it's an instance in which a defendant is being held responsible for its own actions harm that it's itself potentially create and it distinguish that case as being quite different from three hundred and twenty four dollars a which is noted was a more women it theory of by your client and undertaking to perform a duty beyond that that is just simply incidental to the provision of insurance but undertaking to perform independent basis of liability i don't think it is separate again it is that we are we are an additional tortfeasor that is the allegation that was not disputed in the st but the plaintiff's primary argument that what this is a here if not in a by anything could satisfy any tort claim against insurer they could conceivably satisfy their their understanding of the past when you have needing to rid of liability and by reason of the elements of the claims essentially notes and i don't think that that's a that that's a sensible result in terms of how to read the two thousand and eighteen decision don't we need to look now at at three hundred and twenty four and and and going through it and the three that those three prongs are additional factors that it's not there are not enough in and out themselves independent his vision to establish liability under three hundred and twenty four a you have to st have to demonstrate that there is an undertaking and that there was there was a reason to think that there was a serious not been engaged in dangerous operations there it would not have been arrest for us that we had a potential obligation to undertake to address so we think that at such a such a sorry i've you're on history i'm sorry for interrupting but w it was based on the understanding that the answer to this question depended on a choice of law issue which is really pushed to the side out we all get that there's no dispute there but then it depended on what the state law what its and so i guess in my head i'm thinking to myself under your theory what the per pill one of re mandated if there wasn't a way under so i guess what i'm wondering is now we get a ruling from the montana supreme court that says oh yes in fact we've decided state law in a way that doesn't channels through the injunction what ju that we don't render the prior panel decision a null set when we resolve this what version what resolution could the montana supreme court have free that would have meant that c n a was outside the scope of what the bankruptcy code permits to be in a channeling injunction well it is your honor knows on the record there was a dispute during the remained about what the nature of the state law cause of action would be we were arguing that it should be decided under three hundred and twenty four a that that was the exclusive means of holding an insurer why a bill in this context where as the plaintiffs primary submission which they adopted for the st time after the ports  provider of professional services you have your own duty to engage not can get no services non negligent and you won't be surprised to learn that the parties each arguing that they should win under full conceptions but i don't think it's a coincidence that we were arguing that re twenty four for a minus for the other side if it were if the theory were divorced from any undertaking to grace did not depend on grace getting a rest but was just look at that we don't care about the relationship between you and grace you happened to be in a position and it was forseeable that there was this risk where you were providing services and you have an obligation much like a landlord you have an obligation as a profession provider professional services so you have that duty it's a different it's a different inquiry and we would have had a tougher argument but but but i think my thought there is one of i totally get how that would affect the statutory relationship requirement because if if if race wasn't the insurer but was just some occupational safety and it he came in and said oh we we notice there's a lot of dust and other other products in the air well that occupational safety and that he might still have reached that would have because we want to remain at it if that wasn't possible could they have reached that would have said that would have foreclosed grace from claiming derivatives you know the dri liability from this man to be clear that the court did remand on old issues as to the liability in such a relationship and of course we need to show all in order to prevail so you know to the extent the court had doubt on statutory relationship saying what is the way that one can the supreme court could have resolved that st question would have made and i know you know that's saying hearts and no no i understand as i said i do think there is a conceivable difference between three twenty four am the other actions we also do think it would be possible to imagine claims against an insurer that would probably qualify as non derivative for example a claim based on the insurers that state the processing of up the claim and such an action was at issue again c prevailed on that and the lower court but that there were it was you know i think we've again we would argue the same either way probably won't surprise you to learn but i do think our arguments would be harder if they had not adopted the three hundred and twenty four dollars a framework that they had acknowledged potential bad faith claim which would have been based on our status is an insurer but not connected to race creating creating a harm or risk and converse lee i don't think there is any thing that's good status that could come through under the plaintiff's understanding if you think that it is an element of it has to be an element of the cleaning that both you are being held liable for the better and that you're providing insurance is also an element i don't we're not aware of any mr cohen priest as not previously identified anything that would qualify that within the scope of channeling injunction aside from the direct actions for insurance proceeds insurance proceeds she said exactly the opposite i think because otherwise it is hard to understand what the need for re man and under their theory of the case because i mean it does seem like i mean it does seem and twenty four does not qualify is derivative then populating what would qualify as derivative beyond a direct action for insurance proceeds is a tough set to teams throughout grace one was that what we're looking for in terms of derivative liability is liability that is predicated on the liability of the debtor right and so it's not just that there is a product or conduct it's on the or wrongdoing it's on the liability and you know that that's where the concept of little relevance also can come into play independent importance whoever is taking on that that duty the injury is sufficient to make the clincher in the court said no that's that's not enough but what we have here is different and three hundred and twenty four a because the creation of the risk is not just an incidental fact it has nothing to do with the theory of duty as would be the case when court focused on liability increases liability it doesn't say that one instance but there are several other instances in the pinion that report refers more broadly to grace's liability or wrongdoing greases liability for conduct we think it can't be it's so we to liability among other reasons that would create a problem where you have some that are that clearly its conduct is responsible for action but if it's amusing for some reason which was the circumstance and ghassan is arguably now guess what you haven't bankruptcy where race itself can't be held liable as as a result the channeling junction so as to extend beyond my ability at respect i think the tory language in referring to conduct provides a pretty good hint that it needs to extend more than that in the court was interpreted that way and respond in addressing the broader structural features of the statute and the incentives that are created the court recognise the importance of providing closure to insurers who are looking to settle and if you have an instance in which some insurers can be held and directly responsible for conduct of another party even if you have your you're saying well you you have to do you have a duty to ameliorate that that harm that they undertook a duty to warn people about it that we the court we think recognized in understanding what the scope of the incentive was the need to get closure to insurers that that kind of creeping around really creates a problem  wouldn't wouldn't wouldn't that uncertainty lead insurers to ask for a partial refund or any amount that they contribute to a trust to say hey look we know that we're good for address you know we know that once we pay into a class where insulated by the channeling injunction for direct actions for insurance proceeds d we don't know where we stand with respect to some of these other three twenty four dollars and other side claims freestanding state law claims whatever they are so what we'll do is will contribute x dollars we know that with the x dollars we're buying ourselves a nice direct action insulation but we want a refund if we ever get sued for anything else because we're taking a risk and we're kind of allocating the risk of someone pioneers in the claim and us for a twenty four dollars a freestanding state law claims but we want out of the trust for them and so it seems that there is a wave built in that the market can kind of heads where you can say look it's still worth that to us to pay  two a trust to a certain amount because we get an injunction for a direct or direct action and will take will on a risk assessment will by a little lower for these other claims it will get something back so to your point it seems that exactly what c n a did is consistent with uncertainty that would lead to a strange incentive system but that it can be accounted for by sophisticated players i think that's quite right in the absence of precedent which was the way a c n a was proceeding at the time but your honor noted we didn't back including the indemnification provision because we thought these types of claims ought to be covered by the channel injunction but we were aware that they were out there and there was not clear precedent determining whether they were going to be something that had to be channeled to the trust or could be brought against the insurer but once you have a decision from this court saying that no is in fact these types of claims cannot be channelled i'm not sure that that kind of arrangement will work to the extent that it does it's going to be exorbitant expensive to the trust because the insurer knows that it's going to be on the hook for these potential claims and if it's not a quince and that the trust is an amicus and in this case arguing that adopting the rule of the bankruptcy court and that the montana plaintiffs are going to be advocating is going to be really detrimental to the way these trusts are formed and funded if insurers don't have an incentive to settle or if they do settle but with some significant potential payback from the trust that's coming out of the pocket of other claimants and the way this system is supposed to be structured if you want to channel as many claims as you can that are that are really in compass within big rising from the debtors wrong doing its  interest you want them all going to the same trust that you get or is an equity among claimants rather than particular claimants being able to go outside of that system and seek higher recovery and trust that it's going to come away from other other people but what it would not a controlled and under the control of someone else but in fact it is and has taken over duties that were otherwise owed why should there be direct liability there who are that independent duty how does that actually i mean the five hundred and twenty four g trust is for the liability of the debtor if it doesn't relate to the liability of the debtor because there's liability for breach of the of a of a different wants to be a state that is that we are trying to channel are the claims for sick recovery under the insurance policies and the insurance proceeds and that's exactly what the court rejected in two thousand and thirteen in terms of the broader incentives and why you would want to do this as we to engage in risk management practices and make recommendations so these are just things that insurers to the nub of the issue i mean if it really if it really is risk assessments that are just incidental to insurance that doesn't seem created it routinely because these are things that insurers do it's just part of providing insurance that they do this it means that in every instance even when trying to sell your why abilities under that for the insurance proceeds under the policies you're going to face  potential work like that maybe sometimes those two or claims will succeed maybe they won't it you know you can have arguments about the scope of it and that's going to be expensive to do in state court proceeding under the vagaries of state law and we do that to have it be routinely that you're going to have that kind of a nd bite at the apple even though the insurer is trying to settle i think creates an enormous than just incentive to insurers entering the settlements in the st place certainly without significant back  wall but it still would not fit within the channeling injunction and just fundamentally i don't think this inquiry about whether you have a buyable tutti under state law because it's only the kind of things that insurance routinely two or maybe this insurer did a little bit more than another one because as in the m c c case the claim that they actually founded duty on was based on engaging in medical monitoring practices which is is not something that is developed at all in the complaint against us you know to the extent that's relevant but we don't think that the responding i might be an employee liability claim might be all these other things that get channel i think probably not i mean among other reasons we're sure workers compensation claims this was addressed in the st appeal were not subject the restatement for ten and for fourteen provisions those are not instances of like chariots liability or respond to a superior or so whatever this court meant by derivative liability had to mean more than just pure instances of some in certainly under the facts of gas the risk was being created by the independent contractor by another party and so the fact that the court characterized those as derivative we think is important and you know a big big appear to be an element of the the tort claim that the debtor is in fact liable because if you did that then there would be no need real reason to remand in montana plaintiff who should have won the st time but the court rejected that and i think the fact that the that the court was pointing basically in those cases so typically there's one way of thinking of derivative liability as the rights that the wrongdoer would have against i guess c n n for the defendant in this case and in those cases they expanded it was hinted that they're expanding grid of liability beyond the set of just those rights that the wrongdoer would have against the defendant and include a different theory that were freestanding from rights from the wrongdoer against the defendant i guess you're asking for an extrapolation of those are made not me i'm just saying the fact that those are already mentioned suggests or we should read that contemplates a broader but they are dealing with instances of liability that are characterized under the restatement as being direct they are they're clearly examples in which the defendant itself is being held liable in part for its own wrong doing and yet the court identified those as examples of derivative liability referring in the current battle with suspected asked specifically to four hundred and ten and fourteen so i just don't know what that citation the parent that was doing except as an example of something that could be that is similar in the sense that the allegation in the fourteen sense is that the normal default rule for independent contractor liability is that the employer doesn't have any liability with respect to things independent contractor does that it meant there are various exceptions to that that would be versions of serious liability but for ten and fourteen are examples of exception where the employer itself has done something gratuitously you know it didn't have to retain any control and nonetheless it did and it is being potentially hel argument is that it it for compensation or to dissuade undertook this this duty and so it took on its own duty but it's a reason that for fourteen should be treated as derivative under there where risk in the nature of the  presuming that someone else is causing harm and zero it's necessarily derivative and that at the end of your analysis the fact that it is part of the duty here that we took an undertaking to our insured and uninsured created the risk and that is why we are potentially being held liable yes that's the argument we also think when you go through the prongs as your honor mentioned at least with respect to the st one several of them do clearly indicate it will take grace whether you are making the situation worse than grace did initially with the grace has delegated responsibility to you with the grace his reply but i do think our primary mission is to even get to those problems that the predicate is there is there has been a risk created and you have undertook to address it and that risk was created by the rd party rudman i think it's not going to i don't think will sweep broadly to encompass all types of claims that are against insurance i know that the judge gets there are several that would not converse lee and again the other side's not identified anything they could qualify as a tort so i think between as between something but not everything and nothing our view has to be the better reading two thousand and eighteen decision just interrupt because one level i get both cars is a back should arise from a different duty but when we say should they be wholly separate aren't they both going to require proof of white common both instances i assume for damages purposes and so if there is commonality in causation exposure leads separate but here there's a lot i mean i just think there's substantial overlap in the sense that there's common causation common facts have to be proven this is that and so unless liability means just bottom line liability in that scene a is a lie of all in a way that grace would never be liable and vice versa then then maybe you get somewhere but if we get to elements in facts and balancing elements in facts i just i just i don't think that the difference and duty to carry said day because there's other parts of proof industrial operation that like all industrial operations generates hazards that you need to remediate through industrial hygiene and of grace properly delegated the duty to to administer a safety program statutory construction write the words you conduct and liability have to cover two separate topics because if conduct recently a broader term encompassing liability doing so that's i think the meaning that's right why congress didn't use the word conduct as well as the term lifeboat but it doesn't just stop it conduct it says conduct claims against or demand song so it seems to suggest that that it would be to live billet i guess what you're saying is if liability has to be distinct from conduct it would also have to be distinct from claims against and demands on and that's a lot harder to say that i'm liable but it's the sting from the claims against me or it's distinct from the demands against so it is distinct from conduct it would also if you give this just normal principles of mean future claims claim streams of of a specialist injury that haven't yet been asserted so we can really put demands to one side because it has its own technical meaning under the statute but it's a fair question to ask ok then you know what's why why does liability have to be there is a separate separate term yet again we think that the reason for that is because of liability picks up vicarious liability situations in which there was not in which conduct was not claims in a products claim if you put an inherently dangerous product out in the marketplace it doesn't your conduct doesn't matter doesn't matter whether you were a care home or not careful or whatever you're just fine carries the love for the of the consequences of that so that's the reason we think why why both liability and conduct were necessary for the statute but the important point for this purpose is that conduct means look under three hundred and twenty four a and you ask what is it that c n n has being held liable for it is not grace's liability certainly and it's not grace's liability generating cond it is it is that there is a hazard which arose for by whatever reason whether with or without any fault by any and grace and grace does not is not an element of that it's that it's  you would prevail under a b and c or do you agree that least on a that there is the building of liability on liability that that that at least a  decision it said that it's to protect the insurers from from to live liability even though non directed of liability in defending against it and so on might be very expensive and not very pleasant for the insurer and could result of additional liability to the insurer that's not the subject of of the bankruptcy statute and for constitutional reasons probably couldn't be but but but but but never mind that the  statute is drafted only ties it very closely to the interest of the bankruptcy estate in settling its insurance policies so the idea of that injunction is to protect an insurer from any further liability under its insurance policies once it's done so if an insurer has one hundred million dollars of liability one hundred insurance policy and has another fifty million dollars of liability on top of that for its own no i misconduct it's still to the advantage of an insurance company to settle with the bankruptcy estate for one hundred million or for some compromise figure or whatever and that benefits both the bankruptcy estate and the insurer by avoiding any further litigation and liability and that's such but in the fact that the bankruptcy estate can and the bankruptcy law can't solve the insurance problem of its own non directed liability doesn't doesn't doesn't prevent the insurer from being very well motivated to settle with the bankruptcy estate and indeed if you look at as best as cases that if you want to this is best this case you have almost all of the insurance winding up to make those settlements with the bankruptcy stayed so they could be free of their insurance related liability and if they've done they've done something else mr burgess mentioned you can have a bad feeling a rising under the very insurance policies issue and he concedes that would be protect insurers from liability under insurance policies and it does that not because they don't think of license yours wants to provide them with any special event in life the necker c code does that because the bankruptcy true for proceeds under policy though you know that's a that's a fair question your honor because in the real world situations are not likely to arise where that would invoke that footnote  then yes it would it would it would then you would then meet the derivatives liability standard which is drafted as i say for all four of us not to try relationships but the fact that it's not for likely remain and if he's thinking it least under the rd of the qualifying statutory relationships that it's really just a set of one he didn't need to be i mean it's not i mean it's really really nice to think about the other three it's great but it one level there was no need for re man then and there is no need for anything else unless he was still contemplating in this context involving ensure that there was something more i might doubt that panel would remain and if that answer was for insurers derivative liability only means direct proceeds well your honor the the fact that i mean i've said liability definition applies to all four statutory relationships and this court will be very grateful i think that twenty thousand panel if when the next case comes along it involves a different relationship you know wh because because those may well be very importantly political to that kind of situation now it's great in that scenario but i still don't understand why there be a remade here what makes perfect sense to think ahead to do all that stuff and so contemplating or what that opinion is contemplating is really helpful but it also is hard to jell that helpfulness is being the only purpose of those statements if there was no other situation of going direct roseate from unsure well i think that the when you look at the whole issue of mine montana law and of course judge you know of personal weather as you point silly would apply would not well look at you know i mean look there is there is it it's just a recurring problem to match a federal standard with state law like it's just it's just a recurring problem because they don't always  get is neatly is congress may like or state legislatures may like they just it's not always perfect and so here we've got and i think i read three hundred and twenty four a the same way you do in the sense that it's  as to who caused the harm could be an act of god as you say it could be a debtor to be someone else and so so but we then have to match that vagary of state law where it doesn't focuses on conduct and so it strikes me and tell me why this dividing line doesn't work if cna unsent inspectors to do workplace inspections and they detected seismic activity it looks like there's going to earthquake but they don't tell anyone and then there's an earthquake i think they have potential liability under three hundred and twenty four but i don't think they have any shot in the world of getting into the channel an injunction but if they come and they do the inspection and they say oh you know there's dust in the air and it seems that race is causing this and this is this is just part of the race maybe a factor in the process or how the plant operates and they don't tell anyone why isn't the answer to that vagueness because the statute says conduct that that relates to the conduct such that now they're eligible for the channeling injunction in a way that they wouldn't have those two things your honor then what you are left with is grace's conduct in generating a specified dust and and because that's all that's all the greatest it in a situation where said could have been adequately control but grace generated vs best us and this court in its two thousand and eighteen opinion is crystal clear that the fact that it's graces as best us is not sufficient and furthermore you don't look at the facts having to do with the graces as best as what you're looking at are the legal elements of liability under state law that's the entire focus of the decision and that's why they come back situation where you now have a definitive reading of say well you don't need to there's no interim petition or you've got the berlin of the state's highest court about what state law choir's and it doesn't require  then absolutely you we would we would we would lose and we're certainly bound by that footnote in that that makes that makes a great deal of difference from a conceptual viewpoint i guess i'm just saying those those are those aren't the claims that are served here were the claims that were sitting against cna have nothing to do even a controlling the debtor being responsible for the debtors actions c n a is being held saturn relationship issue but even back to driven to lie though he even said that c n a will be liable for claims against grace even beyond its insurance policy liability if it goes and conducts inspections if that were the state law of montana then that would be a derivative clik and so on upon me and judge can properly consider what were the elements of state law  relationship was not legally relevant to pfizer's liability the claim against pfizer did not require the plan just to prove the corporate relationship and indeed a pfizer had had no relationship with the debtors or for that you recognize that the nd circuit in quickly faced really the same kind of situation you had i mean corporate being a corporate parent is a legal relationship that legal relationship those relationships have legal consequences and they are the factual reason why ca went out to provide the services that it did but the insurance relationship insurance policy none of those neither of those i should say are legal alums of c n n s liability so that's why you know in pfizer of course the court could have could have ruled that the fact that most you know corporations let their subsidiaries use their brand name exactly according to common branding strategy out there in the all could have said well because it's a common because  suggesting that there is necessarily legal relevance if you've got you know we do need this is deriving from the provision of insurance that by its very nature includes routine inspection the allegation that what they did was of a completely different degree depth and character from from from from what an insurer would normally do and under those circumstances the only relationship between between provision of insurance and what c n a did here is the factual that factual relationship that the whole reason that they got involved being something far more than incidental how do we make that determination with what we have before us well the answer i mean hypothetically in some future case this could conceivably be a difficult said that does not rise to a claim under montana law they did they did in the in the case of m c c and we make similar allegations about c n n a they said yeah if you do that kind of stuff then you're you know that's forward knowing that you know knowing that undermine teh law there is no danger of this sort of slipping over into that you know into that delicate area if it comes down to a future case you know what this court we need to do is to look at the elements of whatever the state law that was addition and if that state you know how to log this and worker's compensation insurers who go on the side and and make you know safety recommendations or whatever can be with those recommendations interest rd party i think you would look at that law and you'd say well that's provision of insurance is illegal a lot of the was i just described it and you just have to take it on a case by case basis depending on liable for and only if what the state says you can be liable for includes provision of insurance as an element does this court need to get involved you know rick to protect a federal interest suggest it was doing anything other than importing legal relevance from quickly now i think that what the nd circuit was doing when he used the term legal relevance rather than just saying l was it was keeping an eye open for the fact that in some future case it's possible that the provision of insurance might include a deed or example elephant of the defense to cl this for this cause an action political to ensure that only two years for everybody else a claim that was brought between your two and your three there would at least be an issue of whether maybe provision of insurance was was was legally relevant in that situation india even though even though it wasn't an element of the claim so it's very easy to explain why one would use the term like legally relevant rather than just say it has to be were certainty that insurers could be hauled into state court and based on allegations of undertakings in excess of what a settlement most of it was in hard money dollars which could not be returned to cna under any circumstances and presumably that was the liability the c n a had under its insurance policies so then they indemnity and and interpret a possible interpretation of that is going to see it again because the whole purpose of the indemnity was to create jurisdiction issues that would that would be of concern to this court because they knew is that future settlements will just two years seventy million dollars which ca paid you know in this case here seventy million dollars to settle our insurance liability and we're not purporting to sell anything else because everybody acknowledges the nothing else can be and the result of the financial result to bankruptcy states will be that lee this and it will be exactly what it should be which is the bankruptcy estate can sell what it hopes which is the insurance  estate because it doesn't belong to bankruptcies so so this will have in terms of economic impact it will have no economic impact on future cases and it hasn't had the economic impact of past cases it sure it seems to me that the exposure if the goal the metric of damages is to make someone whole both of those theories lead to the making of whole and if they do and now be answer is well you insurers like c n a buy themselves out of one of those classes of sue but but they don't buy themselves out of the other when the exposure is at least order of the magnitude similar why would that have an effect because you're under its theory two separate think of this is being two separate pools while insurance policies are all written with and fraud we know you know maybe c n n has its own insurance you know to insure exactly but the point is that those are two separate pools of money and the fact that you the fact that we to achieve recovery from the one template is the fact that we get it from you know c n n s pocketbook as opposed to their insurance liability cost nothing to the bankruptcy estate the bankruptcy estate still gets the seventy million dollars or whatever the figure would be in any particular instance representing a fair settlement  limits to insurance coverage but if it's if it's close were greater then why are you buying yourself out of the similar or less or what incentive do you have to buy or sell part of the similar lesser assuming that is also ours and double recover right it seems like banal is just to waste to get this so why well it is revenue yes there may be an incentive to buy yourself out of one but that's not a big incentive as i see it you want to buy yourself out of all well so if you get the same amount and i mean i mean if you are buying yourself out of all exposure all liability it just in my head is a matter of intuition suggest bankruptcy court could say not only are we releasing you from claims how do you do with grace especially as well we release your claims for everybody also suspects as they maybe they pay a one billion dollars but that doesn't mean you know that that doesn't mean that that limit recoveries so that's the claim there would not be as great as the claim that we would have in state court it doesn't so much matter it's not so much jury vs no injury as just the fact that the terms of the trust are of state law causes of action it would get you out of the channelling injunction your honor the absolutely lawyers you know person lawyers are will always try to do the best t there are all sorts of claims that lawyers are sitting out there in state court against middles insurers and those claims they're going to be permitted to assert those names in state court and it observed by the way that no state  d the more exotic claims no state it ever held that those were basis for liability but nevertheless as a matter of as a matter of federalism it's the states that determine what people are liable for and if a state determines that under that under you know these five elements in a church can be liable there is no interest to the bankruptcy system in preventing that from happening so your time anyway so the question is you know just as by the way it's typical in a bankruptcy case if somebody has a claim based on grace's best our clients don't but other people may have claims against handles as best as and so everybody has multiple sort of paths of recovery if you will until the only issue here is whether our alternative pathway to recovery is one that gets enjoyed by the channel injunction we're just not decision or at least makes it a very strange exercise is submission and he reiterated is that effect of late the only kinds of claims that you're going to be able to see against an insurer by reason of its provision of insurance will be the claims the direct actions for insurance proceeds is response to that is that well you can imagine other kinds of claims based on its corporate relationship or because it has another bill piercing theory but i mean two responses that one that would no  be arising by reason of the provision of insurance so just because it's not it's not responsive to say well if you have a different theory of liability maybe could go against an insurer that was not the theory that was an issue in the two thousand and appeal so it's not just that if the notion is that if you're seeking a claim against an insurer and the question is can they be enjoined by reason of their provision insurance their answer is a categorical no if you're seeking anything beyond the insurance proceeds it isn't something that can be channeled under the injunction this court rejected rejected it squarely and mr cohen in addressing and i think the key when which is why the court addressed it is what judge tips was discussing earlier that it refers more broadly than being into the statute i think it's very reminiscent of their argument the st time where the court said look you were beat this is broadway that is referring generally to help not just directly but indirectly viable for the claims against conduct other demands statutory interpretation of the the other terms demands and claims you do relate to liability why shouldn't the kind of the gives rise to liability be the meaning that we ascribed to that term especially if you parties in some cases to be brought in but it's going to be predicated on the liability of the debtor i don't have to read that into the term conduct i don't think so i mean isn't this a list of three terms not it's not the so you have a list of seven and you could say well let's find six have this common denominator in the th one thousand and so we're going to read it more broadly i think they are independent terms and conduct has its independent reach and it is going to i necessarily be liable certainly that includes the immunity situation but i don't see any basis in the statutory text to restrict it that way and again i don't think this is a matter of personal pressure for the court because it is that specific statutory language which the court provide in the two thousand and eighteen decision to say no we are not going to say that these claims are limited to direct action seeking insurance proceeds we don't think the direct why ability into being held a regular viable does that and beyond that has an indirect mission to help indirectly viable for the conduct of the claims against the debtors at the very least that doesn't have the restriction and that's what the court health but i don't think that that is is open for the court to revisit kind of how much the interplay between conduct and liability and on the one hand i see the choice being conduct that has to be crew proven for liability i don't think that's your position that i think that's your friends position but then i think that your position is no it doesn't have to be conduct it has to be crude for live below d the it just has to be conduct that caused the harm that results in the  captured your position correctly i think that it causes the hopper but i also think that it's significant that it is a part of the basis for our week or alleged legal duty here and i think one way to maybe capture the distinction example or it being blown up on our position is that you are applying to state what you look to what the state requires but you have to accept the actual claims being presented and when you look to the complaint for example it refers repeatedly to greece's wrongdoing and it's unreasonable conduct it's i ration of state law which it notes is that is responsible for the injuries it does that and various claims that are certain against the state of montana and then there's  against the insurers that essentially held some six to hold up responsible not preventing that in the course of our undertaking and it's not just the outpatients it is just it is true as a matter of historical fact that grace was the source of this race was subject to criminal imagine alternative worlds in which we might be quiet will under the same legal theory where grace was not implicated we don't think should be what determines whether something is derivative and we think the best indication of that is because the court identified torts for that so i think that is the key distinction between our position and my friends position they think it is surely we go in that you only want to be elements of the state claim we think you have to look to the elements state claim that's certainly what the court instructed but you you map that onto that what actually is the nature of the there actually are they seeking to hold you indirectly liable for conduct of the debtor because what its rise your potential claim under the state law is the debtors r  the prior decision in footnote eight prigs ample the court indicated that we were describe what we had argued what we were describing was a legal consequence connection that would be if we had proof you know if we establish that in fact it is relevant but we will duty under state law that what we were describing is a legal consequence i assure you we were not arguing for legal elements test in saying that you're providing insurance had to be an element of the claim that we were arguing exactly what we're arguing here that these services are it was actually specifically disavowed that there was any legal connection in that case here the predicate for our duty is our undertaking d of insurance services and mr cohn suggests that well we're going beyond what a real insurance services i don't think that is fair or accurate i don't think as your honor just prosecuted it creates a very difficult line drawing problem and at a minimum what we have here are services that is because they are predicated on the the right we have under the contracts to engage in inspections and make lost control reports i also don't think it's accurate that the montana supreme court decision said that what was at issue there were no insurance services but it did say is that you know an insurer routinely engaged in doing the normal kinds of insurance services is not going to generally be liable under three hundred and twenty four dollars i don't think it follows from that that it was indicating that what is here are not insured services now they were called within the scope of what counts as an insurance but the key difference for why there is a potential duty there is that race heads had ceded the ground and dealing with medical monitors something that hasn't been alleged with respect to us and more and more fundamentally i just don't think it is right to say whether the there is a viable state law claim is that should be the test of whether it's something can be trampled under five twenty four dollars g i actually understand mr cohen to agree with that at least on the flip side that you know there could be claims that are not meritorious that as have no basis in existing state was the nd circuit suggested manto but we're not going to federal law term it's a valuation we have sometimes you might have it from state courts sometimes you might not about whether the claim could proceed in state court that's that's just not the nature of the inquiry but but i mean i mean on the flip side there's a big big big federalis concern if the channeling injunction basically prevents plaintiffs from bringing their cases against c n a in state court based on an independent duty that that c n a has basically say hey wait i twenty four dollars g would be a complete and total game changer d then because it would basically take entire classes of claims plaintiff's lawyers as your friend admits might want to be creative as with that class constitutes but we just say be as creative as you want no recourse if they court him or we hope there's nothing that trust fund that you get more than you know seven cent dollars and so i mean with that would mean is that five hundred and twenty four dollars g would have a huge huge huge impact in terms of state law causes of action or potential impact and maybe that's its design maybe that's its purpose made us why congress did it after johnson and but i don't think that that impact should be minimized  if i mis assess that impact i agree there's an impact but bankruptcy channel injunctions have that nature that they are going to block some claims that could otherwise proceed in state court and given the unique nature of assessed this liability and this is maybe takes us to the issue of incentives it is very important and congress wanted to in the jones men don't bankruptcy judge the originally wanted to drafting a very broad training injunction that congress subsequently codified to bring all these claims into bankruptcy this i think goes your the specified ability is unique in that because the harms are automated and people don't discover them until later you're going to run out of money the better runs out of money and people that come along claims later are out of luck and the way the major innovation with john's cohn argued that well insurers are still going to settle up to their policy proceeds liability and protect here what was thrown it was something on top of that there's no support in the record for the idea that they indemnity obligation significant dependence to them and as mr concluded to a lot of them were excess policies it was going to be years before they would potentially be reached if if we're not going to get much much relief if we're not going to get meaningful closure why not continue to fight that out and see what  we can do to minimize our exposure and assets but we wanted to get to bring this to close up because we knew that that would be claims out there and we recognized that they were going to bring them we we thought were strong arguments that they should be subject to channel but channeling injunction operates to prevent bringing those state tort claims of course it to the extent they're representing workers and might have workers compensation claims we've made clear this is stablished in the st case those were not going to be subject design because the way the system is intended to operate is to create a pot of money and treat everybody equally if you submit a claim and everyone has to take a haircut but everyone gets compensated as opposed to a system where people are trying to jump in line and tore in insurance you know testing and monitoring effectiveness and does control attaining medical information on an instance of insurance and is there is this in the complaint and where we should be looking to add to to conclude that it really is premised on wrongdoing and grace so to two responses to that st when i was referencing those paragraphs those are about what the nature of the scene is undertaking is and the extent to which those claims are going beyond the provision of surance and they certainly are not in the fall within the heartland of what insurers routinely conduct of grace and the him quote the conduct of grace bring about what you suspect is disease at least those were that was in the cause of action against the state of montana but all those allegations were or paraded by reference in the claims against c n n as well if the court has no further questions we appreciate your indulgence well i it's been a long day for you as well and that we have gone this long it is really a tribute to the excellence of your advocacy on both sides and even very helpful to the court