indulgence after a fascinating morning we got to end the morning with what the supreme court of the state of carolina south carolina called the catacombs other insurance insurance policy english jump out at me so you're out of the central part of the central issue here is the court's decision in the district court with regards to his belief that the c i g policy was written to apply in excess other policies that covered the same same acts or errors or missions the c i g policy was plainly written to be a primary policy it said so on its certificate of insurance and it stated within its own terms that the coverage afforded here in its primary the c i g policy was written as a primary policy without regard to which employees may or may not obtain separate you know policies on their own and regardless of whether some non or all of the many hospitals and clinics in the master policy served the c i g policy was on it's face written to cover additional insurance with primary cover but what about the clause which says that if any employee has another policy or policies covering a loss access well the i'm a policy had the or where you're on the same language and many policies have this other insurance language and that's why although this was referred to as a test case this is in fact not a test case these cases go back for decades where the courts have wrestled with this type of language have wrestled with whether we look at intent whether we look at to tell of circumstances or as in arizona do we assume some mutual repugnancy if on their face the two policies appear to be covering the same loss and nearly identical if this captive carrier c i g wanted the policy it would say for example this policy is in excess to the admiral policy or this policy is access to a variety of other policies these types of things occur frequently as this court its stated in its h m s case the ninth circuit that and sometimes these policies are stacked want to plan the other and whether one is primary excess that sometimes does take an analysis of how are they written but for example in that case which the court decided it was fairly easy to determine looking at each of the policies on a case by case basis which policy was excess to the next this type of stacking of policies is not uncommon and having multiple policies covering the same insured for the same acts is also not uncommon hence that is why we have all of these other insurance policy decisions because this happens all the time and it can happen as a case of points up with not just two policies in in contradiction with one another sometimes or many policies of contradiction so again your honor we believe that the court essentially treated this policy without any support without any language within its title or with its declarations or certificate like an umbrella policy that this master policy somehow just covered everybody else and that somehow they would all get other insurance but there's no evidence in the record that dr schwartz or the other physicians for that matter were to get their own policy they were covered by the c i g policy he said there's nothing in the record that indicates they are to get their own policy there's a there is a with regard to all the other physicians we know there is a physician's policy we don't know whether that physicians policy covers dr schwartz because we were never allowed to see it right but it doesn't matter at all that dr schwartz obtained insurance from admiral in addition to any insurance that would have been part of his employment package does that matter at all absolutely not because he was allowed to get that policy  not uncommon for hospitals clinics and physicians to have redundant policies as they did in this case and again the matter policy was drafted without regard to the policy it was drafted well before it they'd ever knew that there was going to be a d if they paid it would have been paid by the clinic or it would have been paid by the community parent company but we never actually got a statement within the record that it was in fact paid by c and again your honor even if that was true even if it did happen the policy on its face covered dr schwartz as a primary policy because there were no we're here to decide well i'm certainly taking my position that the policies other insurance clauses as a case on freeman other cases show when you have two nearly identical policies like this when you have two policies that are drafted covering the same insured risk and frankly the same insured rather than find ourselves in the battle of which policy can be more specific as pointed out in the hard work case or which policy can out right the other policy which i protect the interests of the insured first let's go forward and find that when insurance companies are looking for these excess clauses which are and in fact in many leads escape clauses let's be absolutely certain that we protect who we're supposed to protect let's bind the carriers to that contract which they agreed to for good value consideration and on a pro rata basis split the damages admiral in this case stepped up from the very beginning they covered their underlying that they're insured in the underlying case they were not aware that there was a second policy intil they've discovered when the clinic was drafted into the case that they were because your policy insured the doctor yes ma'am we did insure the doctor and at that point we stepped up immediately and covered him we believe the cia chief policy as it states on space also covered the doctor see i did did not get involved in till such time as the clinic was involved at that point there was some interest in whether or not the c i g policy covered the physician as well requests were made there were questions with were guards to and i'll see if he makes much of the fact that because we were asking we must have known that dr schwartz was covered by this policy but that's not the case at all all we knew was that there was a certificate of insurance that demonstrated that he was an insured counsel may i ask you about the insurance provision in the employment agreement yes and section nine point one it appears to say that the that the insurance policy that was peculiar had by the physician was less meeting the second prong and therefore primary but we don't really know what they're talking about there are they talking about the master policy or are they talking about the physicians policy and again let's go back to that the insurance policy itself what the insured was entitled to dr schwartz had an insurance policy that said he was protected with primary coverage for the errors and omissions that there were ultimately issue in this case so regardless of whether there was a separate separate employment agreement that referenced that he may have one or the other we don't know whether that was going to be the master policy or as we've heard from say gee there was this frankly phantom other physicians policy which we've been told but does it matter if i mean if if the agreement with the employer was that the imp loria when either maintain the insurance or assume his insurance why isn't the clear import of that language that if he has separate insurance that insurance has a policy to insurance provided by the employer that seems to me to be a fair reading at this i guess the question is are you getting then to the intent of the policy or are you getting to the intent of the employment agreement we're saying that the intent of the policy is on its face it says that it is a primary policy and if we're going to go to some type of totality of circumstances to us then let's look at all of the totality of circumstances let's go back and let's find out was there a physician's policy was dr schwartz covered by that policy let's find out what actually happened we can't assume and this was the inference that we objected to with regards to judge campbell's decision we can't just assume that because an inch the community clinic paid for a very expensive policy we're going to assume for all of its clinics that it wouldn't want to pay for separate physicians policies in order to is to actually rule the court should have made justifiable inferences in support of the non movement patent it should have looked at it and said perhaps that policy when we look at their premiums demonstrates that in fact it was a very expensive primary policy but we never got to see it in fact what we were told by g was essentially too big to fail argument that it's so large it's not going to you're not going to be able to construe it but this court looks at premiums this court looked in the h m s case at premiums and said that that is relevant to determine the actual intent of the underlying policy issue your honor so if the court were to agree that there should be a nine l c s that go as beyond the policy language itself then w saying make justifiable inferences and give us the opportunity to go back and see what went into that policy what was the intent with regard to the policy paid for the clinic let's see what the premiums were that's a fairly simple analysis yes you're the district court w looking at the language and said it was it was excess with regards to which are on it that the clinic policy if the the the district court  but in this case he was trapped by the idea that the policy was because of the exclusion within the admiral policy which excludes those policies were written to apply in excess he believed that s other insurance language made it written to apply in excess in the courts get to what are pure excess policies what are true excess policies those policies that state that threshold that name the other polic that call themselves excess and the courts have also said other insurance clauses on their own do not create in excess policy they may make it excess for purposes of the analysis but it doesn't make it actually didn't did not go into this analysis but in that regard your honor i will address the selective tender issue briefly selective tender implies on its face that the party had something to select in this case there was nothing for d schwartz or admiral to select because frankly c i g late in the reads and hid the information from us to the very end said gee makes a lot about well when you file the lawsuit against us didn't you know or reasonably know that you had the insurance policy offense are you talking about the first case or the second case here and there was a a second case that was involved where defense was tendered later in the game however that case we believe is distinguish that case the clinic we believe was not a defendant the admiral did not have the opportunity to work with the clinic therefore tender was made were saying that constructively tender was made in the first case and they were actually aware and knew of the demand for for coverage the quantic case was cited by c i g judge here burke said that there's no application of selective tender that he could find in arizona but he further stated he remained of the case back to say let's find out whether there was notice given and not only just notice honors on the law notice that we want to participation in this case that was given when you look at the e mails from mr mansfield to the opposing counsel he said that he didn't know whether or not there was coverage but it was clear that this could be a problem in the settlement discussions that were going on in two thousand twelve that was followed up by correspondence that c a g at their counsel's level that they knew that admiral was looking to draw them into the settlement discussions and assume some liability for those discussions so said he had a well i had the pleasure of being the first person today to be able to say good afternoon your  on behalf of segue community insurance group i hope to not take up all my time today because i actually believe this case is very straightforward and may be affirmed based on the plain language of the insurance policies which is  exactly what judge campbell in this case held his rulings on in his order granting summary judgment to sick judge campbell explained how courts in arizona interpret insurance policies he explained the provisions of an insurance contract are interpreted according to the plain and ordinary meaning the court's analysis should start with the plain and ordinary meaning of insurance contracts and we submit that in this case this court's analysis should also end there the language of the sick insurance policy is clear the policy provides only excess coverage to dr schwartz in this case because he had a primary insurance policy through admiral that is not a fact that is in dispute admiral admits that it provided a primary insurance policy to the physician in fact judge wrong and you pointed to the employment agreement that's precisely the document that establishes that a physician that is employed with the clinic should either have his own primary insurance policy that the clinic pays for or he can opt to have the hospital or the clinic purchase a primary insurance policy for him counsel said that we don't know if there was a separate physician policy purchased through the clinic for dr schwartz that's simply untrue the fact that admiral does not believe or agree with the evidence that was produced in the in the in the in the court that there was no physicians policy purchased by the clinic does not mean that the fact is somehow unclear or it's not established in the record it's clearly established in the record and judge campbell held as much but what exactly was clearly as there was clearly establishes that there was one physician primary policy that was issued to dr schwartz and that policy was issued by admiral and the premiums for that policy were paid for by c h s the holding company of the clinic well why why is that the practice of the hospital not to provide b insurance so contracted the provisions of the insurance policy what's that all about as these what they're up to the hospital systems to step back for a moment these hospital systems are huge they have hundreds and hundreds of hospitals and clinics with so in recent years a lot of these hospital systems kind of develop their own captive insurance companies sig is a captive insurance company of c h s the preference for these hospitals is to in fact purchase a primary insurance policy for employed physicians however a lot of physicians prefer to maintain their own primary insurance policy through micah or admiral in this case you'll see in the record the application that was filed by d schwartz for admiral insurance he used adderall insurance because he had a history of medical malpractise claims that made it difficult for him to be insured through other policies so he wanted to maintain his admiral policy the hospital in the employment agreement gave doctors two options you can maintain your own separate physician policy through admiral mike out whatever outside separate insurance carrier you choose and we will pay the premiums or if you choose not to do that we will have you apply for and we'll bring you in to our captive insurance provider which in this case was a sig physician policy that is entirely in a political to this case because one was never issued on behalf of dr schwartz he was covered by the admiral policy so what was the answer to the question as to why the insurance policies were not provide i'm sorry your honor there was that the hospital paid the provision the insurance the copy of the insurance is close to i'm sorry your honor i misunderstood your question the captive insurance because these policies cover hundreds of hospitals and clinics they at least first t h s and i think this is true for a lot of other hospital systems they don't just go and pass their insurance policy around because it covers so many different entities it's like a commercial general liability it's like a c g policy specifically with respect to captive insurance companies there is a statute in arizona that very clearly states and that statute is twenty dash ten ninety eight point two three subsection a that captive insurance policies are are permitted to have this additional level of confidentiality because they cover such broad provisions and so many different insureds so c h s has a policy it does not provide its policy to just anybody this is for the provide privacy of the doctors and that we know it is a proprietary  document and my client's view and c h s is few it is a proprietary document that includes information that it does not want to be put out into the general public it will provide a copy of the policy when there is a case brought for equitable contribution and in fact if you read the record in this case judge gertler who was the judge in mojave county that heard the underlying litigation the medical malpractise case he twice denied motions to compel the production of this policy stating that there was no dispute between the curious that had been filed there was no claim for equitable contribution making that policy relevant or necessary to be produced was that the reason it wasn't provided to and that role because there was the idea that there was no entitlement to equitable contribution no it was it was not produced to admiral because the company has a policy that it does not produce its policy unless it is out unless it has to do so pursu litigation and there was no litigation that had been filed and i and i do think it's important to say opposing counsel made a reference and it's also in the papers that six somehow late in the reads and didn't tell anybody about the coverage that's simply not true the record is clear that immediately upon threat in the underlying litigation that there would be claims brought against the clinic attorneys for the clinic mary brooks pete told the attorney for we provide excess coverage for dr schwartz pursuant to our commercial general liability policy we will produce a copy of the certificate of insurance proving that coverage when the case is filed and we will not produc being one admirals the clear to a judge would know when at the time in two thousand and ten there was a threat that they would add the clinic as an additional defendant in the underlying law and occasion and she said when that happens will produce a copy of th certificate of insurance but we will not produce an entire copy of our policy because we have an internal corporate policy that we do not produce our policy just that that's just the that's just the policy that they ha so this idea that somehow they were laying in the reeds is simply a red herring that is unsupported by the record that argument made in the district were somehow this is the net yes yes and it's a good point you'll notice that on and the one and juan you are page thirty three which is judge campbell's order he drops a footnote in there and he says there is much ado about much ink has been spilled over this issue of hiding the policy not producing the policy and he just cut through all of that and said it's not relevant what's relevant here is looking at the language of the policies and determining the effect of those other insurance clauses on that note do you see a difference in the language but it is the language at section eight b where it says that it is an excess but then the very last cent the very key language is this condition does not apply to other insurance that is written to apply in excess of the limits provided by ok that's right it's fourteen sixty five and it's that language that differentiates the two other insurance provisions and what admiral would like this court to do as it urged judge campbell to do is to simply hold that because the two policies have other insurance provisions they should just cancel each other out without actually reading the language that's not the law in arizona in arizona courts look to the language to see if they can give effect to the plain language  both policies here we don't end up in this circular to this loop which is the case as admiral cites to say that the other insurance clauses are mutually repugnant that only happens in cases where the other insurance clauses can't be read together there is no circuitous loop here and that language that says that condition doesn't apply is really the key language and that's what judge yes your honor that is what he held and then i will spend just a moment talking about the totality of the circumstances the reason that it was appropriate for judge campbell to move on to the totality of circumstances although we can see that it's not necessary this case can be resolved on the plain language the reason it's acceptable to do that here is because of the fact that the premiums that were paid the primary priced premiums that were paid in this case were paid by the very entity that admiral is now coming after to say we are seeking contributions from you when i asked who paid the premiums at the primary pricing from sig or from i'm sorry from the clinic or c h s in our view that's enough to say that the premiums were paid by the same general entity that now they're seeking contribution against sick is an affiliate of c h s and the clinic is an affiliate of c h s the holding company so the bottom line here is the totality of circumstances while not necessary to be reached was perfectly acceptable for judge campbell to do that and i will just and by addressing judge terry as a comment or question about whether or not the this court can decide this case on select a ten selective tender if for some reason it does not  affirm judge campbell's ruling on the plain language and the answer is yes this court held in a tell fincorp the quaker coal company that you may affirm a district court's judgment on any grounds supported by the record whether or not the decision of the district court relied on the same grounds or reasoning you adopt doctrine argument was made and to the district court even though judge campbell did not reach it in this case the three elements of a selective tender were not made those are a full and fair information and explicit to me and to undertake a defense and offer to surrender control of the case that did not happen admiral concedes at most what it did was ask for the policy and that the clinic knew that there was litigation that's insufficient under this court's ruling  do in case there were to be a selective tender doctrine applied and he said again if you read his case it goes to whether there was notice as judge rosenbaum held there wasn't this case and whether the intent of  with regards to the captive insurance issue captive carriers don't compete there's no basis for propriety they have nobody that they don't compete with admiral they only have one customer at the clinic they don't sell insurance everybody else they only they are sensually the cayman island entity created by the clinics themselves to self insure arizona law in all cases mandates that insurance policies be disclosed in state law cases so this idea that these types of things are proprietary just isn't supported by practicing your zona with regards to twenty ninety eight that is the insurance regulation that says the department of insurance may not disclose captive carriers proprietary information that same regulation also says that that information can be disclosed in civil litigation finally with regards to it by the way that the internal policy that they're talking about is it says it by the reason the reason that c a g does not want this policy out there is they don't want to get into the hands of plaintiffs and lawyers that's not the basis for protecting propriet information that this court should uphold finally judge relative to public policy if the court were to allow judge campbell's decision to stand we believe that that's going to take us back to with that south carolina court called the dark ages or those dimly dimly lit air or we're going to get back into the air of drosnin ship who can out specific one another who can pull that gotcha on my insurance cause i further insurance is better than yours and  away from the trend that the dart court set in the supreme court of california the trend towards when they look like they're representing the same interests they're covering the same interests and they're trying to both get out of coverage let's hit them both for karada coverage they're mutually hold don't share the policy to this date we have not seen the physicians policy we don't know what it says all we've been told is a vols in the briefing don't worry you're not covered this is litigation we should have been able to see it we should have been able to of the language they just relied upon if it was not the policy that's the problem we he made inferences with regards to what was in the policy in the premium without actually seeing it and we're saying even policy wasn't produced or disclose where did that not where did you get the language of what the excess policy provided the policy excess policy language where did that come from well there it wasn't from the policy the policy itself was a primary policy c a g in mid it was a primary policy it has an of their insurance clause where it says we are primary and we said this is a primary policy unless there is other