is that the correct pronunciation by the way i believe it is your honor good morning your honors daniel bearer for michael fires medical corp and this case is about a contradiction between what scott's tale promised dr five's and its policy and what it takes away from that promise and it says and the district court agreed that what it takes away means that what it promised to pay means it depends nothing minute sounds really good but get to the issues i don't want to interrupt your books better get to the issue because why is this contract even in baghdad ambiguous because there's a contradiction between what's in clause what a one where it says insurers shall pay the loss of the insurance i understand what it says but then it says that's where all insurance contracts are written they pay the loss and then the last does not include and then the loss does not include the contract will obligations a queue of entered into that's what this clause says that's not  disagree that it's it does say contractual obligations by saying that it does not include amounts owed under any employment contract that's right but it also says and under this employment contract there's no question it's the wages there's no question it's also attorney's fees if in fact you lose a case on attorney's fees that's what this contract says that's that's not that the contract says that if you lose if there's a suit and you lose you pay attorney's fees that's what it says right so why is it not then if ike read the contract between you and the insurance company and it's not at all ambiguous it's absolutely straightforward they're going to pay all loss except they're not going to pay the losses under your employment agreement and your employment agreement says they're not going to pay the wages and it says they're not going to that if there's attorneys fees that come up in the fighting of this employment contract that that is going to be covered somebody is going to have to pay this contract says they don't have to pay that because it's right in the agreement the only thing i think they've got a little bit of trouble with is the pre judgment interest if you will at wasn't covered under the contract i would disagree that there's no ambiguity there is an ambiguity because they promise to pay the loss for a claim for the breach of an actual or implied employment understood but that's all they agree all these insurance contracts agreed to play these losses but they're exclusion or there are things that the last is not cover and it says right in there the last does not cover this physician employment agreement and then i read the physician employment agreement says we don't pay the compensation and we don't  and says attorneys fees are going to be done so if i read back to the contract that says we're not going to pay the attorneys p d they're all arrest the stuff you got fair game well we've got a contradiction between well we've got a contradiction their saying the going to pay the loss that arises out of employment agreement and scottsdale and the district court's interpretation of the exclusion of amounts owed under any employment agreement what are what are the amounts owed under the employment agreement you look back at cases like health net that say the origin of that exclusion which is read into any policy even if it's not in the language of the policy is if i've agreed to pay these wages and i get sued for not paying those wages and the arbitrator says you got to pay those wages then the payment of those wages isn't paying what you have to obey because of a a loss because of a wrongful act it's paying what you owe under the contract so it excludes amounts oda under any employment contract though you're saying the ambiguity is in the language about the employment practices wrongful act the ambiguity is in the exclusion from a loss of amounts owed under any employment agreement when compared with a promise to pay the loss incurred incurred by the insured or are legally obligated to pay by the insured from breach of an actual employed actual implied employment exclusion of taxes fines or penalties i mean it seems to me there's a loss we know at the losses if it's taxes fines or penalties it's not going to be paid right if it's an amount just clear as a bell it depends on the definition of amounts owed under the contract whether it means anything that's covered by the contract or specifically what you promised it is and what it says it says amounts owed under any employment contract yes i look at these amounts owed under this of climate contract i read through it there's no question compensation is there it's under section four there's no question attorney's fees are there it's under section twelve no question about what it is it's just right there pretty clear right i'll try to do is just to have you respond because that you've got to argue haven't you got to win on this that it's ambiguous or you can't win well that that argument's the separate labor code argument that doesn't depend on ambiguity but yes this case this is the first argument about the contradiction that japan does depend on ambiguity and i submit that there is an ambiguity here because they lost as defined by the policy means damages judgments so months from paying back pay prejudgment or post judgment interest awarded by court and cost charges and expenses cost charges and expenses include costs and attorney's fees as defined again previously as the attorney's fees so no question there is nothing about prejudgment interest here you your colleague is going to have a tough time with me on that i did see it i don't care whether arises from the wages or doesn't there's nothing in this contract about that so it seems to me pretty clear he pays th pick judgment interest but i'm also concerned that almost half a million dollars in attorney's fees and i would submit that if they say that they're going to pay the loss the loss includes attorneys fees but they're excluding amounts  an employment contract there's a contradiction and the case law says when there's a contradiction between what the policy promises and what it takes away that's an ambiguity you interpret in favor of coverage that's to suggest there's an ambiguity but if i take general contract and insurance policy law insurance policy law usually does not pay for contracts with liability insurance policy law pays for torts and all that kind of stuff so in this particular situation they've turned it on its head they're going to pay for this contractual loss unless they exclude it and they've got to exclude it unambiguously are i've got to say whatever a reasonable interpretation is on the other side they can make it and they got to pay for that eat as well so again i'm back to this question somehow not be excluded because they promise to pay the loss and if you interpret the exclusion to include everything that's a loss including preach that you're including fees cost interest which is scott's tells position that is an ambiguity which is resolved for the insured now if you would do allow pre judgment interest that does give us something but i'm under this under my clear interpretation i don't know how to get around that i realized that the district court wanted to somehow screw that in or try to push it in or make it into wages that isn't wages the contract doesn't say anything about that they have it in the contract if they were going to pay that i think i'm so i'm sorry if they take it too much time and i interrupted you know you actually asked the question and he answered the question so i'm good so ok i will then i'll move on to the labor code argument which is there's nothing in this policy that excludes what would be owed under the labor code the claim that dr miser made in the arbitrator ruled ruled in her favor on and she would have been entitled under statute to attorneys fees and costs and prejudgment interest on that she had been entitled to all of the attorney fees under labor code or just the attorney fees that dealt with the labor code violations well we didn't even wanted penalties for not paying it on time everything here involves wages so under the vandenberg and shade case it doesn't matter that there was a contractual relationship out of which this arose if there was a cause of action for which we've got a preview of what you're going to be asked i fully appreciated i took some good notes this is andrew wexler and i represent scott still insurance company i appreciate your time this morning let's be clear here there's no exclusion involved in this loss as that term is defined for employment practices wrongful acts and so we didn't it's not unlimited we didn't say we'd pay all damages we didn't say we would pay a certain loss certain loss that this loss is not prejudgment in truth it doesn't say didn't there your honor but we have to look at the award but what if it isn't said and it doesn't seem to me that you can suggest that it's not something you have to pay because you say it's part of the loss it's it's could be interpreted as part of the amounts owed under a contract on just a minute it says it's part of the loss the absolute easy language is it's part of the loss it means prejudgment and post judgment interest that's what it means under your contract and there's not one part is doesn't matter whether it's a part rewarded because you didn't pay the right wage it doesn't say anything about it but but but that also says we also say we pay for damages and yet we're able to scale back the damages we  you put it in your contract just like we put it in the contract amount owed under any employment contract let's look at the award the award talks about prejudgment interest as an element of the contract damages that's what's said by the by the arbitrator it awards pre judgment interest because of the contract it uses thirty two full of because that's what this that california well that's what if you wanted to not make that part of the last issue to put it in there well we give you're getting out because you don't have to pay the wages you're getting out because you included attorneys fees if you didn't want to play really pay pre judgment interest your cook up but that in the contrary it's the same basis that we did not the same it were included i would say it is it's the same basis under which we're not paying attorney's fees it's the same basis under which we're not paying cos it's it's it's part of a basis on which you're not big attorneys fees are better award those and it's a contractual damage that's why it's not covered it's a contractual damage under the law but for the contractual damage there wouldn't be pre judgment interest though so it has to be a contractual damage it's no different than loss of goodwill contract is them big us and if it's ambiguous then i'm going to take your opposition's idea of what that should mean not ambiguous at all your honor amounts owed under a contract could include pre judgment interest that's how the intertwined with wages and it actually is wages because if i owed you one thousand dollars in two thousand and five for wages and but i don't make good on that until tw seventeen in order to make good on that don't i have to account for all the interest that accrued so that the amount you're getting in two thousand and seventeen is the equivalent of the amount that you wrote in two thousand and five thank you your honor he said it much better than i did it's  loss of use of money owed under a contract they would they should have paid that they should have paid those wages in two thousand and ten they didn't so under the contract she's entitled to be made whole from the money she should have gotten in two thousand and ten and i'm very end of contract as to say that he gets interest for mention in the vandenberg case it says you look at the nature of the of the of the event and the nature of the damages and the risk involved that controls coverage here there's no doubt that this is all about a contractual dispute the labor the labor code violation makes up eight lines of a five page or six page award it's barely mentioned it's all about the contract will damages fact the heading of prejudgment interest talks about breach of contract prejudgment interest and so vandenberg says if that controls then this is part of the contract this is a contract plain and that all the damages that flow from that should not be should not be owed by scottsdale and if i can mention health net i mean health  could be in my case health nut is a situation where the court was very clear if this deals with an amount owed under a contract any costs any attorneys fees all of the things national university hospital affiliates which we've seen if there's no other questions i don't think some think you very much actually may get answers so is there a cause of action for the wages the back wages under the labor code i am not an employment practices lawyer but so i don't know this one hundred percent certain but i don't believe so and there certainly wasn't any issue in this case right because it just drawing analogy to illinois just because that's where i'm from so in illinois there's a statute called the illinois wage payment collection act and it basically is is a statutory contractual remedy where instead of just suing under the contract you sue under the pca and the damages are the same and i'm wondering if there's an analog in california under the labor coach visions the two hundred series where in addition the getting the penalties for the late payments and the like you could also just say hey i or i was owed a thousand dollars in wages and therefore that's what i get under the labor code and i also get under the contract but of course i can't collect a twice i don't know your honor if there is a provision under the labor code that allows you to take the monetary amount owed as a wage i do know there's obviously the penalties and things like that the clearly wasn't any such labor code violation alleged here or sought here i see so so the doctor here did not seek her lost wages health net did talk about the interest being part of being in externally part of what was owed under health nets insurance policies with its insureds and so not recoverable but as i pointed out in my brief it didn't at least in the opinion didn't talk about any language like the language in our insurance policy which expressly says that loss includes pre and post judgment interest expressly agrees to pay the loss but but getting back to what my colleague elicited from you i gather you agree that if there is no ambiguity you lose on that portion of the case right correct your honor ok and what is your best argument that there is a remedy for you one of the california labor code the best argument is that the california labor code was found to been violated by the arbitrator it was pleaded the part of the statutory penalty under labor co section two one eight point five two hundred eight point six is attorneys fees costs and prejudgment interest so that wasn't awarded just that was awarded to a plaintive who won on the labor code even if she had never pleaded leach a contract she would've been in tiles of those fees costs and interest for violations labor code section understanding we don't know from this record what that would be that amount would be for the pod the size about that i don't necessarily have to publicize under california law if you can't separate out the attorney feel ward first specific causes of action the person who wins the attorney fees gets everything so probably they would have gotten everything did the doctor in this case have a cause of action under the labor code to recover the unpaid wages it's i don't know of one i asked that incorrectly did the doctor in this case pursue her wages under the labor code in addition to pursuing them under the contract yet she pursued them she pursued them under the waiting time and the requirement that you pay and play their wages once they quit or once they're fired you give them what they're at what they're owed and they that's what she pleaded in her or her arbitration statement or bear the equivalent her complaint and she the arbitrator found that there was a violation of the statutes ok so let's say that the doctor did not bring a contract claim at all and just went under the labor code in addition to getting the late payment penalties could she also have recovered her wages under the labor code i believe so but i'm not sure and did she in fact try to recover her wages under the labor arbitration brief she wanted her money under any theory that she pleaded so why did the arbitrator make his or her ruling based soley on contract with respect to the wages and not under the labor code i don't know i can't get into the arbitrator's mind but i would think that once the arbitrator had awarded the wages of the breach of contract cause of action there was no need to award them under the labor code cause of action because the award of the ma couldn't couldn't five at that point have said ok mr arbitrator madam arbitrator i disagree that we owe the wages however if you're going to award the wages could you please award them not just as a matter of contract but also under the labor code i don't know what the situation was at the arbitration so i don't know if that was could be requested for it's solely for insurance purposes perhaps arbitrations kind of like the wild west th