workers compensation court that it was not contributing anything to the settlement and i have basis to stop that from can from asserting in this case that it was because it had contributed to the settlement in the worker's compensation court mr watkins informed the court that liberty mutual was contributing provided the court a copy of the settlement agreement and explained its meaning to and nothing liberty mutual did in the workers compensation court could be construed as a representation that it was not paying was the attorneys were trying on behalf of snow valley in the civil case were asserting positions that were directly adverse to liberty mutual sense of values interests in the worker's compensation case and because the because we were forced into this odd litigation posture you know that the settlement structure was a little frankly and one of the things that puzzled me about the settlement not just structure in the end but also the settlement  to seven hundred fifty thousand dollars for a free or low number how did that happen well i'll tell you that actually the estimate was never one hundred fifty thousand dollars back and on october thirty first of one thousand nine hundred seven the workers compensation attorney sent snow valley a letter analyzing the case in estimating the probability of a course in scope finding a twenty five percent and the exposure at three to three and a half million dollars and so she she told no value then that there was a you know nine s in significant chance that there'd be a substantial award so the seven fifty was sort of an approximation of a twenty to twenty five percent chance of course and scope of time the magnitude at the outset and so what happened was as some of the other side may have something to say about w and encouraging mr workers compensation attorneys to stall and stay the workers compensation case so that liberty mutual could never get as a terminations in that worker's compensation case on the course and scope issue and at the same time hancock having reported this no valley asked if the check its workers compensation policies and to let it know if there was some problem told novelli that they were going to start putting pressure on liberty mutual to contribute in its correspondence to snow valley said they were doing that to pressure liberty mutual to contribute liberty mutual was in the best position to figure out what was going on and the only one who knew the terms of both of its policies were pretty mutual didn't know whether there was a substantial s i are under the seven million dollars c g l policy or any of the other terms of that policy the reverse no value had all of the information at its disposal and it should have known because of the correspondence from its counsel what hancock was doing in the case and so frankly liberty mutual was faced with a situation where it could move the worker's comp case forward and it was faced with a non flop rate of insured or so it appeared in the civil case and it got involved in civil cases offend the position on course of course and scope in that case and therefore you know the settlement went down in kind of in an orthodoxy of who's who signed off how high up in the company did  to sign off on the seven hundred fifty thousand dollars settlement my liberty mutual i don't know but the undisputed facts are that the people who negotiated the settlement and made the recommendation were unaware of the retrospect have its claims handlers and workers compensation attorneys aware of the retrospective premium feature and i got sued for that because the fear was that the claims handlers and the attorneys would be too free with the insurance understand how my mind that knew that was adjusters but so it was the attorneys representing them are forbidden to read the policy yes it is because workers compensation policies are creatures of statute the policy provides coverage but it's coextensive with the employer's liability under the workers compensation law doesn't say will pay for this person that it says will pay for what you have to pay under the law and so there's never really an issue as the big guns of coverage and the financial aspects of the policy really aren't the the maximum i don't know the precise dollar figure before it becomes liberty mutual's money again it wouldn't be more than ten thousand dollars but from here let me tell you what bothered me about the about the about the waiver problem that the situation was made in this the period for and inseminating it was designed to cut off any further claims because it does too it will if it does two things one it relieves them of the burden of having the settlement approved by the worker's comp board which would have which has jurisdiction to approve any worker's comp settlement but i might stipulating that it just did not occur in the course and scope of his employment of the nels employment then liberty mutual is relieved of any burden of of having the settlement approved by the worker's comp board  y you've got the you've got the problem but it really also relieved liberty mutual of having to respond to any liens that might be against mr mr bell medicalese respectfully your honor both of those are overstatements in fact what happened was the workers compensation committee proceedings didn't just go away because of the stipulation finding made in the superior court mr watkins took the settlement agreement down to the worker's comp judge gave him a copy and gave her a copy excuse me explain the terms to her told her that liberty mutual is paying money and then they got the case dismissed now the petition for dismissal was by mr buno and every site that it's fair and that his attorneys look into it and all that so it's kind of a form o very very general terms not often you get three half million dollars in settlements on a worker's comp claim this is more than generous of course we'll have no problem approving it but frankly your honor i don't know exactly why they came up with the structure when they're going to talk to the work disclosed that liberty mutual is the worker's comp insurer and liberty mutual is going to be contributing to this plan those are two different things yes liberty mutual is a party to the workers comp procedure in fact it's very common in workers comp cases for the the employer to just drop out of the case and it's really the claimant or the worker against workers comp carrier because the coverage under the policy is completely coextensive with the employers liability so that the employer could never be liable under the law for anything that wouldn't be covered by the policy so that really the the insurer is the real party in interest in those proceedings and oftentimes the employer just not involved also no valleys lien the settlement agreement provided for the satisfaction of all liens that have been filed as of that time and so you filed a lien with the worker's comp court and serve it on the parties to the worker's comp proceedings you have knowing that you're not listening to all of them have been liable for any subsequent filed please note because the case would be over and that's typical in a situation where workers const proceedings comes to an end even by a compromise and release there was no worker's comp claim so anybody can file subsequently would be out of luck worker's comp for didn't agree that there wasn't a worker's comp claim i mean the whole reason the proceeding existed was nothing didn't approve the settlement in accordance with california law but all that does is mean that the release that was obtained was invalid and  if there is subsequent to the settlement if there is a lien filed that would be most tribunal's responsibility because there would be no claim anymore and that's what always happens when a worker's compensation claim comes to an end his future medical care and things like that come out of his pocket in fact there are different forms of compromises and released under the worker's compensation system there are a variety of streams of benefits that flow there's disability there's current medical there's  future medical and each one of those streams can be the subject of a different compromise and release and sometimes as a future medical open in which case the liens can continue to be filed and sometimes the whole thing is just cut off by a compromise and release and no more liens can happen and it becomes the responsibility of the claimant who has now been paid in a lump sum rather than getting a stream of benefits over time to satisfy his bills so ye liberty mutual have the right to settle claims and has no values position is essentially gee if there's any uncertainty about whether the employee was in the course and scope you got to make that guy litigate the judgment rather than pay him that's contrary to the the goals of the workers constitutes them which is to get benefits into the hands of claimants injured workers in this situation but even here is the fact that a jury could say this is a look that number seven hundred fifty thousand dollars is very suspicious number the settlement amount that seems reasonable in an earlier time climbs up enormously there was an objection fairly laid on but there was an objection short the after sun valley actually smell valley learns of it but they blow it off circumstance and then the hancock firm starts putting the pressure on for more and more money and they keep raising the money and you look at the correspondence and they're asking for half a million dollar contributions from the mutual and ultimately they're telling snow value we think we can get seven fifty from them or twenty five percent to three million dollars and so it goes up that way and you know frankly that's the way settlements work most of you know that attorney after he'd hired tim wheeler had been asking for eight million dollars and so you know there was the usual settlement negotiation where the numbers kind of converge and it really you know the fact that the people involved in decision making about this settlement didn't know there was a retrospective premium feature is undisputed there's no it so it may look suspicious but it's perfectly innocent you know that's the way it is and in terms of the odd procedure used to settle the thing under the labor code if you don't do a compromise and release the releases invalid who does that hurt now and only hurts liberty mutual because first the end of the retrospective premium feature it's maxed out if mr p and l comes back now that's liberty mutual is money and so you know it's kind of a form over substance objection to the procedure used and it's a result of the odd fact that so values counsel in the civil proceeding were going to litigate to a position that would basically prejudice both snow valley and liberty mutual in the worker's comp proceeding and so liberty mutual was affectively dragged into that civil proceeding using a civil lawyer understandably not completely familiar with worker's comp is and many people aren't it was a negotiated settlement in the contest in the context of the civil case that resulted in this sort of a regular procedure used to terminate the cases the bottom line is that there was no representation to either court that liberty mutual wasn't going to pay any money to the settlement in the worker's comp court mr watkins and objected to undisputed testimony is that he explicitly told the judge liberty mutual was painting and he gave them a copy of this her a copy of the settlement agreement and explained how the settlement function to her in this the fury of course the situations more or less the same there was no explicit representation but you have to consider the context in that civil court case of course in scope was the big issue hancock did raise that as an affirmative defense and the answer they moved to try for case that liberty mutual had taken the unusual step which had to have been noticed by the judge if intervening in that case to contest the course and scope issue so when the parties arrive in front of that judge and say hey we haven't we have a global settlement of all claims and as part of stoppel but in the complete absence of the prerequisites for imposition of judicial stoppel then it's not even a matter of discretion first he has to find these inconsistent statements and it just simply weren't going here there was no representation to either judge that liberty mutual was not painting and in fact there was a contrary representation of the workers comp judge the liberty mutual was pain and so they went tell the judge well to touch on a couple other points relating to judicial stoffel let's look at unfair advantage what is the unfair advantage here supposing supposing as the district court found liberty mutual had told the superior court those judges might have thought liberty mutual wasn't paying anything didn't prejudice no value in any way shape or form and so that's another reason why you can't impose judicial stoffel here in finally there are no rulings spite or courts that are premised on the been operating under this arrangement for some time they've been paying retrospective premiums they knew that claim payments to injured workers of theirs resulted in retrospect of premiums for them and in fact in february of ninety nine i'm sorry in june of ninety nine hancock wrote to snow valley and warned them that by asserting the exclusive worker's compensation remedy in the civil court case they could shove the whole thing into the worker's comp court case and that under the laws to pay the claimant we have a duty to make reasonable settlements which is what we did here and frankly it wouldn't be proper to allows no value of the employer to say oh no no don't do that that's not the goal of the workers compensation system put compensation in the civil settlement here seven hundred fifty thousand dollars in light of what was understood to be the potential for a finding at first a liberty mutual in snow valley on the course and scope issue and the magnitude of the please the court i'm going to first address the appeal and then i'm going to address the prosecutor with the time i have left i'd like to begin by quoting the testimony of mr watkins the attorney who proposed the the dismissal of the workers compensation case he stated the reason why he did that and not a compromise on release was quote because there are still the liens that are out there you still have to resolve those and typically with the compromise and release if you can settle them before the settlement then you do it but if you don't then you have to settle the case with applicant and you still have to negotiate or do whatever with the lien claims so want to settle minimal least you typically reserve jurisdiction for the board and say th defendants will adjust the outstanding liens and litigate them for whatever so i would have thought i would have had that out there i considered both of those and i thought was the best way to get rid of not only the case but also get rid of the liens so we wouldn't have to pay any additional money is to get a dismissal with an acknowledgement by the injured person that he was not in the course and scope of employment then if any lien claimants came back later i could say he dropped his claim and he admitted he didn't have a work injury that was the strongest way to deal with the lien claimants which addresses directly liberty mutual's argument that it was up to the worker to take care of subsequently stated ling's in addition and explaining the effect of his his strategy on the court he explained the following quote in a compromising release generally you are settling a case you're providing some sort of dollar amount and exchange you are dropping all claims an agreement to dismiss a claim you are paying for or you are not paying for or at least it would appear to the workers compensation board you are not paying for that so it's just a dismissal not a settlement and finally there are two documents in liberty mutual sclerosing files that indicate that no money was paid to settle a worker's compensation case or a non negligible claim that might exist the first form under the heading settlement other it wrote zero order of dismissal on the second form a check the box for dismissal not settlement and under the total amount of settlement wrote zero income case when this attorney was asked why he indicated that zero was paid in the settlement of the worker's compensation action he testified as follows quote i don't know it might have been an air i think i just meant we didn't pay anything and filed in the worker's comp case i just put zero for the current case i really don't think i gave it much thought because i didn't give anything in the comp case that i was representing but i just put that down he then went on to state that this was not done as a settlement in the worker's compensation case now liberty mutual contends that mr watkins went to the judge gave her a copy of the settlement agreement explains where the terms and then told her that liberty mutual  in fact contributing that couldn't be farther from the truth the truth is that attached to the dismissal order was a copy of the settlement agreement it just so happens that the settlement agreement didn't state the amount that liberty mutual paying it in state amount that either company was paying more over what was very clear in this in the attachment was that there was an explicit finding that there was a stipulation that the employee was not in the course and scope and if the judge was going to assume anything it wouldn't be that liberty mutual was making a payment but that there was a release for liberty mutual because he was not in the course and scope and that the general i believe quite by would liberty mutual be their liberty mutual with with making a payment your honor because they were the it was this was before the workers compensation judge and before the workers from station judge was the claimants but now and liberty mutual for snow valley there they the watkins was a representative of both snow valley and liberty mutual that was the attorney who created this scheme whereby they would whereby they wouldn't do it until the figure for just being back watkins was representing that no valley was paying for the worker's comp point and liberty mutual no your honor i represent that watkins represented to the court when he sought a dismissal and when he quit zero paid in the workers compensation case in his files that no money was paid to settle the worker compensation claim it wasn't until the post mortem changing of testimony attempted by liberty mutual whereby the original answer that walking's gave his deposition was i don't remember whether or not i talked to the judge at all about the settlement agreement then just so happens after that testimony comes out liberty mutual counsel sends a correction of the testimony which now states well i think i remember discussing th with the with the judge and then liberty mutual comes before this court and states that not only did it discuss it but it explained to the judge that it was making payments and all of these things that couldn't be further from the truth that just didn't happen  liberty mutual has presented a record with what was stated and as the district court understood a dismissal is inconsistent with it because as as judge by the recognize that under the law the court has to approve opponent so regardless of whether there was an attachment and even assuming that the judge understood that they were making some payment it's irrelevant that means the court would have to assume that the judge was acting contrary to law that's easily understandable in addition set when they said they did or whether or not they paid the money over monthly payments is a different question it is unclear the evidence that they submitted suggests that the money was paid it doesn't specify to whom they claims that it made a seven hundred fifty thousand dollar let sun payment over and why would that be of concern to you because i think it goes to the credibility of liberty mutual as to what occurred here what they said to the nobody why does it matter whether liberty mutual is paying seven hundred fifty thousand dollars in one lump sum or whether it's paying it over the course of a year it only matters to the extent of the credibility of the statements as to what occurred but it doesn't have anything to do with whether or not you've got a retrospective payment to make the liberty which is the legal issue here right well it does to the extent that argument is that under the policy we only were obliged to pay a retrospective premium for  amounts do under the workers compensation law arguments to the extent they made and your argument is that none of this was workers comp because that's what liberty mutual represented to the workers compensation board and therefore you don't owe her top absolutely of our initial brief we noted that there we not only did we raised judicial stoppel but we raised contractual stoppel collateral stop one illegality contract quickly under contractual stoppel the fact that the contract reset stated that there were no that that but that was not in the course and scope and it was for everly determined that prevented them from coming into this court and then saying that the payments were made under the worker's compensation law i know that liberty mutual get up and argue that civil section six twenty two states that it doesn't apply to a statement of consideration but if the court looks at the end of taishan is to that section those cases say that exception where it doesn't apply to consideration only refers to a person that they can dispute that the consideration was ever paid but not a factual matter whether or not a person was in the course and scope of the employment now on the issue of the elements of judicial stoppel counsel represents that the prerequisites that's simply not the case if the court would refer to new hampshire versus maine the united states supreme court case in which in two thousand and one they felt the first case in which they addressed it the court stated as follows which is said in our brief page twenty whether to apply the doctrine in a particular case the court goes on to explain that the three factors typically used are inconsistency a position that there's either an advantage gained or a detriment created and then the third was that i've i'm sorry the second one was that it's accepted by the court and the third is that there's an advantage gained or an unfair detriment in post however the court concludes in a new rating these factors we do not establish inflexible prerequisites or an exhaustive formula for determining the of likability of judicial stoppel and as judge gregersen pointed out earlier it's a discretionary matter liberty mutual fails to address the standard of review yes that's on summary judgment so therefore the court evaluates the novel whether there's a trial issue but they entirely fail to address that the standard of review for application of judicial stoppel is abuse of discretion so even if this court was to disagree with the application it was  workers compensation attorneys have a system where they make notes in it at one point she notes that their understanding is that the is that she needed to seek authority from counsel for snow valley to have approval of the settlement because that was part of the pattern in practice and not necessarily she must have understood the adjustment feature if the if there was no adjustment feature why would she need to seek the authority of snow valley for a in this case there's no doubt that a jury could reasonably determine that new liberty mutual's actions rise to the level of approach oppression fraud and malice first on the issue of friday as explained earlier two different representations were made to the courts first liberty mutual represented to the workers compensation court that it would file the copy of the agreement with the superior court then in the superior court it didn't file the copy agreement and stated it was confidential moreover in front of the superior court when the judge asked that all parties had signed the settlement agreement the plaintiff's attorney said yes all parties are signed and mr wexler who represented only liberty mutual and the other attorney that was present neither one corrected the judge that goes to the issue of fraud in dish and argument is that liberty mutual neck ignite that there was an issue in the civil arena as liberty interest counsel pointed out there was odd facts wife's by arguing exclusive remedy liberty mutual was required to send in representation into the civil arena however they didn't send in a representative of both liberty mutual and the insured they sent in a representative that only represented their interests in other words it was oppressive moreover when they didn't receive an objection even if it was late in the game and we don't dispute the reason why it was late in the game because quite frankly the people at snow valley that made that recognized the what was going on didn't find out about it yes there's an issue of whether or not they're responsible for documents that they receive and we don't dispute that but mr jones contrary to liberty mutual contention he didn't understand how the retrospective premium worked and he didn't receive these memorandums telling him you're going to have to spend seven hundred  fifty thousand dollars it said check in to what your policy said his understanding was that under the policy liberty mutual had to consult with the insured it was his understanding that they wouldn't settle anything absent authority so this notion that he knew exactly what was happening is couldn't is absolutely false moreover when liberty mutual did receive the objection to the settlement what did they do they did nothing other than attempt to hide the ball from snow valley liberty mutual didn't tell them about liberty mutual on may fifth received the notice objecting to the settlement on june won the hearing at the workers compensation court of appeals and hearing in superior court is held they didn't provide notice to either to snow valley for either hearing despite the fact that they have jetted then then they charge them when they can once they do agree t seven hundred fifty thousand dollars they charge them one hundred twelve one hundred twenty six cents for every dollar that they settle the case as their administrative fee and then when they file this action they claim that in the complaint as stated in our brief that  filed under the contract and now this argument is sort of changed into well it wasn't under the contract it wasn't a settlement of the case it was a settlement of a non negligible claim this is the type of conduct  reprehensible in california the insured and the insurer in a special relationship and the insurer is required to hold the insurers interest on par at least with it's own in this case liberty mutual didn't do that moreover the securities officers case that was cited in our brief which directly addresses the issue of whether or not the implied covenant of good faith modifies the right to settle in agreement states that particularly when a party has discretion that the implied covenant must limit the latitude of that party to act totally unilaterally liberty mutual's position is that the seven hundred fifty thousand dollars was it was it was a number it was just clear as day they took this letter from paula hayden and said you multiply the amount of possible injury by twenty five percent and equals seven hundred fifty thousand but as your honest  it's just a little too coincidental that that happens to be the maximum amount that they could be paid by snow value under the policy and it wasn't settled for a dollar more moreover in that very letter that they're referring to were policy discuss the probability she cite to the exception that know that worker's compensation is not available for a ski employee during his recreational activities moreover her math was that there was a three and a half million dollar possible injury and twenty five percent but yet one hundred fifty thousand was the appropriate amount to recommend to try to settle it so it was only late in the game when mr wexler who only represented the interest of liberty mutual was there ever an attempt to increase that amount to anything over one hundred fifty thousand dollars which snow valley had agreed to pay because it was going to be around or less than the cost of defense it was only after mr webster representing only liberty mutual came into the ballgame that there was ever a suggestion to increase the amount the seven hundred fifty thousand dollars liberty mutual suggest that there's this great coincidence and it didn't do anything wrong and it was considering the interest of the insured i asked the court this if that's true why did it need wexler to only represent itself why didn't wexler represent both the interest of snow valley and liberty mutual if there wasn't a conflict of interest if it doesn't rise to the level of thought oppression and malice why did they take that action it just simply doesn't make any sense now final issue i'd like to address is the absurdity of liberty mutual suggestion that we somehow pressured liberty mutual into spending our own money effectively what they're saying is snow valley pressure at liberty mutual to spend its own money and it just doesn't make any sense liberty mutual new and snow values you know that liberty meet you had a twenty five thousand dollar retention under the general liability policy that's in their attorneys notes they believed it was higher they thought it was one hundred fifty thousand dollars but they understood that they thought that was all that liberty mutual going to have to pay out or i mean that was all the snow that i was going to have to pay out the argument that somehow hancock pressured liberty mutual into paying money is absurd why would liberty mutual agree to allow that's it for the reason because they thought that the special services instructions were enforceable that they had complied with them in which the the settlement happened he didn't know how to account for the money had gone through some other way he hadn't paid any money so he wrote down zero on purely internal documents those are not representation so the court  some employers who were not able to make that showing do some hybrid of that that's what this was essentially it's no value made the choice to basically self insure up to you know seven hundred fifty thousand dollars it wants to make it seem like this retro is somehow employers have the right to tell workers comp insurers no no no don't spend my money on that injured employer or employee that's not the way it works and so there's nothing untoward about this the fact that liberty mutual had the right to settle even after snow valley objected to the site and your position has risen up to seven hundred fifty thousand dollars we recognize that we're totally playing with no malice money but you also have no obligation whatsoever to tell them what you were doing with their money that's not senate you know what i'm saying your honor is that the people who made the settlement decisions didn't know there was a referee feature so they weren't betting no they were playing with snow values money they thought they were playing with liberty mutual's money but in any event libby mutual policy it's not unusual it's there's nothing the fairies about it it works to the insurance benefit it's precisely because you don't want the people giving away the money because it doesn't belong to their employers and so it's personal bally's prick pension that the errors in the front line attorneys don't know what the retrospective rating features are if they exist at all so that they don't decide what the heck it's friday i want to go home really understood the insurance money away that's why they don't know and so these people didn't know they were making honest good faith determinations with respect to startlement and it's just pure coincidence that the seven fifty is close to but not right at the amount of which liberty mutual would have to pick up the risk  one more thing no valleys council indicated that liberty mutual was aware of the features of snow valley c g l policy there is absolutely no evidence of that the evidence you referred to is evidence that of mr wat that there was one hundred thousand dollar self insured retention under the worker's comp policy not under the c g l policy there was no evidence at all in this record that anybody at liberty mutual had any familiarity at all with any of the features of the c all policy it's just false so we didn't know what the right arrangements were there for all we knew no value benefited from pushing all the liability into workers comp and we defended the course and scope issues within the civil court ok