l and then subsequent to that they brought it back again and then they waived they waived their right to continue to argue it and against it and again agreed to arbitration and then finally i guess the third argument is arbitration did occur and west an arbitration was in in my client's favor and less been had it like a ninety day period to dispute because they have a bona fide dispute regarding coverage while there is no bona fide dispute regarding coverage and basically your honour's if i may i know you've all read it but i'm just wondering for the audience if i actually go into some of the facts years of they may understand a little i think it would be helpful all right please thank you judge back in one nine hundred ninety eight wanda norton my client was involved in an automobile accident she was she was hit by a gal by the name of karen patterson eighteen months went by and wanda could not get any relief from from the insurance company for karen patterson or for her company so basically she filed a law it after eighteen months because in twenty four months she would have she would have lost all her rights to do so the it turns out that karin patterson appears the first time and then she fails to still hadn't received any money and she discovered that karen patterson's insurance company american family was was not going to was not going to pay in fact they had said because karen patterson never notified them for two years about the accident they considered that she breached a contract with them so they weren't going to pay so now my client is uninsured or basically yes she's an uninsured  driver she sues her company west been under uninsured motorists was spin comes in and they say wait if you read the policy you can't go to court and sue us you have to arbitrate and the issue is that all of that's true if there's an if if there's no issue as to coverage we agree we should we should go an arbitrator so it was dismissed this is the second suit now that's dismissed to go on arbitrate the several months after just after the dismissal of that suit was spent says no we want to come back to the circuit court we're going to file a third suit  asking for a declaratory judgment that wanda norton breached her contract with us and basically they changed her legal positions well that went on of the circuit court ruled in and two thousand and three that no she hadn't breached her policy and at that point right after right after that ruling norton filed a motion to compel arbitration and then days after they out in open court the parties proceeded or agreed to to arbitrate again this is the second time now  arbitration was held two years later wanda norton the arbitrator's are awarded one a norton about a thousand dollars more than she originally had in the original claim sued me under a negligence theory of that i guess i was negligent in winning the case for one and norton as far as i've ever been able to figure out what their theory was what their case went on for quite a while and part of that case they wanted they wanted to circuit court here to dismiss me as one and norton's attorney because basically i had a conflict of interest now i couldn't i couldn't part possibly represent wanda norton and represent myself on the same set of facts well the court kind of didn't state one of norton's cases west been until my case was was completed and they did they just recently when back in two thousand you said there is no dispute for coverage we want to arbitrate so the judicial stoppel would say you can't change your positions like that and that's exactly what they did but then they also if you recall they also waived when back when the judge said november eighteenth two thousand and three five years into this they said well we'll we'll agree to proceed to arbitrate so there is stopped way back in two thousand or they waived it in two thousand and three either way but basically there is no dispute on coverage they can come back and argue that again that's exactly what they're doing but paid some of the american family some of them but there's a there's an additional at that point in time there was an additional seven thousand one hundred thirteen dollars that has never been paid for my final five less than never and as a matter of fact one of their arguments that they made to the trial court judges tony ridge refuses to accept as this amount we tried we tried to pay him but he refuses that's not true they have never tendered a check they want what they want us to do after the arbitration award in year it's the ninety eight accident in two thousand and three we finally hear the war and they're saying and we waited a couple of months they still and it is that's what we filed they say just the way and then they said well if you drop your fixation still way we might pay you the arbitration war but you know it's very interesting that invaded i'm glad you mentioned that because the trial court judge goes into it that in open court in open court supposedly a westin is agreed to do this but if you read if you read the august third two thousand and nine response from west bend it says if this norton's motion to enforce the arbitration award it would make the pending declaratory judgment action moot in effect it would be ruling against west been under declaratory judgment that's exactly what they're doing and so basically when they're saying there's a bona fide dispute is the coverage there is no on five's view and if that's the basis for this judge the circuit court judge indicate that west been attached to the affidavit of one of its attorneys making a claim or statement that they offered to settle the matter which was the amount by the arbitrator's but cents well there's a half a day by one of their attorneys that they did that no sir they never tendered a check never never absolutely never in fact that's what they're arguing as i just got done saying they're still arguing they want to go back and  case didn't happen there and basically a don't have the right sort so you're saying that is a correct statement they did offer them out they offered a judge under under the condition that we not move forward o things and that's after six or seven years that we have to pay somebody six or seven years later what they should have a way back when that's not the same money and we were saying you know all these good morning ma'am please the courts council my name is scott piles i represent less than full insurance company in this case based on some of the reza taishan of some of the facts that were made by  at fault in the accident a woman by the name of karen patterson was insured by american family insurance this patterson was insured at the time of the accident ms norton was insured through west bend at the time of the accident when mr norton was injured and her property damage her car was damaged west then did the following things we paid for the property damage for miss norton's vehicle at some point after american family reimbursed west bend for that payments miss norton incurred two thousand eight hundred dollars roughly in medical bills and treatment in this accident west bend paid those not a cool bills under her medical payments coverage during the eighteen months following this collision counsel for norton negotiated with american family insurance to settle her claim there is a in the record one ninety seven there was an offer made by american family insurance of seven thousand eight hundred dollars to resolve claim at some point ago she apparently broke down between norton's council an american family and norton filed suit against the driver patterson patterson was served but apparently never notified american family insurance that she had been sued mr ridge also did not notify american family insurance by saying hey i've sued you're insured she's been served please have counsel run on the case so that we can you know defend the claim or prosecute the claim and come to a resolution of some sort of counsel for norton did not do that instead what he did is he took a default judgment and as the court knows a default judgment counsel for norton shows up asks for an amount in the court because of there's no trial there decision made it's essentially just proves on a default counsel for norton did not notify american family insurance who was the insurer norton's attorney knew that mr patterson was insured by american family did not notify american family of the city faults for ninety days and as the court knows if there is not  default or if the at the default is not vacated then thirty days it's generally a final order on a subject to a to fourteen a one petition for due diligence and so forth so when a fact after the thirty days that expired american family could not come in and vacate of the default mr ridge after the ninety days counsel for norton notifies american family all by the way i got a default judgment against miss patterson i want you to pay it  outfall driver's insurance company to hire counsel to come in and prosecute the claim and ultimately get it resolved you go through on an arbitration a mandatory arbitration or a jury verdict a trial i mean that's the custom and practice that i say had a legal obligation to do it maybe not maybe not a technical obligation however if i may under miss norton's west bend insurance policy there is a provision that she has to cooperate with us her ensure  to allow us to gets monies that we paid to her that she could ultimately receive from american family and of course i'm speaking about the medical paid benefits that were paid to miss norton early on in her case westbound was because the lack of notice of the lawsuits that ended american families obligation to indemnify miss patterson that also nola fight our opportunity to get our medical payments money that we had paid to ms norton when we paid our medical bills like we did for the property damage because american family gave us reimbursement on the property damage that we had paid to mr norton we were expecting the same from american family on the medical bills that we had paid under our medical payments coverage again it's custom and practice in these sorts of cases that we are subrogated to that interest and when and when norton took a default judgment against patterson and didn't notify anybody therefore allowing american family to say our star we don't have any coverage was ben and then became subject to under our own uninsured motorist claim for a by mr by counsel for norton not notifying american family the existence of this lawsuit or the existence of the default judgment and not notifying them even at any point sol after ninety days that allowed american felt because we asked mr ridge or we asked norton by letters west bend it to say we want you to vacate the default against the american family i'm sure if you do that we believe american family will come in and defend miss patterson and you can go you know this to your cla we're claiming that norton should have vacated the default against american family and allowed american family to come into the case they would have done two things number one it would have alleviated us have an opinion on their insured motorists claim because the defendant would be insured by american family a reimbursement under the med pay and we also want to not have to pay under the uninsured motorists claim when there really was an uninsured motorist the lady that was appalled me as it was insured by american family and that is the basis of our claim that there was a bona fide coverage dispute that still exists so you're saying that back to december of two thousand when you filed your motions this mess that you felt that there that's right the dismissal that we're talking about there is that mr ridge filed a direction action against west bend saying you know west and you got to pay this default judgment you are my client's insurance carrier you have you are providing her with uninsured motorist coverage you need to pay this default that is not the law that is not how it works under the west bend policy that's that's in the record there as a requirements and mr norton agrees to this when she buys the policy she agrees that any dispute about any damages have to be arbitrated not through a filed lawsuit that's why that case was dismissed early on because mr rich filed a direct action against west bend when it should have been arbitrated and that's why the case was dismissed then we said you know wait a minute under our policy if there is a dispute about damages it's got to be done through arbitration not through the circuit court we're not denying that mr norton did not have coverage in general for this accident because obviously did because we paid a lot of benefits on her policy we're only questioning were disputing coverage under the under you know the uninsured motorist protection and that the basis for that claim is that the a fault driver had american family insurance and resolution but by norton not notifying anybody taken the default and then essentially giving an excuse to american film to the client congress so they're i'm sure that manufactured an uninsured motorist claim for norton against her carrier not only did it do that and make us become all again under uninsured motorists to provide benefits we also lost their summer vacation rights to collect the medical bills from american family insurance that form the basis of our declaratory action still p  on the vexatious claim portion counter claim filed by norton we filed a declaratory action disputing coverage time went on we agreed and for reasons in the record there is reference to dismissed i think the right if i'm not correct the record indicates that he had filed a claim for that it was dismissed because i think of on a two six fifteen motionlessness it was he was given leave without prejudice without credit correct so a correct decision to judge or justice holdridge that is an interesting question however normally when reviewing a summary judgment motion the standard is the noble or it's a fresh however in my brief though given this is a declaratory action and declaring that the if there was a bench you know there be a bench trial of the court itself without the benefit of a jury would decide the factual questions in the case the court's going to make factual findings in this particular case both parties filed a motion for summary judgment and when you win both parties do that both sides are dollars and while there's not really a question of fact here and this this is what happened and we want you to decide as a matter of law whether or not it says that that should be also looked at those factual findings should be looked at under the abuse of discretion standard which is a little bit different i understand that normally it's a done although standard but there's a case cited by judge once  we're not we won't dispute the coverage will pay the our board we want you to dismiss your vexatious claims count if that happened the case would have been resolved we wrote that letter back in september of two thousand and five so you made a conditional offer to trade or we did because frankly we didn't that i mean we thought there was still a congress dispute because of the fact that we lost our summer games and rights to american family and we were playing an uninsured motorist claim on behalf of the uninsured driver that actually had insurance at the time of the accident we were still we still do dispute those claims but we were willing and it's in the record that we were willing to drop that claim if they offered to pay the arbitration award if the case would goal way there's no sense in us if there's a covers dispute for us to pay the arbitration award and then litigate whether or not we should if there was coverage and then also l contrary to the law but not only that not only that judges you know it's the way they argue for example d so what's been had it you know they're not deprived i mean basically of anything you're giving in this argument that we couldn't sue of the american family what else are we to do we're eighteen months of gone by  like that or doesn't appreciate it but certainly karen patterson is out there form what what more could they do against him had this and then we'd already done for them they were you know that's their money we offered it to them so they don't have they don't have a good argument that they're denied subrogation rights or anything like that there's nothing we did call for them and basically your honour's or if there's two issues here judicial is doubtful because they changed their position way back when when they said let's go in  or they can have it both ways but if that's not enough after ninety days it's locked in stone they can't do anything this is a false argument they don't have an argument and and to dismiss to this your fine arguments on this matter of this morning the case will be taken under advi