settlement to extinguish the debt caused allegedly by a primary insurance carrier american state's insurance company the district court provided to separate distinct bases for denying  one was that there was a purported gasket settlement that as a matter of law the gasket settlement extinguishes the subjugation rights of an excess kariya second even if there was a valid gask a settlement which we deny the court found that we failed to prove causation any damages or more specifically that or issue i failed to prove that the barrow overturn it because the question that the court posed is the case could be settled within primary limits and that the judgment of the trial court talks about settlement of the case settlement of the case some ten times fifteen times when a plaintiff attorney is completely outrageous in his demands posey wants ten million dollars in the case sometimes you've got to try the case and you standing in the shoes of the insured and while the case law is that there is no direct duty under the gibbs case ok to the access carrier now the words we could not eat we could not have a separate lawsuit against them for failing to notify us of the claim or failing to give us their reports etc etc but we stand in the shoes two things one necessary number one alleged bad faith which we did a number standing before you today representing america sealed with no excess insurance that's what the case law talks about and imagine if you will you're on us a case you've been s look at this and if i am americium where you have no access coverage if there's no access coverage in this case why should the primary insurer get a benefit a free ride if you will because the insured in this case americium went out with its own dollars and purchased excess coverage for its own protection give me the quote give me a rational explanation as to why the tortfeasor should benefit because the went out and got excess coverage there is no rationale for that and great southwest says that that's exactly what is stated in the great southwest you're standing in the shoes of the insured and we cannot be treated any differently than the insured is being treated in this case and in this case every known a violation of a duty of good faith defense was violent born on previously the court said you need an adjudicator judgment before you could advance a bad faith case this court said no you don't you know you've made the allegations now go back and prove the allegations of bad faith that's what we thought we would doing when we went back proving the allegations of bad faith we demonstrated to the court and the court obviously the trial court agreed with us that the available to law bill it will completely ignored we cited to the court a number of cases where although it's a presumption of fault for a left turning motorist it's a look part of the presumption and there are numerous cases i've  many cases where i've had comparative fault on left turning motorist before i was ten percent lost twenty percent lost thirty percent last week i mean we simply don't know because they gambled going back to conservation if she was her evidence that a re primary care you drop the ball with her evidence in this record that a response here would have said instead of paying two million dollars to settle i would have gone to trial now there isn't and the reason why because like as the pla says he was going to ask for tending in dollars the put that trial judge says he is relying basically on the opinions of the trial attorney that nothing we could have done anybody could have done was going to change his opinion as to the value of the case my question is at what time when he makes a statement that is made when the discovery is over he's got a lot ability in his pocket the defense has not one expert witness no one has been deposed his days in the driver's seat now the great southwest talks about apportionment of fault and who's the principal out of the war i think the trial judge was somewhat ticked off that this is that we did not present some argument that there could be some allocation of fault another word some lesser degree you don't have to pay two million you put the exposure was maybe a million going into the trial we thought long and hard about how we could have attempted to do that based on the wreckage there is absolutely no way to of value weight and what the potential value of this case was we demonstrated objectively by the materials in their own claims law that at all times they thought this case was worth with the end their policy limit and that's not even in dispute that's black and white in the record what they failed to do is to get the necessary witnesses to present the defenses to liability that were already conceded to establish their beliefs those will last for ever and i we cited to the that the washington cases washington state cases the course was set and there was nothing we could do to change that course at that point in time our obligation was contractually to come into play to get this case over with the insured in this case if it was fully released why is the insured coming in that says that for their actions you w two million dollars uncontroverted expert testimony lewis that we had an expert take the witness stand on contradicted no expert witness on their part he sets forth every duty how it was violated and how in the opinions of the claims dealing people this case should have resolved within his million dollar  this was a relatively minor accident but this is a fact question that the trial judge sitting near us to sort through that's my problem and it seems like they're facts on both sides that a judgment could have gone either way could have go n your favorite could not have been but getting here on the conservation issues hard for me to see as a matter of what we could say you win because my burden of proof was to show that the cause of the bad faith claim healing practices the case became more burdensome and more costly that's what and that's a fact question that's a fact question and this court reviewing this case as a whole if you're honest can come to the conclusion in opinion that what was done in this case was in furtherance of what the cousin's case the cousins fact is if this court can come to the conclusion that in this case the insurer exercise that degree of skill of judgment of consideration for the welfare of the insured as a skilled professional defender of lawsuits having sol this was a this was an abomination it was an object failure in every sense of the word they took a gamble on the liability this case will never go in they get dollars and stipulate stipulates the liability when that happens i will submit to this court in my humble opinion the policy limit nutcase eliminate you primary carea made that gamble at my expense and now i have to pay for your mistake that's the issue for this court to determine and those i mean give me give me something here that does not demonstrate their bad fa whole concept of subrogation is sure i am the insured when it comes down to legal subrogation bad faith and payment i am standing in the shoes of the insurer i have the insurance you're got released clear error standard of appeal but that means as judge asterix facts stand even if there's two permissible views of the evidence it means the judge afric factual finding stand even if this co provided us the road map on causation this court said are sure i must prove causation this court said that our issue i have a spinet an excess insured subrogated rights must prove the best you can tell judge africom self questioning his witnesses extensively on the underlying case extensively he questioned them on the witnesses the exhibits extensively in addition to it to counsel's arguments about and what he felt of the poor cond questioned by judge africa he testified this case was worth three to four million dollars the fact is he testified for plaintiffs sometimes you just have a good case you have a decent plaintiffs with a bad injury and the evidence here like cetera et cetera town that he would have been able to prove i did the special damages here that it would have been two point seven million dollars that's without regard to general damages of a sympathetic plaintiff in a car jurisdiction who had someone with right out in front of them cause an accident so there are facts in the record supporting a high judgment value to this case it's the medical records it's the expert reports attributing two point seven million dollars in special damages it's mr frazier's testimony it is the testimony of true evers byrd who is the second attorney for american states in the case who testified that regardless of defensive actions this case would have exceeded the primary limit that's a record pages thirty seven fifteen and thirty seven sixteen  several witnesses testified on the side show her and no one really though the one witness that our issue eyes relied on is their own expert someone who wasn't involved in the underlying case someone who is being paid three hundred fifty dollars an hour for his opinions in our federal court case and contrary with our issue eyes brief states his opinion was controverted controverted means disputed he said this could have settled limits michael freesia had first hand knowledge i don't know much what point three hundred fifty dollars an hour cut himself but there's not a single case with similar facts that eliminates the causation acquirement that be making new laws beyond well beyond the louisiana supreme court in great southwest and beyond several i think that the laws of virtually every state we cited the same poll mercury case which were similar facts decided under texas law very much like this case this circuit  arising out of the seven circuit with judge posner he cites a causation requirement is essential in these types of cases in the hemphill case we cited the fifth circuit out of mississippi same requirement causation this is this is a tort are sure i could've put on a different case it could've try to prove some of the conclusory allegations it stated but it didn't it just paid an expert three hundred fifty dollars an hour to to say gas case settlement and what it really what it does what it's intended to do is allow a insured to escape personal liability to release a primary insurer and allow a plaintiff to go strictly against the excess because the louisiana's direct action statute the actual defendant needs to remain in the case as a nominal defendant so what a gasket does it means to face for insured first it means they get a full release for things that are not insured the second thing it means is they get a partial release they remain in the case only as a nominal defendant for purposes of collecting insurance and exhibit one thirteen  does exactly that but the first three sentences of that paragraph one on exhibit one thirteen which is the settlement the seven terms releases the insured releases american states  and then a partial release if you read exhibit one thirteen on its face and you read it together as is required under civil code article twenty fifty then that's a full gasket release right there but the judge afric decided that the action through subrogation that because of this what you're telling us there is not we it's a fantasy we should we wasted our time even discussing it in an opinion and i don't think you wasted your time discussing it and that opinion that opinion is really based on  opinion and he did he heard the testimony from everybody from the two parties that negotiated the agreement and from the american states claim handler who is in charge of ok and all those witnesses testified this was intended to completely release the insured and that i believe was done on february by february nineteenth i believe that that agreement was entered and once  is still seeking coverage from its own next his carrier is still saying i still have the right excess insurance right yes you're right that the two different questions i think it's factually were addressed in two different ways one there's a time gap here this isn't a settlement where everyone signing at the same dad on one day insured is getting a full release from personal exposure i believe it's four or five days later is when the excess enters its settlement when the excess enters its settlement is when it attains whatever rights the insured have has and at that time after there is no personal exposure it stepped in the shoes of an insurer who had no personal exposure thus there was nothing for it to assert against us and that's basic subrogation principles your honor and it's consistent also with the draft release we saw from american states which set out that the release of personal exposure it's consistent with the plaintiff's actions around the time of the are sure settlement it try to enter our issue of light into the case to go straight after it for insurance because the plaintiff knew he couldn't execute a judgment on the plaintiffs i believe mr frazier's testimony was that he added the excess insurer to the case because he didn't want to four million dollar malpractise case on his hands and the reason why he would have had a four million dollars malpractise case on his hands is because he knew he couldn't collect a dime from the insured and insured who is judgment proof or who has no financial exposure has nothing to pass on  and that was the second grounds that supported the opinion it was also fact intensive and he gives case answers that question directly it's a short case coming out of this court but he gives case this court sent it back to the louisiana supreme court to decide that the duty issue great southwest issued and said there's no direct duty from primary to access but you can  came back to the fifth circuit fifth circuit said ok you don't have a direct claim because great southwest said there's no duty now we're looking at your subrogation claim the insured was released at the time of the excess settlement so there is nothing kentucky in the scottsdale case arising out of missouri they don't answer the question that's that city issue here those cases only recognize under kentucky law and missouri law that a cause of action  view of the underlying exhibits from the underlying case and he heard the testimony of all the witnesses involved in that case as well this court has held at the causation determination is fact intensive  council started off by saying that this was fact intensive and there were two komisar bull views of the evidence i disagree there's only one permissible view the only evidence and witnesses presented was that of the plaintiff the defense had nothing so they're not to premise sobel views of the evidence for a trial or a fact two way that that is the basis of this bad faith claim plain and simple number two the duty to defend or actually the obligation of a contract ensuring agreement contract calls for two things surgeon the only one doctor they had didn't get the underlying materials that he needed because it was beyond the discovery cutoff date so it was going to be excluded so he fell apart so oh my god you know that would change in circumstances and they also say they got all of these medicals they came in on the last minute they didn't issue any subpoenas and it had they done so those subpoenas would have had those documents that were readily available to show with the damages w that they were indemnified but the duty to defend is totally missing in this case how can the court the trial court conclude that when liability is basically uncontested stipulated the insurer doesn't even know about it how can the court say that that does not affect the overall value of the case and make it more difficult that legal error clear or call it what you want that is just absurd court's judgment provides no analysis as to what the effect of these multiple breaches head on the overall value of the case yes he relied on the plaintiff attorney who said at the end of the day nothing was going to ridiculous and i mean that's why we called an expert that's why we hired an expert that's why when the court remanded the case we went out and got an expert to basically say what are the duties why are those duties there so that the you know trial judge would have the benefit of that analysis judge afric does not mention that was not mentioned our experts to hit the nail on the head if the duty of an excess kariya is going to be primarily if a gas case settlement at the end of the day after all sins are committed it mysteriously wipes away any bad faith claim that the excess is a primary carea and his premiums are going to reflect that they made it a point in a brief to say we had ten thousand dollars for the million and coverage they had fourteen thousand dollars premium for one million the reason i is because ninety eight percent of the cases are going to settle within that that primary limit that is the reason they have the duty to defend the case knowing that all of the cost expense you also have the right to monitor done on his case if we have not proved bad faith i don't know what else we could die please tell be so i can tell my client the next time this happens this is what the court says we have to do