it please the court counsel morning my name is jason orleans i represent acuity a mutual insurance company the apple lanton this matter when a commercial insurance insurer such as acute insurance is presented with a catastrophic trucking loss which occurred involving its insured rex l c which is a missouri l l c it's good judgment for the insurance company to surrender its policy limits in the court by way of federal statutory inner pleader this abides by the insurance contract to pay up to the policy limit damages for claims asserted against the insured the insurer here acuity attempted in the district court to equitably deposit insurance proceeds and pay multiple claims against multiple parties against a single fun that process was encumbered and disrupted by the subjective claim of the claimant against the funds a claim against the funds the genes that the policy limit stacks to provide something more than a million dollars the face value of policy the most at most that assertion which is not supported by missouri law in other words a liability policy may stack by the number of  in this case trucks under the policy triggers the equable powers of the district court to render a proper ruling as to the amount of the fund and to simply disperse it pursuant to the actual powers under the statute that was not done here and i stand before your honor's request that that be corrected it's a privilege to address this issue because in the vast amount of cases that we've reviewed we don't see a case that addresses a incoherent claim of stacking over the insurance policy limit and the interplay that has with the federal statutory in or clear the district court erred when it allowed the  you're saying you want us to decide the stacking issues that one of the things here your honor as a judge a judge that's what it sounds like from what you just said what we're asking for is the to reverse the court's october thirtieth twenty seventeen order that that the client to exercise subject matter jurisdiction over the phone the court did that the lower court did that without taking a peek behind the curtain to see whether the stacking claim had any m untitled and obligated to do that pursuant to cycle powers so you think the appropriate procedure would be to reach and decide that the stacking question or i believe that the court has determined against you court the district court has to deem the amount of the fund that's deposited proper that's on the face of thirteen thirty five eighty two so by deeming the fun proper of the court has to be for divest itself of jurisdiction the court had jurisdiction subject matter jurisdiction had ordered and grant the deposit of a million dollar policy proceeds that the face of the policy the court then without determining the merit of the stacking claim simply accepted it at face value and did not determine whether that claim is proper the face of the statute says the court must accept what is deemed proper in kohei claim under the case law of some speculative nature cannot disrupt the subject matter jurisdiction of the court so yes i believe the district court ought to have looked at the the merit of the stacking claim to determine whether it had subject matter jurisdiction and ruled in october thirtieth of twenty seventeen on the substantive issue the cases i'm sorry judge and if that's joint yes if it were to determine the stacking did apply and it was twenty one million  dollars you would only deposited one at that point it has no jurisdiction that would that would that would be the case but the court never reached that decision the courts are police and blindly accepted that you have to pay whatever is claimed i'm just asking sure c j you think is appropriate i believe that would have been appropriate and then if the if you either have to deposit the twenty one million or there's no jurisdiction correct what about and i don't think anybody cited this case but a stakeholder may not compel a party to litigate his claim in the inner pleader unless he deposits with the court an amount equal to the sum claimed by that party i would suggest your honor that that is similar to a an amount claimed within a fund so in other words if there is a legal authority for the claim itself there's a difference between the amount claimed to be the fund versus the amount of the that the claimant has to the fund or as part of the fund big and that i would say is a stench and that's a very important one because the district court could have and ought to have not case and just looked at the amount of the claim to be the fund stacking claim which has no basis in the zuri law which is which governs the policy and said i don't have subject matter jurisdiction so the claim against the fund is  what's what should be deposited but not some amorphous claim as to what they believe they being the genes believe the fund ought to be they have a claim within the phone but the funds a million dollars and so the court should have picked behind the curtain and done what the especial spray case suggests and that  is to inquire into the underlying merits of the claim to determine the proper amount to be deposited and if the underlying merit of the claim the stacking claim in other words has no merit under missouri law because there isn't a case in missouri that applies stacking to a liability policy that schedules multiple units or multiple vehicles when the court should have exercised its equitable power either pursuant to the inner pleader or pursuant to the supplemental pleading that we to have to get over here is before we get to any of that is that the insurance company voluntarily dismissed the interplay or came to the court did your honor the court did right i mean it wasn't volunteer it was voluntary but why's that even you know that that was was made not to pursue it any further why would why do we need to be concerned about it because your honor the the court basically of a if a final appealable order and in fact all orders of the court were rendered final an appeal will win the court in march of twenty eighteen i believe it's march ninth order of twenty eighteen determined that it would dismiss the case allow a cutie to dismiss the case to render all of its prior decisions appealable and hold on to the million dollars deposit with the court so does the lower court acknowledged that essentially although acuity would be voluntarily dismissing the case the voluntary dismissal should be accepted as a kin to a final decision evolve an involuntary dismissal because of the situation that the court was the was placed the q he was placed in and i'll just add and i see i'm getting into some of my rebuttal time that the finding of a lack of subject matter jurisdiction is a kin to a finding as a matter of law it is a finding as a matter of law which is akin to a summary judgment so that finding is really the essence of what we're feeling that the court lacks subject matter jurisdiction and this court has jurisdiction to correct what we feel was that era that the court lower court lacks subject matter jurisdiction and the court need not get into that in the issue if the declarator missouri law so your position is that the court gave you no choice but the court didn't the court didn't say it was going to grant the motion to dismiss that it may have but it really really just granted leave for you to take this action or to increase the amount deposited at you at the insurance companies choice why not why is that situation dismissed their player i don't think it said it would have said it matt it said it may but that's really the practical effect is is of is an involuntary dismissal it's in its commercial you on reasonable we have to look at certainly what's reasonable and what's not cutie to pay twenty one million dollars without looking at whether the claim that the fund is twenty seven when dollars has any merit and has no merit and under missouri law so it was really forcing law that we've cited which is the hayward case is if a count is threatened to be dismissed that's akin to an involuntary dismissal and the may language by the court said if you  as to what the policy limit is they would have then obviously reef base of the reformed missouri contract to their benefit but there would be no need for the interplay here and the case would simply proceed the underlying action by the genes pending in williamson county and and any other claims against the fun there would be no risk of double vexation one perplexing thing about the underlying the lower court's order of october thirtieth twenty seventeen as the court makes a finding that there is double vexation that there is but judy has the risk of multiple claims against a limited fund your honour's have the the authority now to undo that inconsistency if there's double vexation isn't the court then taking a peek behind the myriad of the stacking claim if the fund has twenty one million dollars then there's should then even by the genes own admission there's no risk of double vexation but if a fund is a million dollars which is stated in the contract there's no risk of double vexation that is an inherent inconsistency in the lower court's order they were asking to be reversed if the court is inclined to do so we don't have to get into the personal jurisdiction the more esoteric claim it's a very interesting issue but it's not necessarily doesn't have to be reached as to whether the genes have purposely availed themselves of missouri you for giving us the opportunity to present our position here i want to address three issues this morning time committee first is the genes position that acuity has waived the right to appeal the subject matter issue two if there is no waiver there is no subject matter of jurisdiction because they did not plead the full amount of the disputed claim into court and three if there is subject matter jurisdiction i'm sorry if there is no subject matter jurisdiction then there is no personal jurisdiction on the missouri in or plead our cause of action waiver first the rule is the majority rule is that's right and that's the hayward case and i think that decision though if you look at hayward what happened there the judge was very shall we say assertive and said plaintiff you need to was really given what was put between a rock and a hard place in representing his client if he replayed on he knew it was going to be dismissed that first comes in the futility of repeating so that in effect acts as an involuntary  missal in that case contrast that with what happened here and our case in our case judge fly sic in a written order  you have not perfected subject matter jurisdiction because you have not enter played the full twenty one million dollars that is claimed to be the funded issue so acuity you've got a choice  the per the subject matter jurisdiction perfected by ever pleading an additional twenty million dollars in court or you can dismiss your case and i will give you two weeks i think she entered the order on october one but are they between a rock and a hard place at that point time they have to in order to maintain that count they have to deposit the twenty pre clear they need to deposit twenty one million dollars that's right and when counsel contrary to their position that is correct but it's also consistent with the case law that says the four amount of the fund has to be deposited you can't compel a plaintiff to participate in a defendant i'm not used to being  that there would be no subject matter jurisdiction of the full amount is claimed by the underlined plaintiff so to speak isn't a positive and i just don't find any language and thirteen thirty five the that's leads me to basis do the cases in that subject matter jurisdiction here's why if you're my opinion here's what i think the policy is behind that development and the law it is to prevent what a cutie is trying to do cutie is trying to terminate a coverage issue by running to the courthouse and in her pleading less than what it knows is the claim them out that's evidence by what they did here they f unusual they filed a deck action same that the policy doesn't stack so they're aware that that policy is there when they talk when the cutie talks about it's not commercially reasonable i hear that's not financially reasonable why do we want to pay an additional twenty twenty million dollars in the court why not take the chance where we only have to let a million dollars out not right this yes why wouldn't the third circuit's coach make a little bit more sense given that there's not sort of clear language in the statute take a little peek decide the stacking issue then complex drawn out litigation which the stacking issue is it's a complex issue but it could put this policy clearly steps under illinois which will be the law that governs first dispute a cuties policies have been stacked in illinois favorable venue that they choose to see what two and a happen that's what they're trying to do they're trying to get a test opinion about whether it's a million or twenty one million when you enter a plea you've got to relinquish control of the funds so your argument is what they should have done is no winner pleader at all go fight it yesterday when stacking yes in illinois that's it exactly yes or how they choose to do that they more or less waive the issue is that well the purpose of what they're trying to do with the other player is cut that dispute off they're trying to prevent the genes from arguing that disappointing one million dollar limit it's only a million dollars and so if you're going to enter a plea do you got to relinquish control of the full point about if you don't relinquish it you can't argue you can't force us well as i understand his argument today may be different than what it was below it's that the court should take a peek at the question decide whether stacking applies may not be the form you want to be but at least it gets litigated and then if it's twenty one million they deposit twenty one million or they're done i think that yeah but they won't deposit twenty one million at that point in time because it's not commercially reasonable that time they'll dismiss it and they'll take another shot at litigated in another form that's what i'm saying is they're trying to in round in a clear direction to get a sneak peek pe behind the cover to see whether or stacks that's not permissible within a plate or you don't get to test whether a policy stacks in an inner plate or action you can't you can't bootstrap a deck action onto or action the very fact that they did that shows that they know that there is a legitimate dispute as to the amount of the fund and it's clear from the case law that you i'm not ascribing any evil motive to that that's probably good warriors but they can't they can't next our claim on stacking by doing what they're doing take the action that they did but but unlike a word they were given a choice and they chose a course of action they were they were told you don't have we don't i don't think we judge why success i don't think i and i know i'm buttering the name cited in both briefs where there was an inner pleader action filed by the stakeholder claims were made  counterclaim for made against a stakeholder for claims that would not be covered by the find was the i had not paid that into pay that case paid the money into the court registry remained of the case so that and ordered them to pay that into court so that it's not like they were it's not like they didn't have a choice they made a financial decision not to cut loose with an additional twenty million dollars but they made a choice that would have waived the issue right if they would have deposited the twenty one million there given up the if yes that's that kind of a ho that the court said i don't have jurisdiction your choices are deposits when one are dismissed i don't know the i don't know what the district court would have done on that i have to  this kind of litigation a lot mostly in illinois i have never seen an order like that in or i mean there are sanctions from the ascribes an element of bad faith we are telling the district court is going to sanction somebody for making sure they preserve an issue for appeal that's what they would have done that's what they needed to do they waived it so what should they have done in your view either in pending that issue if we want to take a look behind the cover and see whether stacks that's how it should have been done i think that's how it is done typically in the jurisdictions i mainly practice at ok because earlier you told me that the court had they deposited twenty one million could not look at the questions that well that that that is my position when on this but i was asked how what how they should've reacted to that and i think that's how they could have reacted to that and still preserve their issue for appeal it's not an easy choice but it is a choice what is it what if i had done nothing in response to this order at yes and i think that would have if they would allow the court to in voluntarily dismiss in pill war i'm not arguing waiver but they chose a course of action for voluntarily dismissed to walk away from it and then try and litigate in missouri the stacking issue they added when they added a second count under missouri law under that the court order judgements action missouri and which clearly the genes are not subject to per my third argument the genes are not subject to personal jurisdiction in missouri there are no ties to this far as i know they've never set foot in the state the only argument for any contact with the state is the expression of an interest in the insurance contract issued by a wisconsin insurance company to a missouri resident for an accident that happened in illinois i do not aware of any cases that hold that is even remotely close to be insufficient contacts now with the federal enter pleader that becomes an issue because much to my surprise when we start when we were confronted with this you know we're all we're all taught complete diversity so yes the core or federal federal question the federal in are played are has white minimal diversity as long as two of the parties to the adverse claimants are diverse our diverse jurisich a personal jurisdiction life that surprised me but that's the law but and so one step in or plead or count was dismissed there is no jurisdiction over the genes so that i know i kind of rambled and went back and forth this is a very unusual very same issue filed in illinois issues will be the same as they would have been and misery yes and even if we let again the in the eastern just treat there's going to be a choice of law issues to decide because i think the choice of laws issues will favor application of illinois law none of that's been addressed  well there was all this may not be important now but i feel compelled to so hit the part of my motion to dismiss for lack of subject matter jurisdiction personal jurisdiction in the alternative was to ask for a transfer to the transfer venue to the southern district of illinois that's in advance or of wasn't ruled on i guess what it did need to be addressed given the the order of dismissal well thank you action there's a choice that is made as to what's the most appropriate venue and jurisdiction that's not form shopping that simply making an educated choice in the most appropriate venue in which the final action here acuity chose the most appropriate venue and jurisdiction the issue that was mr prince reference that was teed up was teed up in response to our filing the inner pleader here in the eastern discriminatory we filed this action in the lower court under summer thirtieth tw mr prince filed his personal injury and wrongful death suit williamson county and unconventionally did so and included in count nine of a personal injury case in a state that's not a direct action state account against  declaratory judgment the policy stacks that that's the enron that's actually the pot calling the kettle black as far as forum shopping goes mr prince went out and filed a declaratory judgment and said you know what judge williams county you can decide this issue and usurp the authority of the eastern district court or your honour's on appeal and that's what he would like so that's the revelation of forum shopping acuity filed this action to protect both claimants against the policy and to protect its insured which is located in missouri where the contract was issued under which state's law is presumptively going to apply and what the genes have done is gone out through their counsel and said you know what we've made in the sussman against this policy and we believe it stacks and we believe that that should be decided in illinois which is inappropriate inappropriate reaction to where the underlying it and then invite a dispute over over a pleading that the court has already warned is is not going to stand unless you deposit twenty one million dollars and rather than risk waiving the subject matter jurisdiction or the stacking issue so we took the most conservative route in discretion to the judge judge fly said we said look we're going to dismiss the claim voluntarily but that's akin to an involuntary dismissal and we don't really have to get hung up on that because ultimately what the court did when it terminated the case because it did it it ruled that didn't have personal jurisdiction over the declaratory judgment action which we invited the court to do again the district court had the opportunity it was cute up in the prior decisions including simply the finding that it lacks subject matter jurisdiction unless twenty one million dollars that incoherent claim to the insurance policy fund is deposited i'm going to dismiss the case i'd like to just end because see that my time is almost up with just a brief statement about what the significance of the jeans claim is and if any claimant to an insurance fund and vis aerated and the contract that was bargained for between the insured and insurer is rendered essentially invalid i want to thank your honour's for your time we're asking that your honour's reversed the  deposit of a million dollars was sufficient where and when would they have the ability to raise their argument that stacking applies and should be twenty one million in their answer to the airport or complaint so that would be taken up by the district  could then take up that issue and decide on the merits whether it has subject matter jurisdiction or what the fungus but the court can't just accept blindly that any claim to the fund or any claim that the contrary to what the policy was written to