welcome students from university of pittsburgh law school so welcome again i represent a compass insurance company and compass insurance company filed a action for contribution in this case we know the facts we list would just jump right in ok we've got it we have it it's a little margin bigger here on the in terms of the interplay of the to sort of remov remaining statute provides that a form defendant on cannot remove a case from state court and i understand that there is an additional requirement that that defendant must be properly joined and served could i might agree with you that it seems like an anomalous result but i mean it may just be under ten consequence of a statute that was meant to kind of cure something else which i think we sort of all can agree on in terms of on whether that's an anomalous resolve or not well but there's a difference absurd i don't know whether it's absurd i mean you know i'm so it is a pretty high standard it may not be the result the congress wanted or intended it's even if it's true that this was not something that congress the super committee had in mind and we were to assume that just because language sweeps broader than congress made it tended doesn't mean that what it sweeps in is not within the plain language right it's possible that it's not within the plain language but it would be our position here that the result when you look at the result it is something that is not what the  that somehow the court was exercising subject managers diction it couldn't have if you brought the case in the first instance that's current federal work yeah that being the case even if it were true even if it were true that the denial of remey on was an error the court at that point was acting within juror jurisdiction that it had was and it was acting with matter does it actually matter in this case whether the form defendant rule was correctly applied or not because even if it was incorrectly applied the district were was in a position to render a decision that was within its mansion in this case is a joint tortfeasor and the case law that has inter pennsylvania case law that is and perforated the contribution statute says it doesn't matter what the what the underlying reason why there are joint court fees are you right of contribution wouldn't wouldn't if this were the case the the position you've taken that you can actually as the insurer for the toward fees or settle case wouldn't we expect to see some case law out there someplace in the country but including in pennsylvania that supported this or showed that this kind of thing it happened before because i didn't see anything in your briefing on that like this is themes to be the first time anybody's ever said it and am i wrong about that is or is their case so we're somebody has done what  fact encompass is trying to do here before we were not able to locate any specific case law with respect to the dram shop act but there is case law out there with respect to other arm ways that you can help simply  but their point and still manage site is you can't do you can't do this because a dram shop doesn't let you do this and indeed there's no case law out there were somebody has done this before which makes me wonder if stone mansion doesn't have a point because if in fact you could do what you're trying to do here in the decades and decades that the dram shop has been around and joint tort fees or liability is that around would somebody have done this before i think we need to go back to the statute and what the statute permits you to do and the statute for contribution is clear that the right of contribution amongst joint court fees are exist if we go to the definition of join that is true but we will need to prove damages we only need to prove the damages and that the settlement was the damages suffered by why in this case it's not something that we wouldn't have to prove damages so that they're stuck with our value it could be it could be both our position would be that a by the time this reaches a jury because of other factors in the case that the damage george orwell would access a six hundred thousand dollars so we think the defendant will stipulate as to the amount of damage but if they don't then we'll have to prove damages and percentage is for both parties of the responsibility i have a i've a case sevenths versus lin tool company i don't know if you're familiar with it belong wise with the judge short it was saying it deals with you kata if i m yeah i guess that's what it is you see a t m a but it deals with with joint tortfeasor is it says it matters not on which theory tortfeasor has been held responsible for the tort committed against the plaintiff is that something that would be good for your side and i would think it would be right yes and we said that marbury ok right it doesn't matter what's theory the tortfeasor is responsible to poyet in this case to the injured party right and of the the defendant in this matter seems to be taking the position of we don't have an independent right to recover under the dram shop out that's not what we're saying well i thought their position was in the position the schwab had taken was not that you have to have some independent right under the graham shop act but that the dram shop act acts as a limitation it's a competing statute in tension with the sort of broad reading of you kind of that you make that you're advancing is it possible the statute in a specific arena like liquor sales could be framed in a way to limit a broader statute like the uniform contribution of the towards users that isn't it possible that a specific a more specific statute can deal act as a brake or a limitation on a more general staff i think that the possibility could exist but keep in mind here that the case that we're brought that case you did you tried to bring that case in the litigation that we did bring in were denied the opportunity because you were out of time you were too late you were not timely  started and we tried to join the bar at that point in time and judge why did the night our motion to join the bar now our understanding of his decision is you can pursue this by way of contribution after you settle the case but it's too late to join them at this point in the liver geisha too late because of this that's the limitations no too late because too much had happened it and the case and and you can't bring them in this late in the game because  occurred so there there implication that it's that sort of limitations issue is in play is inaccurate because i took that to be implied in what they were saying is that you face the stage when you're saying it wasn't is that you impatiens it was a matter of discretion with that trial where because when the motion was filed it was beyond the statute of limitations but the motion was based on the discovery rule because they defend it in that case didn't have an opportunity to discover who the who the bar was until they got that information through the course of the and we were prompt and trying to join the bar at that point in time so our understanding of judge what its opinion on that issue is is that although you might have a cause of action for contribution against that and i'm not matter if the end of the day well it hadn't compass originally filed suit the court clearly would have had jurisdiction but it's in compass his position that that because they filed suit in state court that was their chosen venue and the over to counsel rather than reaching a resolution we talk to counsel we said what will your client accept service or should we have them served they were not served as a result of his agreement that sub service an agreement picks up service by way of electronic pennsylvania you can follow me acceptance of service or you can be served by cheryl was in acceptance of service file it was not take it in the form you file suit so a little context is required here your honor by the time encompass filing suit against don't mention some six years or so after the event start mansion was out of business when opposing counsel contacted me and we first began to speak about this case my client still existed still does exist on the books of the commonwealth of pennsylvania department of state but it had no physical location i any business and could not have been found they would not have been able to have obtained sheriff service on stone mansion so the agreement that i made consistent with the long traditions that we practice under here in allegheny county was one of convenience and cooperation to count so to allow him to avoid having to beat his head against the wall if you'll excuse the expression to obtain service that he couldn't find if you we finally said if you'd said to counsel hey mike mike i'll take this and accept service but i'm removing this case do you think that would have  resulted in them just say oh no you don't exist there's no way for us to serve you except by agreement with you were or do you think they would have been motivated to find some other way to affect service the only response that i can give to that your honor is we never discussed jurisdiction and i was never asked to waive what might otherwise be a means by which to remove the case my understanding of my ethical obligations is to always be cooperative and professionally courteous but when that crosses the line to impacting my client's substantive rights i am required by my duty to my client to exercise those rights and so we were expecting this complaint that we knew that it was coming fake or we did not that way again that was never discussed we didn't know where they would file we knew that there was diversity of citizenship and said when we first learned that the action had in fact been filed and before accepting service which again respectfully i did do once this case was lodged in the federal court we looked at the case law in this district in the western district and we saw the opinion from the chief judge in western in the western district supported by judge to put out in the middle district which you didn't which focused on that language in the form defendant's statute which says properly joining and serve and there was forgive me for using the the same arguments that were made to the district court would have been made in state court of this contribution action address in the point that you made to my opponent regarding the effort to joining that stone mansion in the underlying holy action we would have raised exactly the same issues dare you to the panel is correct an attorney got through just correct the judge whether it was the plaintiff it was wholly who objected to me bringing the stone mansion into the question was that it matters not on which theory the defendant is liable not respectful response to that is the theory has to be one which is called nice simple and that's where this case  recovering part of what with the benefit to the victim so how how can it be that they are not within this pope of the people to be protected by the dram shop act if what they are trying to do is get money or contribution associated with pain to the victim judge gordon they do not contend that they stand and how we choose rate several times in their brief if one looks to their complaint the document on which the motion to dismiss was based there are two places forgive me i don't have the paragraph numbers available to cite to you but there are two specific places in their complaint and begin their brief in opposition to the motion to dismiss where encompass action is essentially light subrogation ray and when i signed that i felt a need to correct it because it isn't is there is there not to run too hard with this analogy but are people allowed to change shoes and they're standing in the shoes of their insured when they negotiate with ploy and make it feel but having made the deal with or had paid or are they then in the ice of the law stepping out of view on these issues and into horse shoes entitled to have you the wrongdoer the joint court fees or now contribute to to make in that right because we took care of that problem and we bore the burden for hoyo so we are we could have she could have but she chose not to and that was why i responded to the question by saying stone mission didn't have a problem how we did not sue them and the reason why they can't do what you have suggested judge gordon is because of the first sentence a section for dash for ninety seven you were correct in your questioning of attorney gutteridge when he said isn't this a limiting statute section four for ninety seven doesn't create a civil cause of action in fact limits one there is now what one might expect that when you hear the term dram shop back then you would see a section a section that says in the event of visibly into executed person who served then claim to be brought against the liquor license see that's  way it's face and that's not why we filed our motion to dismiss this statute says no license it begins no licensee shall be liable that tells you right in the very first clause in various phrases of the test that this is a limiting begins by saying no licensee may be liable and the next phrase to forgive me if i don't have the exact quote to shoot very persons for damages inflicted upon them and it is the that the critical distinction in this case is that in paragraph seventeen of their complaint and compassed contends that service of the visibly intoxicated person entitles them to contribution with respect to all damages and we disagree with that we believe that the fundamental or the critical two words in this statute are upon them couldn't it couldn't be fairly read their complaint to say we're entitled to contribution because of the damages and put it on clearly held that in order to be liable under the dram shop act you have to be in the category of people whom that act was intended to protect i'm with you i understand that i guess this is the here's the logical con feel like the parties to have put just schwaben us in you say insurers are not in that category they say we're not we're we're not claiming a right to collect from you on some long done to us directly we're making a claim not under the dram shop act we're saying you were liable you had a liability you had an exposure we removed that exposure and under the uniform contribution among t which is no limiting language and it all we're entitled to come out the and there's nothing in you caught of that says he it only works against these kind of claims that works against all kind of claims so you had an exposure we took care of it we're entitled to come and say help pay up now is the difference i'm having problems because you say they're not within the scope of people to whom the dram shop act would allow cognize billy but they are not claiming to be that they're claiming she was within that they paid her off the court that you caught it gives them the right so you know how how we going to square that circle you guys seem to be passing each other in the night here by referring to and forgive me i don't need to repeat it by referring you back insurer does slide right down into the shoes of the of the party who has been damaged of the party has had to pay money in a contribution action based not on contract but on statute that doesn't happen and finally judge i see that the yellow light is on i would respectfully steer the court back to the question you asked of opposing counsel if you can do this why hasn't anyone done it before and i say this carefully because i know i have a jury box full of federal clerks you can fact check me  exactly what i did was i plugged the term for dash for ninety seven into into the lexus and i searched it in a field of all pennsylvania and third circuit cases it came up with between seventy and eighty cases the vast majority were people in  position victims who had who had sued the bar for their own damages there were some that were insurance coverage cases there were some that were licensing cases but we did not find one reported case that has ever involved a claim for contribution by an insurer which chose to settle a claim against its tortfeasor they were of course only doing their duty they were protecting their insured they are not in the category of people to whom the statute refers for that reason we respectfully contend that the district court did not commit error the result of this court should be to affirm and if i may finally i agree with the court there was unquestionably subject matter jurisdiction so even if you find that the remained was improper there was to make this ruling and a disposition that since this case back to be really to gated in federal court it's usually in state court under the exact same arguments that have now been argued to maturity here we don't think would make sense if if  exposed we would be exposed to the potential of a direct claim filed by ms helen but if this contribution claim had been filed in state court and would be opposing it it is with exactly the same marks it was in the course of litigation  specific finding by a court we're only required to make a contribution when the legal basis for the claim that our client is a tortfeasor is cognizable and because we are not the dam who excuse me because  recovery before you can apply that law are you saying that if the state court action the ms brought had been against stone mansion as well as against have jani and encompass had succeeded in being a part of that case that is joining in its own right and saying we're we're standing in the shoes of you honey now we're toward fees are still mans these are we have a right if we end up whatever happens here we have a right of contribution against the only option you're saying that that the state court would have thrown that out and said no no no you don't you can't make that claim in this suit we certainly would have been making exactly the same argument that was made in the district court and that we make here today that that even though in that instance the hypothetical i'm posing to you you're in the suit they're in the suit you're clearly joint tortfeasor as you'd be saying we don't encompass can't make that claim because somehow what i mean isn't that the classic example of that is what we're saying but more importantly that's not what happened that's not because that's true for you but i know that's not the case before us but the logical conclusion from what you're saying is is that that couldn't have happened either and i'm wondering that mean when i say that could have happened  that there couldn't have been a legal claim in the kind of context i've just described that that is your position our position would be that an insurance company which insures a negligent operator of a motor vehicle and makes a decision to devyani had made a claim for contribution against you you could say you have no claim you've got no claim even though you're your insurer in compass is prepared to make a settlement we owe nothing you can't make a claim our position would be that stone mansion is potentially liable on a direct plain by the injured party the first phrase of four for ninety seven says the statute seeks to protect and if not protected then the cause of action does not exist ok thank you clear on or so i'm i'd like to answer the question that you just opposed to opposing counsel i think that's likely the reason that you don't see this develop in the case law on a regular basis is because the  negligence ports piece are and the bar are together in the lawsuit and they just see contribution from one another and then the jury works out the percentages of liability and that goes to  forth in our brief the contribution claim the case in the case they have to prove the claim that hoyer was making they've never made a claim for damages suffered to vivi on here you have a series of points as put it pointed numerous times to paragraph a motion for reconsideration and reaffirm that to the district court to make sure that it was absolutely clear that this was not a claim under the grandchild fact that this was a claim for contribution unless the panel has anything further for me i'll conclude that's all we have counsel thank you we'll take the case under advi