which frustrates the reasonable expectations of any lawyer in med best position as well as violating colorado law and the expectations that colorado consumers and insurance regulators ha liability insurance company what happened here is that there were claims asserted against the law firm by a class action plaintiffs that were inextricably intertwined and based upon your investigation in bad faith evans then stood on this distinction without a difference between the two matters one was not yet reduced to a formal complaint while the other one was  moreover after defending and settling the class action lawsuit for a nuisance amount of sixteen thousand dollars and then at the last second when a draft complaint was finally submitted and the a g action finally agreeing to defend under a reservation of rights there everson turns around in the very next day seeks to recover the costs of the defense in the class action lawsuit against mr mad that arguing principally know an obvious distinction between the situation with their bed to last in which there were claims in both matters that may be inextricably intertwined here or in the eighty's investigation all you have is a request for information court here in colorado in federal court that say that also includes asserting affirmative claims on behalf of the insurer counterclaims third party plant whatever's reasonable and necessary to defeat liability that falls within investigation and you know that claim is going to come because the agencies asserting those claims yes other mortgage law firms like the tahoe law firm and so to stand on that formality in the in the broad context we have here that not subpoenas would prove the claim of the defense obligation under the policy i give my argument would be in that context your honor that at the very least the insurance company's adjuster should investigate the facts been the subpoena alone in the a g investigation there would have been no duty to the stand in my reading between the lines correctly well i think your honor in the in the context of strictly reading  investigating began to prepare to protect the insurance liability you may not know and that circumstances absent the thought a lawsuit exactly what the agency's action is going to say but you also know that these other law firms are back in the foreclosure process that's a professional service ad were a number of the other things that meant the mel gibson was doing here like selecting posting companies deciding on the appropriate title policy all these things involve legal judgment and shouldn't be charging fees or costs that are exorbitant and would also like violate the law so that aspect of it certainly does but again we wouldn't have this lawsuit if there was recover damages costs from third parties that made bets clients complaining about the amount of the bill or that the the amounts were incorrect if the third party you turn in general and these borrowers who are saying that these practices that there's a wrongful act in conducting professional services there's this broadening languages by reason of or you know if you will writing out of it just needs i resolve this i never will still act in the performance or failure to perform when it actually became a claim would have to fall within each and everyone of those before there could be any duty to defend and if there's no duty to defend there can be no duty to indemnify so that's where we would start investigations are even more less than complete and if the agency doing the investigation never makes a written demand for money damages the note there is never a claim there's a very easy way around that and we see it in or the attorney general and i want to tender this to my insurance company but they said there's no client written for me and for money damages and an e mail comes out within thirty seconds saying we demand payment of you have a cl one way to read the policy correct me if i'm wrong is that once a claim is made that some of the expenses have been incurred prior to that investigatory expenses might be reversible assuming there's there's accept a defense under reservation of right or excepted coverage but here for example you have that a g complained it served in january of two thousand and thirteen mr med clearly didn't think it was a claim under his evanston policy because he didn't ask evanston to do anything about it until after the donna lawsuit gets filed in september october so he sat on it for months incurred expenses responding to that subpoena without ever giving evanston any opportunity to so we would ask the court not to consider the evidence that was not properly before the district court and we would ask the court not to consider this new argument that came up in the appellate brief for the first time that oh this is professional services because we were trying to p client lender's rights to recover that's not argument i was not involved at the summary judgment stage but i went and scrutinized the records when i realized i was going to be here talking to you this morning about the appeal  thing in district court or here was if there is any written demand for money damages for example if the attorney general ever asks you for money or offer  trying to or so or at least they said they were trying to provide evidence to show that there was a claim that would trigger coverage so i believe there is adequate information out there for mr med dead or his  counsel to know and we should send these e mails over because they're saying they need to complain to about it is true you have to evaluate a complaint to go forward but they simply never got to the point of sending a complaint or even a cla and then say you have a claim you don't trigger any of that predominately mental rather than physical labor which was discussed a little bit earlier that's the one where it was doctors and they were submitting fraudulent billing to medicare and medicaid and when they got to they tried to they sought insurance coverage from zurich and they said well if this wasn't really about billing this was about we didn't provide the nursing services and this court said oh no this is about the bills you submitted and bills are not professional services and if you want something that's directly from business things like having a secretary or hiring staff or business expenses those are not professional services they're not incidents of professional services they are incidental to maintain so i think we fall within the cohen category to judge these are incidental to collecting amounts which were for the mid bed firm that were going to be paid by the client or by the the homeowner  costs that a law firm incurs them you know filing fees for their complaint and things like that i don't say they're simply billing the wrong amounts but it's not part of the professional doesn't require professional judgment it doesn't require occasion it's not services as a lawyer it's a lawyer seeking to get paid and then the fact that those costs may be passed on to a homeowner seeking to cure