good morning may it please the court bruce moore i represent mr coleman and helen frazier who's the trustee of the bankruptcy of donald hateley who's one of the individuals that had the judgment entered against them in the state court case i couldn't frame the issue better than the last statement made in the responding brief by the insurance company in this case then by asking if this last statement in the first statement in their conclusion is true coleman and frazier are seeking prejudgment interest on a cupboard judgment issued in two thousand and four that's what they've convinced judge panel we were doing and that's what i'm here to to basically ask you to rule the judge painter and the insurance company are absolutely correct it's an it's a it's a key issue in the case and it springs from the actual language in the insurance contract because the insurance contract basically puts together a bushel of things that cannot exceed five million dollars in liability by the insurance company included in that bushel of things is defense cos settlements awards judgments which are defined within the parentheses as including prejudgment interest and post judgment interest on covered judgments in time the term is used to cover judgment can only be that term can only be used meaning that it's a judgment against an insurer that is covered by insurance policy that's the only thing that covered judgment can mean the insurance company wants you to not make a distinction between a cover judgment and a judgment against them that they want to look at all in one and we've cited you all the cases that talk about no these are completely different things and judge panel made the right call when it came to sell tech he looked at the bushel but he misinterpreted our part  part of the bushel that cannot exceed we don't argue that there are liability does not exceed five million dollars we don't we don't argue that at all that bushel existed in two thousand and four all right within that bushel was the defense costs of celtic within that bushel was the cupboard judgments including all prejudgment interest and all post judgment interest and that bushel could not be overloaded to include more than five million dollars the curator who covered joe's against cold the cover judgment is against hateley and carpenter the to defend a take it was obtained by coleman and fraser is in it because hate leave the defendant filed bankruptcy and coleman acquired her her interest to go after the insurance company for hate that this was a cover judgment you've got to pay so the issue is they try to convince you and you apparently were able to convince judge banner that they have expressed language within their contract that constitutes an agreement between the insurance company and the insurer that takes out a play over s eighty two which is the nine percent interest on the state court but there is no such agreement in there there is no interest language within this insurance policy that  said i is an insurance company promise i will pay for that bushel on the date it becomes due and i breach my agreement to you that i'm going to i'm supposed to pay for that bushel and i want to breach that agreement to you your agreeing with me that i get to use your money for ten years without paying you any money no interest i get the benefit that the full ten years that's based and the insurance company tells you that's expressed in the contract it's not express in the contract the contract itself refers to your going to put the cover judgment into the bushel and it's going to the extent you got pre judgment interest in posted interest and it takes beyond it overflows the bushel why not pay and we agree with that but when the bushel is defined it's a totally separate case the first case colman going after those two defendants that first case is a case on fraud it's a case on breach of duty it's tort cases it came to an end in two thousand and four there was no prejudgment interest awarded on that forty million dollars judgment there was none there was post judgment interest awarded at nine percent but nine percent on forty million dollars is four million dollars a year over twelve years we'd be sitting here asking you for fifty million dollars i agree the cases say you know you can't get fifty million dollars by taking your total judgement because all we agreed to pay was the bushel the five million dollars that set in two thousand and four the insurance company sits on the money for twelve months and then walks in you read or read our contract your honour's we we don't owe them nine percent interest on this look at six press in the contract it is not express in the contract you are seeking a judgment against the insurance company for not paying the cover judgment yes that's what this case is t and if you look at it in the first case the cover judgment resulted as a result of the actions of the insurance and the insurance other defendants the second case this one that was in federal court was suing the current search company saying good going to your honor's may it please the court and counsel don birth representing a national union in light of the specific language of the national union policy the district court adopted the reasoning of the  buckhannon case which he cited extensively in our pleadings stating that for parties to an insurance contract can agree to limit the amount of pre judgment interest recoverable as judge panel or even though the action is now being brought by a third party claimant to enforce a judgment its recovery is limited by the policy provisions agreed to by the parties at the time they entered into the contract that is the insurance agreement and that would be sell tack and national union any judgement achieved by coleman and parties to the contract if you look at the language of the policy where it talks about loss as mr moore suggested it talks about damages settlements judgments including pre and post judgment on covered damages uncovered judgments uncovered judgments scuse me are and this is a cover judgment in fact is a cover judgment the judgment against the judge panel found that the judgment against the bound by the language of the insurance contract he is making his argument he's seeking to recover under section eighteen of the national union policy and section eighteen of the national union policy allows a third party claimant to seek to and seek to enforce a judgment to the extent the policy applies and you have to take that language and combine it with the language of cover judgment and it becomes absolutely clear that what mr border is arguing for mr coleman and his phaser is that they want coverage for that judgment well you know if if cover judgment claim against the insurance company for failure to pay it right but it was a was a it was a judgment against the insurance company holding that there was coverage under the policy dispute what you're describing your on that is what the alaska supreme court pointed out i don't know what i'm describing i'm just trying to understand the situation i want to make sure so there was a lawsuit in state court that resulted in this judgment as judge banstead right that's correct there was or was some reason i'm only saying just for i don't care what the reason was but for some reason it wasn't paid by the insurance company correct correct and so then  i find it hard to follow you have to think about it in this context is the judge the only reason that mr coleman no let me back up for a second in terms of the facts there was a coverage dispute over whether or not there was coverage under the policy the pay that you had to pay the judgment so there it was an automatic thing that litigation went on for quite some time in fact until two thousand and nine as the record reflects there was no determination that there was an coverage for anyone however after two thousand and nine they determined that and without going into great detail it was an issue over some language in the policy the court determined that there was coverage for the client the exclusion did not apply this quote affirmed and therefore we went back to the district court and said all right now that we know that that exclusion apply what does that mean so yes what mr coleman was suing for is he was suing to me argue that there was coverage under the judgment what you're describing is exactly what the buckhannon case was talking about and if i may pronounce it wrong again case in for the alaska supreme court is really an extra contractual and those courts pointed out as other courts that if there is an issue about a delay and as mr morrow argues they emphasize the equity of receiving pre judgment interest in in excess of the policy limits and the policy limits the court considers the policy benefit is remedied by a bad faith claim a claim for extra contractual damages and cohen and ms fazer brought a bad faith claim and the district court found there was no bad faith and they didn't appeal it that's the remedy for any kind of a delay against the payment of the judgment the earlier judgement they're seeking to under the contract under the policy if you didn't hear me use the words extra contractual damages they were seeking payment against the insurance company because the insurance company had refused to pay even if you had a good faith legitimate dispute right about their coverage on give you that but there was they had to engage in subsequent litigation in order to determine whether or not they were going to be able to recover under the policy but what they are doing is they're seeking under the terms of the policy and the terms of the policy control and it's the plain meaning of the policy is that prejudgment interest is part of a loss and loss is limited to the policy limits o insurance company's policy no no you're with all due respect your honor i'm saying that if the only way that mr coleman or ms frazier can recover under the policy under section eighteen of the policy which they're doing is that there be coverage for that judgment as judge panel found that's a cover judgment plain and simple so that they are asking the judgment that they are asking to be paid the one that we're judged panna found that there was the exclusion didn't apply to preclude coverage the fat is a cover judgment because it refers to as as the policy as section eighteen points out there's only coverage two or there's only they can seek recovery order to enforce a judgment to the extent that the policy applies and when you read that in connection with cover judgment it's clear that what they are meaning is that there is a there is coverage for that judgment and of course there's coverage for that judgment or mr coleman and ms frazier wouldn't be here arguing that they should be entitled to coverage that's right judge panel or came down and said it was plain and simple a cover judgment and as a cover judgment he was constrained by the language of the policy to include that amount of pre judgment interest on that cover judgment within the definition of loss as he pointed out if celtic who purchased a policy from national union had wanted to purchase a policy that provided coverage for prejudgment interest out side of the contract outside extra damages supplemental damages they approaches the policy but they didn't choose to do that and mr clement and his frazier are basically stuck with the language and the terms and conditions that were part of the policy that was purchased first cell tech and its officers and directors your honor a second issue is that this whole issue of if there is prejudgment interest when does it begin first of all the district court judge panel did not ever address this issue because he found that they were not a title to prejudgment interest and therefore didn't get into the issue of pre judgment interest or when it would apply so technically it's not before this court but assuming that this court is is going to consider it the under oregon law that prejudgment interest couldn't begin to run until september sixth of two thousand and fifteen i don't think there's any dispute under oregon law that the court cannot award prejudgment interest until as judge panel wrote quoting from the cascade corporation verse american home case the exact until the exact amount of damages is easily ascertainable the monies have become due and the date of such sums became do is also easily ascertainable as the district court found in the schnitzer case company you know just how much they paid out in defense costs and another another deductions from the five million dollars no your honor there were there were disagreements going on between how much of the defense costs were covered and so that had to be resolved there were disagreements over whether cell tech should receive coverage because they were claiming that they should also receive coverage then there was the coleman frazier issue whether that how much they could receive and then there was the issue of the i r s and the i r s had liens on everything and was arguing over that they got certain percentages and it wasn't until september sixteenth two thousand fifteen the full quote determine who would recover under the policy and how much and actually be it although the i r s attended hearings and was present they didn't formally intervene until after september sixteenth they actually formally intervened on september eighteenth two thousand and fifteen kerman and frazier were not do anything until at least september sixteenth of two thousand fifteen before about what they might not get anything professional recollection what happened that was when there was a a judgment entered in this case so essentially they're not entitled to prejudgment interest because a fat point by the next day it switches over to post judgment interest but you can only be september sixteenth two thousand and fifteen was the date of the judgement so essentially we are arguing until the judgment was entered there was no it was not ascertainable as to the amount that was due and couldn't say that because the court hadn't determined how much selcuk was going to get for defense will determine all those things are those deductions from the five million dollars was about two million dollars for each one of them left over  when the dress was entered but first of all i wasn't old then because in fact nothing was owed to coleman and frazier because it wasn't known whether they were going to get there was an issue that they had that there was coverage for the loss but there was no determination until september sixteenth two thousand and fifteen who would get ok i think i got your all right thank your honour's your time is thank you very ask you to a five million dollars is what the judge painter has these motions fall post after post coverage as to where tech says look we paid out defense costs out of pocket and we get that eight hundred thousand and defense cost before you start allocating to coleman and frazier and so that decision had to be made and he made that decision and he ruled that under the policy sell tech as the owner of the policy got paid the eight hundred thousand first and then what was left over was given to the the other plaintiffs who were alleging that they were entitled to their share of the five million dollars bushel judge perry then concluded that this was readily ascertainable as to sell tax which was a way more complicated issue than ours had to establish at that time this is what our attorneys fees were in defending that case they had to submit all these bills that all happened in two thousand and four or two thousand and fifteen as well saying ok this is the total of our bills and this would this is what has to be paid and then judge panel makes a determination ok they paid out eight hundred thousand dollars in attorney's fees and i'm going to put that first it didn't increase the five million dollars it parentheses language behind defense costs that they were entitled to prejudgment interest going all the way back to the two thousand and four because he ruled that is the date the money was zero and that was not appealed by by anybody that's not before you that date is established money the bushel of five million dollars was owed back in two thousand and four period and then just kind of goes through the whole analysis on why it was sorry why it was readily ascertainable and it was established as of that time issue they're alleging and judge panners opinion says that the inch the covered parties and the insurance company reached an agreement that it would be zero interest that that's what his whole opinion rests on is that there was an agreement reached by the parties to take them outside of the statute and if you look at the agreement there's nothing in there where there's there is any agreement whatsoever to take it to zero there is nothing in there that states that if the insurance company is determined only of the five million dollar bushel and it refuses to pay that it gets to hold on to that money without owing you interest under the the judgment and did not apply to the other case that we're here arguing which is whole different case now we're turning to insurance company can you please pay the five million dollars that you promised you got it thank you of the matter is limited at this time