and the court had asked for the parties to address microsoft for speaker and brown versus in a mark and i will try to do that without talking too fast for your honor we don't have to talk too long either microsoft involved a voluntary dismissal a one sided voluntary dismissal in which the party sought to revive their claims of succeeded but and and brown versus in a mark involve circumstance where certification was denied plaintiff's individual claims was set for trial which is what happened in this case the parties then further litigated there was a summary judgment in brown that the court tentatively said would go both ways both parties would have so it would have to go forward and then the parties voluntarily resolved the individual claim allowing the rest to go forward now you're relying here on to sort of cut to the chase because your time is ticking are you relying here on look to me relying on the fact that you continue to litigate and litigated the individual claims through the coverage i exactly in fact opposed the settlement is that they propose the settlement actually yes but you oppose in force of it pretty vigorously and the reason for that was that at this point this court's decision in one had had obviously not come out and at that point it was unclear how microsoft works as baker was going to be done and we had originally proposed in a ruse language ok and then what happened was is that defense counsel to the you know the wrong started to crab walk on that they were trying to take away and change the release language what judge settle eventually did when he found a settlement was he imposed that in a ruse language yes over your objection so so you not only continue to litigate it seems to me but you and this is this to me it's a little ironic but i think is why there is jurisdiction it seems to me it would not voluntary kind of more like you were kicking and policy arguments in the reason for the original ruling was a one sided dismissal that's just not what happened here this was a case where if you look at the record there was fifty four hundred dollars at issue i was if you look at your thirty three it was going to cost diminished value so i want you to address the typicality and predominance for for typicality on a breach of contract claim how do these two coverages create the same or similar harm among the class members and both cover diminished value their thirty six deponent mr boehm admitted that there was coverage under both uninsured motorist and comprehensive in collision the washington state supreme court found coverage in molar under factually in materially a dental policy language found that there was coverage they district court itself found coverage on summary partial summary judgment that there was coverage under uninsured motorist so there was no difference in if they don't have the same insurance policy you know they do have the same insurance policy it's one policy to separate coverages but they both cover diminished value and they not only cover diminished value because courts have held they both cover diminished value both both judge settle himself found it other courts have interpreted the language is covering diminished value and recently the washington court of appeals and kills versus state fighting found out over this same contact like for typicality on the consumer protection act claim that it it's got to how are the proposed class members harmed by the same or similar conduct its different contract that brings it into play it is not different conduct the company has a common policy that applies to both coverages both their insurance company according to the deponent this is a almost the same question but not quite is the legal meaning of the two provisions the same i understand they're both covered but are they covered in the same way they are your honor they're covered in the same way both legally because under both provisions you get the market measure of damages under w p i thirty point one two as a matter of washington law that's what it's also what the recent kills are says state farm and what judge settled himself held that you get the damages that are due to property damage that's the same thing you get the market measure of damages or both and the company itself in their guidance document says that all first party claims are handled in the same way the reason is because they owe the obligation to pay the market loss in value of your vehicle after repair under both coverage there's no difference so what you make of the are human or how do you respond to the argument that because of the difference in the types of damage and the difference in the types of vehicles it will be very difficult to calculate and according to the argument the class is properly not certified well there's there's two answers to that the first one is that we put on proof of a market measure of damages which would apply to the entire class with the option of you might have one weird deal like the ferrari that this is a more mythical ferrari the mythical ferrari which there's no evidence in the record but that is was the basis for the argument so we have been able to put on proof to address with common evidence the amount of loss because it's a market measure we did market measure and this is the marker you now know you now talking about class wide damages then to be divvied up with individually well you both do class wide and individually be when there is a there is a there's a measurement that's been done through looking at auction data that tells you exactly how much a car would be left based upon the extensiveness of the damage it's all statistically rare you know how do we know forgive me for interrupting how do we know that those autos what to do with the ones that had may or may not have been involved in accidents previously ok and that that your honor both i d s has a method to do that using a computer system they go in they pull accident data i d s has addressed this claim using a computerized method using a formula that was agreed twenty years ago in georgia you don't have to walk with ok i d s has a computerized methods and if so i understand the junkyard part in looking at the damage that i can see that just happened this most recent accident ok what's the common denominator to figure out what went into that path ok well two things first of all when i d s handles a claim they look through insurance databases in various databases to see if there's a prior claim and then based upon that car for that car and then they apply a computer formula computerized formula with a take between zero and twenty five percent off that means no forgive me but aren't you assuming the i d s is the only if insured for that car since the beginning of time there's nothing you can find by looking at the car it's been repaired if the car was repaired if you want to look for prior accident you wouldn't go look at the car i mean it's just illogical it doesn't make any sense i d s doesn't do it they do it a computer formula siskind did our analysis is that he said that first of all you can figure out statistically the likelihood of prior overlapping damage and you can do a discount based upon that now the issue before the washington supreme court in miller three was that two dissenting justices in miller three said that whether it was a prior accident was a liability issue under washington law the majority in muller three said no it's not it's a damages issue and given the a political damages standard you can make adjustments based upon statistical proof because you come up with the entirety of the award that's accurate number one and second of all this happens all the time damages are always an individual issue and they never defeat certification versus middle and national life insurance company these are all cited in our brief your honor ok and in fact muller two itself held the say well you also have a you have a pending motion before this court seeking traditional notice of three washington supreme court judgment how did those proceedings have a direct relation to these cases because they're not the same policy all right well no the insurance coverage is the same your honor that this is standard policy language that that's used by all various insurance companies those cases rejected the arguments that were accepted by judge settle they're not they're not binding in any way our point is that what happened here was is that you have to have a logical basis in the evidence you have to have reasonable us are not finding  i mean why are we looking at other cases that it's they're not it's not involving this case there are other cases that aren't binding so why should we take your dish on notice of those because if you're anything like we should just decide if they would decide the case is the same way or  what i mean then seems you know but but the standard of review your honor is that you asked whether the trial court's resolution of the motion resulted from a factual finding that was illogical implausible or while support an inference in the record the fact that other courts of looked at the analysis jungmann this case a by the district court below and in explain why it is not valid in why it makes no sense under moeller three as to prior accidents why it makes no sense as to comparative fault that was the our standard of review is abuse of discretion so i'm i'm having a hard time seeing how that that that's a pretty wide latitude so you want to select it live a to your honor the standard of review under levade it which is the pleasurable one for review of class certification decisions says that you look at quote whether the trial court's resolution of the motion resulted from a factual finding that was illogical implausible or without support inferences that may be drawn from the facts of the record that's at seven one six f third at five recognize the washington parts of resolve this differently any recognize there are different standards so it's kind of goes back to jeff's callahan's point in their not binding only basis that the court found that there was a lack of superiority was purportedly because there was a hypothetical ferrario who might be under compensated using dr siskins approach that was it that is the only independent basis now he resigned in the predawn it's arguments which we've shown comparative faults already in the file and this issue of prior accidents i think it's been decided as a matter of washington state law so there is a distinction honor between some of the management at some of the issues and the issue of prior acts and if that was expressly determined by the washington supreme court that should've been followed up to maybe when you come back if you could and then i'll stop could you come when you come back with a citation for the damages i have a place in the record i'll take as well so what you had then was a ruling on the merits and the decision makes clear i think it's at page twelve hundred that the plaintiff appealed so there's of the play dismissed the remaining claims on the merits and there's a long line of cases in this circuit that say where the court dismisses some of the claims on the merits but leaves others the plaintiff has the option of dismissing those claims and there's a final judgment and that's exactly what happened in brown there was a decision on the merits dismissing certain claims on the merits that didn't happen here and now you're distinguishing between a dismissal and a settlement it's critical you  yes there was an adjudication adverse to the plaintiff in brown on the merits in which the court said that those claims had no merit and that allowed the plaintiff to appeal and it's important how this court has treated brown in subsequent cases which i think is very enlightening in the rodriguez you talk a bill case eight nine six f third nine fifty two this court talked about brown and it talked about baker and it explained how they interact with one another so if you'll indulge me for a quote i think it's very helpful the court is talking at page nine five five to ninety five six and distinguishing baker and saying that that case baker involved in an attempt to use the voluntary dismissal mechanism to obtain an appeal as of right in order to review an earlier denial of classification the supreme court judge ginsburg by the way writing for a unanimous court held that th pretty prior to this but i guess your argument would be that it's still law and that there was a voluntary settlement like with and so in that case it conveyed jurisdiction i think no rues is probably no longer a good law you don't think it is going to microsoft and is holding an event really goes to moodiness but whether there was in this case it seems to me the record clear there was an attempted circumvention there that's how i read it and attempted in a ruse and then over the play ironically ironically then the plaintiff kind of over his dead body means kicking and screaming trying not to settle so what we're really looking at i think what microsoft teaches that we're looking at whether there's really kind of a voluntary circumvention falling on your sword to get around will twenty five i don't see that here because the after after losing the class are most and they went on first of all t v microsoft that this court and rodrigues emphasized was there's a circumvention of rule twenty three there was a petition here the players petition this court for the right to appeal immediately under twenty three it was den that didn't work so well for him right and what the court said in baker v microsoft and what this court said about baker v microsoft in rodriguez's where that happens where you've twenty three is a very careful balancing is to say it becomes relevant when you're talking about spirit already this is jeff mel does not automatically produce but the fact that you know otherwise you're not going to get much litigation goes to the spirit of question later on right court talked about rule twenty three and said that rule twenty three f was designed as a very careful that she almost she also said if you get voluntary dismissal as a way around the limitations on twenty this important compromise and if you go through the rule twenty three of process and you lose you can't circumvent that by then saying what i'm going to dismiss an appeal and that's existed in brown that you can well i don't know what you mean but in brown there was no twenty three  to be strenuously object things so justice ginsburg in her opinion focused on the important balancing act that was the creation of rule twenty three f and that that is essentially the exclusive remedy for an immediate individual damages claim that's right round up because there was no final adjudication on there it's adverse to him he won the his partial summary judgment he doesn't feel from that he lost the summary judgment on the force ability of the s in footnote to his opening review says i don't feel that so there's no appeal so this is what's critically different about from this case in brown in brown there was an adjudication on the merits adverse to the plaintiff the court in brown there is no jurisdiction and you're just come free here right no i mean look twenty three yes i mean that's what justice ginsburg is playing in baker the whole legal community got together commentators legal scholars legal professors like everybody else does get a final judgment and then appeal and that's why baker that's why brown is different because of brown at pace twelve hundred the court explains that there was an education on the merits of certain of that so i think it helps in the wal mart v dukes decision kind of gives us this intellectual framework for deciding class or at least predominates a commonality first you have to look at the substantive law what does the plaintiff have to prove to establish his or her claims on the merits and then once you figure that out the next question on predominance is can those elements of proof be proven by evidence why not ok why not because what sort of smells like damages issues in this case really is core liabilities because the first cause of action is reprise of contract and the elements there are number one these pla in accidents and number two their vehicles experienced some damage that could not be repaired and as a result there was a diminished the value of the automobile and most importantly finally my client breached the contract by not paying them enough for that so that question was their diminishing value how much was it did we pay them enough was i know another life another another way to look at that three the washington supreme court has told you that under washington law your client is opposed to pay diminished value and it's supposed to tell the claimant about the diminished possibility dim value possibility and simply not telling him his or reaching their obligation now maybe in a particular case that there is no diminished value but they've breached the obligation by not telling the claimant about that issues why why are not why not will there not especially on the duty to inform because again the claim here and we have to examine whether common issues predominate by reference to the claims pleaded and that claim is a claim that we breached the contract in bad faith by concealing from people their potential right to d v now you only have to look no further than mr oxen or the name plaintiff to know why that's on common and the district judge was too diplomatic to dwell on this but this case is was a set up lawsuit mr oxen or the day of his accident he called the plaintiff's expert mr harber who's a television and radio personality who talks all about t v and makes his living working for the plaintiff's bar suing insurance largely statutory and in the u i am situation uninsured under insured or hit and run situation the insurance company steps into the shoes of the under insured uninsured or absent driver and it becomes an coverage or and uninsured motorist coverage and i'm talking about the d v diminished value the calculation is the same but it's highly individualized in each case and even the put them in showrooms to the answer of the calculation of the same testimony in this record even though plaintiff's own expert that feed personality darryl harbor when i took his deposition in this is in the record he told me when when he's not involved in a class action when he's actually trying to represent the best interests of one person he does a highly individualized analysis to determine the inspection vehicle he looks at the maintenance records he interviews the owner and when and when your cow lading and sometimes you do actually have d v when you who claims is wrong among other things it sounds as though if there's been a prior actually you automatically take off up to twenty five percent which strikes me as ironically you're complaining about the the formula that they're advancing when yours is perhaps more imprecise well your honor i think there's a fundamental mis impression that's been created by plants counsel here and something we're missing which is critically important once litigation is instituted due process rights kick in what my client does in his private business affairs is one thing what what the court is obligated to do is ensure due process to absent class members and my client you're asking for more very telling example of why just doing what my client doesn't turn only doing that in litigation imposing that all absent class members would not be appropriate for the court to countenance let's say and this is not is more than hypothetical let's say that my client determined in the u i am accident that it's insured was ninety percent fall for the accident the other driver was minimally fault and just have low insurance so there's not enough insurance ninety percent  neely says that if one of the policyholders is ninety percent full on the policyholders have to be held at fault i don't know he says that no you are he says that that policy holder would be bound by our determination and that's sounds to me like m putting his interests above class members because that's what he says fault is a highly individualized issue in the u i in cases and before it can be determined if there's well once we get through all the individual has issues about whether there was d v how much d v whether the cars have been returned to its pre action condition once we get through all of that then we have to decide ok who's at fault and how much and mr new would say well we're just taking turns copas word on well again that is really you if you reject the argument you get everything so i'm not sure the degree to which mr neely is betraying his clients here well we're going it's for the court though to decide whether it's going to countenance that sort of a scenario and let me give here i want to talk about technicality ok all right for technicality how is the harm among proposed class members not the same or similar because they weren't even harmed by the same course of conduct on there's a bad faith claim for that we adjusted these claims and properly the company struggled frankly with the changing law in washington state there was an evolving law about whether d covered whether it wasn't covered and there are still questions about that the lesser of language in our policy has never been adjudicated in washington whether that lesser of language in fact requires  supports commonality but that's not the standard review we have to be so discretion and this judge presided over the case for two years he's presided over multiple d v cases there is a mountain of briefing and the expert talked about this in detail they talked about the fact that under of law before any devious though it's of this is not a damages issue it's a threshold liability issue before a dime a d v s even possibly it has to be the case that the car was not returned to its pre x of the condition due to this type of damage four a five and e r four eleven two for twelve ok i've read this ok so next as part of that the fact that the defendants do this with common evidence is found on the brief of page eighteen the citations are there and this is what they wrote themselves quote on all first party collision comprehensive the new i am p d claims open the diminished value coverage explain the coverage to the insured calculate and pay any odem if value amount and provide the calculation form and cover letter to the insured and of course there's also citations to the deposition testimony from mr bone their own thirty six of one process one policy it's done in all three coverages so therefore we have common issues and those common issues predominate we're not dealing with different the situation on technicality and i wonder how that can be an abuse of discretion because both the typicality got to get it completely wrong he did get it completely wrong both abuse of discretion is pretty pretty broad he did get it completely wrong because first of all there is no change in in claims handling process and that's made very very practice in a class of insurance who have different i d s apologies policies than his policy contained to diminish value exclusion to the collision and comprehensive coverage and the proposed class definition however includes class members who policy do not contain that exclusion there is there for two types of coverage at issue in this cat class collision and or comprehensive and you i identical exactly irrespective of the revision of the exactly what you have here is that the lawyers tried to gen up an argument that was contrary to what their client and their client thirty six it said about what the law is and then the law was determined to us in modeler there's coverage under moeller and second of all it was determined favorably by the district court himself finding that there was coverage in of the uninsured motorist provision we've hear over time to if you'd like to sum u your i would only just briefly say on the on the microsoft says baker which i i did find interesting that he spent most of his time talking about wells because we were in a lot of i think the i think the key i think the key distinction there is that the judge ginsburg was dealing with a circumstance where there was a voluntary one sided dismissal and if you read baker carefully the key phrase is that quote instead of pursuing their individual claims to final judgments on the merits that's actually what happened here there was a determination on the merits and certainly the court did not intend to rule or believe that the only way that you can ever get review is not when the parties agree and the court issues rulings and you go forward