she just harms sosia judges may it please the court my name is richard riley i represent donna smith the appellate and the plaintiff in this action this is a alabama law alabama common law action  as he claims against nationwide the law ability insure in this case and on this missed liability insure your honor the facts of this case cry out for a tort remedy we have damages the biggest defense that both defendants present in this case is nobody has a previous case on point and it's just simply not required of the torah law especially the column the common law is supposed to be flexible to to meet all circumstances the alabama supreme court has said for every wrong there is a remedy and for every injustice an adequate and salutary relief your honor the  basis of the distrust and describing oh the common law or the almost all you said there is no ability where the defendant has done nothing other than carry for abuse of process you can't abuse the process by not doing anything to the process well your honor the point is all arguing is there is an obligation to act a form of typically and a different way that's describing that you know all says there's no bill but today when all they do is follow through with the process through that they didn't say there is liability if they don't pursue the conclusion no bob billeted there they don't say and you have no support that i have read in your brave you don't say there is the liability if they don't carry out the process with respect pro as opposed to know to start the subrogation process isn't isn't what the supreme court about obama said that the purpose of this procedure that has been outlined for when these things occur any insurance company that pursues subrogation in any context gets a credit report does their research finds out if there is actually something there to collect before filing an action every lawyer in every civil case has to have a rule eleven basis before doing anything and if you read the alabama supreme court's especially the recent opinions what they are saying is is not hey if you want to do this you check this box what they're saying is and the whole point of lambert if you go back to the beginning is what we don't want to happen is have a lawsuit at the very beginning where the you i am insurers not involved and elisa's that cuts out the subjugation does it not arguably i think there are other methods that the supreme court should do with this you know forty years ago quite frankly but your honor that's beside the point lambert what it is the point is that lambert is not does not preempt the tort law it's a general guideline of how things are supposed to ebb and flow and anytime anybody exercises exercises a right they have to do it reasonably and they have to do it in a way that does not cause abuse and in this situation if the reason for the fronting process is to preserve protect pursue whatever subrogation figures in damages and they don't have to provide a defense wouldn't that cause of action then be for the uninsured motorist and not for that i mean training for the client as opposed to your client wouldn't that be the cause of neck of the bosses because the law says come out in reality here with don't they one hundred and twenty five thousand from the insurance and potentially an excess claim seems to me they came out as well as they possibly could they came out a lot better than if they'd just settled for the twenty five thousand if you look strictly at the numbers your honor but in the reality they had to wait several years with their brain damaged child had to wait for this but this money they got the twenty five thousand immediately which is the same that they would have got from the release of my understanding the right concerned they had to wait on with the one hundred years that's the point the one hundred thousand dollars was due and payable most insurers would pay it it is the duty that state farm had to the vos is to pay it unless they had a basis to believe there was they were consolidated for the purpose of arguing the motions dismissed before judge cornelius it's my understanding although i haven't really reviewed that in a while that case is pending through discovery i believe that mr for while mr barclay faith breach of contract fraud some of those counts were allowed to go forward and some were not budged cornelius and i believe the bad faith claims were allowed to go forth and that's the room to do it all to be if there is a remedy right i mean state farm was the insurer of the falseness state farm didn't do something or didn't do it fast enough so the forces are insured under the circumstances and we've we've listed the cases it's not that they just have to tender the money and the point being here is when we have this excess situation it is very very for seeable that this is going to happen to donna's and therefore nationwide is supposed to do what go to the office and say we will we will settle for twenty five dollars which is policy limits and also we want you to agree to not collect from our client more than one hundred thousand dollars which arguing that everybody had almost a fiduciary obligation to your client and your offer well but the rest of them don't and i don't think we have a tour in alabama interference with business relations where it is such a stretch as well unfortunately for you you don't have a vote and i'm a get out voted but that  of state farm what was proper by the district court for some of the reasons and some of the questions i'm hearing number one just abuse of process just fails as a matter of law under process keeton but certainly under the alabama pattern jury instructions and the arguments that were to the court that the lambert procedure is set up to create for that the requirement that they actually pursue so in with all due respect that is not what lambert says and that's not what the alabama supreme court has ever said in fact if you read lambert and then if you read the ex parte they all state opinion two thousand and fifteen the alabama supreme court makes clear that the purpose  fronting can be and you know quote they said and ensures compliance in lambert can be done and i'm quoting from the allstate opinion from two thousand and seventeen fairly recent to have their liability to pay you i am benefits if any determined by a jury whose verdict would not be influenced by evidence of insurance coverage that is the very thing miss smith is alleging is state farm's improper motive that o that they never intend to pursue so instead they want in fact in oral argument before the district court counsel stood up and told the district court that oh what state farm really wants is individual versus individual as if that were improper but the supreme court has blessed that and said that is a proper now lambert this verdict might have been several one million not seven hundred and sixty thousand is that what i mean i didn't mean in specific but in generality is that the sort of evil lame because if they knew about the insurance it's exactly a judge blogs and that's exactly what the alabama supreme court going all the way back to one thousand eight hundred and eight in lo and carried forward to export they all state to the other seventeen has said it's a permissible purpose for the insurance company to not want to be a part of that ment and there's no dispute that there is nothing alleged to suggest that state farm instituted or participate in any legal proceeding is in fact just the opposite they use the term front and forget in their complaint to describe state farm the difference between a malicious prosecution claim on the one hand and abuse of process on the other hand and made clear that there is an abuse of process law there does have to be some subsequent after a properly instituted action some subsequent use of the court process and of course that did not happen here and none is alleged quite frankly your honor the district court decided to several northern district alabama cases where abuse of process claims were dismissed under under similar facts and by that i mean in terms of the timing and the absence of some improper use of process so you know i think there's an abundance of law to suggest that miss miss claims against state farm fail and  were properly dismissed and just as a reminder and i think judge bob's i think you picked up on this i mean state farm did not cause this accident and certainly did not choose miss miss liability limits as the district court noted and frankly is not the proximate cause of her damages and we submit that the claims against state farm were properly dismissed and asked this court to affirm be happy to answer any questions from members of the panel  morning may place the court or represent nationwide general insurance in this matter so the climate gets nationwide is failure to settle negligent or want unfettered settle an essential element of that claim is that the insurer decided not to settle for within the policy limits when it had an opportunity to do so complying in this case negates the existence are in so far is this idea that the insurer has a duty to do something more that nationwide should have gone back to the plaintiffs i ask the plaintiffs to agree not to pursue miss smith for more than the combined limits of the insurance there's no court that's ever held that number one if it was in fact the standard in the industry you would think that it would have been addressed some where alabama courts have never suggested that an insurer can fulfill its duty to its insured by entering into a settlement doesn't release the insurer from a liability that it leaves them exposed to additional liability other courts have held that those kinds of settlements expose the insurer to liability for failure to settle but maybe most importantly  all of this there is no allegation no factual allegation in the complaint to show that a settlement on that basis was available they don't allege that mr  on that basis they don't allege that he would have accepted a settlement on that basis and they don't even allege that mrs smith would have been a main a bill to a settlement that did not release her from all additional liability legitimate claim for an improper reason for a perversion of the reason in my point is simply this the prime point of the alabama supreme court is that if number one the un statute was designed to protect injured people and to provide a mode of insurance coverage actually required to be offered un coverage the lambert decision was decided because there were a  from the common law and said yes so the next question is how do we how do we how do we address it what procedures are we going to use and so the point was the alabama supreme court was concerned that if we have this release early on that would not be able to protect their subrogation rights and get the money not just to preserve it but get the money and the point being is they said look you have a duty to investigate you have time but at some point you've got to decide whether front now the whole issue about whether insurance coverage comes in the case that's really dealing with a separate issue dealing with often out but this particular issue is is an insurer should be able to protect if that's what they're going to protect their subrogation interests and then they have a good faith duty to do that they have to do to investigate to make sure it's a valid claim and to go after it and the point is simply this if thousand dollars judgment against her plus over three hundred thousand dollars of interest that is an abuse of that process if the process is intended to get subrogation to get that one hundred thousand dollars back why in the world is she damaged for almost twenty times that amount that is wrong that because this is the harm that she did well i understand that your honor and it is not any different than any other case  state farm harm well that's the that's the motorist i get that your honor at the point is simply this case let's say there's no you i am all right if nationwide had decided to roll the dice  treat people that way they can't treat their own insurers that way if they can't treat their own insurers that way they certainly shouldn't be able to treat somebody else a rd party who they have no connection you know with respect just card i don't understand that doctrine in alabama if you know you said they have more of an obligation to protect someone who's not they're insured and then they do to protect their insured that doesn't make  my point is simply this if insurance companies back in the fifty's cases against their own insured what what is an upper seeable why is that under under the alabama undertaking