i don't know whether i'm going to have time to go through them all they are spread out greatly in our grief but gov briefly michael burton most severely injured in an automobile wreck which occurred on october twelfth or twelve thousand dollars so our claim is this from a first party assigned perspective it would have been more reasonable for them to accept burton's claim especially since he was the only one who offered any protection at all to the patent now we're talking a until march eleventh one thousand nine hundred ninety four or five months so we're not just talking about a two month offer here we're talking about a five month offer additionally this court should be aware that under montana law which existed in one thousand nine hundred three and we're talking about the what the montana supreme court relied on in the waters came in the really case in stating that the insurer had a had a legal that it had a reasonable basis in law or fact for denying a claim based on previous montana to release patrick so here's the situation we have a kid twenty one years old with his arm got his right arm gotten his dominant arm now i mean minimum let's talk about the most serious injury it's obvious that clinics teach one hundred thousand dollars and it's a that you never know how it's going to turn out that's that's one hundred thousand dollars going to that's more than a hundred thousand dollars it's clear michael burgess claim was more than one hundred thousand it's questionable whether or not yes that's right no no no because if told or does not start running or what's going on what well your honor in order to have that let's take this from the first party standpoint the third party standpoint because there are two different there are two different statu hundred one which is our primary that's a statute i think the operative language is caused by i mean you in order to have a cause of action here it's like there's pleats there's duty there's causation and there's damages in order to have a cause of action for an insurer rejecting a reasonable settlement offer in order to know what damages were even caused by that you have to have a judgment either in excess of the policy limits or a settlement or some obligation in excess because if not tha let's say the insurer goes ahead and gets a judgment of under one hundred thousand dollars then peasants emotional distress is caused by his contractual obligations with the insured under the insurance policy it's not caused by a breach of duty by the insurer for failure to accept a reasonable settlem offer and under these circumstances how can you hold the insurer liable if the insurer gets a judgement of under culture limits offer why would the breach of duty there be approximate cause of damage to padgett because there would be no breach of duty if they went on  as opposed to reachable settlement in excess of policy limits now the point of the matter is your honor i believe that it's clear that causation is a part of the of an element of this cause of action and the spre briefs i can find the citation if you want your honor right and it was actually certified questions in this court a lot of these cases are but anyway your honor it's our position  situation because they are completely different no no no no some are dismissed on preemption i'd like to discuss that and i quickly say that i believe the third party statute of limitations has been resolved by o'connor which is a brand new case from the montana supreme court earth ok now that some of the first party claims were dismissed on preemption we argued that the preemption statute which is thirty three under the fundamental right test we argued over the rational relations test on equal protection we also argue that the statute does not apply to the past of an insurance claim but rather applies just to insurance claim and on that question very quickly your honor i'd like to point so on that issue the right to equal protection is a fundamental right of specifically mention instruction for of the montana constitution as such should have been evaluated under the strict scrutiny test of a compelling governmental interest and i don't montana constitution which is our get coloration of individual rights it is per se a fundamental right per se subject to the strictest scrutiny the equal protection is a right mention in subsection four and that's the right to be free from disparate treatment and unequal treatment and discrimination of any type what discrimination discrimination here is that people who are injured by insurance bad face ok or by breach of the statute ensure it's ok only have three causes of action under the montana law you have a cause of action for breach of contract they have a cause of action for fraud and then they have a cause of action for for violation of the statutory tort itself however a claimant who's injured has all of his previous common law statute a cause of action that's no discrimination between claimants and a new kind of governmental  which was also a certified question from this court o'connor held in a workers comp actuation that the particular issue had to either be adjudicated or settle for common law bad faith to accrue to the statute to accrue under common law and not under a thirty three eighteen now as far as emotional distress goes i believe the same principles often carry forward as i just discussed on bad taste although i'm not sure under seiko whether that is correct but if that's not correct your honor than the emotional stress continue until burton's considered the hundreds of pages of briefing and documents or presented to him and had a very rigorous and interactive hearing he concluded after reviewing the information that all of them and that the material facts were few and none were in dispute he also concluded that all of the allegations of wrongdoing throughout the complainant throughout all of the causes of action occurred in one thousand nine hundred three and one thousand nine hundred four finally he concluded there is one central issue in this case and that is whether it was reasonable for state farm to deny the demand for settlement within policy limits for mr burton and proceed accordingly the court reviewed the few important pivotal facts finding as the  indicated that there were significant injuries to a number of individuals but the claim handling process continued over a short period of time a handful of months evaluations as new information came in and kept going up and up and up the net in response to  presenting information the requests are going back and forth and we're talking about a very short timeframe at some point in time yes i think that might have been one of the things that could have been done and as this court said in the trout case we need to judge the reasonableness on the basis of information at the time not the twenty twenty hindsight and inherent in the findings of the judge to judge what is that different things could have been done at different times but taking it as a whole with all of the factual information that we have in the development of all four claims the process of evaluating as information came in and quickly in or pleading the funds taking away all the interest of state farm in their in their in the resolution and allowing the parties to settle among themselves  former state farm people filed affidavits it's also correct your honor that if we take all four of these claims at the same time and judge based on the information was presented it was reasonable and as to the standard this is no different than the court said issue at that time and this court said in the trap case as i indicated previously you can't use the benefit of twenty twenty hindsight there are different and alternative approaches and you have to judge it based on the information at the time in the montana supreme court as indicated that generally just as california did in this court has construed on several occasions finding reasonable planes handling as a matter of law the montana court says generally that's a question of fact and then in all the cases in several cases that  followed that primarily the water spaces to this trial are a fact rule is not necessary where the underlying basis of law is based on a legal conclusion and what judge malloy found was with no facts at issue in relation to the handling  where there were no facts at issue and you can conclude reasonable to say matter of law you'd never ever have somebody just position of an unfair claims practice case because i can guarantee you there is always an expert that will file an affidavit that indicate that  and i understand your honor and if we take that concept one step further again recalling that this court did that very thing in the minnesota mutual case allowed as a matter of law the filing of an inner pleader has reasonable claims pleader reasonable or not my conclusion and my argument would be justice judge my wife felt that's a legal conclusion and he can find a reasonable as a as a matter of law with no facts at issue on the basis of that legal conclusion and that's exactly what the montana supreme court allowed in the largest case and it's consistently indicated is appropriate there are certain circumstances where trial is necessary but if we're looking at a legal conclusion was that appropriate as a matter of law  issues state farm paid the money and i took no further claims handling activities in terms of of participating it allowed the parties and in fact within a couple of months a party stipulated settled on the disposition and that was approved by the district issues there are several letters that we've pointed out in the record and i can give you the numbers of those pages that there are several letters in one thousand nine hundred four in one thousand nine hundred five where the the counsel for first mr paget and then mr burton make it clear that they believe that they've already been damaged that there underscores both the reasonable nest and statute limitations of cruel situation where in the montana paul case the first line from this court was a little bit of knowledge can be a dangerous thing and it's clear from the record of this case that they that they had that knowledge at that time my fundamental point is that we do believe that reasonable this can be found as a matter of life just as this court did in men in this sort of neutral and virtually every cause of action in the complaint can be dismissed on that basis and as this court has the ability to affirm of the now any ground support of on the record in addition your honor your point i think with mr lerner was was exactly right virtually every count in the complaint can be dismissed on th limitations except the contract playing that's an eight year statute of limitations and the contract claim can clearly be dismissed on the basis of reasonable claim handling so there are alternate routes per cause of action and several of the o'connor concurring opinion and we see that the supreme court has said what is a settlement and what is the underlying claim is not finally defined and in common law claim situations appears to depend on the circumstances would submit to the court that the sole issue in this case in the underlying problem was what do we do with mr mr paget's limits and what state farm did is they instituted the action and paid those limits into court and gave up all rights to that in the part that was filed or when the disposition was made by settlement by the parties for the court approved it and i just i say that for this reason in the ridley and wider scase this was some help from this court in the carlson case the montana supreme court said that for two forty two purposes settlement means and it's forcible right and in waters they said the payment of a limit without a release would be considered a settlement and what i'm saying is the underlying it's as an enforceable payment with that that you can enforce and that's exactly what happened i think it happened once there was an in for civil payment that could be enforced by each one of the of the claimants including mr burton when the when state fund the state farm gave up and under typical startlement considerations i would say that's correct but i prefaced my comments to mike this is i'm speaking on behalf what the montana supreme court said in terms of definitions under two forty two which creates the condition preceding that would be considered a settlement  it doesn't relieve it's not the settlement in the context of releasing pageant the court if you read in your honor really and waters indicate there are several settlements in the course of payments being made in a common law release if i could if i could just touch on a couple of other things i don't think the third party common law case and the third party statutory case both are subject to the same defense and can be dismissed on the basis of reasonableness the constitutional claim back the othe r statute limitations on the first party statute of limitations montana law defines damages by statute as detriment caused by the act of another judge moore i found that consistent with section two forty two the first party unfair claims damage is present that the cause of action is complete and therefore the first party cause of action could be dismissed both on reasonable notice and on the statute of limitations in relation to the constitutional issue we believe that the brief it directly contradicts the statement of counsel in relation to the level of scrutiny this is a rational basis level of scrutiny and as judge malloy indicated the montana supreme court has been very clear in relation to one final point your honor you mentioned the paris case and the paris case is very important but i think it supports so many of the claims and arguments that are being made by state farm in this case first of all it indicates that the statute two forty two allowing the actions will be construed according to its terms and in relation to the first party situation it indicates that the first party claim can be brought at any time all that's necessary is some sort of damage with that your honor we would  request that the dismissal of all the claims be affirmed on any of the multiple grounds that appropriately do believe that the filing of the inner pleader out of the circumstances was reasonable it's a matter of law and that several of the of the contract claim could be dismissed on the statute of limitations thank you thank you the montana supreme court or anybody else on the equal protection issue as the fundamental right now another self and i think it's somewhat disingenuous just to dismiss what i think much manager scrutiny actually supports that i want to point out that burton had