my name is brian campbell and i'm here today representing the appellant's in the case walter and tammy kohli and sunrise trading post l l c in my view the most important issue in this case is the issue of a stop  rising from a gasoline leak that may or may not have emanated from a gas station that they had only been pedal mississippi the attorneys conflict arises and it's really contained in encapsulated in the grindy there's mutual in their response to the coolies klein letter alerting grain dealers of the mississippi department of environmental quality investigation the letter is a short letter and i just want to small parts of it for the court because i believe they're important one part in this is quoting if you are ordered to take part in the actual cleanup of the gasoline leak it will not be covered in other words there could be other things that are covered diminish an improper case and landowners etc etc but one category of cost the letter clearly states that to defend you in this matter so in other words the letter gives an unqualified statement that the grangers is going to be in the coolies against these gasoline leak lines including the claims brought by the mississippi department of environmental quality the letter goes on to tell the police that mr mccann will be in touch with you and you need to cooperate with this of course implicates a very important part of mississippi law on insurance companies and their duty to defend it implicates primary decision it implicates is the modus asian which is meant part of mississippi insurance law for over twenty years and what mohler says is if an insurance company provides an attorney for an insured if there is quote any possible basis for a conflict then the insurance company has the obligation to a den of fire that conflict and to tell the insured of that conflict entailed the insured of their right to obtain independent counsel that would only be looking after and after the the insureds best you know the the insurance best interests here the mr mccarran had in this conflict and we noted to the district court in the record his internal documents referred to his real client in those documents as grinding letters he had he had  motivation to steer the defense of the gasoline claims toward those types of costs that the insurance company said that were not covered and unfortunately mr actions were consistent with the worst fears about what his conflict could bring about the empty about four months after this letter was sent in the intern order it was an  order done without never to enter a hearing it's common when there's environmental contamination to do something like that because the environmental regulatory agency wants to act quickly the order is about five pages long it's fairly dense it's full of references to various mississippi environmental statutes and federal environmental statutes and under mississippi law it and it's very plain that it was conduct experts say without an evidentiary hearing in a mississippi law with the stack she says becomes by not binding forevermore so mr in this coli sunrise trading post were implicated in this order as well as there were three other parties to the order that it was the  the morgans who purchased the gas station after the coolies as well as a company called pond bell or company that operated the above ground storage tanks at the gas station once the gas station had been so mr mclare let the thirty days for the the thirty day period to petition the indy to lapse and you know one way to look at what he had done was that my client my ultimate client the insurance company isn't going to pay for cleanup costs anyway they've disclaimed viability for cleanup costs that's on the codes so why would i waste my client's money grindy there's money defending against cost that they even though the company said they would defend against that action why would i waste my money defending against these costs that the insurance company my client has already said that they would not cover and you can see to the motivation of of a participant a did some work in some of these environmental evidentiary hearing and they are as expensive as a trial in federal court sometimes i mean there you would need hydrologist you would need environmental experts this would be expensive big time litigation and it would be it would be very costly to the insurance company th case and the question is for him to make that decision on summary judgment that we did not show any evidence of prejudiced he he would have not been able to point to any type of prejudice i would submit to you in the twin cities case that this court handed down it was this court was very very liberal in what could consider what what could be considered as prejudiced to defeat summary judgment and one of the things this court said would be an adverse ruling in the underlying litigation well i think entry of the in the each you owed or in another itself right isn't is is worse than the rule in in twenty cities that the court here found was sufficient to implicate the stoppel and it was sufficient enough prejudice at least for there to be further proceedings in it to go to trial another thing that this court would look to in the twin cities case was  potential for liability as a result of the of the potential for result of liability as a result of the conflict created by the by the insurance company and you know in this instance obviously it is in our briefing the liability of my clients has been set by that order but the scope and amount of the liability is still pending the m d t proceedings are still ongoing so the potential that pay something down the road and that's not really a potential to certain key is only how much that was enough to show prejudiced in twin cities twin cities also saying there's enough prejudice just by the conflict itself might have that it has proof of it but they said that conflict between the insured and the insurance company that attorney representing them both might be as competent to information he got from the insured to help the insurance company in their coverage to speed that there was no evidence that that had actually occurred but they said the potential is that the car was prejudice and now all of this was presented to the district court in this case but he ignored it and here and i do want to point out on that  jackson the next entry under that senate says total pollution exclusion never been tested in mississippi finish investigating first under reservation price never did a reservation price that are but it clearly indicates they were using this attorney to discuss coverage ashis but perhaps even more compelling on this issue in terms of the district court stating that we had to approve one at the at the level of the m e even more compelling and that is the logan decision the logan in decision in my mind is very analogous to this case from the mississippi supreme court relied on by this court in the twin cities case and in that case there was an  insurer and the insurance company had led the insurer to believe that they were defending they said we're going to settle this case we're going to try to while they were trying to settle this case the the plaintiff in the underlying litigation and got a default judgment against the insured the mississippi supreme court basically tell the insurance company that sure default judgment you had you had led them to believe you were defending this case a default judgment was entered against the insured and now you own that default judgment what they did not say is i ensured you would have had to have really shown that you would have litigate this case of the in the and there is not even a smidgen of a hint of that sort of a position in that case i would like to also point to one other piece of he testified that number one the attorney mr salis mccarran did not inform him of his right to an evidentiary hearing number two he did not inform him that if he had if he didn't seek an evidentiary hearing that he would lose the opportunity for appeal and he did not and mr cooley further testified in the declaration if he had told me this i would have wanted to your hearing and certainly muller counsel independent counsel if i were in that a counsel out of with my condo would have said i don't care if there's a one percent chance or two percent chance of winning this case the insurance companies pay in the bail if you lose this it would be catastrophic liability to you we're talking seven figure sort of help i'm confused about the pollution exclusion and what was litigated on behalf of your client with regard to the ambiguity of that the pollution exclusion is in terms would want to i'm running on time and i would want to to raise popeye and built the other party that was implicated by the order to spawn a lawsuit in state court that's what prompted the insurance company to yank their defense in the in the two proceedings that were here as between the liability of the original owner of the property and the people to whom it was sold yes yes sure i think that is that is the question that is implicated in the pinedale state court last that came later but it is also what would have been litigated within the context of the d e q proceedings nine years ago and more the reasons you know we feel this is so unfair to us is for us to have to go back and gather evidence that mr mccann didn't gather seven years ago it is is patently unfair some of these witnesses we put in both our our bridges here and braces for the district court have died these were investigators with the insurance company who had evidence of of the environment spill and had gathered their gong and now it's you know if i read the district court correctly he would want us to have to go back in regathered this evidence that is as gong eight years ago thank you for your hon court my name is lana herr i represent the plaintiff in this case graeme dealers mutual insurance company and your honour's i would not normally even mention a standard of review to this court because you are obviously very familiar with what standards of review apply but i think it is particularly clickable in this case that we now have what judge stare wrote in the memorandum opinion about the standard of review sided a case and said conclusion all allegations the now speculations improbable inferences unsubstantiated assertions and legalistic arguments are not certain things that is an argument he's making to you that is not evidence that is in this record that was to be considered when the nation for summary judgment was before judge barrett it's extremely important understand for example the statement was made that mr curly was never told about the order there's no question of the order when to him your honor i mean there's no question that he was put on notice of that and in fact notice the issues with it how he had an opportunity to appeal and how that they would file an appeal on his behalf arrange for other counsel that they had a conflict to was to respond to your question on a first there is no reservations issue in this case every saying ok that the defendants rely upon to support this alleged conflict and why we should have done that is a reservation of rights case there was no reservation of rights in this case logan twin cities moeller all of those are reservation rights cases they can all be distinguished not only on that but also on a factual basis so that argument which is the key argument that the defendants used to support there are a stop and it doesn't apply here because there was no reservation right when my client initially was notified of this order which in the evidence there is shown was  to mr and mrs cooley by silas we care and there is a document in there that shows with the fax numbers across the top that it was in fact sent to them now am i going to represent to the court that there was a meeting where mr macare of sat down a declaration that said if he had now about this order in this right to a hearing that he would have requested want again that's nothing but a conclusion very allegation the to the party think it's to make the decision and he says that he would do this if he knew about the ramifications of what can anybody do that so it's not hard to believe at all your honor i would respectfully disagree now in fact kelly did speak with that was prior to that order but he did speak with mr bruning who is a member of the the firm representing them here today he was an environmental lawyer his statement is that the only only reason he went to mr rooney was to determine how to protect his assets i would normally say in my client to a bankruptcy lawyer someone of that nature but no he consulted with an environmental lawyer about  investigation is lunacy determined that it's our position that mr cooley merely saying that is insufficient and i give you another example that relates to the prejudiced part of their argument is well they were prejudiced because they had the hardest since counsel ok nowhere in this record your honor and this is easy easy to do was there a single bill filed to show nothing found to show that they incurred any expenses paid any  expenses no evidence whatsoever from mr bernini about anything like that and that's i think what judge sterrett was pointing to is that anybody can get up here and make a statement but that does not necessarily create accurately the evidence will refract and the corporate representative for growing dealers was named mr brymer and his entire transcript is in the record get mad now position he testified that grand dealers actually spent hundreds of thousands of dollars when the very things that you were just told were necessary had drawn list expert all of those things in the very first letter he refers to are going miller says we're going to provide you with vance there is also a statement by the adjuster saying we've the the whole idea was because this lake occurred over a period of time was to determine who owned the property when it occurred grain dealers paid all of the money in an attempt to ascertain in fact did not own the property when the lake occurred that is clearly in evidence that all of that was done was to mccarran attended in b q hearings i mean there's no question the only thing they point to is that he did not request thirty day or this hearing within thirty days not did he requested well by the now scott he knows that your honor there's nothing in the record to reflect why he did not do that but i think the point judge sterrett was making is that even if you'd gone to  an environmental lawyer maybe under these circumstances he would have said no in this particular case we don't want to do that strategy wise strategy or possibly be in not trying to appeal this thing that was going to be so of some significant because if there was a mean for example your honor if i alluded to that in fact the property was not owned by the coolies at the time of the discharge there would be no where to collect any money from them for that in fact the only monies that have been collected have been collected from the owners of the property after the coolies that is the pond out lawsuit that he referred to did you argue or someone else on behalf of your client that the m d c e q action had reached its completion to the district court of any proceedings now nothing has occurred my position would be your honor that because the declaratory judgment was filed in the judge in or the summary judgment they no longer have a duty to defend of course if your arms reverse that three different types of conflicts and one of those years where the carrier may not know any money so they may not do a good investigation that is clearly not what the evidence in this case shows there is no evidence of a molar and i look at this this letter it says this means that if you order to take part in the actual cleanup it will not be covered best practice but says you know that's pretty clear to me so what he's saying is we're going here to provide some defense well this is the good news is that your policy will defend the and we have hired mr mccary but they said in the very same letter if if you ordered to take part in the actual cleanup it will not be covered so isn't th conflict crystallized with those two statements in that letter yes or i don't think so are they going to wait to see whether or not he vigorously defend everything on both their behalf member half a brain dealers and then they make some subjective determination that he's not and then you can identify some prejudice and then you say oh ok now you're hurting me so i have some evidence of an injury isn't the problem crystallize the conflict is  and in reality what my client did if i could give you just a quick little history that might help me with that is that when notice first came to my client there was no lawsuit there was no in be e q hearing there was no in b q order it so my client has very limited information at that time they have nothing to assassin really to determine a duty to the fans so they err on the side of caution and they say we're going to thin because we don't know what everything out there is or what's going to come up but because of the pollution exclusion in the policy we're not going to cover those the civic costs that i mean that fall  appears that there may have been a conflict in actuality there was not on there was no reason for mr mclaren to not spend the money to prevent indemnification of the remediation plano he had to do that to adequately while we owned the property that's why you see in the letter that we carved title examiner check the ownership time period things of that nature so i'm just saying your honor is concerned but i think we need to take the facts here then  that simple the fact that the letter reads that way does not satisfy the mobile requirements for a conflict of interest and most importantly judge and and this is again while we're back to the standard when you go through this record there is no evidence that the plaintiffs have submitted that want to back allegations that what mr cooley to say this mr cooley does aside he never discussed it with any other tourney he never says that he went to m advise him i agree with that your honor i agree that under miller he had an obligation to tell him about that the reason the only reason i hope that the the defendants in this case again have my conclusion restatement that they want you to make inferences from in other words they want you to infer from a blanket statement mr cooley actually signed two declarations in this case first when he said simply one thing then he tried to expound upon it filed those concludes are a things that you are not allowed i don't think at this stage under summary judgment to make inferences from those things and i disagree then under twin city you can rely upon a mere inference or presumption to the evidence of prejudice in this case those cases are very distinguishable in twenty for example one it's a reservation rights case which is not what we have here the court if you look at logan it's the same why in that case and i mean they are plaintiff's lawyer in that when your honor to be honest with you because the in church family did not even notify the insured if they were not going to defend until if you if you move from that to what happened what mr mccarran actually did there is also in the record i will say within and i'm on thirty days of mr caribbean heart if not last there is  recall that conversation conversation mean that that that at a crucial time that he was adequately representing rather than trying just to let it go that way so that his real client would be on the hook well i would have two responses i mean one first off they didn't end up paying less actually that's again the defendants don't want you to know about the amount of money that was require evidence and that was judged there it's finding that after reviewing the record even if and he did not agree or its prodigy applied but even if it did apply if i had failed to  present to the court sufficient evidence and that is the key here your honor there were so many things that could have been presented that were not presented and it's our position that i may or statement by someone does not create things could have easily been obtained and found of record they complained of defense costs not a single voice was presented for the court to review there's no evidence that mr cooley has paid a dime ever for those things so i think it's inappropriate for this court or the district court at the lower level to have considered those arguments when there was no real evidence to support those arguments anybody can say i would have done so and so eight years later we don't know what would have occurred at that time we don't know what any attorney would have recommended we don't know if he would have gone to another attorney even if mr kennedy said we have the right to know would it he definitely would have gone forward we just need to know that the council was laboring under a conflict and he didn't do the thing that would seemingly in most without any explanation didn't do the thing that would protect his client but instead did something that would have fans his route through client's interest well i administrative document it does not reflect the action that mr mclaren took in his defense of the case it does not reflect the amount of money and time there is nothing in this record indicate that anything automatically that's correct but they know that up front so again it's not a reservation or right for the fans and the mississippi law in the case that way or the situation arises where the attorney has a conflict is where there is a reservation of rights the fans and that is not the case here i mean arguably my client didn't have a duty to defend i mean i think that's what's meant by judge there is but no but i stepped in and  rights to provide evidence of the prejudice necessary to create a fact that i may take issue with your reading of mobile or that it only applies and reservations are rights case and i know that's what we had it may look but you're out of time so thank you for no position ok to have been informed of his right to an evidentiary hearing but he testified under oath in that declaration and a declaration is a valid summary judgment evidence that he wasn't told of his rights and if he had been told he would have wanted to exercise that and that's in the record and that's valid you can't just say oh that's unbelievable we can't believe that the court is not supposed to destroy courts not supposed to be making credibility determinations at that stage of the proceedings on s contre supposed to be yours cause and he said i'm not going to give it to you you're going to have to subpoena me so and that was also part of the summary judgment record that mr mckiernan viewed them so much as not his client that he required a if the court there there's a lot of history in this case but here is one clean facet of the us that in my view would really require a reversal and render just on what you know right now counsel opposite admitted that the district court made an oversight when he said that in the e q proceedings were over and she said in we gave the court summary judgment evidence that they were never in a declaration and they're stating well we're great to defend them in the in the q proceedings now i'm sure interview in this case and to your honor what does it mean to defend the indy two proceeding and then to just let back that that was the central part at the indy to proceed if you were going to defend the coolies against the actual  allegations of liability against them i mean there there are there are other facets of the indy superseding still going on but that was the central part of it i ask you a question yes ma'am but what they said is we're not going to play  clean up costs ok in the in the universe of things that can happen cleanup cost is one item ok what are the other items what else can bad can  did pay some of the settlements paid everything they did they paid i believe they're being settlements in a lot of these cases i think that some of the settlements have some provisions and they're complicated settlements and i'm not completely versed in all of them but i think they have some provisions that open up for additional liability down the road but they did pay hundreds of thousands of dollars in settlements in council saying that they had said that we were trying to hide that from you i want you to know that because