contract action that arises out of the duties that he had he had towards ensuring it's an unusual case which i really believe is the case of first impression or the work because of the fact that  ninety eight claim was filed notified t i a g even though i'm a was handling both claims itself but notified c a g this ninety one claim can't be settled because this injury is now there's a new claim and the ninety eight claim could be related back to the ninety one injury that's in the record but from ninety eight and continually through two thousand and six when the side of that arm i kept telling them the only way th one injury law from the beginning sad we're looking at best a trier of fact the arbitrator has to figure it out we believe as it goes on and they keep telling to the i g a we believe it is a continuation and based on all of this claim because of its potential to be covered as a continuing injury from the ninety one clay from the second it was filed they were on notice that it could be related back and they could be held responsible for everything from start to said it wouldn't happen that way because under there's a recent case that just came down that talks about the responsibilities of the chancery court person of sponsibility as of the only workers compensation commission that goes skilling which is an older case that talks about the workers compensation commission is uniquely qualified to make that actual determinations and the coverage issue here as between t i v and s and c c specifically relates to the factual issue of does that ninety eight claim represent a new injury or does it relate back such that the chancery court while cast uniquely qualified to make coverage decisions it can't when that actual determination have to be made by the workers compensation commission claims that are already pending solid so let me ask you this question if we were to reverse the judge yes ma'am the issue resolved we believe the circuit court doesn't necessarily have to have an end evidentiary hearing on that basis and make a precise determination of every single dollar here has to be paid back to us and c c but certainly can look at is what yes he did wrong and assessed penalties under section one fifty five without going into the specific delineation of what medical bills and what attorneys fees paid in the underlying have to we believe that looking at the sie ours you can do that that did t r g manipulate tests you know that's something that the circuit court can look at they can look at all of the evidence and all of the letters all of the claims notes that we have from t i overwhelmingly likely we're going to be on the hook for a one hundred percent of this at the time of hearing i mean that all right said i i don't i'm not sure really understand your initial premise that this individual liability absolute liability and that's why it's the i g his own counsel said this is an all or nothing case i don't like our chances that nothing they knew that they were going to be on the hook for everything from ninety one to two thousand all right so then th on the claimant over a million dollars and somehow that reduces by ninety percent to the point where they can settle ten years later because this was done in one thousand nine hundred sixty four hundred twenty five thousand is it well it was risky for s n c c to go to the arbitrator because it least future medical can but we don't have the liability anyway so let's go let's go to ben but you decided not to think the rules more importantly if we went to trial the arbitrator couldn't assess he couldn't make a determination that it was a continuing injury he couldn't because the ninety one claim was wells so you no longer have the consolidated injuries so as n c c can't make b division and get that thing clear atory judgment otherwise sure you're out of the box again going back to the argument i made before we couldn't do it we had no notice that this was going to happen up until the minute it was was to inform them of whether we were going to defend which we did and reserve our rights under us but if you can you have a satellite and you have to go in and get it to clear retore no you have to at some point you have to decide which you've never done it we would need facts to show  see see something different than what turmel was saying all along burma continued on the path of we believe that this is a continuing injury we are going to have the trier of fact the term u said really the contrary of what you're suggesting i mean in march of two thousand the much folds th e but will be resolved simultaneously they both involve the same condition a year legal bills or expense payments made on the file periodic please both filed ultimately are for the state condition it is so your point will be resolved simultaneously and that the difference there's two claims and the issue of injury is very separate from the claimant the glazes testified that she's talking about you're not responsible for a ninety eight injury but you could be responsible for everything if that ninety eight injury essentially disappears and is considered an aggravation or exacerbation of the night he won and that's why she says this will be resolved simultaneously at the time of hearing and they keep doing that throughout the years up until two thousand  never changed its desire to have this resolved by the trier of fact and didn't know until the last minute that he was going to settle this out from under they had every regimes there might be to settle their mean irma would have had a reasonable expectation that she actually would cover that and that could only be determined if someone made a factual finding that the ninety eight claim was not a new injury but a continuing injury and while we agree that the t h d policy absolutely covered ninety one injuries that were claims made on the s n c c policy cover the ninety eight injuries if the arbitrator made that determination which is all that irma it c thought was going to happen based on all of the representations made up for two thousand and six and continuing into those settlements discussions between the parties that c a g policy would have been responsible for all benefits if that was policy you suck so why are you here because they never could have gotten a result from the arbitrator dealing with the ninety one that would have given any ammunition whatsoever and they would have had open medicals that would have resulted in even more  if you brother nineteen be one pick titian then the arbitrator would have decided who paid what right i mean was once the were first compensation attorney for the ninety eight claim i found out about the settlement he attempted to have done but there's nothing you can really do i mean this kind of problem has existed his longest time you know i had it many many times you know when you can't get the other side to agree i guess the only thing you could do was file in one thousand be one and get it decided but no one filed and i didn't get one here and really by the time that was at issue it was too late it really was too late because all the parties other than were under the assumption that they were moving towards hearing well if you had filed the declaratory judgment are asking for this relief then it wouldn't have stated anything at the commission  see that's the think are you saying that you couldn't have asked for this determination because they could have settled anyway no we couldn't we could invest with a determination by the chancery quarter by i got the chance record we couldn't have asked for the chart determination by the chancery court because under skilling the workers compensation for mission has to make the factual determination because our coverage action regardless of when it was filed would have been reliant on a determination of continuing injury new injury to claims one claim and so the chancery court couldn't have made that decision until something was done in the underlying pigs and that never happened because of what yes you could rebuttal for your honor it's the circuit court was right and granting summary judgment to th g and dismissing the safety nationals complaint t r g filled every single obligation it ha rights it had the i'm conditional right as you pointed out to settle and defend the claims without the consent of the insured it's settled the ninety one case within policy limits and it obtained if there's this injury it's ongoing ok beginning when he first has his and and it continues for ten years is there an obligation  ninety one through the time mr urso file it's come to his worker's compensation claim for the ninety one injury and when he filed a separate claim alleging a separate accident for the nine ninety eight injury and they're on until about mid two thousand irma as you pointed out wrote to us more than once and said we are viewing these as m two entirely separate claims and he did describe two entirely separate accidents and as the circuit court found we were entitled to rely on erma's representations that they were two separate claims i would like found this should have been and could have been tried should the workers compensation commission which save the national is saying they're the ultimate authority on these type of causation injuries with respect to workers comp  the record shows that every single defense attorney who handle mr or so's claim for erm out for either one of its insurance companies were ready to go to trial they could have tried the d for ever and that and it and if you know they were between the rock and the hard place that's what this is all above well how did it i guess what it's all about is speculating that the workers compensation arbitrator couldn't possibly and wouldn't possibly have considered the evidence that that if i say if you national wanted to prove i thought the medical evidence could rule that all of mr medical difficulties were that were standing from the ninety one injury if if if they thought they had enough evidence to prove that to go to trial why are we saying oh the workers compensation  arbitrator would never listen to that they would never give us a fair shake and that even irma as executive director said we could have tried that pace and if they had been able to persuade the arbitrator that this was all because of the ninety one injury then there would have been a credit for the amounts made by her mum on the ninety one claim so so that gave her my and the village a completely release from ninety one liability there there was no reason why this matter couldn't be tried again if there was this firm believe that all of that their attorneys were ready to mr powers then the and both attorneys from the representative you know represented erma after the two insurance companies took over all those attorneys their testimony is in the record set we can try this case in fact at all times they thought maybe we can prove that mr orso is difficult these are not related to either accident he apparently had some psychological something might say decide not to why they clearly labeled this even to their own financial detriment to the get go they decided we've got to separate claims we're going to pay two separate as i r s they're sophisticated people are basically a commercial insurance company and they opened two claims right it isn't it isn't it a fair bit because erma submitted the claim that ninety ninety eight true there is a side issue and it's fully addressed in the brief that court under the t h d poesy no assignments were valid were enforceable against t i a g and also no settlement the settlement here closet says we can settle a flame without permission they don't really say that the authority to suggest that you didn't have the right so i agree but they don't cite it dorie piece of the assignment either correct the argument was that  that that the court can't look at it but of course the corps can affirm the supreme court's judgment on any reason a parent record and certainly that insurance policy is in the record and this was raised in the trial for this argument doctrine to assert those policy differences because of the fact that they committed a breach under that policy in their obligations to term and again under city for persons rocker get like a circular argument if they don't have the right to assign it to you you're say i'm saying that he i v can't enforce those policy provisions that prohibit an assignment where they're acting in bad faith towards their church they can't enforce this agreement to their own benefit when they're acting in document to their own insurer but provide never took their position that your take herb continuously let safety one and one was filed in ninety eight but on the never changed his position that they could be one injury but they tendered it to you they should because it was filed in ninety eight but the determination would be made later as to whether the injuries were suffering third there were always separate claimants but the question was separate injuries that's the real determining factor and t i g it's clear they didn't act with the proper motive there w disregard our obligations to cover an injury if that injury is a continuing injury and disregard the fact that if we settle this ninety one claim we're going to cut ourselves off from any liability that is a real that took place tonight the ninety one it was before two thousand and six and i apologize i don't have the specific reference but within our initial brief filed with the court we point to the doctor and point to the specific it was right to lose our it was in may of two thousand and one when he said the treating doctor find that the ninety one injury is responsible for the current condition more so than the ninety eight injury which from two thousand and to two thousand and sixty if you did nothing on its own to raise that issue or take over the defect there were still years before th you took over the defense and it allowed our men to continue on knowing that that doctor's opinion was in the record and that's how the case was progressing that it was going to be one settled out from under you and force the hand of us and say you see at the time of trial we look at the fact that they value their claim before this ninety eight claim was even filed at over a million dollars and yet settled their claim for time for sign of that at the at and then we as n c c has a real argument as to is this an equitable remedy for that that they paid the death of another they wouldn't because of the nature of the reimbursement policies because they were two separate claims it would again have to be a credit or something made as a determination by the the arbitrator if they were continuing claims and it had gone to trial then irma would have booked it and said ok we don't pay two s i rs we're going to ask for reimbursement of the second essay our under which all the t t was paid from the different and the claims that he said that no if those two claims were you to cater to be two different injuries they flow to the respective reimbursement paul excess policies but that ninety one policy is on the whole of work what's technically a separate claim if that claim goes away and it's just a continuing injury but there was nothing to prove it with you in the nineteen in this model from powers testified in this that that was his his view that it was going to be determined and it was always at issue but it wasn't a fight while i was in front and was handling the consolidated matters there was