may please the court my name is daniel to mel and i represent the appellant i d s property casualty insurance company i'd like to reserve two minutes for rebuttal after my colleague is done arguing is here today to chorused that the district that this court reverse the district court's decision to grant attorney fees and insurance coverage declaratory judgment action that my client filed as the record suggests i d s filed a declaratory judgment action seeking to rescind an insurance policy with one named insured and that named insured was michelle mullins i d s moved to rescind that insurance policy because of alleged misrepresentations that michelle mullins had made before and after the claim in seeking coverage for her son as a resident relative i d s also sought to declare the court declaration that it did not owe uninsured motorist benefits under the terms of that contract because it believed based on statements that mr mullins ryan mullens was not a resident relative as he needed to be as the as the court knows judgment shane issued a very brief attorney ruling which i characterize as two sentences and in that ruling judge mcshane stated this litigation does not require the plaintiff to sue miss action to determine who was a resident relative was frivolous but that's not with all due respect to judgement shame the analysis either from a legal mullins when the and here's where the context is important not only in the factual pleadings but in the insurance policy itself she was the only named insured then there's another cause of action or claim claim in and sought coverage and that's why in this really comes from one of the cases i why did she have to be named as a defendant in that claim because she made the claim for her son but was the whole basis for that claim was to declare that the son made misrepresentations no no that's not the basis of the clip that is not necessary for that second claim now i d s believed in its complaint based on the examinations under oath that took place that both miss mullins and her son made misrepresentations in the examinations under oath when they claimed they were resident relatives that seems to be factual and then are they resident relatives you make that legal conclusion but why he's doesn't seem to me to be a necessary party that's why i'm having some trouble with the argument i mean i know you wanted to sue or but that's not the issue here well it to say that it's to when you seek a declare it declaration that an insurance contract when it doesn't even have to be an insurance contract but when you say when you seek a declaration that a contract with the other party needs to be rescinded which is the first count of the complaint which gets no mention in the attorney  ruling how do you bring that from a legal standpoint except against the other party to the contract and in our case there is only one other party that contract states this is a contract between you and us the contract puts obligations on this michelle mullins and i'd like to i'd like to urge that if she wanted to join the lawsuit she could move to join the lawsuit but that state farm case out of hawaii said you know there's no reason to sue the insured just for a declaration of non coverage when the son made a claim is a resident relative you have the son there correct however this was not just a declared tory judgement action that there wasn't a resident relative that's not the factual basis or not you cover it for the kid correct that's not the only basis of this and that's why i think the panel needs to look at the substance of law of the state of oregon particularly in the williams vs salem women's clinic case where the court talks about what the legal analysis needs to be it has to be the court has to look at the pleadings the facts as alleged and determine if there's no objective a reasonable basis for that on that point if you running through the rescission into the contract and therefore it's object you know therefore you're basically saying the claim against her was frivolous but that's not what judgement shane said and that's not the right that with all due respect that's not the right analysis what the right analysis is is the court under twenty point one zero five because this is a subset of oregon law question is at the time that we filed that at that time my client filed this in this is important language was was the record or the allegations entirely devoid of a factual or legal basis that's the analysis the judgment chain was required to do the time you found it with that contract enforced there see the contrary judge the contract doesn't have to be enforced at the time because you have to you can claim benefits for something after the policy provision ends and insurance policy can roll over what's what's important is the policy was in effect at the time miss mullins called up i d s and said my son was in a car accident he is a resident relative i want to hundred thousand dollars for his insurance benefits that's the analysis i don't know i can't tell why judgment shane said what he said about the fact that the policy had some things that were asserted to the court mr tindale said miss mullins made a claim for her son the judge specifically held that it was ryan mullins who submitted proof of loss the question that you're speaking to judge about recision i think is very important the judge did find that their claim was frivolous because they attempted to resend based on the contract and the only provision in there that dealt with rescission although termed cancellation was clearly it didn't apply because the policy was expired what what their argument is when you boil it down is they're same by complying with procedural requirements a case that max substitute merit is not frivolous that's analogous to me filing a complaint that's frivolous but doing it within the statute of limitations so initially the summary judgment that the court decided was you ryan mullins cannot the coverage for ryan malone's cannot be voided by virtue of the fraud provision in the policy due to statements made by michelle mullins and so that particular provision had no application even though it was played in such a way that you might assume based on the pleadings that they were trying to make the fraud provision apply to michelle mullins so then it became clear that the only claim that was really stood out was the rescission claim which and so why wouldn't a policy holder be an appropriate policy party to rescission claim even if in the end the so then is that i mean then you're mixing and matching whether she's the appropriate policy or whether it's just not a very good claim well it's both i guess there's also so let's just stick to reese ok and you have a policy and the insurance company says you know i'm going to rescind that policy seems to me that that he necessary party would be the policy holder what the ca rescind a policy against a contract against somebody who is not a party to the contract well what the case law makes clear is that what matters is is if complete relief can be accorded among the parties that there are m claims against ryan moleyns would have protected her interests with respect to the rescission claim because that was made to him as well no but that it seems to me that you aren't excluded from including somebody in the policy holder as the contract signer correct yes and so why wouldn't that person be an appropriate party well i mean you're not you can't rescind the contract against ryan he doesn't even have any contractual rights stems from her well procedurally when you consider that in a vacuum what you're saying is correct judge but when you look at the substance of the claim there was no basis for recision under the contract and when they played this they just said under the general terms of the contract they were making a common law claim for recision that i could tell though that if that's what the district court actually said decide now i believe there's some discussion on that and one of the hearings judge and we were at the end when he made the attorney thea ward it looks like he made the feel for it because she was named with respect to the coverage issue malone's motion for summary judgment because the first one was ryan mones motion for partial summary judgment on the coverage issue and the second motion the judge said i can only find one playing reasonable way to read this rescission statute and since i d s just refers to the general terms and conditions of the policy for their basis for recision but couldn't point to any operative provision the judge dismissed the came claim for  i believe that the question of frivolousness applied to rescission and the reason i say that judge is because there was no way to the other put the other motion made by ryan mullins had already been decided and so the only issue before the court after that was the rescission issue to which the could to which the court called it for less and i believe his order on the attorney fees makes that clear and there was no reason for the judge to address the issue at the summary judgment determination that was only would only became important as to whether attorneys fees would apply i would i would agree with that judge and you know the judge made no when it comes to the attorney fees i'd like to speak to that as quickly as possible their argument initially was there has to be a bad faith finding and what they submitted to the court was case law that was decided before the statute was changed their reply brief changed their argument to all it's under twenty point zero five that the court has to make a finding of bad faith that's not correct i submitted supplemental citations that refer to the cases that deal with twenty point zero seven five that's the that's the statute that the court has to consider in awarding attorney fees and what is clear from those cases and a plain reading of the statute is that the court does not have to make a decision on every single factor there it only needs to as those core said identify the relevant facts and legal criteria relied upon a trial court satisfies that obligation by including in its order a brief description or citation to the factor or factors on which it relies or by clearly indicating the basis of his decision judgment chain wrote a nine page opinion on the attorney fees he listed no less than five of the factors described he made specific findings even though he doesn't have to in addition to the finding of frivolousness in his in his order so he more than met the standard in terms of findings and he doesn't have to find bad fa honor it's just a couple of brief points because i'm almost out of time twenty point one zero five is a subset of right and you don't get to twenty point zero seven five unless you meet the requirements of twenty point one zero five those requirements are clearly laid out in a statute and the parties disagree about the continuing viability and application i'm a teaser versus foster three eleven oregon one we think that case is still good law we think that case that's out a three part factor that a court has to decide whether it's a state court or a federal court those factors just simply are not met in the legislative history that the court discusses and that statute i think is incredibly important to this court's decision and i would ask you to review that and i would ask you to take a look at the footnotes of that case as well before rendering a decision thank you there's no other questions thank you for not thank both card parties for the argument this morning case i d s property casualty is submitted