for a rd party based cause of action for the manner in which the insurance company failed to settle the claim when i had a reasonable opportunity to do so and should have done so because my time is so limited today and to cut to the chase i want to get to what i think the court has specific questions regarding the ruling i would like to cut to the heart of the matter which i believe is the last ten are yeshu of whether the court erred and finding that the release that was signed by blocker with f f i see which is an abbreviation for fireman's fund insurance corporation in connection with a declaratory relief action that was filed in two thousand after the initiation of diagnostically singh's underlying cause of action for the fire loss of its cat scanner and nine hundred and ninety nine whether the settlement release that was entered into from the separate declaratory relief cause of action between the indicated that i see failed to meet its burden in the two instances both the release and the sub issue for the releases whether  the issue of release let me go through this very quickly and state that specifically the court begins its discussion page twenty eight of its order  agency on page twenty nine it says to establish an actual agency relationship the following elements must be established one acknowledgment by the principal that the agent will act for him number two the agents acceptance of the undertaking three controlled by the principal over the actions of the agent and the court cites to the case of fernandez versus national college a rd dca case from two thousand and six and the court goes on the side that is the right to control rather than the actual control sorry i could not hear and i apologize i rarely get accused of not being loud but i may not have been there wasn't there some evidence that the elements had been met another word for it since the  includes the company specifically soldiers company of associated and then any corporation is separate from the company called fireman's fund insurance corporation and the letterhead they use simply notes the  generic trade name of fireman's fund which covers the umbrella of companies that all issue separate policies among those are fine funded trust corporation and i feel i can still see how they're different corporate entities which would contradict a finding of agency as reflected or as an inference from that letter doesn't the fact that they're separate indicates that one is the principal and one is acting as an agent no i i would disagree  st i'll come back to the initial premise that was the burden of the moving party to show that there was an absence of evidence to address that the court spontaneous analysis of the record eviden the agreed order that was entered into by mr ambler and which the hillsborough county circuit court entered an order finding that the policy limits were in fact one hundred thousand dollars which coincides with the the evidence that deals with the agency question st this release specifically refers to the policy number the policy itself does have fireman's fund logo on it in the record  agency it requires some very specific things so i want you to tell me not just how they're all under some kind of related to each other but specific evidence that you presented that was under budget and showing that fireman response to the disclosure statute it was those instances of control and which just did from the beginning of time up to the end of the case it was the same the same group of attorneys  at least up to a point there was a change of counsel but it was the same situation where counsel was hired in fact reported to s f i see the same thing with the outside adjusters when their term expired in that regard they were all in that relationship is the existence of a control relationship between the parent and the subsidiary next question even if we disagree with you and think that there might be a genuine  this regard relevant to this agency question the only thing good in the district at least at the summary judgment stage before the judgment was end was let me also just continuing as it relates to some of the issues in this particular case what was problematic in this regard from that standpoint is the whole basis for their bad faith claim or the primary basis for the bad faith claim was the fact that there was a dispute over the location of the fire at the foot chicken a policy limits that we were dealing with one hundred thousand dollars coinciding with the fire department report it also coincided with the investigation and certain of the testimony and in the record they tried to make some issues about that but what i found particularly important is what and after the trial is over after this has been through a centrally fifteen years of litigation and planes and the rest i have to say and it may be that you're right and you have to disabuse me of this notion but that does not seem at least as the district courts on what the limitation was exactly what had to be there's a nd problem that i just wanted to point to and that was the lost profits claim was never covered it's excluded from the policy and i would direct the court to page eight bad faith case and that was what they've been harping on for some time about the fact that there was some suggestion that the that we got it wrong that there was some negligence which again is not the standard for bad faith so yes what you say about the underlying litigation and then the current lead a geisha and are different in the sense of they seem to have shifted serious but to go back to your issue about the twenty five thousand dollars that was clearly what one of the main issues flock of condition that it was that the damages were limited to twenty five thousand dollars in any case regardless of what the policy was yes that is correct and that's the reason why they had independent counsel in and of why i know from the records that there was actually a policy tender by the insurance carrier to them saying look if that's a position want to take here's one hundred thousand dollars that you can do with that if you will and they never and that was the testimony of the of the trial counsel who was involved in the case of that at that point but from that standpoint i did want to go ahead and also talk briefly about the preservation of air the district court really did not have  any sort of a presentation and terms of the contesting the agency question throughout there was only the questions of separate corporations and that as we've discussed is ultimately this release which was executed in two thousand and one came about it didn't matter if there was any excess judgment in place at the time that goes to the derivative nature of the claims that a rd party holds under the right to rd parties rights are all derivative from those of the insured blocker and that's why this release is effect page summary judgment order that the evidence was insufficient to go ahead and show that there was any further acts of bad faith everything that they focused on in terms of everything that they focused on in terms of the this is the most common form of bad faith and certainly the this does specifically release bad faith and so to say that we can parse it and cut it up and do different times which this needs to be interpreted what we're talking about term the claim is the failure to settle the claim when the insurer could've and should have done so under the circumstances and so i would submit that even the relief supplies and i'll come back to that point in a minute and conclude on it but say the underlying toward action again seats are no longer exist either because the insured party has released the insured from liability or the underlying judgment has been satisfied the cause of action for the rd party bad faith no longer shoes of the insurer in the context of the duty of the insurer to act fairly and reasonably and settle when it could have it should have done so under the circumstances not step into the shoes of the insured in the sense that a dollars if you were to hold the derivative nature of that then they would have this or a the independent cause of action that the insured has by claiming that the insurer did not treat its insured fairly and appropriately under the statute  and that was preserved below is that these are separate entities and fireman's fund insurance corporation are separate entities that operate under the trade name of fireman's fund as their as the moniker much like a i g operates with a group of thirty insurance companies under the moniker of a i g but in this instance to the point of whether it was preserved on appeal in time that into the proof of agency again the court correctly cite some page twenty nine of its order what the what the required evidence must show to establish an agency relationship and those very points that are such correctly cited by the court which are contractually the obligation runs from the to its insured blocker not from fireman's fund insurance corporation who acted in this instance as an adjuster general adjuster who then sub contracted for outside adjust