respect with regard to the breach of the duty of good faith and fair dealing magma of course had substantial attorneys fees and costs that it incurred between two thousand and ten and two thousand and seventeen in trying respect it seems to me that your position conflates a breach of contract and equitable subrogation in this particular occasion it was not clear that national union owed the money until after coin back and forth twice our court in which the court made it clear that the second tranche covering the period that national union would had been triggered but until out occurred it had no obligations technically at that point you spent a lot of money but they weren't obligated to then at that point you want to get your money back but magnum was entitle to the money you got involved the subrogate stepped into the shoes of the suburb or that's what we got here and then yes that is what happened but what we had in this court's genesis three decision this court that the reason the subrogate was able to recover was because there was money due and owing i under the insurance contract which was a right of magma that that money was had been due and owing since july of two thousand and eight which is why the court ordered statutory interest at the contractual rate paid to the subrogate he and the court did so on the reasoning that the rights were those of magma because all rights of an your derivative of the rights of the insured under the insurance contract right and so that this court has already held in its genesis three decision that there were rights that had not been honored yes you're right judge and we have matured that that point it's true what you said in terms of the triggering date for the interest running but they had the condition precedent to that occurring did not occur until our court recognized in genesis three that it was that requirement of the national union to pay it went back but it wasn't clear until that point wasn't yes it was it  was my yes as to there was a duty that was owing and had been breached prior to this court's decision in genesis three that duty was a promise under a contract that contract had to be honored at the time that money was paid out and the insured had a liability that it was subject to risk on the judicial judgment ordering magna to honor its  contract and to rectify its breach by compensating the equitable suburb of magma didn't incur until two thousand and seventeen but we're not accusing  magna national union of contempt of this court's order in two thousand and seventeen what the accusation in the lawsuit was is that there was an underlying contract and that it was breached when there was a failure to honor it and compliance with judgment in forcing a contract is not compliance with the contract itself and and so whether it's with regard to the underlying breach of contract clime genesis three is law  case that there was a contractual right that was doing owing and that magma had been deprived of the benefit of its bargain because it had never received nor had its equitable several gay ever received the money that was owing under that contract i and with respect i don't understand what we said in genesis three to be the law the case is innocent about that in quotes damn through do i don't see it as finding a breach of contract where in the record do you find or in our decision do you find something that says this is a breach of contract in the damages or are in genesis three in the in the last paragraph that deals with the interest that was d the the way the court applied the interest rate and the court and the court says it's interest of a prejudgment interest owed after the breach up to the date of judgement made this what the again to put the claims in cont dismissed we won what we wanted to win on the on the policy itself in genesis three we're not here as an academic exercise what what what the reason why we're here on appeal in this instance as we've been deprived of our right attorney's fees this is not a case where you're asking for attorney's fees because you litigated against national union and you want that money you're seeking fees for litigation against a third party that's correct you  that resulted in litigation by the purchaser of the stolen gun and the california courts held that the attorneys fees in the third party litigation were recoverable as jury could make a reasonable foreseeability determination that when when national union and magma entered into their insurance contract in two thousand and four that if national union denied coverage on the basis that the coverage actually should should fall under the earlier insurance agreement which was identical in form that that was reasonably forseeable that there could be third party litigation lesser but you're alleged and the third party litigation that that insurer was responsible had a duty to indemnify correct yes so now you're saying it was foreseeable that you were wrong no actually and that the the a very much in your complaint were completely wrong because in fact it was another ensure that was i was liable for what what what magma said was that one of the two of you owes this money and it is unclear at the outset which one of you of is it which the first level insures of the excess harriers and that's what was litigated between two thousand and six and two thousand and ten once the notice of circumstance issue was resolved by this court as a matter of law the only issues have been raised because i was what you're really seeking if i understand your theory is attorney's fees that you spent litigating against the third party urging that that third party was liable to you and the now time there's a timing issue i think confusion with all due respect you just were not trying to seek recovery of the fees  ten and the present with national union after this court's decision and two thousand and ten clarified and ruled on as a matter of law the notice of circumstance issue and our principal climb again i want to make sure that the court doesn't miss this because the district court only devoted a sentence to the to the bad faith climb but that's the principle climb that really is at issue and left in this case how can there be bad days when  insured was suing in the first place to determine which of the two owed anything well the answer to that question is one we haven't and we're climbing on reasonable that way and honoring the policy after this court's decision in two thousand and ten and that between two thousand and ten and two thousand and seventeen rather than it here to the position that had it taken in the previous four years that the only issue was whether the notice of circumstance was a valid notice of circumstance or not national union switched positions and started arguing that in fact i did too well everybody switched positions but that but they did we didn't switch position on what the only issue in the case was we respected this course judgement that th we had to go through seven more years of litigation in order for that to happen executive risk switched the underlying the first tier of the first tier in the tower in two thousand and thirteen so july two thousand and thirteen through two thousand and seventeen all we did was litigate new and contrived defenses that national union came up with us to whether or not executive risk actually had the authority and is not th it is there has to be a reasonable basis for delay in payment they didn't come forward and say here's your money but we're reserving our rights they after the first after the court ruled in two thousand and ten that there hadn't been a nothing wrong with them taking the position that they did but that doesn't mean it is in bad faith again the quote in question under california law is unreasonable the law on the question about faith is a jury question i see my time's up i'd like  good morning your honor as my name's michael johnson i represent the app tell the national union there are very good reasons why this summary judgment should be firmed in favor of national union the arguments that we've asserted have been touched  fax or undisputed as to the basis for national union's timing of its payment to the law of the case so they may be undisputed that whether or not it was reasonable or not may be here jury question it's not a jury question because litigation conduct by an insurer is privileged under california civil code section forty seven under the litigation privilege and that issue has been addressed in a number of cases including  the insurer unreasonably delayed payment which it then that can be a question of fact for a jury in a bad faith case well the decision here was the decision by policy period as notice of circumstances and then failed to comply with the policy requirements of the content of that notice that was what triggered this entire fifteen year odyssey of litigation i understand that but it sounds like it sounds like a factual defense though it's not a factual defense because magma advocated for that taken in good faith the court disagreed with that but that was their position before this very court in two thousand and ten in the genesis one litigation magma bag i took that position their attorney who was here in this courtroom today i advised the court that that coverage position was undertaken in good faith and was reasonable and it's undisputed is this court found in genesis two that executive risks statement that would it would adjust its record to reflect exhaustion of the over four zero six policy was explicitly contingent on a judicial determination that its decision was not correct there has been no determination so that was two thousand and thirteen when this court remained in the matter back to the district judge to evaluate the correctness of executive versus decision of places lost in the first policy period do you  agree that the district court's analysis on the government of good faith and fair dealing with one sentence right right but that's because there was no breach of contract rights which is a necessary predicate to a bad faith claim generally constitute a breach of the covenant good faith and fair dealing that notion was just outright rejected in the emerald bay case which addresses both the breach of contract and bad faith claims you know you it's very important to keep in mind that an excess insurance policy provides a specific contractual benefit which is a layer of indemnity contract and so we're not talking about the duty to defend here is strictly the duty turned down if i'm correct and that is in regard to a claim against its insurer the claim against made me here was the securities actions which were filed in two thousand and five settled released funded and dismissed in two thousand and seven after that the claim had been fully adjusted and frankly do you have good faith and fair dealing ended at that point after that case was settled after the claim was resolved after and during that time national union acted fully in compliance with the wishes of its insurer and with the decision of its primary carrier who it is closed to respect after that there was just litigation in the form of equitable subrogation by genesis against meg went to seek reimbursement was no duty of good faith and fair dealing that applies in the litigation conduct and that again is based on the litigation privilege nice old republic california physicians et and it did not experience any damages as a result well let me ask you a question about that because i'm not necessarily convinced so when genesis is contributed five million dollars toward the settlement they did that under reservation of rights act that's correct ok so they didn't receive from genesis what they were entitled to receive under their contract with you that's not really fungible to say national union five million dollars free and clear or we could we can get the right to litigate with genesis over its reservation under california law is fully appropriate for an insurance carrier to comply with its policy provisions by providing the benefits due and owing under the policy in this case it's a five million dollars slice of indemnity dollars  reserve its rights to either seek reimbursement of those funds from its insured under it's called a boss reservation and it's it's the legally recognized method for resolving those issues it's not a good faith or bad faith issue in the satisfy the elements for a breach of contract claim so you you know actually injury is required and that's when the ruiz decision and egg valero which cites a number of california decisions the bank the bank state farm decision all require actual tangible injury as an element of a breach of contract claim and we don't have that here you know that's the reason you take the position that there is no breach of contract at all because the contract was with magma which was paid by genesis and there after it was a dispute between the two insurance companies as to which triage had to pay ultimately it found  national union was responsible but the payment goes to magma and then they have us over a geisha an action and they're trying to get attorney fees on top of that that your business yeah i mean it's really a phantom damages claim because genesis is paid the money to settle these securities actions and then they got it back in full with prejudgment interest from national union so they were made whole making the got the commercial benefit of these access policies it received the full benefit it was entitle to under these excess policies specifically that five million dollars layer of indemnity dollars and the policies were exactly identical except for the time period they covered is that right essentially they're both following form of the primary and i believe the executors policies were substantially identical in terms of the scope of coverage that the afforded if if hypothetically genesis had sought reimbursement from its insured understand what you're saying your honor the problem i'm having with it is that the litigation between genesis and meg was not based on anything the national union had done or not done it was based on the notice improper notice of circumstance involved and settled on one forum so i understand the peculiar well give this case is you know a prime example of of the hazards of piecemeal litigation and my client has frankly borne the brunt of it it paid a substantial premium on the five million dollar indemnity to pay now but it could have participated in saddam on a reservation of rights to a litigated with with the other insurers well i mean you had other options and not that that's of any concern legally here but all the were advocating for placement of the last in the first policy period an executive risk specifically told the court in its position statement that it would not move that until there was a judicial determination telling them that they had made a mistake in placing the loss in the first reassigned the coverage until two thousand and seventeen from the two thousand and three for policy period to the two thousand four to six and it's my reading of the record that that actually occurred in july of two thousand and thirteen what and in fact he told the district court that that it happened executive risk had advised all the parties and the court that it would if the court had determined that they had made an error  placing it in the first policy period then they wouldn't move it i thought that's what they said but that's certain and that's what they actually reassigned it in two thousand and thirteen well in it in genesis two this court stated and this is law the case executor a statement that it would adjust its records to reflect exhaustion of the over four of six policy was explicitly contingent on a judicial determination as decision was correct so this court this court made a finding that executive risk had taken the position that it would not reallocate the loss until the court decided that it had made a mistake there's a reason for that which is the secularist want to cover a share of that that layer of coverage second policy period was one hundred percent x l it's my question is shifting that loss it effected the these supposed significant rights of these other insurers but my that they would reallocate laws they did advise the court of that however that is inconsistent with what this court found in genesis two and it were inconsistent with what this court found in genesis three where the court stated because we now hold that executive risk was not provided a notice of circumstances under the zero three zero four policy executive risk improperly adjust its records to reflect exhaustion of the zero four zero six policy since executive risks before zero six policy is deemed exhausted nationally and is now liable for providing first layer access insurance the court used the word now in the genesis three decision twice and  that term advisedly and for a reason and just read that out and say well you know executive rist made unilateral decision despite its prior representations national union didn't breach is contract was continued to be at risk of not having coverage from either of the excess ensures and as judge rattle has pointed out it continued to be at risk for that money until this court's decision in two thousand and seventeen secondly to shift judge thomas point genesis actually amended its complaint in two thousand and ten to assert restitution climb as well as an equitable subrogation clime against mag so the hypothetical that you identified is actually the facts of this case well it was one difference  that my hypothetical had genesis winning against your client and then you pursuing national union separately that would you have for that is absolutely right and the only reason that i'm making the point is that we have we were risk because until this court's ruling in two thousand and seventeen national union continued to try to prevent too from reallocating the underlying insurance and it continued to raise other defenses against either magma or genesis it having to pay so i'm my client was exposed throughout to the course of conduct that national