coverage case that was based on three grounds the financial services exclusion the cooperations clause and the find with the consent judgment entered into between eighty i asked and section ten wasn't bad fa transferred at issue in that case were related to the prior bad acts did arise out of there but what this court held was it was not a coincidence that the insolvency of the misconduct in that case converged instead the misconduct was a significant for cause it but for cause would allow the insured in this case a t f is an insurance company anything that they do presumably could be a but for cause from providing insurance services money back having found that natalia wolf had invested the money in this company over here that has some learning to this company over here having filed at least pendens against my client's property having maintained that despite information that there was not a valid claim there having exposed itself to a malicious prosecution claim that lawyers or carlton feels could be an eighty million dollar exposure does that arise out of not up to me as tara and turpitude are rushing out of and we would argue that it's not your honor because there is an independent business decision like the court in the f d i c case which we filed this supplemental authority distinguish this court's decision in soccer but there always is an independent business decision you don't have to pursue your remedies you don't have to take the next you don't have to take the next step and you don't have to take the next step in a way that creates a malicious prosecution claim and so you know again you are yes if a rising out of means but for causation only then i think that's different than what the florida supreme court has ever said if you look at the race case from the florida supreme court which is the case that talked about a fight that ensued after an collision ok what the court said there was that does not arise out of the automobile collision it certainly was a but for a cause but in race the court said that's not enough because it does not it was not part of the inherent nature of the use of the automobile as sad and it merely contributed to cause the condition which produced the injury and did not itself produce the injury and that's what the court looked at in taurus holdings as well what caused the by it was then deciding after those claims were handled after that was done to go ahead and proceed with this lease pendants action and to maintain it to the point of a loss to my client the talks about what arises out of services and that is the maryland casualty vs florida atlantic case the hospital case where this court held that the transport of a patient arose out of the provision of medical service atlantic case we've got the florida supreme court case in race and we've got the oh my your case which is the gas by finning case where the florida court held that where there was an explosion when someone was siphoning gas from a car that did not arise out of the use of the gas i mean these of the car because the car itself was harmless until someone came out with a cigarette and acted upon it again your problem and for  causation greater than coincidence and what the florida supreme court has done without language we see in the race case and we see the fact that yes the car was the but for causation of the fight in that case just like if natalia will had never defrauded these people  those people had never made title claims and eighty i have had never paid them and they had never then closed their files and decided to get their money back and then filed what started out as a valid effort to recover those monies but ended up being a malicious prosecution for all that we wouldn't be here but that was not enough for the florida supreme court in the race case and again what this court was doing in soccer it said these things significant contributing cause it was an element of the cl the and on that argument we've raised a number of issues on which if the court doesn't have questions we can rely on the briefs but i do want to point out a couple things whether and this relates to an alternative argument raised by travelers to whether an insured can reject a conditional defense is a big issue in this case and in this case the defense offered by travellers was we this may this exclusion entirely negates the coverage and we want our money back for defending you so this is exactly the type of situation where the insured how to write under florida law to come in and reject the defense and to enter into the colons agreement the in terms of the damages amount there's been a lot of discussion about whether the damages amount in this case was reasonable or the product of bad faith and we would just point the court really to a couple of items of evidence in the record that it's our position at least created a fact question on that that the trial court should not have resolved as a matter of law the appraisals the appraisal showed a difference of forty three million dollars and the evaluation by the defense attorneys a year and a half before they were negotiating with my client that said this was between a forty and eighty million dollar case the on we would ask the court to look not only at the soccer case but also with the florida law that created the basis for the soccer case to go back to the taurus holdings case and see that the court was looking at the fact that the damage in that case was caused by the insurance product go back to the race case and see that the court in that case the florida supreme court again was looking at the fact that the damage was caused by the fight and that there was a separate decision made just like there  out that this is the that these companies being sued when they shouldn't have by travelers a bible issue for them because travelers are still trying to get cost from them in the district court so we would ask that you rule as we request in the  insolvency was a fundamental element of the fraudulent transactions and as your honor pointed out no one made them commit the fraudulent transactions during the the policy period that was an independent decision the point was the stuff that happened before the wrongful acts th resulted in the insolvency work in connection with the fraudulent transactions so here attorneys title the insured was itself an insurance company like in sucker a sophisticated insured who chose a policy that didn't provide coverage for this part of its business it made that decision so the attorney's title pays title claims arising out of a fraud if then does whatever the insurance company does it tries to get its money back it brought to an action against ms guns client section ten and section ten believed in property and that action which flowed from in connection with more than but for cause and to salvage action is and be the payment of the original claims is part of parcel of trying to get that that exact money back and that claimed that section ten then brought back against attorney's title was a malicious prosecution claim for prosecuting that exact action that had been brought based on the payment of those exact title claims so in terms of the linkage for in connection with the linkage the links are  case but more than that if the maryland case really supports it it's arising out of medical services that what was found to arise out of medical services the the wrong was having to do a transport it wasn't the medical service itself so again you have this link it to the medical service the transport the negligence and this court's other published opinion in this area really and following tauruses the james river case which was a pollution case where again you have the pollution and the wrong is the negligen failing to identify tanks that were on the property again the negligence is independent of the pollution but there is no claim for testing and missing it except for the fact that the pollution occurred in the first instance so it was covered by the pollution exclusion and the arising out of language so we think that the arising out of and is the analysis for the court but i want to pause there because in fact section ten has to win on every one of these issues to require a reversal here not just the expulsion but before you move from the exclusion the the two policies the travelers and st paul policy both use the arising out of language but slightly different wording is there any significance to the difference in wording between the two proble but one is called an insurance company exclusion it there are several abcl exclusions in the access policy the st paul policy for all intents and purposes they're the same i think there's some additional language in  the primary policy but they all have a reference back to claims him and so and that service being provided being a hand with claims because they're professional services exclusions which are often underwritten in their underwritten differently and are typically covered by a different policy it's just that the undisputed evidence in this case was attorneys title made the decision not to buy a policy for that so i don't think the difference necessarily are relevant here in that they're both claims handling and they're both arising out of with respect to the other issues on on cooperation here again this court has seen a lot of these cases where what the insurer does is they perceive a risk that their insurance doesn't cover them for or that they don't have enough insurance for and so the way out is to reach a deal with the claimant and assign the liability because that way it's not their problem anymore and this court has seen a lot of them from the city of jacksonville case to sigman most recently and so that's the pattern we have here the court addressed that in the american pride case also in which what the court said was if you go off and secretly negotiate a coincident one of these deals where you're going to offload your liability on to the insurance company by assigning the rights against the insurance company with putative adversary if you're secretly negotiating that before you've rejected a defense that's a problem and in american pride this court sent the case back to for trial if the court had granted s but the case was very different from this case in that in that american pride case the trial court had found that the rejection was improper because they were really at the preliminary stages of negotiating this is completely different the undisputed evidence here was this agreement was completely negotiated everything except the signatures every word every paragraph every period every comma was decided before set before attorneys title sent the e mail rejecting a defense that had been offered several days earlier and significantly and extraordinary to me because i do this all the time representatives are representing insurance companies a section has argued that attorneys title had no duty to cooperate until it accepted money in defense and as that as the trial court in the city of jacksonville said the duty to cooperate serves a really fundamental purpose in the policy one is to to  forestall collusion between the insured and the injured third party but it's also to allow the insurance company to do it to do what it needs to do if a claim it occurs on its tendered that it can investigate it that it can talk to the insured and that part of that duty is to be open and honest with the insurance company now this case is extraordinary in that there was actually no claim pending because this wasn't a potential malicious prosecution claimed and the underlying claim was still pending attorneys title last section ten really needed attorneys titles help in order to have a claim in order to submit a claim for malicious prosecution under the policy and so because at the point when it was first comes to travelers attention the state court judge had actually denied the motion to a man to assert the malicious prosecution claim because it wasn't right but nonetheless they started down this path which ultimately resulted in the cold months agreement which is why the trial court ruled as she did that this was such a methodical venture between section town and an attorney's title to get to this result because what attorneys had always concerned about is you heard the big numbers that were being thrown around by section ten they just wanted out and they were very honest in their testimony they said that and this court in sigman said when that's what's going on when they will do anything just to get out that's not ok and that brings us to the third element that the court ruled on in the trial court which was that there was no effort to minimize liability to have a and forcible copeland's agreement any coverage need a wrongful refusal to defend and the settlement has to be both reasonable and amount which is what a prudent person would pay if they were paying it and it has to be not in bad faith and one of the definitions that the courts have adopted the florida courts and affirmed by this court have adopted is inference that the settlement agreement was negotiated in bad faith as it shows the culprit was willing to lie down and accepted judgement of any amount against it so long as it would not be on the hook to satisfy the judgment a reasonable party would not be indifferent to the intermediate florida pella court case and what steele said was these kind of agreements are kind of dicey in the following respect which is these people are really at arm's length when there are greens and they're all going to always enforced almost always was no actual negotiation that there was no real discussion of the amount and that's what happened here current fields drafted the settlement agreement and it left the amount blank so that section ten could fill in what it wanted and they did  and the only thing it changed at one point late in the process it didn't come from attorney style that the change in the number didn't come from attorney style that's the only thing you know for sure six people testified on behalf of attorneys title for lawyers and two the parties did at attorneys town section ten over the course of the summer was to pull together this agreement all while in communication with travelers say well we're talking about settlement but are there any written settlements man well you know if there's going to be an opportunity settlement i know there's no claim pending but we're all ears tell us if there's an opportunity or and if you think there is an opportunity tell us why why you think it's good a good deal why you think we should do it now section ten doesn't want to tell you that ok so it's a situation where you have the that and i want to be clear about this there's an exclusion and we believe the exclusion of flights but we didn't deny coverage at the end of the day travelers wrote and center a reservation of rights letter that says yeah we think this current exclusion applies but you know what we're going to give you a defense because the testimony undisputed is that the travelers adjuster spoke with the current fields lawyers talk to them about the merits of the case and monday is there any indication to travelers that hey this is what we're going to do no just the opposite american pride case where they said if you don't do x we will do a code once agreement again not that the law requires that but that didn't happen here either so all of these factors in addition to the strength of the exclusion we would argue supported for most of the trial court's decision here thank you mr khan three minutes think here are so the question on the but for causation issue with regard to the arising out of again we would ask this court to look back at the florida law the florida supreme court cases and the intermediate a e court cases that led to and underlie this court's decision and soccer and the question then becomes is not only pursuing the subrogation action of the salvage auction but filing the lease pendants maintaining the leas pendants saying we're going to shake some money out of them and refusing to file a bond is that the lighting a cigarette in the siphoning case is that the getting in a fight after a car accident and the race case or is that something like we have this continual investment in a company that's going under and we would suggest that the florida supreme court the florida courts in the race case and there were a number of auto cases discussed and not line of cases that rejected the idea that it's simply but for causation that it has to be more than that and we would ask the court if there's uncertainty about that that the florida courts should decide this issue the we do also have to address that the difference judge bails you ask the difference in the two contracts the primary policy the exclusion is more limited because it involves services to others with respect to a contract of insurance so was eighty acting with respect to a contract of insurance providing services to others in maintaining this action opposing counsel is correct we do have to when all of these letter in june eleventh says section ten is indicated a desire to resign of the case in a manner that would fully protect attorneys title this means that agreement that was months before the agreement was entered into the the city of jacksonville case in the other cases that are relied on by travelers the insured in those cases accepted the defendant and did have obligations and this is not a case when arguing that there is no duty to cooperate in investigation or things like that prior to the filing  thing to do and there was no collusion to create that claim the arbitrator had already made a ruling against the unjust enrichment claim and everyone quote knew the malicious prosecution claim was coming this is not section ten just throwing around numbers these numbers came from the independent defense counsel current field evaluation of the case a year and a half prior it was forty million dollars her apart from the numbers yes hide this negotiation from travellers why wouldn't one reasonably assume that well which is what the district court did and though there's a difference between doing something and not telling someone you're doing it and doing someone and something and telling somebody doing that but you're not telling him everything because you feel you can't write you lost ok i'm sorry what attorneys title said to travellers on multiple occasions was  secret they also said or not telling you everything about these negotiations because section tense taken the position that we can't because there's a mediation privilege if you travelers feel like any of this is wrong if you feel like we need to disclose the details she you let us know travelers never came back and said you're not you need to disclose the details to us we are part of this we want to participate we are stepping into your coverage about evolution this wasn't a secret they were told that they weren't being told the details of the negotiations they were told  going on they were asked do you have a problem with this and they never said that they did i don't think you would take that case under submission standards