report but nobody had an opportunity itself to review that question is is not the claim here i think the district court got first question and her candy assignment is invalid under the principles that forth cell and the courts i explicitly said that it was not passing judgment on circumstances in which each of the factors that the court identified for an invalid assignments would be in report was explaining why some other decision didn't apply in that case there was no assignment issue or political an assignment in that case the plaintiff didn't take an assignment to the defendants if it's like under the insurance policy assignments in this situation the court was that it distinguishing away another case and the court referred to five elements in gandy and there's only three so i think we can fairly assume that that was just a stranger mark by the state supreme court that really mean doesn't warrant the status of a holding and we take candy on its own terms and gandy was explicit that we're not passing judgment on the requirement that all three of these elements be in i think that part of the ruling and gandy was articulate has been that i think judge did not miss your current opinion and getting so stated that he thought that the court went beyond its duty and the holding and determined that  let me ask you this because you dress in the brief but i want you to singley give me the reason why novi who was not a party to the settlement agreement and did not participate in the know can go she ations around the green why they ship it down by the the insurer basically stating that they were going to deny any coverage or to claim so we don't question the coverage issues but we do question whether or not the sum as it is should be applied and we're not asking the court to record step the judge rebecca asking for the  gandy itself holds that under these circumstances even if the assignment is valid and in no sense is the judgment and here that would be the consent judgment of forcible against the insurer nor can it be used as damages so you've got to prove coverage and the merits of the underlying last in order to recover against the insurer who believe the insurer reserve the covers defenses we recognize understand the don hendrickson hendricks company owned american patriot so and it's part of the bankruptcy proceeding where this settlement came out they were participants in them and they basically bought the the duty to pay defense costs in excess policy kicks in after the retention is exhausted and there is no primary duty to defend that's just how excess policy is dork it's all going to plunge so you know if we don't read these as rigid opportunity to see it also participate in a private media to another they elected not to defend although i haven't argued with a court that they had the obligation to do so so they essentially it's what was what the like to get there was no abandonment here there was no duty to defend until the million dollar retention was exhausted so there isn't any abandonment going on here and there was a good faith effort on the part of the insurer to litigate the coverage question and whether shirt that guarantees defense and indemnification has a duty to defend and has to defend on a reservation of rights we've got in excess carrier here understood and which makes it different from the this i'm in and some of morning i want to make sure there's there's no missing misunderstanding novi never said it had a duty to defend it said it would have a duty to advance word the retention net but what what we haven't heard here is that the insured was being defended because they had an infill policy and that info policy had been issued by a in a i g subsidiary and it was paying for the defense of a cutting him lindsay in the texas case and they had six hundred fifty thousand dollars or something left of the policy that they had issued and that was the other payment that was made in connection with the settlement agreement so there was no abandonment there was no abandonment and one of the other points that were made this notion that somehow my client had a duty or would still have a duty to pay if this case were man didn't there were some opportunity on the part of the plaintiff here to prove the reasonableness of the settlement or perhaps to prove what really would have been reasonable for a settlement remember the settlement was for the sole absolute full  my client only has an obligation to pay a loss and the district court found that given the fact that there was a judgment entered as a result of the settlement agreement which is an enforceable and that all of the other claims that the plaintiff might have had against cunningham linsey were at least in the settlement agreement and merged into the judgment there could not be a proof of lost any more it's impossible and so that that the district court said there's no need cannot ever prove loss in this case it was an opportunity given to counsel to file an amended complaint to show what other damages contract they might have and they came back with an amended complaint that the district court said was not sufficient and the briefs show that concede that that ruling by the district court dismissing the second amended complaint is not being appealed here so i had not planned to talk very much about traditional conflicts of law  analysis i think the case with the principal argument is that the case is controlled by rather straightforward full faith and credit principles under the u s constitution full faith and credit  and the fundamental principle that can be derived from those sources is that a judgment that's entered in a foreign state must be given the same effect ability to collect on the texas judgment i think the case is over over because all the claims have been merged into the judgment of judgment something forcible it's not binding on insurance on enforceable that's what they chose they didn't settle for an amount they settled for a judgment and the way they settled that judgment the texas supreme court is private has been trying for twenty years to discourage this practice they've set down a very clear rule it don't do it this way or else it will be done on enforceable and there have been cases since candy where people have just they've done it anyway and they're out of luck you don't get to go back and litigate what what the reasonable settlement would have been especially where all of the litigation judge it did hendrik get any money yes they got the whatever was left they said it was about six hundred fifty thousand dollars they got whatever was left on the a i g subsidiary palls and how much  now it was just a bad bargain under texas law yes i mean there's some indication that we we attended mediation we did a lot more than that  flew out to boston to interview the plaintiff's expert because i looked at the two reports and i said i'm not convinced will you let me sit down with your expert and they said yes so i went up and interview the expert and we could not come anywhere near to a deal but it's not that we abandon anybody we had no duty and yet we were still there participating in an attempt to try and settle the case  so i think we'll or principle point is that the effect of the judgment has to be determined under texas law appellant suggest that because they decided in the settlement agreement to incorporate illinois there's a difference between how texas would treat the settlement in illinois would treat the settlement doesn't mean that there's a clash of public policy and that's one of the arguments that they've made here there's no clear public policy in illinois be it be kind of a silly public policy for illinois to say we insist upon in forcing a judgment out of a state that doesn't enforce it itself i just can't see that as being public policy but even if it were there's no public policy exception to full faith and credit clause or the full faith and credit act and supreme court recognized assignment we have argued that because we didn't have a duty to defend that that factor ought to drop out of the analysis the district court system where he said i've got to i have to apply the law as the state obviously made the argument that that ought to just drop out of the analysis but even if it under gandy itself the assignment is not invalid gandee did make it very clear that there would be other situations in which it might find that assignments like the ones here with the covenant not to execute in a greek judgment would not be enforceable and i think you don't have to look much further than a case that is described very in great detail in the gandy opinion itself that's the h s m acquisition case wasn't an insurance case it was a landlord tenant case where the tenant was alleged to right thing well guess what there was no duty to defend in that case so i think we understand how the supreme court would come down in this case texas supreme court if  well under these circumstances is the assignment valid we know that they would say no because this case presents every one of the concerns that they articulated that they get so much so much so many problems with the possibility of flawed possibility of collusion the multiplication of litigation and the distortion of litigation positions so  client and there's an alternative but independent ground of the assignment is not valid either because we've met all the gandy factors that are applicable for because and we've asked it's court to make an agreed guess here