heidi i want to turn st to the issue of brand feeds because the economic reality is that so many of these insurance recovery cases are going to be a contingency thinking it's most insurers trying to chase down so how do we resolve this without go in your favor without going against graham yes your honor in branch and i think that the question of brant that you're on is referring to the reasonably necessary mutual extended delay and foot dragging in paying the fees but also i think there's an issue here about because in fact you know i think the reasonable ness is reasonably necessary  mutual had a reputation for not timely paid claims and at that point even if you could not yet definitively prove or point twists the civic date on which liberty mutual had begun you know contexts like in the previous case we just heard securities cases here you know there is reliance on a statement or reliance on a misstatement by a company executive you can pinpoint that precise date and the reliance obviously has happened after that date but in this case there's no reliance on a misstatement to the contrary it's where the playing to the insured correctly anticipates that the ensure will not be i'm sorry kind ask you about the public policy question so i appreciate the fact that if there is a a rule that you really can not to get contingency fee is until there is some clear evidence of bad faith why is no alternative this scenario not possible that is a person signs a contingency arrangement i know there are some technical problems with this but signs of contingency  agreement not knowing whether it's going to be an exercise of bad faith by the insurance company but then you can identify a time at which bad faith happens and sort of there for the r s a certain amount of the contingency fee response in insurance companies bad faith so therefore you would have still the proximate cause ation  to that particular amount of the fee or we would not be in the entire contingency fee i know there are some difficulties in lawyers keeping track of their hours etc but still what about that is  case that's going to be a question for the jury is dividing up so i think that could potentially be a response a solution to the public policy dilemma presented here but i still contingency fee was incurred if you will for there was an allegation of bad faith what about the fact that at some point if you were able to show that there was bad faith when you're in  right and cost continued to an amount for the next year wouldn't it become entirely consistent that we would draw a line in the sand and say well will those cost there after bad faith were directly impacts really caused by a yes your honor and i do think that the district court's opinion was overly broad in that sense because you know i haven't exactly done the math but a proximately half of the fees were incurred before this you know  all your time but maybe when you come back if you just give me the e r site that would be that would be helpful ok i'll do that and yeah the short answer is that's absolutely correct and there is an itemized list of costs in the record  requests for medical records that liberty mutual had requested late in the day that sort of thing those are all costs incurred after that call that bright line day so i do think the district court overstepped and or that the one thing i don't think that's the case with all of those costs i think the term most of them some of them were medical requests you know request for medical records and whatnot but even if it were or are betray himself requested he would not have had to very reasonable jury could find that he would not have had to request that arbitration had liberty mutual paid in a timely manner and indeed the record reflects that the arbitration at least formally did not initiate until the investigation was a reasonable and what was your what kind of want to know what the best authority is for supporting that inquiry oh certainly well st i want to look at the timing april twenty one they retained this nurse to look at the to look at everything and at that point i don't want to take up too much of your time or the panels but after that point how is that that the insurance company  was nine months and twenty seven days that's you know and i'm sure has three options when they get a demand under the collar fornia of the insurance regulations they can pay the claim they can deny the claim or they can ask for more information within forty days and they have to court they have to explain why there they need that information the one thing they can't do is take a break they can't just take a break and especially they can't take a break when they kno demand expires ok and february two thousand and seventeen so can i ask you about the disclosure i appreciate that for six hundred pages it was disclosed but essentially you know that the position of the insurance company was that they needed to explore whether in fact there was a preexisting condition and that there was a real question as to the cause of his problems and medical problems clearly the insurance company has the right to explore this particular issue as to whether there is a preexisting condition when did it come to you and i think it's unclear that is that's accurate i mean essentially the am or eyes of the spine go right to the heart of what the insurance company was investigating i just don't understand why those m conducted earlier had not been shared with the insurance company until i thought it was after october this is very short before initial settlement do you know when the  is were shared with them and you know the story about how those summarize were recovered and then the decision made to share them with the insurance company your honor th that timeline that i believe is reflected in the record so that the record does not reflect the story behind you know obtaining them arise and i think the correspondence between the parties reflects that  trial counsel o'connor mr o'connor shared everything he had in the four thousand six hundred pages but and then the m r eyes were provided on request when the liberty mutual had questions and that was  important medical records in this particular case and if those were not shared with the insurance company until at least october or it may have been november it may have been the somebody may have been within you know a month or two of the settlement doesn't that bear some weight on your bad  claim your honor i would submit that a reasonable jury could couldn't disagree a reasonable jury could look at the fact that liberty mutual's st medical expert nurse kroger recognized that it was a new problem based on the records and and that there was an aggravation of the spine of the spinal condition and his overall overall condition and the fact that liberty mutual immediately changed its position after it to finally depose mr hardy and nearly two years after the accident and said well he's sympathetic he's believable we'd better pay policy limits and they agreed to pay the very next day within the hour and so i think i think you know we could sit here and deliberate about you know how important were delivered was a signed medical release also delivered to liberty i believe that was provided shortly thereafter i want to say a month later thank you so i don't think so but i will get back to my ye the court nicholas bows for liberty mutual fire insurance company and i will begin by talking about brands as well and brand is very clear about understand your contingency fee argument although it's tough the the fall out is tough given that in these cases contingency fees are ubiquitous but that is what it is could you focus on the question about he needs to explain why the cost was incurred as a result of bad faith as opposed to being incurred as a result of a reasonable aspect of an investigation coun lot of language also that including the kassam which came after brand which is a contingency fee case that kind of underscores that branch premise was to recover as tort damages legal fees incurred to recover their policy benefits so that the burden of attorneys fees does not diminish fringe groups compensatory award i'm just trying to reconcile w they seem to be protecting which i think we have to do is try to predict what the california supreme court would would do here what they seem to be protecting versus some possible conflicting or inconsistent language and so the situation to your point i mean i think i understand your concern and i not only eyes it to another insurance principle in california which is where there is no coverage under a remedy that well it is the remedy well there's no harm there's no harm caused to the to the insured so the insured is not able to collect any damages because there are no damages but there are other options for reporting me sure to the barn surance well as we age we get to a dinner just disease and so to to follow up on judgment day is point about why couldn't he show that he would have had to retain counsel i mean there's every really detailed timeline as you do i'm sure and well the images didn't show any changes caused by the accident and in fact it seems to me that you know sort of the that these films are really unremarkable entirely consistent with what's happening to my spine right now as i sit here and yours as you no i think your question is the point they need to look at it to see because for example if there is no acute injury but then they go and get the m r i that show there was a few injur ethical standard professional in california about forty days i can you respond to that well i think that yes the the statement i think was in the context of the assertion that between  sometime in july and sometime in october there was a delay but the record shows that at that time the parties were both represented by counsel engaged in discovery in the arbitration  exchanging discovery and at the very same time mr crump who had taken over the file was reviewing the four thousand six hundred pages of documents and as a result of his review of those documents then  continued with the evaluation and he just went so there was no break it was just you know there was dharma trading going on at that time that had been demanded and and so but the rule though in california is the insurance company absolutely is is able to continue to investigate just the claim and does not need to come to a decision within forty days there's no hard and fast rule on that it's just whatever a reasonable investigation period takes and i think i submit that the record shows that there was absolutely a reasonable investigation there certainly certainly was not any conduct that i believe they were identified by the nurse during her of us something that should be requested they were requested by liberty right after that they were received and twenty one they received by june  twenty one to go through and sixteen then they were sent to a radiologist for review the radiologist provided a report in early july two thousand and sixteen which showed no acute injury which cause material facts in dispute here and the record shows an objective view of the entire record which is how that is looked at shows that the investigation was entirely reasonable and  the fact that mr issa heidi claimed to be in pain certainly that goes to the question of whether his the value of his claim is for ninety five thousand dollars but again it back and i just want to give you an opportunity to respond if they do you the evidence here shows that libby mutual did consider everything and that's evidenced by the fact that they paid the four hundred and eighty five thousand dollars policy  despite consulting experts opining that what he was claiming was not caused by the accident and in the course of coming up with their valuation the evidence shows that they considered the  letters that were provided by the insurers treating physicians and weighed all of the evidence they put all of the information together determined evaluation range and ultimately paid the limit even though it was on the very this type of damage type of accident and then there was any other you know very large recovery so i just it just begs the question and you're way over time that it was there some revelation at this deposition  that doesn't come through on our record here other than other than that he was very rich believable and sympathetic it was the deposition and combined with everything else was the conclusion that you know that that they're going to conclude that it could be worse than the policy limit but they certainly their valuation range was between approximately three one hundred and fifty thousand dollars and approximately four hundred and ninety thousand dollars  that mr crump reviewed the filed because the record reflects from mr grimes deposition you know he said those four hundred and sixty four thousand six hundred some odd pages i did not review those