the court i'd like to reserve up three minutes for a bottle clerk although there are multiple issues that exist in this appeal there is a central and i believe dispositive issue which is whether  landmark experienced any substantial prejudice as a result of time since july th two thousand and fifteen request and appointed counsel with the i think the facts are undisputed here landmark did not even allege any existence of substantial prejudice landmark presented no evidence of any such prejudice and even more importantly much prejudice existed  case about which all these defense obligations turned on and concluded not to time the district court judge real and decided landmarks motion for summary judgment temper of two thousand  stands apart substantial prejudice cannot be present and must improve and that burden it stands on be sure that the district court heard these basic tenants of california travelers be ty see already and ignored factual issues there are a number of it out there that go beyond the substantial pressure issue for instance one of them is that at the point in time his decision it's something that would be actionable as a breach of contract i don't know why the cooperation clause was pulled out as if it is not part of the contract and wouldn't be the procedural posture of these cases maybe explain what i thought i heard you say and what i thought i saw in your brief which is that i this d is an actionable suppose there are damages them up but for the fact they wouldn't use our lawyer payout of policy benefits absent that kind of chase the insurer going out to ensure the insured in that scenario so i think as a practical matter you simply don't law of every state america is with the duty to do that and the duty to defend it is dark and if not the most important aspect of the east types of policies and under the duty to defend there is there are hundreds if not thousands of cases talking about what an insurance company is required to do you want to claim comes in they are required to immediately if there is the potential of coverage they are required to appoint defense counsel with that duty  because it's just not realistic to say each insurance absolute right to control what happens unless that insurance carrier when civil or what result for client wasn't same well be responsible for everything so we are client the authority to control what everybody else is in a circumstance not soley liable and question your honor and i don't say that there is case law because of these large scale construction situations where there are a bore a lot of times there are multiple law firms that get brought on to defend the case and what ultimately happens is that the as companies and work either and working with the defense counsel and it was did not happen here because your client initially  process and then decided it was going to appoint somebody different and that's going to be the unilateral act that broke up what usually happens well no i would i would try to as your client have the authority that your are because i would their client but said no we're quite different council and you say it's not unilateral i don't see anybody else as fingerprints on that decision actually there was your honor on travelers had initially made the decision when to leave firm and because all st off there are i would disagree with the characterization of what the panel said because what the panel did it did not reverse and man what it did they came to the decision talk about what sure i understand the relevance context yes there are what happened here was that the younger men firm did not have the requisite experience in defending a case like this and and they ended up billing about fifteen million dollars on a case that did not warrant it and it was a big case but what ended up happening was there were there was a call before hand and this is part of the underlying record that where they were on board and multiple carriers mr determination that younger men wasn't qualified to handle a case of this magnitude then what happened was was younger me and that belief firm appointed by travelers and wham are they were splitting up the work because it was such a large case they were splitting up the war and then the  firm was sending its reports to the younger and infirm so that they could put them together and send them on to the client what happened was was that mr younger men and i will say this as a matter record lie about the fact that those reports were not being received told time i say that they weren't being received and somehow convinced i say i are the least firm for not doing what carrier carrier is entitle to to make that determination so what happens is is that at the time there is a breach of the duty and this is the important point is that by hiring defense counsel which is what they did they took away that right up to carrier two and now i hear your honor just clipped in your point about the fact of how this works together and i understand issue before us today is that each carrier does have that right they didn't have the right to appoint separate counsel and it ended up they were working together well is it actually have the right i was in court one day when the shows of stand for prejudice what is it so i want to number one is that the substantial prejudice law came out of cases from about fifty years ago in st party auto cases applies st off in st party auto cases it applies and notice it now in a separate context was prejudice here the prejudice was was that the carrier my client had to use as counsel that it did not want to use but the problem with that your honor is that what it does is the end ended up understood and yes if you know honor is the idea that the counsel the reason i my client did not want to use mr younger is that i frankly he didn't know what he was doing he did not know how to handle these cases and as of and they were not going to be able to get the information it require in order to make a determination down the line about indemnity and that is why when you take away that right what is happening is is that the duty to defend they made a determination to fire the leaf or they made a determination based on the fact that they thought he wasn't doing a good job wasn't that then puts the burden st off it abrogates all the case law that says that a carrier is not an insurer of the quality of the earth provided by council they have to provide a quality defense council which the lever was i dispute that they did anything wrong and the record shows that but even assuming they did the kid the insurance remedy in that situation is to assume the defense counsel for legal malpractise that it up to remedy to fire them additionally even exposure excess of the limits which there wasn't here but even if there was that would let's say there was a reservation of rights saying that if there is excess liability then  that the insurer would still not be able to retain its own counsel that is california case so what is happening is they're turning i doing this by saying we tice a you have to make a decision you have the duty of mike to defend but you are a lot we try say as an insurer are allowed to simply fire the defense counsel that has been appointed and that was on the case for twenty months they had no issue with that all at the prior to this perm that takes away the carrier's right and duty to defend it was about so now instead of it being a duty to defend policy it now owns a substantial prejudice policy and all that to make this determination is literally thrown out the door because they can fire them when i want to california case law requires a showing of substantial prejudice you may say that throws the case while you are the door but california case was says what it says and i'm still waiting to hear what actual substantial prejudice has been shown the actual substantial prejudice your  is the nine hundred thousand dollars that they may be right because you're to show that the nine hundred thousand dollars was in excess of what you would have had to pay there's no  firm was not performing adequately was apparently based largely on its position time safe position the belief that building enough in comparison to the two other law firms defending ties sa and the reason exactly what was happening which was that the younger man law firm was billing it at a tremendous rate that did not need to happen and so that is the delta we have to build from before hand and we have the bills that they have to pay after and that was what the court said but even more so is that i got to tell you i don't understand how that is damages anything i can give at least to actual scenarios that would result in their very different scenarios as that in the opening brief affirm that you appointed decided it didn't have to do anything and so simply stated  doesn't tell me that your client has been substantially prejudiced into your clients paying the smaller legal doesn't suggest a prejudice to landmark at all but your honor that's exactly what the court said was that that's what they said that they were doing but the record shows that the lead firm was going to every single deposition every single site inspection every single court appearance they were doing all the work they just weren't billing it  and carrying that over into her party liabilities situation simply doesn't work because what happens is that you have let's say let's say there are multiple other carriers let's just say that the ayers the law firm that the at situation what happens is the carrier then or as they travelers went and said you're off the case you know we all from the defense i said no you can't do that we can take you to defend and then filed a lawsuit to say says no you can't do that so the only remedy so that a carrier has to inforce its obligation to defend is to wait until the end of the case thirty four years down the road and somehow try to prove that there will come if i was a policy holder counsel i would tell my client every time that to simply wait a little while and find counsel and put on that throws independent that frozen humus law independent counsel out the window that throws everything out the window there we loose the right to defend because they get to make a decision have to prove substantial prejudice at the end of the day but simply can't work context i think it's important to recognize that and say what is being d resolution well here we have the resolution and landmark did not pay anything was not harmed at all by that resolution cannot establish any substantial prejudice we are claiming that the prejudice is they didn't have the right to use the council didn't want to