in the second line of the excerpt of record at page three of six and this order was actually crafted by counsel for universal and on the fourth paragraph of the conclusions of law the court states that further it is well that is also true if the policyholders not being the california law gives the policyholder the right to settle the case and pursue a claim for reimbursement and that frames the issue which is whether there is a tribal issue of fact in this case on whether universals delays in taking over the defense and in paying the attorney's fees would allow a reasonable fact finder to determine that there was a breach of the duty to immediately upon tender and this is not a reimbursement policy this is a policy that that gives control of the defense to the insurance company and obligates them to take control and to defend in what they do the tender was an  twelve two thousand and one and four days or six days after the tender universal rights back and says we have your tender you'll hear from a soon and then four months later in february twelfth they finally universal rights and says ok treatises and in the reply brief that say that and reasonable i mean i don't have a case that says x amount of time it is conclusively presumed i think it's a tribal issue of fact that has to be presented so that the jury would decide whether it was a reasonable the way or  not reasonable delay and whether there was a breach i mean this delay extended not just for the four months for one universal says ok we'll take over then universal does nothing after they send a letter saying ok but universal has paid you what happened million dollars ye that's kind of difficult to think that the insurance company ignored you if they sent you a check for five hundred thousand dollars an attorney i have to respectfully disagree but if you look at the chronology of when that check happened when that check was tendered by those were two checks is that right  thousand dollars check on october fourteenth and we have a subsequent check in november and no in january nothing of two thousand and three with that there was that there was the correspondence in november i think that if you did that they would be paying the fees there was some there was some question told you that in december paid or when the house would be paid all of it indicated that they would be that they would be paying the bill you know it doesn't matter whether it's general motors that they're insuring over and in the duke individual should we look at that whether it does it matter whether i mean it's not carrying the lawyer for six months could be a serious problem for someone without it's not a particularly serious makes in the law and i don't believe that that this policy was underwritten or priced in a way that it was the wealthy individual policy and that because we understand that you have substantial means we're going to give you less service  or take our responsibilities differently and you'll pay less for it i mean the policy was priced the duties are specified in the in the credits go case the california supreme court rejected the idea that of of  the chronology here though is is is is very troubling because universal thing a check for one hundred thousand dollars in october yes and all of that up three weeks later with a letter saying we're reviewing your bills we're going to make substantial additional payments in the near future i insist that you would like to rely on that at that time i don't i don't see any evidence that your that your client went back universe and said don't bother we've decided to pursue this on our own i think you are probably action at universal's expense and then it told you that they were there that they were going to rely on their twenty eight sixty rights and and in december would start paying it one hundred fifty dollars an hour but they would pay the bills that had been submitted at that point but they hadn't paid the bills or are they paid one hundred thousand dollars and said they would pay them in the near future i think they send you a letter in january they send you a they send you a fee or i'm sorry additional payment in in january and it's not until january that you come back to universal and say well you've defaulted on all your arrangements so we decided not to take your money and by the way back in november just two weeks after three weeks after you sent us a letter telling if you're going to pay the rest of our bills we settled the case and now we want you to pay for the you first advised the insurance company of the amount of the bill that they have the five hundred i think your honor that it was sort of incremental that mr russell was counsel for s thirty three thousand so so the first payment is made in october fourteenth two thousand and two it's a partial payment represents about twenty percent of the fees that are already been in the crew when you had your own lawyer in that case it seems to me in terms of right with it i would think that the insurance company still has to be in contact with a lawyer still has to know what's going on still has to participate in settlement to go she engines and explore settlement negotiations somebody over to the settlement to one of the earlier settlement conference that is yes certainly yes she had no settlement authority and she left her but she did what she was but she they're that they're that they're interested they had an exchange of letters it's not until months later that you even get close to the only point that i can make that counsel did your client cash the check for a hundred thousand dollars i believe so so you took the money from the from the insurance company yes the means the softball to pay the lawyers the money was owed the only point is that i don't believe that the can review the timeline as a matter of law and say there was no possibility as a matter of law that a jury could find that this conduct constituted a breach if the court disagrees then it's going to have to affirm i understand that but i don't think that as a matter quiet i'm susan walker counsel for absolutely universal i do writers insurance company this is an opportune moment to address the court because i think what needs to happen here is to have the issue correctly frame and that is under california law there's a bright line rule and the rule is without a denial of coverage without a weak fusil to defend and insure cannot settle a case without it ensures  case one can count up fourth one five three two and what that what happened in that case is that the insured also was represented by counsel at the time of the  defense counsel as was salta and tendered the defense to the insurance company and the insurance company took a while to accept the defense and the insured then and settled the case and tried to say well you know we were abandoned they didn't accept quickly enough and the court reiterated the bright line rule know their house to be a refusal to defend not some quibble about that also addresses this bright line rule is the base coat case in the save ok's the insurance company was defending the insured and the insured money had an interview into a settlement without the insurance company's consent and it tried to argue well we got an adequate defense counsel we didn't like our defense counsel they weren't doing a good job so we went out and settled the case the court said no the rule is clear the only time that the no action  vision and the no voluntary payment provision can be set aside is when the company has completely denied the films and that didn't happen in safe cohen it didn't happen in the clovers this golden eagle and it didn't happen here and what i think instructive is this bright line rule counsel doesn't disagree that that's the rule counsel is trying to come within it with less than an absolute california law enforcers no voluntary payment good decisions in the absence of economic necessity to ensure a breach or other extraordinary circumstances they're designed to ensure that discussion in the location of the duty just and in other contexts but when the case gets into addressing the insurance contract of having settled without the insured and found that's what makes it and this route this bright line rule is discussed by the california supreme court in several cases i cited low to you as an example where the company tried to justify its conduct in settling without the doesn't disagree that this is the rule what it argues is this trying to say some other type of conduct comes within the rule and there simply is no case that has allowed an insured to settle without the insurance companies can stand behind the company to that with less than an absolute denial and it makes sense because these policy pursued provisions no voluntary payment in the new action which requires that the  insurance liability be decided by trial it makes sense because if the insurance company has agreed to just stand there is no injury from these types of conduct that the insurance complaining about that warrants gentleman unless and until there is an x goes to judgment the insured has not been injured by the conduct and this is part of the the the policy behind the bright line rule  example even in the context where an insurance company is defending a settlement offer is made within policy limits and the company decides to turn down that offer well the law is equally bright line and clear there's no cause of action unless and until there is an excess judgment what's the reason for that if there's only a potential for injury it could be that the trial would turn out there's a defense verdict it could be that the trial would turn out damages or less than the settlement offer so california law is very clear that unless and until there is an excess judgment this type of whether an insurance company should accept  i think lho says that and i think another case that is very close to this is the safe cookies like i sent him safe co the insured argued that they were on that the defense was an adequate and they said this is  abandonment means a denial of coverage it doesn't mean inadequate counsel or any other play ball i think the important thing to note here too is that on this record  stipulated that the timing of the payments had nothing to do with its decision to settle this case is very close to the hamilton case in that regard to mr saltus deposition his counsel instructed him not to answer questions about net worth and stipulated that you know the payment of the bills had nothing to do with the decision to settle and that's quite clear i think that you counsel on the record that the timing has been off by a few months in the insureds favor and in fact when you look at the dates what has happened is this ensured has defense counsel defended the action for several months then decided to tender the letter that acknowledged the tender in october so we understand you being defended that we will analyze this and we will get back to you the insured elected to pay all its defense costs and then submit the reimbursement the first bills were not stand until actually june twenty eighth this purported delay in reimbursing and the decision to settle that's in fact on the record they're bound by that stipulation the other point i'd like to make to follow up on the court's observation the insured cash the one hundred thousand dollars check and moreover after it cashed them the four hundred thousand dollars check and even after this in the settlement it submitted more bills and w reimbursed for their defense costs there never was a denial of the duty to defend and the insured never took the position that it has been denied a duty to defend it's expected that the fence costs payments and asked for more so this case clearly i think it comes within that bright line rule that absent a denial of coverage the insured cannot violate the no action for vision and no voluntary payment provision and bind the insurance company with a carrier preaches in any case as long as it says it's going to defend then it is defending that that isn't the law and the low case that that the court read that absent breach i think that there's no bright line test the cases that simply by a finding that the court didn't find there was a breach of the duty to defend when there is no breach of the duty to defend then the rules of the council sites are appropriate the no action clause is binding when there is a breach then it's not and so they i think as i read the safeco case the court is saying you haven't shown there was a breach of the duty to defend and by saying well you know weren't happy with your lawyer you didn't think they were adequate you know unless you can show there was a breach of the duty then then so that's well you're still contractually obligated and by the way you know just shortly after you sent your last letter we went ahead and settled this case without you yes but in the case three weeks after after universal sense that we got more money coming to y please let us know if there's any developments i think that the issue was whether they breached their duty by not paying sooner or not by looking the ship in on the reply briefs on page thirteen we cite the shade versus shade foods versus innovative products and the belated offer to pay casa defense can mitigate damages that will not your initial breach of the duty so the question is sure months and months later they finally say you're right here we'll pay does that mean there was no breach i think ultimately whether there was a breach or not is a tribal issue a fact in the if this is not a summary judgment case thank you very