contract instruction to the jury and the claimant reach a contract to the jury after the defendant had made a payment kind of a mystery payment in february shortly before trial and i call it a mystery to me because it came only with a letter from that the jury had made no sign of good so to cooperate we did not understand how allstate could make that assertion they had made the assertion i also argued that there is no mechanism at a colorado law to be able to quote a payment like this that you honor i understand that part but if you take a look at the instructions on the breach of contract and that comes down to it we should not have submitted the breach of contract to the jury it was a sexually fatal you say to the jury on a contract where the only thing we're suing on is payment of two hundred and fifty thousand dollars you say to the jury but they breached the contract by not paying two hundred and fifty thousand dollars and of course the jury is going to say no they did not say that there was a failure to cooperate and in fact all state was given the opportunity on a jury question to submit and the only person who said why the it was made was trial counsel so we were not allowed to acquire are not allowed to do the sort of effect to process the animation or anything like that so the nd element that i have to sell down is allowing something called the set up the t was never explained how that is a that's that's and i liken this to a speeding ticket you get a speeding ticket and then you discover that the city is absolutely positively set up a speed trap in order to enhance the city's r well whether that's true or not you still get the speeding and you still have to pay the fine and you are still guilty of the conduct so it doesn't matter but what this does is provide an incredibly chilling effect to  to assist anyone in an insurance claim which is far from simple these days i mean the one that's on the difference here though when you're speeding analogy that your clients motives matter i mean if the motive was to set up all state that weighs against your bad faith claim doesn't that you know i would i would suggest you get your just looking at the mens rea added you you know did you do it and did you discounts which has a chilling effect on both the ability for people to hire counsel as well as this glorious thing we have invested in the united states of america called contingency which is not intended to enhance the lawyers and it's intended to allow people than means of a large corporation to be able to fight the large corporation and get an attorney and i thought i'm sorry counsel did you you were discussing kansas law understand that that's not relevant but i wonder if you were i didn't see in your and again it has a logical relevance to say that if the lawyer acted badly you don't have to pay the plaintiff's claim which is exactly the presentation here but then we have the question of evidence and in order to have the evidence to support it we didn't happen we don't have any evidence in this record as to even what the fee agreement was with this particular attorney what her agreement was with her employer how anybody was going to be enhanced by any of this and instead the trial court said i can take judicial notice  was i thought the point to the jury was trying to explain to them the motivation of what happened here why are we talking about this is really what the court was trying to convey to the jury  strikes me as not four a defense it strikes me down the what you call a setup beenz is more like an argument in favor of non cooperation well then there are the that's the end in the non cooperation which is the act was not in effect at the time all of this was going on but we do think it is relevant to sort of the public policy of the state of colorado and what colorado supreme court would like but the last time the colorado supreme court weighing in on a  isn't that different where here we actually have and assent continual repeated agreements to provide the requested information over and over again you know that distinct and couldn't that by itself property so i might be a relevant circumstance sitter for the purpose of that the insurance company actors your honor with all due respect i would submit that the is the there were not repeated requests for the same thing there were requests ma things that ultimately turn out to be either impossible or easily accessible to all states and it cannot be used again shift the burden of all states investigation to me i'm sure how else how would you how were you ever going to cure in this case so presumably case should lawsuits filed they raise the non cooperation defense as a defense i mean how are you going to cure her after you've already filed suit cure but otherwise you're out of they have they have engineered a perfect sense and that perfect defenses is that you cannot cure eight fate of corporate after the loss of this file and we don't have to tell you about it or give you any notice please the court my name is one so taylor and i'm appearing today on behalf of all state hiring counsel now this case presents a very specific question for this court and a unique question as well should a jury be permitted to decide whether and insurers failed to cooperate when the evidence supports the inference and conclusion that the insured told their insurer that information was forthcoming the insurer then rely on those representations and then the insure relevant information from the insurer and i don't believe it be hyperbole to say that the plaintiff and defendant have wildly differing views on what transpired in this case and i believe those differences require that i clarify what all states is not it has never been all states position that insured as an obligation to go out and independently create information nor has it in all states position that cooperation by agreeing to obtain and provide information and then turn around and accuse the insurer a failing to investigate because it relied on that representation allstate's position always has been that insured not all in terribly go out and obtain information that they know the insurer is looking for and then withhold that very information from their insurer and then it is all states position that insured not impede an investigation and then later accuse the court ruled on a failure to cooperate offense and any evidentiary or claimed is necessarily harmless because that evidence was relevant other issues in the case that proceed to trial and that want to get and so your rd one again yes or no or that they were disputed facts that had to be submitted to the jury regardless of how the trial court ruled on the failure to cooperate defects and because there was evidence that would have been admitted anyway any evidentiary error is harmless because it was relevant and admissible regarding other claims that survived and w litigation notice and an opportunity to cure for the insurers non cooperation be can become an issue there's simply no case in colorado law that requires that the defense like any other defense or issue can properly be raised in a response of pleaded and that is exactly what happened here were also an affirmative defense that the church may have failed to cooperate also provided notice of the defense in its answer serving all purposes of those pleading and judge carson to your question before that it's also its position that the prejudice cannot be cured in this case because of the ongoing lawsuit for bad faith which was directly a product of the interactions between all state and a standard in every case that is discussed this is substantial and material prejudice and every case that has discussed this very much substantial material prejudice has also stated is a question for the jury after hearing the evidence certainly some non cooperation may result in a claim being literally impossible to investigate for example if the insured story is evidence or information and nobody's arguing that's what occurred here colorado law as a state it only to motivation and a possible excuse for not cooperation would be made i'm sick or i had no better shape and that directly places the intent and motivations of the issue if based on what they believe occurred so so i take it on that note that you would probably disagree with the characterization of this as a center defense that this you're suggesting that it simply relevant evidence with respect to y interpretations whether an issue is purely a question of law did you get a response from that judge well no not really yeah go ahead my question is in order once you file it after the notice of appeal has been filed you've got to come in under the collateral order exception i don't see how it applies here if that's what you're suggesting you certainly were aware of the need to file a to have an instruction on it if you were questioned instructions so i'm not sure how later on you can say that this wasn't directly related to the failure to cooperate defense that you've been raising all along so how is the collapse of the return of the money wasn't necessarily tied to