on make sure i'm hitting understanding these issues correctly you focus a lot in your argument on bad faith but it seems to me i mean we don't even have to get to whether there was bad faith or not or when the ask a follow up because if you can challenge it i and as you said you were watching it from a distance and you were aware this was going on are you is there anything in the water precludes you from coming in joe and you know where you did you were aware of that action correct we were not aware until after the sixty four million dollars judgment what now all the way this is just this  me i'm going to approach the issues in the opposite order as a scalpel i'm going to st address the claims or improper rhodesian by scottsdale and then i'm going to circle back to the equitable contribution client in terms of the improper ero are you telling me that the underwriters can be caught dead wrong and collect or can put against the policy of the insured there's st of all the language of a motto to it telling if a motto too had said that the payment by the insurer has to be made plea separate from the policy limit or i think it's  which we understand and we concede that but it says those consequences have to be borne in excess of the policy limit and i think we have to look at the rationale for the a motto to rule the rationale is to protect the insured and put in short back in the position that it would have been in had it not been for the refusal to defend so in the ordinary situation the primary insurer or the only insurer pays the entire resulting settlement or judgement the consequences of its conduct fall on the inshore which is contrary to everything that scottsdale said in this case the consequences fall on that insurer and what scottsdale is looking for in this page is either one of two things one is looking for a windfall in that underwriters in addition to paying the blame potentially even in excess of their policy limit would then not only have to pay that claim but the next claim up again insured or scottsdale would ask this court to establish some sort of procedure by which the district court would have to essentially the underlying case the court would have to take into account everything that went on in the underlying case and determine were it not for the right refusal to defend what would have been the damages to the insurer and that's only take that up in a row policy by that amount and that would be you know a completely inefficient procedure there's never been any california case to prescribe to me that what you are saying is that well we can take the bad thing damages and we'll lay them on the insured and then if that each of the primary policy we just go next is kerry and that really i think that that's not of the primary policy and again as scottsdale is not standing in the shoes of the insured asserting a right of the insured against underwriters scotsdale the sorting it's own right as against underwriters that we think is barred by activists and that under which that makes sense and the only one seems to be that the scots made their bed is effectively what you're arguing by not coming in and really sitting at the table they were bound by whatever exhaustion is a matter of contract it's a matter of what they put in their contract and a matter of the dispute that they may have with the insured that's really not applicable in this case this is their case against underwriters and access says that they don't have that right what happened in this case where underwriters as you point out your honor invited scottsdale to the table because they refused to participate in the allocation to go she ations but they were conducted with all transparent to scottsdale they you know the to mean anything and not swallow the entire rule has to mean a situation or and the best example i could come up with is some sort of hidden agreement between the insurer and the insured let's say for example the primary insurer pays a non covered claim against the insured in the insured says ok we'll have a hidden agreement and i'm going to pay you back under the table but will hide this from the act so in that situation what  step in and blow that up i mean because they didn't know that whether they were going to be on the hook or not they didn't and of have it have a dog in this fight until they realize wait a nd your allocation which happened after the settlement mediation but critically at the mediation i think this was a misstatement this is one of the things that we pointed out in our brief this was a misstatement by the district court because the deposition testimony that's in the record shows that at the mediation and even prior to the mediation underwriters were pushing scottsdale on the contribution issue i mean i would point the court to the deposition testimony at pages one hundred and five dollars in six of the supplemental record the supplemental excerpts of record representative admitted that under i think the word he was using was pushed underwriters were pushing the contribution issue so what happened at the mediation was that the term she was fine counsel for all the parties negotiated with an allocate i just it's counterintuitive well the reason let's let's let's set aside they are not set aside let's distinguish between a claim that we can't exhaust our policy and the claim that we're not entitled to contribution for purposes of the claim that we can exhaust our policy no your honor they can't they can't come in and challenge that because number one they affirmatively abstained from that they made an unreasonable determination that there was absolutely no way they were going to pay any penny toward that settlement and therefore they didn't engage and so we had no choice but to we being my client had no choice but to engage in that allocation discussion without their input what they want now is to say ok underwriters we're not going to participate you go ahead and do it yourself but then we're going to haul you into court and we're going to say ok now you present every aspect of that allocation to the court and we're going to get to see it you know we're going to get to poke holes in it and challenge it when they i mean if they're well as we don't know a penny maybe they're right they should be able to come in and prove that you know without having to blow up the settlement they should be and after the fact and prove that i i would argue that in terms of the contribution claim as we laid out in our briefs and before the district court we had an adverse allocation of interest and adverse to goshi ation of interest that qualifies for the legal presumption of adversity and reliability that qualifies in the reagan roofing case that was established as kind of a you know a way to avoid the massive amounts of litigation that would always arise in the context but in terms of the exhaustion of the primary  then sure does not have the right to challenge how the primary insurer adjust its claims it doesn't have that right and it's also there's no good thing why wouldn't you have the right when some of that allocation goes  be for you to sue them for equitable contribution and that's how this should be determined that your point no no i'm sorry your honor that's not correct with respect to the primary policy exhaustion issue the issue we're not trying excess the amount that does impact the excess policy we can we're having a discussion about that that the equitable contribution claim that we paid the only reason we're suing them is because we paid it and now we're going to get it back but  saying you have the burden to show bad faith so my misunderstanding your arguments from both sides appears that basically part of what this comes