conclusion my argument your honor i ask that you either reverse the trial court judgment and remained a matter for a pro proceedings in the trial court or that you vacate the trial for judgment and certify appropriate legally entitled flaws war in the statute limitations if you will the all reasonable efforts issue raised by a uniter and rested a cut and certification that's a long list to cover let me begin with the relationship of legal malpractise claims to you i am benefits and i do this because our firm her merely represents clients in legal malpractise claims against their f of the point i'm trying to make one mistake here is that illegal malpractise playing the fight there can only recover damages proximately caused by the attorney's negligence and so  printing the only issue in that the paranoid judgement action was independent medical exams that the insurance requests that was the only issue and the turner claims were related r and when you look at the release your honor which was negotiated among counsel or east released covers claims no known in regard to planes for personal injury there anything that prevented you from seeking the us i am benefits in the st yes we didn't know that there was  i really wanted the group want to there's all reasonable efforts as you and the reason because that's an issue that crowd court did not warrant and as i prepared this oral argument i was really troubled by the as your hon i apologize your honour's i'm bob myers i'm appearing today on behalf of uniter an auto and home insurance company i have some prepared remarks but in light of the dialogue that you just had with mr wade i'd be happy to answer any questions that you have for me particularly in relation issues that we raised in the declaratory judgment action the declaratory judgment simply sought a ruling about the parties respective rights and obligations with respect to an independent medical examination and  get into state court they counter claim with a series of causes of action that exceed the scope of the narrow scope of our declaratory judgment action to include  breach of contract violation of the consumer protection act and bad faith all in relation to the same accident the same if they had not gone and claimed would you be here arguing this really out of thing that they would have needed counterclaim on on hip on you i am on everything at that time or now i do not envision that we would be that we would have argued the rest judicata point but for the fact that they pled those particular counter claims relating to the same insurance policy axa then parties evidence and so forth and the entry of a final judgment on those counterclaims that's right frankly it probably wouldn't occur to me but for the fact that they asser where i i i have to say that your are that's a great question that's a question that i haven't considered my working assumption was that they weren't compulsory because we filed a and mind you i was not the attorney representing the trend in those proceedings so i have a relatively limited background on on those proceedings other than what's in the record but it was just the narrow issue initially as to whether mr mr goulet monny and similarly situated folks had to appear in a certain particular way for their independent medical examinations and that was it so i would not have thought that the counter claims for bad faith for breach of contract and under the consumer protection act would have been compulsory and those circumstances your friend on the other side seem to suggest that at the time of the bir all of the evidence all of the evidence that form the basis of their counter claims in the prior state action were available to them at at at all times they the documents that we produced in the in the prior state action comprise eight hundred and eighty five dollars out of nine hundred dollars pages that they submitted to us with their notice of you i am claim and they all  that they produced to us in the notice of you i am claim it included this these documents that purported to show the extent of mr  insurance that's correct that was not information that was addressed in discovery in the prior state action all of that information would have been available to them you have in the record from the prior sta it safe go policy and it was just a matter of at that point trying to find out whether you had anything else and he never showed uniter and that he ever did that the and the documents that he washington law and it would frankly well i guess it would have been washington law in the washington state court that just addresses the nature of compel compulsory counterclaims so under your hypothetical and i pathetically your honor if we are talking about beasts and i agree it's the more standard typical type of declaratory judgment action where you are seeking a judgement declaring that there is no coverage and then all of a sudden all of these things are in play that then i think there would be a much stronger argument that the types of counter claims th asserted were compulsory but here that wasn't the case but the d j the declaratory judgment that was being sought related to a very narrow issue under a condition of the insurance policy been particularly the examination under the independent medical examination condition as opposed to a declaratory judgment seeking coverage and then once they got the state court they decided to fire back with all of these more financially substantive causes of action if you will your hon one now your honor i think i think that it is one hundred percent consistent with the washington under insured motorist statute which language is reflected in the under insured motorists coverage of the policy the policy language which and the statute also specify that the under insured motorists coverage is required to cover compensatory damages that the insur yeah you know your honor i apologize if i didn't write the statute the washington legislature wrote the statute and it was an acted and in our policy is required to to afford the coverage as mandated by statute which it does and  injury claims against alleged under insured motorists at for they need they need to ensure they need to ensure that their claims don't become time barred before they seek you i am insurance based on this this and i guess i don't and i don't see the problem with it given that washington courts have consistently declared that this language this language what it means is that ensures rights against it's you i am unsure are no greater than what its rights would have been against the under insured tortfeasor and on the flip side the you i am unsure may seek to avail itself of any defenses that that be under insured motorist could have availed himself of and he most certainly would have and in fact by default did avail itself of this statute of limitations defense so so i'm unaware i think this court will be creating some new law if it carved out an exception here it falls squarely into the fundamental purpose of the u i and statute which is to protect protected drivers against under insured motorists to the extent that they that you know they could right the the the position we're taking with respect to the malpractise settlement your honor is that it says it in the record that this this was this was the maximum recovery they could get as a result of the blown statute of limitations which our position means that once they once that their prior attorney blew the statue of limitations on the tort claim they also blew the statue and they also blew uan coverage so what ever they could have recovered as a result of the accident was gone and subsumed into the recovery from the malpractise lawsuit and then they came in and it's the only evidence in the record as far as i can tell is that there is a declaration and they're saying that one hundred thousand dollars was the most that we could prove was approximately caused as a result of the of the the blond statue limitations that would include are you i am covered so our position just fundamentally is they can't they can't seek more than a full recovery the evidence is that they have obtained it relative to this issue judge breast raised about compulsory counterclaims are you i am claim does not accrue under washington law until after the insure his question also now if i could step back a nd your honor and look at the big picture the macro thing these are really important issues particularly interested in judge the opinion issued on november rd by this court in a case in which judge brassed participated the benson case and we submitted a notice of supplemental suggested certification in the trial where the issue of certification didn't come up until the opening brethen this court it was an issue of arizona workers comp insurance as i recall you addressed obviously knows a whole lot better than i do and the court certified that issue to the arizona supreme court these are important issues there and allow a lot of personal injury lawyers out there that are going to be risking a lot malpractise exposure if there's a three year statute of flight to you i have had to in washington thank you so much your honour's