a directive that jurisdiction was a question for us it happens frequently that the parties kind of guy pays jurisdiction because they want an answer but as you well know we have to be sure about jurisdiction so rather than i would say blindside you rather than you found it out now we sent it out so you had some time to think about it you know cetera et cetera we both got your crowd they were all shocked that they didn't come at the eleventh hour of the deadline but when they were to be found one came i think early dubiously helpful but early and any other guys so you have your room you know on you know what with the cases but just know it is a premier concern about you know the being appellate jurisdiction in that the other side then followed a second summary judgment motion on the merits and you said to the judge well we need more discovery before responding when you give us time for discovery he says yes so isn't all that that happened after this people are always arguing that your work here because someone saying there was a mistake that's every case wrecked and no we don't believe that what we do believe is that judge brady is operating under the prior law prior to the kelly case this quarter's  louisiana courts and the federal colleagues analyzed excess judgment outside of the context of nine hundred seventy three kelly and made it clear that all access to that liability cases arise under one nine hundred seventy three so it is in the legal and possibility for judge have simultaneously dismissed one nine hundred seventy three and maintained a very strong why didn't then given this confusion why didn't someone say the judge brady did you mean to dismiss everything because you know the statute now  encompasses everything or given that we've got other motions filed since your order to do you mean to to keep this other quote what i mean why wasn't he asked that to just straighten that out we believe we did there was a second motion which we said we the plaintiffs made  the court that one thousand nine hundred seventy three access to my ability one of the same and we argued the kelly case a number of times to the court saying that you can't simultaneously dismiss we didn't directly and come back after some discovery has been done he didn't issue an in depth ruling but you did ask him did your order disposed of all claims please enter we think it did please therefore enter final judgment so we can go up to the fifth circuit and no one of any questions about the appeal jurisdiction it will be a final judgment that is correct and we could have asked him to certify that there was no indication that but judge brady did not give us any indication whatsoever he would change but in fact without being presented any evidence because we weren't allowed to do discovery j issued an opinion in his first ruling that it was unlikely the plaintiff would prevail at all that was a clear signal to us that judge brady had already decided that he would not reconsider this issue you know i could have been wrong in that  conclusion but generally when an article three judge tells me he's up an opinion i say yes or move on in this particular read all the time party say oh you know just move for entry of judgment we think the case is over enter a final judge and that's routine but no one there was a very practical consideration here at the end of the day presupposing plaintiffs survives every other pretrial motion motion for summary judgment rule fifty six and judge brady is charged with instructing the jury on he himself took away the only tool that he has to instruct the jury and i think like the last case you're putting too much on a couple words in an opinion as to opposed to what the district court actually did which is allow the excess judgment claim to go forward allow for discovery before he ruled on second summary judgment motion on that i mean i must be missing something but explain to me if you're right that the whole case was thrown out why in the world is there across appeal from the other side saying the district court made a mistake in not throwing out the excess judgment  the court was raising the jurisdiction issue of whether it was on the plaintiff's appeal or on the defendant's appeal i don't believe that you can maintain simultaneously the idea that there was a pulled cold judgment and a partial judgment it either is or it is not and as what i'm suggesting to the court today is that either decision that this court makes either to address this on a jurisdictional basis and remain and there will be some analysis and analysis will be the judge did not dismiss this because excess judgment arises under one nine hundred seventy three so even though internally it is inconsistent it is very plausible that judge brady intended to do that his opinion doesn't really suggest that he goes through a whole lot of it alex you agree the district court thought there was a claim still pending for excess judgment yes i get why isn't that the end of the n korea doesn't matter what the district court bottom matters what the parties think happened will know you wrote it the reason that there's a difference in the distinction is how that c moved forward this cause of action can only be moved forward under the statute that judge brady clearly dismissed and without that vehicle the plaintiff has no cause of action so even though he styled his opinion as a louisiana supreme court very very clearly came back and said we are now holding that this statute was a remedial legislative measure we're back to saying that the district court made a mistake that's why there's jurisdiction so again since every person a saying a mistake was made that means there's always going to be jurisdiction no you're right again depending on how one reads the opinion if one reads the opinion saying that yes judge brady clearly dismissed all nine hundred seventy three claims it stands to logic he also dismissed the excess judgment at the judge say he's not sure what the appeal is from the judge you know not and resold what about the judgment and the effect of it makes us know that there's jurisdiction as opposed to he sentence says plaintiff's summary judgment as to excess judgment liability is denied what we are saying is that is a legal impossibilities he has to pick one side or the other he can't have both they are the same thing he is if they're breathing at all want to get to trial and get a subtle manner i mean it's just a little strange to me the reason here your honour's is very clear to me which is as a practical matter how does the judge rule on the previously filed fifty six motion when he doesn't have the legal standard the legal standard nine hundred seventy three is already ruled it's final that standard doesn't apply to me either where do we go for analysis what is he going to do if we survive that fifty six motion and we proceed to trial how is he going to instruct the jury what will happen is that we're going to get there i suspect and that shelter is going to argue a lot of the case you've already ruled that this claim has gone and if that claim is going on we're back here arguing the very same thing now i understand that there are two clause of all resolutions possible resolution one is that you remand this case in jurisdiction that in fact he did not dismiss everything what i would request is that when you do so you simply explain to the judge that you didn't dismiss one thousand nine hundred three because you maintained an excess judgment liability if that's the case we're comfortable with that resolution the second resolution is you did dismiss for the cause of action must have existed at the time that the original judgment was entered this court has ruled alondra versus geico adopting matthys versus blanchard for the louisiana supreme court it is the entry of the judgement which gives rise to the cause of action so it is a logical fallacy to assume that a judgment that creates a cause of action also cancels if the court were to assume that essentially we say there is no cause of action for access to my ability which would fly in the  mr smith's current claim arises out of violation of statutory duty that statutory duties examined in a totality of circumstances that relates back to the very day that shelter first became on notice of this claim through today one of the fact is that the court must consider which is different from the other other factors is the insurers post trial efforts at settlement that certainly could not have a rose out of the faith in credit to the judgment full faith and credit under twenty eight u s c seven hundred thirty eight requires the entry of a balance final judgment if there was no valid final judgment there's nothing to which to afford full faith and credit we think that the very first here is the answer to the jurisdictional question if the court chooses that or believe that it does not have jurisdiction and remains the case we simply ask for an instruction why it's being remained which is by maintaining access judgment liability you maintained in one thousand nine hundred three cause betcha if the court believes there was a final judgment we suggest that judge brady erred in finding that the previous claim was previously litigated when it good morning afternoon and honors my name is gregory campmor a junior and i represent shelter in this case may please the court i am the counsel who filed the supplemental letter that's a dubious actuality a final judgment under two twelve nineteen one especially when you look at the cone doctrine doctrine the question is you know this complicated case law how is there a final judgment when the last thing the are the court can even address some of these issues at the most time it doesn't access and at that point the decision was made to do a cross appeal because we actually believe that there is a good faith argument concerning the focus on what the district  fifteenth point if father notice of appeal the next day on september sixteenth the district judge grants the motion for additional discovery before he rules on on summary jurors are now can that be consistent with the district judge thinking there were no claims left obligated to apply you see the three is a judgment in favor of either the plaintiff or the defendant is conclusive in any subsequent action between them with respect to any issue actually litigated and determine if it ok under the statute that louisiana has enacted now the question here is this we have a trial court that said shelter did absolutely nothing wrong in its choice to in its choice to deny coverage and concerning the allegations of misrepresentation argument exactly and so we argue and shelters position is that the court issued a final ruling as a as a practical matter but as a technicality kept the case open and that is case is over enter a final judgment and then we wouldn't have this confusion the reason that we didn't ask is that we asked again for a motion for summary judgment the court permits told us continuing discovery court it would and the the court told us in order no continue with discovery i'm not going to rule on that until we get there and those are the questions one of the big board room of order the consequence of th correct and that is where the practicality over technicality you first if you look under louisiana law was dishonorable court is again supposed to be applying louisiana rescue can't rescue caught a policy is the exact same under the terrible incision which i cited from an example you're saying because the defeat of the bad faith claim the granting of summary judgment on that precludes a necessary element of the excess judgment claim therefore we should just treat the excess judgment claim as if it's been dismissed because that's the practical consequence of the judge's or earlier ruling i mean that happens all the time let's say there's a civil rights violation someone sues the police officers and the city and the district court throws out the case against the police officers finding there was no excessive force but the city still in the case but for the city to be liable there had to be excessive force in the first place when that wanted me because we get those appeals all the time a qualified immunity from the officer but you don't get them from the city but it's your position that any time an essential element of a claim is thrown out even though that claim itself isn't thrown out that that we have jurisdiction over the the whole case  specially when mr paul babbitt put those issues voluntarily before the court during that trial they went for misrepresentation they were in for and they went for did the defendant lost on all of them that shelter should have appellate jurisdiction in this case is anchored directly to the fact they were here in a louisiana case as opposed to a mississippi or texas case with this underlying pretty simple but this is more into seemingly to me more complex in a price that we're talking about cohen doctrine and you know issues coups and known claims principle enterprise you've got a quote you know argument close quote and then you've got a practical argument close quote that you're presenting you know to our pal to deal with something with the district court said x but he meant why and no duty to defend you'll see there the judge said facts make bad law however this is the case in which we find it and i actually do believe that there is better all as well as state case law that supports the reasoning this case is over but you still got those two claims you've still got to get the judge to dismiss them even if you rely on the judge's prior reasoning at the motion to dismiss and then move for summary judgment on those two claims i mean it just seems like you want to short circuit an appeal before there's actually a final judgment but in the district where you just tell the district judge you're ruling practically speaking defeats this other claim so please now dismiss this other claim so we have a final judgment or enter a partial judgment or fifty four b on this going or certify under twelve ninety two that this ruling you already made is going to decide the whole case and therefore it should be in an awkward to appeal but there's all these know specially when that especially when the court states shelter has not fully explained how it is entitled to a motion for summary judgment on the access a lot of of ink has been spilled since the very convincing about it ok let's just put it that way and i meant no disrespect when i said about the twenty and do it some is not the first time people come up here and want to create a notion of what are called expedient jurisdiction close quote and there is no such display in times the parties gloss over because they want to give an answer we get then you know you got a class no lab but this is not the way it works baton rouge just you know having a link doctrine to going to coon collateral water all this kind of stuff which the district court that's the mainstay nobody asked they're going to give us five different theories upon which we can o that there is something in the way he asked a district court who's who's up there it's commonly said in every case i mean what is wrong with pointing out to the court there the error the uncertainty whatever the case is i mean what's up with that just leave it like it is take it to the fifth circuit well the have clients maybe there's money to burn i don't know i don't understand you want to you not you personally going to you know get out from one and you're worried about you know want to get in the second bite and so on and so forth and all that we whole different track it's not quarreling with the strategy motives not at say the issue you just want that's why we read it some people may not think we read this stuff but we do and we take our duty very seriously and as a supreme court tells us you do your job and we do ours so we say you do your job and we'll do ours but we're not going to do your job because of expediency i mean that's the only point you make in not personally you bitches period is where it is  take it in there to him and he can see it and he'll know exactly i don't want to have to go and tell jeff brady that that he messed up i'm overdramatizing on something but i did not miss the point  argument which they converted voluntarily into a rule fifty six in our first motion we told the judge we haven't had an adequate operative briefed see what's next we don't add up or to need to conduct discovery we've served it they haven't answered it still to this day i haven't answered it and we need that scary but hey if you don't if you want to look at this purely legal here is the ball judge kelly excuse me judge brady wouldn't recognize what kelly said kelly was very very clear that there used to be a jurisprudential rule it is now a statutory rule and this is the statute and the origin of this cause of action is the statute so by kicking the statute out and maintaining the cause of action it may be a partial judge just perplexed why you want to say your whole case is doing when the judge didn't think that i did it in the legal argument you're making but i don't if it were me and my cry quite one claim under the order was still alive i'd run with it and why again i don't believe it is do i believe what is the because you think  document he didn't consider anything it's over it's done what he considered were violations of subsection b which is entirely separate from subsection it they want to say he used the words arbitrary and capricious that's fantastic but those words judgment liability even in cases of negligence they do not use the word bad faith they use the words interchangeably bad faith failure to settle and excess judgment liability there is no requirement whatsoever to prove arbitrary and capricious behavior