demonstrated two things one all parties that had claims against west side that is mr gentz and mr schmidt as well as kind agro unequivocally and repeatedly informed westside an  of their willingness to completely release westside in exchange for the payment of westside summons second the evidence also overwhelmingly demonstrated that the parties involved in this case evaluated west side liability at having exposure that would be at or likely above and far above its limits and that those evaluations increased as trial approach to the point that there was no one left who questioned that this was going to be a far in excess verdict now arts i represents a contact grab and ace never actually presented a resolve the case is that accurate and if so was there ever a true settlement offer that r s u i can be faulted or rejecting yes your honor there were there were repeated global offers of settlement and the record is is filled with those as we say to our brief for example i'll begin with the first mediation it was held in this case in january of two thousand and twelve at that mediation kind aggers representatives including on behalf of the carriers informed r s u i that they would completely release are they were completely released westside in exchange for the payment of our as you eyes limits and examines how much twelve million dollars movement in addition to the one million colony the underlying carrier had a one million dollar policy and are as you are the excess carrier had eleven million dollars so it was so that's the total yes your honor at that same settlement conference bob clifford informed westside and its carrier that he would settle in exchange for the limits so unequivocally the record in this case says under oath sworn testimony from all participants involved in that case that there was a global offer that was presented how of course the judge how that the deposition testimony of the various lawyers involved in the case was largely speculative and that you know the notion that the case could been resolved had our i c u i's council been more willing or are you i do tender it's policy limits was essentially a case of monday morning quarterbacking but your say the exact opposite not only am i saying that your honor but i would say more specifically the witnesses in this case under oath said that more importantly and it's not a matter of of  assessment or argument as as judge reg unfortunately weighed into but rather it's a matter of sworn under oath testimony that i would submit was not contradicted by a single there was not a single affidavit or deposition transcript where anyone contradicted the sworn testimony of at least three lawyers who said that those statements were communicated that that was an rebut it in the record in this case more importantly if we look at the standards of  judgment in contrast to what judge roy reagan did here he violated the two fundamental aspects of what he should have done on a summary judgment record one rather than viewing the evidence in a light most favorable to west side he did the opposite and the reference that your honor just made from his ruling was a precise example where he looked at sworn testimony of lawyers and said i'm going to disregard that because i think it's speculative he chose to view it in a light most favorable  are to he engaged in the weighing of evidence weighing of credibility determinations as to what weight he would ascribe to oral testimony versus that of written testimony in diametric opposition to the standards that are political to summary judgment and doing so he way then as if he was a finder of fact following a trial on the record rather than a judge confronting a summary judgment in doing so he committed plainly revers made by the other parties i mean would you agree with with that view of thing i would disagree on two grounds first of all it's it would be a factually inaccurate statement for r s u r i to suggest that it didn't have to  iate it because the facts demonstrate that the parties were repeatedly coming to our us who i critically both jensen schmidt and kind agger at the same time were in fact presenting opportunities to settle even if they did so independently they clearly communicated one message to our see why that was global pay your limits and west side will be released from this case they repeatedly told that in an unequivocal fashion so this is not an instance of  having to initiate discussions in a vacuum they were presented repeatedly with opportunities to get west side released who was a dummy who is the nominee person in these negotiations if there was one the dominant person on behalf of r s u i was a lawyer that it hired to be monitoring council principly a woman named natalie member she was the individual who was at the proceedings handling the day to day communications the principal party on behalf of con agra was an attorney named ken moody who was appearing on behalf of con agra carrier ace and the principal negotiator on behalf of plaintiff jensen schmidt was their attorney bob clifford  but i don't recall exactly the names the were the women that you just mentioned in another one were they not talking to each other or some kind of problem the observations again that were presented in the record to the district court that we thought were useful for purposes of demonstrating how r s u i had failed its duty included testimony sworn under oath testimony of lawyers that their observation was that the two insurance representatives had been come involved in the words used by john schultz were a cold war and that rather than a cold war who're and that rather than communicating with one another for purposes of looking out for the insureds interest it personalities struggle had caused them to not do that and in particular with regard to our issue i was representative west side should have been represented by someone who was soley looking out for ensuring that its interests were properly protected and instead the record before the district court indicated that there were personality clashes that were interfering with that well look at the bottom line and obviously when this thing did go to trial we went through the roof and what was it forty some million forty eight forty eight million dollars of compensatory liability that eventually after this court's seven circuit ruling in the gent's kind agger matter forty eight million dollars of liability almost well the settlement conference specifically informed about r s u i as they confirmed in writing back to the home office that they were told by judge frazier magistrate with twenty years of experience that he analyzed this case and that he predicted that it would be the largest verdict entered in the southern district he contrasted that with what he predicted would be rendered the second largest verdict which was for ninety five million dollars he told these people that he thought this was going to be bigger he also told them that he thought that th ey should pay their limits he told our issue i pay your limits to avoid bad faith and interest and ours who i confirmed that in writing back to the home office judge reagan never cites that fact in his decision demonstrating the extent to which he engaged in a weighing of evidence that was inappropriate on a summary judgment standard what's more at the time that judge frazier made that analysis of the intice a paid liability r c wise own analysis was that at that time west side percentage liability exposure would be fifty percent that was are a few eyes and houses so in january of two thousand and twelve r s u y has two numbers that mathematically demonstrate why it needed to pay its limits fifty percent liability  hundred million dollar analysis by an experienced magistrate in this district which tells them the exposure to west side was fifty million dollars within two million dollars of the actual end result in this case  and at that same time they were being told by all parties if you pay us your limits we will let west side out and confronted with those contrasting views for that that when confronted with that liability and that exposure and that opportunity to well first of all you can look at the what we cited for joe oral it very clearly said i recollect that i told repeatedly that i told the parties that we would let west side was you i would pay its limits he didn't speculate he didn't guess he said that bob clifford in his testimony said i repeatedly told our as you are that i will let west side go if they pay their limit judge reagan actually misstated multiple times in his ruling that bob clifford said he would not accept the limits once the jury was impaneled in fact bob clifford said precisely the opposite he said i would have accepted their limits i didn't want an empty chair so we would have had to have worked out how to keep them in the courtroom or how to inform the jury of what had happened have happened but yes i would take their limits he said that under oath and judge reagan in complete contravention of that said bob clifford said he would have taken the limit if you look at it we've cited over and over where bob clifford said the opposite in addition leo knowles on the in house attorney on behalf of kind agra testified it's true that when clifford was  history of the case your honor i would direct you to the say patients that can be found in the docket fifty five dash three pages three fifty five dash three that's the docket entry pages three six and nine at each of those bob clifford each of those represent portions of the deposition in which bob clifford stated that during the trial that he expressed his continued willingness to release west side and exchange for the policy limits and extend addition to that there was also an intervening meeting that took place in march of two thousand and twelve in the back or the matter of back or at that meeting in march once again bob clifford has testified that he told the parties that he would settle kind of agra has testified that they told us you are they would settle and again the evaluation of liability had not gone down if anything it had gone up  these probably very likely the most serious and in fact was awarded the compensatory damages indicating the jury felt that is where the most serious i'd like to go back because con agra nace never actually made a settlement offer they wanted  us u i to tender its limits and then they they would approach the plaintiffs and see if they could settle the case i didn't see any response in the gray brief to that point so you honor and i i think that we had cited in our in our initial brief and in our reply to those offers but i would tell you again those pages that every cited to bob clifford's deposition which can be found at fifty five dash three at the pages that i reciting thirty six dash two pages one zero nine two one ten con agra at in the deposition which we cited the court two at fifty six dash five page five and also at fifty six dash for pages thirteen to fourteen demonstrate their statement that they would settle in exchange for the polic and i think that you will find that they support our position that in fact they those statements were made directly from the plaintiff's jensen schmidt to ours who i and from kind agard r c i that says if you pay your limits we will let west side out and that was unconditional and represented and in total a global settlement offer and in addition it's vital to keep in mind that this is measured against a summary judgment standard which is is there evidence by which one could conclude we're down to the three million is that correct that is correct and it's what kind of i grew up in the east and or whatever and that's who's arguing who should pay that basically what they're trying to others are trying to say is  arguing over who's going to pay three million dollars that's right your honor our position is that kind of agra when kind of agra informed r c why on several occasions that it would enter into a full settlement with west side including if west side paid its money to jensen schmidt they specifically testified to that that was in the record in front of the district court that the testimony was the kind of anger greed even if the money was put paid directly to jensen schmidt not to kind of agric they were willing to release westside from everything including the three what the property damage that is now the three million dollar issue that we are you guys thank you what good morning your honor sir chris wildly on behalf of our us you i may please the court your honors i'm going to be as polite as i possibly can but mr preston is completely overstated and misstated what's in the record in this case i want to jump right to the point that we were talking about in mr preston's presentation about the evidence of a settlement an opportunity to resolve all claims within the limits that simply did not exist no specific offer of settlement was made to r s u i that said if you pay your twelve million dollars to jensen schmidt that con agra and ace will agree to release those claims that they had against  west side including this property damage judgment which is the subject of this of this dispute and i just want to read leo knowles was the general in house counsel for west side i'm sorry for for con agra leonel so he was the guy in house counsel for con agra and i asked him this question during his deposition you testified previously that con agra was prepared to dismiss the property damage and ind claims it was cited made the two million available is that right answer correct question was con agra willing to do that it was cite settled directly with the plaintiffs for the policy limits answer i don't think that question was really put to us in that fashion question what about a case do you have any indication whether ace would have been willing to let go of the indemnity claims if west side had settled directly with the plaintiff's answer that question was never posed consequently i don't really have an answer and then later in his deposition i ask mr knowles question on this concept of whether ace would have gone along with dismissing the indemnity of r s u i would have made the twelve million dollars a think you testified to this earlier but can't but you can't say one way or the other can you that ace would have agreed to release the and then that he claims it was side had settled directly with the plaintiffs is that correct answer i don't think ultimately when they finally made the proposal about releasing the indemnity claims and the property claim i don't think that was in the context of a direct offer to the plaintiffs question the right that was in the offers made by ace were in the context of r s u i'm making the money available to ace to go in to go shape with the plaintiffs is that correct answer right so all of the settlement opportunities that were presented to r s you ions this case were a first of all it was a set spoke on behalf of both con agra and and ace with respect to the settlement negotiations all the settlement offers came from kim moody counsel conceded that came when he was the principal negotiator from their side of the policy limits on east well i but i'm not entirely clear on that i believe it was twenty five million arabs or right yeah it was twenty five million in excess of i believe a three million dollars self insure retention and then kind of agger had like two hundred million dollars in excess coverage about it so kind of grew it was well insured but a ace was trying to negotiate a settlement within its layer and so through it throughout the proceedings what was presented to  was in order for any negotiations to take place you have to make your policy limits available and then will perhaps throw a sweetener on top of that something within our limits and this whole thing goes away there was never ever and it's not in the record never communicated to r s u why by someone with authority i e kim moody that said yes you go ahead and settle yourself with the plaintiffs get out of this case and we'll let you walk there's no testimony from the ace personnel the only thing that we have in the record as far as a settlement offers from a star in the middle of trial ace presented iris u i with a two prong settlement proposal one of which was give us your twelve million dollars and we'll release con agra as an economy claims against west side which would have been completely disastrous because then  would have been left holding the bag on the plaintiff's claims without any insurance coverage because it all would have been exhausted paying the con agra an ace the second alternative was what we've just been talking about you give us your twelve million dollars to go negotiate with the plaintiffs and if we're successful in in resolving this entire case then wool will drop our property damage and indemnity claims but it was only on the condition that a global resolution be reached and that's where it gets speculative your honour's is to say that well had we made the twelve million dollars available con agra ace would have gone out and successfully negotiated a global resolution with the plaintiffs speculative because the plainest never made a global demand during the trial the one that they made pretrial was around seventy seven million dollars and we know that ace and con agra weren't even to put twelve million dollars of their own on top because in the middle of her in response to those two demands r s u y responded to a sin said we will make our twelve million dollars available if you match us dollar for dollar to make just talk to you about mr clifford for a minute sure because even once the trial was underway what's in it reasonably clear that mr clifford was still amenable to  avoid you know the empty chair right and this is where it's important that we keep in mind the liability that that's the subject of this current dispute is the liability to con agra on the on the breach of contract property damage obviously clifford did not have the ability to give west side a release of con agra schoolings all clifford could have done was perhaps given a covenant not  execute the gents and schmidt judgments and those judgments have been resolved they're not at issue here it's the con agra judgment that's the issue and you know even if we had even if we hadn't reach some agreement with clifford about capping why sides liability to the plaintiffs at twelve million dollars that does nothing about the liability that we're talking about here today and now this is where it actually gets important now to take a look at what joe let said you know any settlement offers would have been a joint decision with a and and you know it was kim moody that was speaking on behalf of ace but what he did say was from a strategic standpoint he would have liked for westside not to have been in the at the trial because basically at the trial he had two people pointing at con agra saying con agra your faulty at the plaintiffs blaming con agra and west sides attorney blaming con agra so when he speculated that there would have been left out let out of the case he was saying look if if if if if west side had settled with the plaintiffs before trial and got out of the case then you know we may have been willing to to release the property damage claims to get them out of the trial because we didn't want to have to deal with another one point or another attorney pointing the finger at us the trial but clifford was unwilling to release westside from the trial because he didn't want the empty chair so he wanted west side in the case for the same reason that con agra wanted them out was that he wanted another partner and beating up on con agra because con agra was the deep pocket that they ultimately did get hit right think it was one hundred sixty million dollars when you include one hundred million dollars in punitive damages got reversed before this court but never the less so it was it was in and possible situation where you had clifford saying yeah i'll take your twelve million dollars but you've got to stay in the case because i don't want an empty chair and con agra as attorney again with out whether he was speaking on behalf of a splay said he wasn't speaking on  ace but you know he was suggesting yeah maybe we would have to take let them out because we didn't want them in the trial so you can't have both and that's kind of the point that the district court was getting at here in granting  summary judgment was that look there were so many competing interests and so many as he as the judge called the cooks in the kitchen here to try to resolve this case in the middle of a trial that it just it just couldn't happen  what we what we do is i mean we go back to what what is the task what is the requirement for bad faith now we've got a link the choice of law analysis we believe that iowa law applies on the bad faith case here but it at the end of the day we think we prevail under under both tests because what you have to do to show bad faith as a matter of law is you have to have evidence showing two things and number one is you have to have a settlement offer or demand however you want phrase the settlement demand within limits that will resolve the liability claims that are made against the end shirt at the same time the insurance company has to have no reasonable places for rejecting that settlement demand within limits here we assert that west cites case failed on both accounts because number one you didn't have a specific offer of settlement within limits it was purely speculative ok give the money let them get the money available to go negotiate maybe this is cut successfully negotiate maybe they don't and second it is you know at least up until the middle puts the liability exposure well within the limits and he says repeatedly that the exposure is within the limits in fact mr preston mentioned i believe it was the february or maybe  march mediation it was actually mediation in the back or case and that it was at that case that ace and con agra again said you know make your limits available you know we're not offering a nickel until you guys make your limits available nice defense counsel reported that to colony which was the primary carrier and r s u why he said this case does not warrant the contribution of twelve million dollars so i agree there was no duty to settle before trial because r s u i was reasonable based on the information it was receiving from defense counsel and not paying policy limits to settle this case that was admitted by the plaintiff's own bad faith liability expert the the likelihood of an excess verdict became apparent at least according to the plaintiff's evidence in the middle of trial when the testimony started to go south and at that point at that point defense counsel says i think there's because he was initially he initially thought it was going to be twenty five percent fault and i think between eight and eleven million dollars so that the net exposure to westside would have been somewhere in the two to three million dollar range middle of trial john schulte says now this is not going very well i think we're looking at a fifty fifty liability split and i think we're looking at twenty eight to forty million dollars in damages so westside bad faith experts is at that point r s u why not now you know that there's a likelihood that this case is go access but at that point there's certainly no opportunity at that point forward to settle this case within the limits the only the only up offers that are made during trial are those to softness which i spoke about earlier which again one had been taken would have been a complete disaster for west side the second one is entirely speculative as to whether it would have resolved the case so again we don't think that they have met their burden here of introducing sufficient evidence beyond a speculative level upon which it could be concluded that two things happened simultaneously one that there was a an appreciation of an exposure above the limits and to a settlement opportunity to resolve all these claims within the limits and i see that my time is shortly expiring i just do want to  say we do argue as a threshold matter that this property damage breach of contract judgement isn't covered and we've got various reasons for that which are laid out in the briefs and we think that if the court concludes that it's not covered then we can't be liable for how much time you got thanks to both counsel the case will be taken under advisement and we move to the fourth each morning