suspect would you think that we would since the court found in favor of ms higgins on all factual matters the two issues that we ask you to address to novo are whether  in refusing to apply the standard of the one thousand nine hundred and eighty nine amendment to chapter ninety three dollars sections nine dollars eleven cents to be applied only in cases of willful intentional or bad final page everything else there is no problem with it as to section nine the director claims of miss higgins there actually is no explanation given as to why he chooses to use the pre nine nine amendment remember the actual damages standard for that amendment which is a penal statute meant you know were the actual damages caused by the delay in the bad faith practices of the insurer the s j amount of the consent judgment reasonable as defined with regard two verdicts in similar cases and this is a traumatic brain injury case there's not really any issue there and as to whether there is any suggestion of collusion but the collusion is actually subsumed as part of the reasonableness issue here i would just differ slightly on saying there is no judicial i'm sorry are you suggesting inclusive settlement can be reasonable that's collusion means and this state has a very high bar for collusion and you would be absolutely correct your honor we don't have any finding of collusion here none whatsoever what we have is in the section eleven  when the court says that it should this is not to take into account the assigned claims from the insured that it did not believes ringback that the assignment agreement was at arm's length now we know from the supreme court of the states and that's the same definition that's applied in massachusetts that arm's length means that the parties have to be acting as if they were two strangers but as the court noted in gore and this is been noted and other times as well in the circumstance where an insurer has acted in bad faith in terms of not investigating and settling a case it will often be true that the insured and the injured parties interests  figure the total figure since he was going to assign those claims your honor it isn't his likability isn't limit is if you look at the assignment agreement which is an exhibit in the case and the cover email exhibits seventy four where the parties talked about the need to reach at a reasonable number in the agreement the bar remains liable i know that that's an important distinction the bar still liable but hints has agreed she won't attempt to collect from the bar there could be circumstances under which for whatever reason an assignment of rights occurred that caused someone else to go after the bar at the bar did not get a release of its liability only an agreement that wouldn't seek on her own behalf to collect from them so when the statute of limitations had run on somebody else trying to bring a if you look at the sum of the total settlement remembering that what we're addressing here is reasonable this there is no one including the district court who would suggest that in terms of the value of the underlying tort claim against the bar the value of seven million five hundred thousand dollars was other than reasonable as judge hellman explains at length on ph for his decision this is a permanent traumatic brain injury she can't even leave her home she cannot work she is so damning well it's certainly true because one of the things course suggests that the court look to is whether there are other verdicts in that same range and the claims adjuster expertness or cariocas testified to that the court section nine he's already made to find that finding said it was willful intentional and in bad day and he hasn't told us why he didn't apply the actual damages standard which is the amount of the judgment below consent judgments being included under gore versus arbella he hasn't told us why he didn't do that but you have the findings and you know what the statute says the amendment was intended to punish bad fa number two was the company not only informed but given the opportunity to participate in the negotiations yes your honor the letter is in and forgive me i don't have the  for you but i'm sure you can find it the insurer sent a letter to capital inviting them to participate saying it is our intention and we wish to be allowed because we expire facing excess exposure the damage the insurance coverage has been ruled by the court to be limited to three hundred thousand dollars alcohol thing so we're asking you to give us this permission and telling you this is what we're planning to do and  to us to conduct these negotiations which i believe you are technically correct your honor except for the practice in the industry you don't ask someone just for the fun of it they would like a waiver you almost never get question yes are you telling us that although literally there was no invitation on the letter there are circumstances from which we to call this secretive is simply unfair when it sure is notified that these discussions that the insurer is requesting permission to go ahead with the discussions if the insurer doesn't say more than just no then the insurer has chosen not to interject these serious riddance and the record industry practice is well you say i don't there believe there is your arm wasn't there but i don't believe there is  nonetheless we respectfully suggest it wasn't a secret the insurer knew that these discussions were going on and this court found that conduct of the insurer was the paradigm of bad faith conduct in how they proceeded and asked to judge the pez question i would simply say again that the issue of whether or one can proceed in the fashion that happened here we think is very clear they have the right to they knew what was in their file it's all cited by judge feldman in his decision it's all in the record they attempted to get her to walk away by tendering the policy at a point in time that was later than what the judge found to constitute bad faith conduct so the bad faith has already occurred they know they acted in bad faith they know what he found from their own records and the words of their own adjustor mr wedge where they were right in the dark and the fact that they had the judge only had the right to well me back up the judge has to make the findings or you would have to do so under section eleven he simply said i choose not to do so because of what is the damages issue he still has to make the findings even if instead of using the one thousand nine hundred and eighty nine amendment because he thinks that an arm's length transaction is the proper test although it's not he has to make the findings and you see actually i'm just definition from before that's only the damages issue so that that one paragraph is a non sequitur we can't say she was not to decide to take it into account because of the fact that i think it's they knew she was twenty years old but they would her to drink to excess that led to the accident  contributory negligence permissable in there has been violation by the bar of this criminal statute that's number one no relationship between the criminal law liability which seems pretty clear and the availability of a it wasn't available because comparative negligence is only available for it as a defense of the state so they could say they didn't know she was twenty one and she looked to be twenty one dollars or she had to you have that case that says clearly that in his view no jury would have returned any meaningful finding of contributory negligence under circumstances where it under each minor known to the employer to be an underage minor is required as part of her job to get patrons to buy her drinks and then turn on her and say so you're partially at fault yourself she needs a job to survive that's clear from the record in addition the nd that's you're dealing with only the direct service issue the other basis for liability that was found is that p j d had a policy in a sewer right duty to have their employee walk the exotic dancers to their cars you good morning my name's kevin o'connor arse and i represent capital specialty thanks for the opportunity to be heard on this case i think the court should be the panel should be very clear as to what you're actually being asked to do here this is an underlying underlying case or it arises out of an underlying case in which ms higgins agreed to settle her claims against the two people at fault where she alleged worked for for accident p j d and the driver of the other car officer duffy for a total of eighty thousand dollars it's a case in which capital offered to pay her the full limited liability of its policy which was at that time two hundred and eighty five thousand dollars within months of the that asking the panel to do is to awarded damages under chapter ninety three when seven thousand and sixty that are over two hundred times the amount that she was entitled to by virtue of her toward settlements and her and the cetera the main ways that music in strives to multiply its her damages is by issues the courts already talked about i'm going to try to address those st one the use of the consent judgment as a measure of actual damages the ross standard issue that's been raised by mistake and i think it's really a red herring if you look at what what i'm sorry for the way you phrased the question isn't quite judgment of the chapter ninety three dollars and there's a number of factors that have to go on to be involved obviously the danger is that in this type of circumstance the vehicle loose of settlements occlusive agreement for judgment entered between the  the injured party so under the gore case there's a number of standards that have to be met the in order to address the danger of collusion the the merits of the twerk case have to be proved the elements of the tort case that be proved in the ninety three dollars case the settlement amount has to be shown to be reasonable and part of that reasonableness analysis it's not only about the number and involved of the settlement what was it given the opportunity to participate and you chose not to sure i'll address that right now so what happened was that in december of two thousand and fourteen  we don't agree you can do that we're defending you one hundred percent we've already offered our policy limits we're doing everything that's required of us under the policy and we don't consent to waive our policy differences in saying we're go go out and try to settle this case again those efforts went nowhere and nothing happened that there was no consent judgment entered as far as capital was concerned the issue was dead then in july of two thousand and fifteen several months later capitalism formed i believe the day before the agreement for judgment was after that they in fact were going to go ahead with this arrangement so affected with capital had no notice whatsoever  ability to get involved with the center so and then they went to court and filed it as a as a as a capitalist soon when in said no we don does the letter say if you don't consent we're going to go ahead anyway the letter does not say that it's in the record that's my recollection the letter so that that can be limited to situations where the insurer has willfully acted in bad faith and that as of the tie in one of those settlement negotiations she says the federal district court found that you were acting willfully and in bad faith at that point while we just knew the validity of those findings by the district court but in terms of the incentive to be involved i guarantee you that capital wasn't concerned at that time about ninety three dollars liability was concerned about betting it's insured against these  defenses because it's who is a clear violation of criminal law and the inch and bar was clearly on notice this wasn't a mistake  normally under massachusetts law you cannot rely on reasonable judgment from counsel and defense counsel here that was not reasonable reliance given the state liquor laws your honor i disagree that this that the violation of the state liquor laws  brought because of that d n a report but you will just shut down the investigation by doing nothing other than talking with people who had a strong self interest in denying that they had served her mania her well your responses your honor to at least first if you look at the if you look at the february two thousand and thirteen letter it talks about are potential claims it doesn't assert a claim it doesn't include a demand for damages it doesn't ask p g d to do anything really other that preserve its records and provide us information regarding your insurance it provided to make something into a claim and that surely would be a bad law well if you look at the the the only authority that's been provided there's no authority in massachusetts as to what constitutes a court claim under chapter one  if there is liability right correct roger and once on a scale so can i go back to this point by the time the lawsuit was filed there was a lot on the public record th this she was highly intoxicated and that contributed to the accident and we accident was not fairly far away from where the bar was and some of the notion capital got a jury to its insured also its insurers telling it repeatedly that the guy had repeatedly that nobody was that nobody at the bar served her alcohol and there certainly are other possibilities and these possibilities  discussed at length in attorney stern's reports back to capital she could have drank before she got to work she didn't start work till ten pm that night she couldn't drink after work because i have an hour time period or so but that could have happened she could have been serve i think the court does overwhelmingly look at the pretty claim time period and criticize capitals conduct immediately in january of two thousand and eleven when the the the investigation was was correct well the only other thing that happens in the mean time is is capital receives a letter from t j d that an affidavit from one of the other workers at the at the bar credibility to what the what the folks at the p g d were telling capital about the situation and also your honor i think at the end of the day it really doesn't matter what capitals investigation was at that time clear she was heavily toxic aided to at the time the accident correct and turned stern's advised capital repeatedly when capital all through the summer and fall of two thousand and thirteen s good policy limits offer this is a wasting policy should be made a policy limits offer the response they got every time was i need to take a deposition and assess her credibility before i can make a settlement recommendation the reason all very much only with regard to issues of timing on when the insurer act the trial court filed on page eleven that while the accord notice was not itself a claim that the cover email forwarded to insurer by the broker which set forth information about the under age drinking and so forth and the fact she was served was this information alone was more than sufficient to put capital on notice that this was not an ordinary claim i'm saying it's more than just a claim based on the information they conveyed not with a computerized notice but in the cover email next to the question of the tendering of the policy the court doesn't deal with it because the record showed it was  a disputed that it was not received it was sent to the wrong email address presumably mr stern would have gotten a bounce back but in any event it wasn't received immediately thereafter or shortly thereafter came mr dunning use letter of representation regarding the claims and in replying to that this is a very important exhibit eleven in this case is capitals letter rejecting the claimant effectively so that denying liability goes back and talks about the fact that you can't stick your head in the sand that the northfield investigation if they hadn't shut it down would have revealed the clear liability and the fact that in or out of a more thorough to present and then finally on that issue their own claims manager mr winter break testified this actually on another issue on the comparative negligence issue that their theory had been that maybe she had brought alcohol to work in a bottle and it didn't pan out everyone said it wasn't true he said at that point in time our comparative negligence theory when so they they were trying to show that she had brought her own alcohol they admit they couldn't and that was the end of  allowed more field to do its investigation they would have known in two thousand and the accident was november th two thousand and ten they write northfield in let them in place for like six or so i think it was a few days and then said stop working and when all they had done was do phone interviews with the bartender the owner and his brother the club manager and nothing else they had morefield had said what they needed to do and capital said stop and they never did another investigation before the filing play my question goes to did they have on your view of the law or did they have to settle before a lawsuit can see them filed if if their liability became reasonably clear that is if it became clear that there was life bill of their insured as a result of their investigation before the lawsuit was filed the answer to that question is yes but if they didn't do the insurance practices that occurred long before the lawsuit was filed and they then delayed even further attorney stir became involved within six days was able to tell them most of the facts that they needed to know and i do refer the court to page thirteen of the district court decision where the judge opines on what would have happened had they allowed the investigation of northfield to go forward in terms of when the settlement would have occurred thank you very much thank you  recess before the next case all rise