concern to be that house three and four of the four count complaint in this case was dismissed upon consent without prejudice and that the concern may be still perhaps a concern that the parties have manufactured jurisdiction for the court to hear an interlock tory order that would otherwise not appeal but i hope that i can assuage the court's concerns about that and put that  rest standard that i think still apply in a case such as this with respect to finale even post microsoft says baker which i'll address terribly but i think that the case to the clear that no one amendment could cure the defects in the plaintiff's case the order dismissing the complaint is final in fact an appellate jurisdiction exists that's what we have here and the reason that we have that here is that i am precluded by the rules of professional conduct as well as rule level i am precluded from further proceeding and prosecuting my claims under counts three and four unless or until this court reverses the district court on counts one and two why is that the reason for that is that counts one into the complaint to hold starr stone liable for insurance coverage and for the wrongful denial of insurance coverage and for breach of contract as a result of that insurance coverage not the discounts to two which the district court dismissed with prejudice count three of the complaint in this case is for bad faith denial of insurance coverage the very st element under fairly well some north carolina law the very st element of a bad faith claim is proof that the claim was valid we have a decision in this case that the claim was invalid i can't consistent with rule eleven go back to judge eagles and argue that i can prove bad faith denial of insurance coverage when she's already concluded that the complaint that the that the denial of coverage was valid and that the claim for coverage was invalid can i just wanna make sure i'm understanding the procedural posture of the case and i might not be you started with i think was domingo sugar and when i complained to suspects without prejudice you know we ask whether there's any way in which this complaint could be amended  rewrite as far as it goes so here if i can explain homeland and they were dismissed without prejudice three and four were dismissed without prejudice on consent yes only an insurance company is a primary insurance company primary layer of insurance provided a one million dollars of liability insurance star stone is an umbrella coverage and i'm pro a policy that sits above the home so i brought claims against count one through four against homeland and star sent me to the court was one of these two has to defend us it's either going to be homeland because they're primary or it's going to be star stone because there  number of one of those two these two carriers has to defend us in the underlying case the court concluded that there was no coverage under the primary homeland policy because of exclusion in that policy and you repeat the allegations and you say by reason the foregoing star stone has breached his duty of good faith and fair dealing no reference to homeland at all that's correct and the reason for that is because the court dismissed homeland from the case it did so on the basis of an exclusion and that exclusion was quite clear i have no basis for appealing the dismissal of homeland because the exclusion was  exclusion that fit the exact scenario that we have in this case so why didn't i didn't dispute the dismissal with homeland but that was ok with me because in a circumstance where a of a company like homeland is the  of appeal you did not appeal the dismissal of three and four correct correct and so i don't make sure i understand what you believe happens if the know right so is it i mean if you don't know i'm not trying to get you to speculate right so if you don't know which one it is that's fine but in your view is that issue or claim preclusion would apply in sort of the new complaint that you fi that's correct so so because i also i'm trying to figure i understand that argument but i guess i'm trying to figure out given that three dollars and four dollars were dismissed without prejudice would that dismissal by itself have any kind of prosecute three and four now without favorable ruling on one and two will so this may be get says i know you want to talk about microsoft later but i thought this is kind of what the court was concerned about and microsoft and courts have been concerned about before microsoft when it comes to without prejudice dismissals that it allows for a kind of having your cake and eating it too well let's go up st see how we do before we decide whether we care about these claims here's the difference between microsoft and  and why they are different from this case in both baker and further proceedings below in the district court or in arbitration as the case may be further proceedings below were available to the plaintiffs in those cases and the courts said plaintiffs you must proceed in the court below and resolve all of the claims that you have before you come up here and you can't manufacture appellate jurisdiction in this court by simply deciding not to proceed in the court below with the claims that you could proceed in the air but instead dismissing them either with or without prejudice and hoping to get an appeal that you would not otherwise be would not otherwise be available to you that's not this case i cannot proceed below as to counts three and four why because the threshold issue on counts three and four is that the claim was a valid claim and that star student did not wrongfully deny the district court has taken that element of those two claims away from me by deciding that the claim that i do we made for coverage was invalid and that the denial of the claim was not where the arbitration ruling and the class certain ruling were wholly independent and in no way determinative of the complaints that were dismissed  the plaintiffs in kenya and the consumers in baker still had litigating that they could and should have done below it was available to them either in arbitration or individual lawsuits because their classification had not been to not they could they could have in should have litigated those claims below can't do that it consistent with rule eleven and consistent with my obligations on that under the rules of professional conduct exactly true right because one possibility of trying to think about what you could have done i accept very very well you all very good good faith in trying to get this right and i thought your attempt at it is an admirable one not sure sufficient but as admirable i try to think what you could do what you could have done one example and i want to hear are there any other examples from you is that you could have taught your colleague he could have filed a motion for summary judgment based on the rationale of counts one and two and you could have on a response opposing it on the grounds that the court could should reconsider its prior ruling but  reconsideration that you were you were opposed i don't know why my adversary would ever take that tactic strategically if i were in his position i would not and the reason i would not is claims for failing to prosecute that's the position that mr brown has me in right now because if we get if we have to go back to the district court without a ruling on counts one and two and you just remand us for furthe brown that may be true but it's a matter for me as well because i'm precluded by by will levin from making the argument mr brown has every incentive in light of breaks to sit back look for is my neighbor it's not his b and what is going to happen is eventually don't judge eagles is going to do to me what the judge did in grades she's going to say mr solver you need to do something about counts three and four we're going to have to dismiss them for failure to prosecute that's a good position for mr brown to judgment dismissing them the problem you have there is that the consent judgment probably binds you even own and if you win in the th circuit you've already entered a consent judgment that binds you and so think no no i'm trying to figure it out is there anything else in the you obviously have lived in this world a little bit is there any other possibility you can talk about rule fifty four b if you want to but you don't need to from my perspective  maybe somebody else but are there any other possibilities that you can think of as an option of the court understand it might not be in your interests but that you can think that would permit you to as i can be with your honor i have spent sleepless nights trying to figure out once i've put i found myself in this box i've spent sleepless nights trying to figure out just what your honor has suggested that i ought to be able to do and i have not been able to come up with any kind of strategy that would permit me to argue i'm sick i'm guessing you consider this i want to know why you ruled it out you couldn't under rule fifty four be asked the district court to direct entry of a final judgment as to some but not all of the claims because there was no just reason for delay yes i could have done that and and if if you sent me back to do that then that's what i will have to do but could you could you have done i mean you know our court is set out of a standard for what a rule fifty four dollars b request requires and i thought one of the things that he has directed the district court to look at and hence you to look at is whether the two sets of claims are related in any way and where they are it is only where they are unrelated that a fifty four b order is appropriate but where they are is this instance completely intertwined as is your argument as maybe i'm wrong about this tell me if i'm wrong i interpret so i'm in a box and if you send me back i risk losing three and four without ever having an opportunity to have an appeal heard on it because  is accurate that the only you know the only thing i could think of it come take responding to the discussion here thank you counsel is exactly the st option you put out which is the summary judgment idea so you know just to back judgment motion now there probably was any necessary incentive to follow dismissal either but in that also a problem it is it is and i agree with with my colleagues point all that and i guess just to back up to the beginning i would say that of supreme court testimony to defend is as it is pretty much around the country a comparison test analysis meaning that you take four corners of the insurance policy you take the four corners the complaint against the insured you analyze those documents and see if this insurance policy covers what's alleged in this complaint nothing less nothing more that can and frankly is commonly disposed of on the pleadings because the complaint in the policy was put in the pleadings and i guess from our perspective there was no need for discovery there was no need for really anything only that legal question and if the court found as we believed right out of the box it should and as the court did that there was no coverage based upon a plain reading of the policy in a plain reading of the false claims act complaint against affinity then that would in the coverage and inquiry in practically speaking that would in the extra contractual claims as well we didn't do for judging on the contractual claims for the very simple reason that more often than not those claims of my experience trial judges tend to want some discovery on those claims before the integrating sponsored relief and it will fifty six so we pursued the motion for judgment of the plea that for the simple reason that you know we believe when resolving claims of the merits and and we thought it would be appropriate for this court to to look at the coverage issue on merit so that's that's kind of how we got here i don't think there was any any gamesmanship to any of that i think the parties believe each believe that that there is a you know a straightforward coverage issue here that needs to be resolved so and gloomy with your your colony that the reason this is different from my course soft and judge teams opinion in ghana i'm pronouncing that correctly is the dependence of the of the three and four on one in jointer problems but it involves two contractual claims and then there was a car wreck that happened in the parking lot and you dismissed the two contractual claims an attempt to get rid of the car wreck claims b dismissal might might be problematic if you dismissed them contingent in some way on counts one and two in that scenario i mean so i do think the dependence matters to some degree you know i agree with that distinction alone is not is not really where we are we're really focused on the idea of the dependence between the claims being dismissed and not not the fact that it's just some claims and not all claims i think that's accurate  and i guess just to kind of play out a little bit further response to some questions that were asking earlier of my colleague about what does what does remain look like you know our view again it is this is a this is a very clear coverage question that can and it should be and was about the district resolved on the pleadings on the complaint and the policy analysis that this court should affirm if this court were to to decide that there was coverage of the policy for some reason appropriate kind of mechanism i will say that you know all the beer it's we certainly have a very good faith basis to take its coverage position we've taken for all the reasons laid out by judge eagles and all the resort to that in our brief so i think that would be at most this is a contract dispute it just as as an aside on that very point you know most of what i do my practice is insurance covers litigation for insurers and policyholders what i see more often than not is a bad faith claim in every breach of contract life and i'm not saying that bad faith or not occasionally appropriate but they seem to be asserted every time there is a breach honest dispute about what the insurance policy needs and then you have that you get into candidly some of these persons with these  before i want to kind of pick up on what i was just articulating about exactly what is the what how does one go about how does a court go about analyzing a coverage not talk a little bit about the comparison test about exactly the two documents that matter the insurance policy as well as the complaint against the insured and here we have a key tam false claims act case against verses buzz off case is that we look to the claims for relief against the insured to analyze coverage there might be a lot of factual predicate a lot of factual background but we have to look at exactly what the insurer was sued for it over to analyze where there is a duty to sort of back here the allegation is that the government was billed for care that was not provided so we didn't turn to the insurance policy but why doesn't that just as a matter of common sense sound like it is a claim that insured modi's as damages resulting from a claim arising out of a medical incident so the damages have to result from a claim that arise out of medical incident and then we have on page two hundred and five dollars of the record the supreme court or north carolina case on the arising out of language and i think there's a step before we get there so let me just say this and you can directly to your question the st question is is the claim for improper building a the internet itself i think the plain answer that is no the next question is does the does the the a claim for a medical incident related to a medical professional service somehow arise out of the rendering or figure to render care so we have to look at north carolina all of this point in the state capital case from the supreme court in north carolina is of course as you know for the briefing the case civil case in north dakota talks about this arising out of language so what the state capital case says and it's a capital case as you may recall is a case where there was a rifle in the back of a pickup truck and people were out deer hunting the court a native of rural north carolina the court said the transportation of firearms is an ordinary customer use of a pickup truck so what the court said is that they were going out deer hunting guy saw a deer goes into a pickup truck accidentally shoots his his friend and that the therefore the the shooting a rose out of the use of the pickup truck in the court articulated the exact stance the parties do not contemplate the general liability insurance contract is here there must be a causal connection between the use and the injury is calls of connection may be shown to be an injury which is the natural reasonable incident or consequence of the use they're not forseen or expected if the injury cannot be said to arise out of the use of an automobile that was directly caused by some independent act or intervening intervening cause wholly disassociated from independent of or remote from the use of the automobile so the question is is the maybe wouldn't be my natural read but i what it suggests here i mean your natural read might have gone the other way and i'm not sure the natural read might not have gone your way as well because there's an intermediate st there and there's an intermediate step here between the provision of service and the billing and just like there the use of the truck that is driving it and storing things in it and pulling a gun out of it so there's an intermediate step in both that we might destroy us the but for cause that we're talking about but in state capital they seem to say even where there is an intervening arising from  therefore i'm that's not the same thing with a gun and why is that different from the gun right like i'm pulling you know it's not from using the trough like it is done arise from the use of the truck it arises from pulling the trigger on the guy yes those distain i might have naturally read them as being distinct but after state capital and we're obviously bound to follow that law suggest to me that their interpretation of arising from is  broader then the natural reading i think what state capital suggest to two federal district courts sitting in diversity into this courtroom reviewing those decisions is that you take a case by case kind of common sense view of what is disassociated from what and so for example if you say well if you think that happens anything that affinity gets sued for because it renders professional care they're automatically covered if they get sued for breach  contract because they didn't pay their vendor is that cover of the policy because it would have had to pay the vendor but for the fact they provide professional care of course that would be absurd if they get sued in the title seven dollars claim for gender discrimination well they would have had that employee but for the fact that employees voting actual services would that be covered as a professional ability claim of course not that would be of search there has to be some line between the operation of the business that is within the control of the policy holder but the examples you give are two capital and then i will turn and let them ask why should i read state capital as saying that one step removed is good enough to arise from under the contractual language right well state capitals i don't respect i don't think so you couple talks about one supreme moved or two step removed or anything else i think what state capitol says is you have to look at what happened in that case it was the gun in this case it's the faults building and i is using it and it wasn't it wasn't like he went out fifty feet away and then took the shot he was getting the gun out of the car so the in the courts when it accidently went off and so the court said that is loading and unloading the vehicle that's an ordinary use  in this case false billing defrauding the government again i'm not saying that's what happened i'm saying that's what's alleged but false billing performing the government is not and were an ordinary incident of providing professional care false billing is whol disassociated from that as the court correctly found and frankly as as every court in the country that has looked at the question whether professional liability policy does or does not cover a false claims act