change the exxon closer closer scrutiny normal well it's interesting because we are on somewhat uncharted waters here in the third circuit because wilton and brill hire for it both dealt with situations where you have parallel state court proceedings pending at the same time and so in in wilton this supreme court expressway stated that it wasn't going to delineate the boundaries of a district court's discretion where there weren't parallel state court proceedings pending at the same time interestingly enough axon was a case it wasn't an insurance case but it was a case where there weren't parallel state court proceedings so whil wilton does affirm the proposition that a district court does have discretion under that clara torrie judgment act it doesn't set forth the boundaries that apply to that discretion and therefore we believe acts on a closer still underlying state court proceedings that were that were being that were involved i don't know what this means closers because frankly i scrutinize everything closely it's also like i never pinion e've seen other courts have done and i would direct the court's attention to the to the eight circuits opinion in scottsdale versus that co industries that was a situation where you're you know they're in this it's i one i don't want to say in no man's land but it's a situation that's not controlled by wilton because you don't have parallel state court proceedings and so you're somewhere between the wilton abuse of discretion and the colorado river exceptional circumstances and there they they said well we're somewhere in between these two so we're going to we're going to look at it a little more strictly as far as whether the district court is abused its discretion and they in that case they s of six different factors other courts of have articulated different factors but have i think generally agreed that the wilton broad discretion standard doesn't necessarily you know you say this reactions for the car to read judgment actions when there exists other claims well yes but i think you still need to have a legitimate basis to seek a declaratory judgment and if you look at the case law in this in this circuit and i'm referring the parties rights and liabilities are uncertain and they come into court seeking that cleric tory judgment so that they can conform with those rights and obligations in order to avoid damages that may be incurred in the event that one party or the other doesn't comply with their obligations in corliss this court stated that at the clear tory judgement action is not appropriate soley to adjudicate past conduct or soley to proclaim one party liable for another and that's exactly what misery for six year is all of the conduct that gives the price of the basis for a claim as in the past westport denied coverage i think it's three and a half years ago now the underlying case proceeded all the way through to judgement the only thing left is to declare whether westport has an obligation to pay this judgement or not and so this is not a situation where the underlying case is proceeding we needed that declaration whether we have a duty to defend whether we may have a duty to in did not follow essentially the same effect as the factors that this court identified and say auto versus something and in that case the the court set for three factors to be considered when deciding whether to hear declarator for example say the insurance company is defending the insured under reservation of rights so they're acknowledging the potential for coverage in the declaratory judgment they've assigned an attorney to represent the insured in the underlying court action and then they go into federal court saying the exact opposite while on the one hand just because there is no parallel state court proceeding doesn't necessarily foreclose the district court from dismissing the case the mere fact that there's not a federal question of volved shouldn't be enough in and of itself to say we're not going to hear this case because what we've might get a different result you want to you must think you got a better chance for a good result well might my client prefers to be in federal court i want well there's uniform procedures in federal court across the country but you're saying the insured can't do that same thing no no i'm not saying that at all i'm saying i mean the insured i guess i don't really understand the question in certain sue westport absolutely but what i'm saying is that when when everything is already happened when there's been a when the underlying cases are resolved when there's nothing there's nothing to there's no no forward looking ass trying to fight for i know they said must hang my heart they really requesting  policy coverage terminations isn't that really what this is no they want money they want us to pay the four point two million dollars and follows from the policy being of the policy right but under that logic you let's say the sure here wins they go now to the clerk they've got or a decision by the district judge you're saying to me that they could get the clerk to enter a money dollar amount on that th  ration could they do that no i try to write i agree with you right so so all you're really getting is a declaration of policy isn't that why in reality they probably walk back other action that's action which you know they're allowed to do under pennsylvania law let me ask you a follow up to greenberg's point has pennsylvania ever determine whether prejudice has to be shown in the claims made i mean you don't have a published supreme court to sit every court that has decided this issue in pennsylvania and frankly elsewhere across the country has held that claims made policies are different you don't have to proof read it if you're still asking the federal district court  that accurate that's accurate yes and that's in this case have something unique about it involves an attorney at law who is subject to the discipline of the state supreme court and it might just be something they would take into account in determining whether or not you have to show prejudice or not maybe just in the case of lawyers well who are particularly neglectful in the way they handle insurance policy they don't you know great the supreme court of pennsylvania might because of the attorney involved that like fact their decision i don't think so i mean the pennsylvania supreme court has said time and again you have to apply the but serves of an unambiguous policy one with one case number and a complaint with the other so we just wrote as the plaintiff ever proceeded on the case involving the president summons by phone or you know we immediately moved to dismiss that the complaint that was filed the prejudice has to be shown the not in every case your honor pay have in the modified no fault automobile statute case where the pennsylvania law requires a person who is injured in an auto accident where they don't know where they don't know who the defendant is a call phantom vehicle and under that law what they have to do is within thirty days of the accident they must give notice to a the police and b the insurance company this is all based on a specific statute yes your honor  foster they gave notice to the insurance company but not to the police when the injured person made the claim the cook held up and in that case the notice was given to the police but not to be insurance company the court then held that because it was a only a the defense case is a side before the district court all our cases were which were business cases and not come consumer cases in which those two types of policies were available sometimes i feel like if you're out of sundays it make you feel when i'm not you are correct just from my knowledge to judge and then in the end the ninety says it's all the insured he said he wouldn't insure a pennsylvania lawyers and as i think you're arguing why can't the district court but talk your argument and say well it's clear therefore i can deal with it in the district court well it's because i believe it is in the wilton case a supreme court people myself included your honor are wrong or times well yeah but this is it's just so you know what i what i'm saying i have to think there's clear no it's not it's not clear because the cases never come up and on top of that there's a consumer protection issue and in this case because pennsylvania supreme court came out with a rule to professional  professional conduct one point for seeing where they included the requirement that lawyers tell their clients if they do not have our legal malpracti insurance that they must tell them if they have it and they drop it and so that was designed by the our supreme court to protect illegal consumers that they would now what is the rule that you have proposed district courts following cases like this where sure from the state removes a case from the state court because it's a declaratory judgment action to federal court but what is the rule that you right then the other side would have to file a mistake were in might be too late so why not why file any declaratory judgment until you absolutely have to therefore you have running around shopping in the first decision i thought was even better they said the reason for isn't the state court proceeding just like in this case is because the insurance companies removed a from the state exactly what happened here so there could be problems either way your honor and of course the key is what what what are we what is the purpose of the law and face of purpose of the law to settles the state law it should be i answer your question yes ok just when you look at the cases you know all the cases they cited were cases where the insured had the option and now had a choice now you're in a no choice situation on your contract he just one last question i just want to see if i can flesh this out because the district court's rationale for saying this case back to the state court is that there is no federal question that that's correct so is it the case that whenever the circumstances appear like this if there is no federal question and all that the court is looking at as a matter of state law the court could not possibly abuses discretion by sending it to the state hoff the court can read that case for itself and are often volved an automobile liability policy under insured motorists those are occurrence based policies the language in the statute is verbatim the notice requirement that was in the  brakeman case which is where the notice prejudice role was formulated by the pennsylvania supreme court which was an occurrence based policy so all those cases deal with occurrence based policies or language in occurrence based policies the difference in a claims made policy is that the the requirement of notice is in the insuring agreement itself it is the trigger of coverage where is an occurrence policy the trigger of coverage is an accident and notice is just something that you have to give the benefit of the insurance company so that they can do their investigation in a claims made policy it is what triggers coverage under the policy and as such when this pointed out the idea is that there's a there's a lesser premium involved there because the insurer at the end of that policy period closes its books it's done it doesn't have the tail coverage that you have under a current space policies where they have to worry about some of that twenty years ago that may give rise to a claim today and as far as the rules of professional conduct the rule says that the attorney has to tell the client whether they have insurance or not ok if that rule meant you have to have coverage for every claim where that or the or the it where the the where the attorney told the client had insurance coverage what about other exclusions under the policy i mean you still have to look at the policy terms to see whether that claim is covered or not just because the the the attorney tells us client he has insurance coverage doesn't mean that a claim that subsequently made is going to be covered under the policy and then with respect to your question about you know the discretion here absolutely you know it's our position that the courts have to look at the you know they have to judge each case based on the facts of the case before this making a decision exercising discretion to remand the case to state court it can't just be that revolving door which it frankly has become that this is an insurance coverage case go back to state court and you know in this case the facts are particularly militate particularly in favor of keeping the case where the case was in front of the district court for a year we had extensive briefing on the merits we had a forty page opinion by the magistrate judge saying that this claim wasn't covered under the policy there was no objection to the district court's jurisdiction by the by the plaintiff the plaintiff sought leave to amend the complaint was apparently content to litigate before the district court until she got that adverse decision by the magistrate and then all of a sudden we don't like we don't want to be here let's object to the jurisdiction and so in this case even if you know those other factors you know might might say ok you can send these cases back to state court there