briefs and we basically know what the case is about so you can just move directly to what a really good point you have thank you your honor that that is what i would like to do and i guess the st legal point since it was outcome determinative the centrally in the trial court is this issue about whether actual or potential liability has to be shown by the party that's demanding indemnity and in looking through the various th circuit cases on that issue and also the district court cases as well i was struck by the intense fact intensive analysis that the court typically goes through in trying to reach that decision in any individual case and i don't think there is any blanket rule on that and if you're honest will indulge me i just want to read a couple of sentences from parfait versus janki which is i think considered by both sides to be a very important case on this issue and in the parfait decision the court distinguish an earlier case wesen and it's for the court orders but if it w h i c n a and t and the claim and the record indicated that given the chance he would have chosen to do so none of these circumstances nor any other suggesting unfairness to the indemnity tore are present in the instant case so i think in parfait the court was looking back to an earlier case and say ok sometimes actual liability has to be shown and sometimes it's only a potential liability it depends on the facts of the individual case now in this case the case that's under presentation today the fact is that jacobs was essentially deprived of any opportunity to take part in the case before the death of mr bush while the plaintiff in the underlying  and the reason i say that is because chevron never put jacobs notice under the correct contracts the contracts that we all agreed to be at issue now in this case until after mr bush was deceased they made an effort to put jacobs on notice under a contract that everybody now agrees has absolutely nothing to do with this case the day before before mr bush was died but i mean that's no notice either why is the the death of mr bush while the critical point in the case there were two depositions taken in mr bush was in the underlying litigation the st one was a perpetuation deposition before a lawsuit was the lawsuit was filed then another deposition was taken in those depositions in the underlying case jacobs was not represented because chevron didn't tell us that there were going to be depositions in that case or even that the case existed chevron then used those depositions to elicit information which was harmful to jacobs specifically mr bush didn't even remember working for jacob chevrons counsel by cross examining him elicited the fact that he had worked for jacobs at the chevron facility am and contrary to what you would you would think a defendant would do chevrons lawyers went out of their way to prove that mr bush was allegedly was exposed to asbestos while employed by jacobs at chevron then after mr bush was to see it and there's no chance for us to cross examine him or to him in any way recover from this then and only then did chevron make a tender to jacobs under the contracts that issue in this case while by that point the cake has been baked is the vernacular and there's no way for us to unbend it so i think under those circumstances chevron should have the burden of proving actual liability and not just potential liability which is something chevron admitted in the court that they are simply not capable of doing and i think that once the court made that decision and what's your best case the most of the notice cases talk about giving notice before settlement so you could get in there and be involved in the settlement and that notice i think was pretty clearly given here so you're relying on the dissidents the plaintiff being to seize once you've got notice is there any at all similar case you can point to say that's the key time for notice you know if it's a very unusual situation here because it is an asbestos case it's amazing case and you know i do a lot of asbestos work and sadly those cases are kind of a race against time that you want to get the evidence in while the plaintiff the still very few nizo plaintiffs are alive at the time of trial so i would say this case is sort of a one of a kind there are some cases that we've cited like the prime coke ace for example where there was held to be a material issue of fact and that and you know summary judgment motions were denied but in this case in the lower court the judge granted shover on summary judgment motion on this legal issue and in doing that  difficult so to answer your question directly i'm not sure that any of these cases are exactly like that a lot of these cases are maritime cases wisconsin barge for example involved a barge collision everybody knew the barge collision had occurred it was it was you know it was something that was well known to both parties this is something which is sort of this is something which involved alleged exposures that happened in the eighty's and the ninety's and there's no way for jacob to know that that's giving rise to some kind of a claim until they're notified by chevron until then there's no way to know so i can't point to any specific case that's exactly like this this is a very unusual an unusual case but under the facts of this case we do feel that chevron i said before they bake the cake to change the analogy chevron in secret broke all the eggs and then they started cooking an omelet and they as situ asli inform jacobs of their progress in cooking that omelet and now jacob supposedly has to eat the omelet but our position  they should have told us when they were breaking all the eggs if you see what i mean and by not doing that they really hamstrung our ability to to prepare a defense now that leads in in my mind that leads into the question of well what would you have done if you had ben there at the deposition what would have happened differently and my answer to that is this is a very unusual maze of case most of the m exposures at that time so to answer that question i would say we would have cross examined him about the the precautions that were in place at the time and the steps that were taken to prevent asbestos exposure chevron in the deposition took exactly the opposite tack they tried to show that their works posers and that would jacobs on the hook so essentially that's that's the essence of the argument the potential liability versus actual liability issue and i do want to reserve some time to score to have questions about that or anything else waive those i think it's unusual for example that the trial court in a ruling on the summary judgment motions said that the the burden of proving the reasonableness of the s the trial would be on chevron and i think that's consistent with parfait i think parfait says that very clearly and then when we came to the trial which was conducted on br the the judge decided no the burden is going to be on jacobs to show the unreasonable this of the subtle it's awfully hard to tell from louisiana case law isn't it the case parfait seems to indicate that the burden is on the indemnities he to prove the reasonable ness of the settlement amount and i suspect that the trial court was relying on that in his s judgment ruling when he identified the issues that were going to be discussed and would bear the burden of trial for some reason when it came down to the trial he took the opposite tack and put the burden on the alleged indemnity toward jacobs to establish that in fact the settlement was unreasonable which of course is a difficult burden but i think we did carry that burden even under the the construct that the trial judge handed  us for the trial so my feeling is based on parfait it really should be a burden on chevron to prove the reasonableness of the supplement they really didn't do that other than to ask the court to take judicial notice of some large verdicts in civil district court in these cases and that's fine but i mean the question is what is the value of this specific case and i didn't feel that the if we were to agree with you but only on that issue would be a fairly easy process to remand for the district court to apply the correct burden because it's all on the briefs anyway she said yes i think that's right you think i'd be a very limited trial and that would be very doable and given the contradictory rulings of the district court i'm not casting any aspersions on the judge i think he's trying to follow the law as he understood it but  i think the fact that he changed his mind in midstream after the summary judgments were ruled out before the trial is sort of an addition that there was some confusion there and so i think a real man as ron has suggested would be appropriate on that issue  there are many other legal issues i could talk about this case for a long time but i do want to reserve some time you save your five minutes for about yes thank you thank you  the court knows from all the cases the whole issue about do we the indemnity have to establish actual or potential liability in the underlying case there are two ways indemnity to only have to establish potential liability one is notice and one is contract i'd like to address both of those i'm going to start with notice the cases say  now what jacobs is claiming in this case is that's not good enough they claim that chevron intentionally withheld the notice allowed the depositions to go  and the system or made an omelet as i heard this morning but the fact is that the in this case this court requires factual assertions like that to be supported with citations there is not a single citation to this record that chevron intentionally withheld notice had the contract but withheld notice until lap after the deposition that is nowhere in this record in the reason is one it didn't happen but more importantly two jackets never did any discovery on chevron in this case there's no chevron witness it's that yeah we had the contract the whole time but we waited until after the deposition to put you on notice that's nowhere in the record because it doesn't exist they didn't do discovery and it didn't happen so a fact from the deposition though that it was only at the prompting of the lawyer that he identified je as the person he was working with at the time but an important point of that is chevron's lawyer did not start that before the deposition the plaintiff mr bush was the underlying case sent out in iraq to tory responses even before the case w is kind of crazy sounding but that's what happened in those in iraq to worries it's pacifically says when i worked at chevron i worked for cost modern pain and keller and joey merritt that was before the deposition so it wasn't chevron who started it it was the plaintiff who started it before the deposition any lawyer going to take a deposition if it if he didn't ask about he or she didn't ask about iraq until responses that wouldn't be a good job in my  they try to spin it that chevron brought it all up when in fact this judge asked pointed out it was the plaintiff mr bush was that point that came that that said in iraq are two responses prior to the deposition but then i guess that raises the question why at that point somebody on notice without a contract that has an indemnity provision in it chevron or night is a facility that was built in world war two it has had so stanch number of contractors and contracts as a practical matter it is not easy sometimes to put your hands on a contract and is and that is shown in this case because the three contracts that we are here about today we had to subpoena from them we didn't have them we couldn't find and we had a subpoena from them so the three at issue in this case we had to subpoena from them so in answer to your question is why not now we didn't have a contract at that time then when we st put him on notice it was with a contract that actually didn't apply to mr big was work and it was only after the subpoena which they responded to belatedly that we got the contracts and immediately tendered again for the nd time so getting back to the notice issue is that all of this parade of horribles that they say we did there is nothing in the record  at all as to the timing and why that happened what is in the record is when we got this the three contracts that issue we tendered within a week and in total we had to tender letters in eleven emails to jake ups and its in its lawyers asking them to participate in the settlement or take over the defense we said here's what we're thinking we're going to settle for and they said three times they said this notice issue they never once said you didn't tell us in time we don't have an opportunity to depose a planet they never mention that they made all their legal arguments and never mentioned that so the notice that we gave in this case  again to tenders and eleven e mails goes far beyond what you see in any of the other cases cited by either side in this case when they look at when the notice was given and how the notice was given and how many times it is more than sufficient o indemnity is only required to show potential liability is if the indemnity demand is based on contractual indemnity that is a written contract we saw many many many cases on page nine of our  brief that are cases from within the circuit in and louisiana state cases when you look at those cases it's as when the contract is based the when the indemnity demand is based on a written contract claim is based on contract the potential law below the standard the plots and it didn't even give any argument or discussion about the  nd kansas city southern railway which is a case from two thousand t n in the western district of a louisiana that was a contractual indemnity case notice was given four days before the s days in the subsequent indemnity action the indemnity torso insufficient notice the judge has that no because it's based on a contract potential liability appl no notice requirement for the the next thing issue i would like to address is the evidence of potential liability in this case and in their briefs they go through and they make arguments under rule thirty two dollars of the civil procedure rules and then he with respect to depositions taken in the underlying case the standard is were we potentially chevron with chevron or not potentially liable in the underlying case cases say did did we have a reasonable apprehension of liability that the whether or not somebody is potentially live in an underlying case has to be judged on the record from the underlying case not more not less it should be judged on the record from the underlying case not part of the record not some of the record so if you're looking at potential liability in the underlying case you can't decide that based on a different record than the underlyin case so our position is when you look at that the court looks at the underlying case and decides whether there's potential liability or not many cases cited in our brief said john just that of the wisconsin bars court did court did it both to circuit cases the kansas city southern railway transcontinental pipe and others have just looked at the underlying record no court and no case and no decision cited by jacobs or anywhere in this bridge has gone to the underlying record and said i'm going to consider this part i'm not going to consider that part i'm going to consider this testimony but i'm not going to consider that testimony there's no case the decision that is done that because it's the underlying record as a whole asked changed his mind i would disagree with that the original pinion came out by judge ash that was a statement in there about the reasonable sub settlement a lot like a lot of a lot of the opinions that we read there's just  state but when we get to who would have the burden to prove that the judge asked i don't think changes mind i think he went and looked at it and frankly no brief could do as good a job as judge as did taking all of these cases on who gets the burden it's thorough it's thoughtful he goes through and looks at parfait wisconsin barge the the gilbert case the chevron or not versus cajun case that we did two years ago you agree though that it's hard to tell from all those cases isn't it's a it's a it's a pretty close question well what about the birth what i would agree is element of this case certainly certainly certainly that's true for louisiana and and you know other states as well but the difference the rule that prevails in the states with respect to who bears the burden  what we would what we would say is that what jash found is i having looked at those cases and having also looked at insurance cases which i think are important because it's similar and in an insurance case an insurer wrongfully denies coverage that insure has the burden to prove the settlement is unreasonable judge as took that into account and found that he believed the louisiana supreme court faced with this question would find in his words or the prevailing view of this the courts in this circuit that once an indemnity like chevron establishes potential liability the burden shifts to the indemnity tore to prove that it was an unreasonable sub now just cost to your question what do most cases we sighed at pages twenty three dollars twenty four cents of our brief cases from other jurisdictions that hold that same way we believe that's the majority rule certainly jacobs has cited no cases that would would go the other way when faced actually faced with this question and looking at once potential liabilities established who has that bar and judge as did in a thorough review burden being on the plane up and think thank you for that question because that's what i was going to say next stepping back from all of this what happened in this case was you see in the record we wrote in addition to our two tender letters we were there eleven e mails quoted in our brief to them in those e mails we say we believe we can settle this case between five one million six hundred thousand dollars and we want you to com and participate in defense we told him that over and over and over they didn't come back to us and say you know we don't think the case is worth that we'll with the in two hundred and fifty thousand we think it's worth two hundred and fifty they didn't do that they just said no so the rationale is if you give if an independent he gives an indictment or an opportunity to participate and they just say no they don't come back say we think it's worth a little less so we'll you know contribute something they just said no so if they have that opportunity they don't take it and they say no they shouldn't be able to come back after the fact and say you should not pay that much because they had that opportunity and they didn't take it at all and that would be the rationale is if they're given a chance and they don't do it if they're going to come back and complain about it and some courts would say you can't you're stopped complaining about it you had your chance but certainly they should have the burden of proving that it's not reasonable or they say chevron didn't then argue that the contract was was ambiguous that couldn't be further from the truth we think the dimity language contained in the three contracts are unambiguous  they do raise an argument about this issue of sole negligence and in and willful misconduct i would say point out that they they did not raise that argument  word soul and does it a plot of negligence and willful misconduct that they never raise that below and it's in the record of those pages the other arguments that with respect to attorney fees i think are briefed yes just very briefly here honors the there are many many issues in this case as i said at the outset and whether i've addressed them or not addressed them today we certainly preserve all the issues that we've raised in our briefs i just want to touch on a couple of points that chevron's council made and were bought them the st one is that chevron somehow was supposedly compelled to ask mr b his deposition about his employment by jacobs because of discovery responses they've been provided by the plaintiff before the perpetuation deposition i want to point out that in in these music the  very very very rarely present and testifying at the time of trial when a perpetuation deposition is given that is the trial of the case and apt this perpetuation deposition which is  to other contractors so at that point if the testimony had been adjourned after the plainest direct there would have been no evidence in the record about jacobs whatever the unsworn discovery responses which are not admissible say or didn't say the fact is chevron could allege that alone instead they went back on cross examination and they elicited testimony that was harmful to themselves and to jacobs so i don't think the mere presence of the statement in some unsworn discovery responses is an excuse or sufficient rationale for what they did at the deposition one or two other points i think that at any time chevron could have cured any time when mr bush was alive chevron could have cured this by rd party and jacobs into the litigation or they could have given us notice of either one of the two depositions of mr bush won by failing to do that they really prejudice jacobs rights and that of course feeds into both of these legal issues that we've been talking about finally and i just want to rebut the issue about the admissibility of the deposition this is more than issue about just the record of the underlying case and once they are not there in the case in the lower court chevrons indemnity lawsuit against jacobs chevron clearly use the deposition of mr bush against jacobs and under rule thirty two that is not permissible and again in the litigation that is a really really big issue i know the louisiana supreme court has addressed it in trash and versus t they have taken a very bright line test and said if you weren't if you dissented were not at that deposition and didn't have the opportunity to cross examine then these plaintiffs that deposition may not be used against you and i don't think that the mere fact that we're at one remove that is that chevron's trying to use it against jacobs in an indemnity claim case should change that  evidentiary world why is it being used for the truth of the matter asserted is it just being used to show why chevron at its effect on chevron thinking they needed to settle this lawsuit well that goes back to the potential versus actual liability issue i think to a large extent now i think it has been years for the truth of the matter asserted and therefore it's hearsay and then apart from the hear it's true or not that he was working for jacobs at the time chevron had a reason to think that was what the was draft of the evidence is going to show at the trial and that's why they settled in that would be their their argument yes but that only goes to the hearsay aspect under federal rule that evidence for a wait there's also a separate issue under the rule of civil procedure article thirty two of using the louisiana terms rule thirty two that the deposition should not be admissible against any party that wasn't there unless there was a cross examination by a party that had a similar interest and very obviously chevron did not have a similar interest to jacobs with regard to that deposition so i think that it's more than just a hearsay issue your honor i think there's also an implication of rule thirty two on this this issue of the deposition i see that i pretty much use my time as if there are any questions of the glad to answer them all