no jury could have found that because as a matter of law there was no question of fact to be resolved let's deal with that the problem here is that the primary policies are yes and the argument of science standards from the other side is that there was at least a question of fact as to whether primary policies had an aggregate limit you rely among other things on the umbrella policies which only have a primary which only have an aggregate limit for property damage they relied on other evidence book and policies among other things why wasn't that a question for the generally be totally clear it is irrelevant if they found those policies and those policies had aggregate limits that would still not result still be no coverage under the umbrella policies because the umbrella policies are a standalone contract and integrated contracts that have to be read and therefore court within their four corners and they have to state what the attachment point is so that the umbrella carrier who could well have been a different company from utica it just happens that your client's liability is based lonely on the ground policy precisely precisely and this loss is not within the coverage of the umbrella policies i'm going to look i'm going to turn to the relevant provision and it will be helpful if you have that before you said  question but we're not appealing that we are focusing on this contract and the st clause this contract under law has a definition of underlying limits and this is a categorical limit on the coverage of this back and it says the company shall be liable only for loss in excess of the underlying limit and the definition of the underlying of it is comprised of two clauses the st clause to find the underlying limit necessary arithmetic adjustment to the operation of the st clause if the schedule of underlying limits includes an aggregate as this policy does for property but not for vital hendrie if it includes an aggregate you can't simply apply the face of mount of that aggregate to every claim that comes along you have to reduce the amount stated in the schedule to account for losses that have been paid once the limit is exhausted the underlying limit goes to zero and all subsequent losses arising from any one occurrence flow directly to the umbrella policy and if you read the clause in the way that i just described you harmonize both parts of the definition it provides a predictable commercially reasonable result in every case and it works the way the parties obviously intended the underlying a limit that effects whether the umbrella policy is going to be trigger has to be stated in the umbrella policy now there's three going to tranche of the textual argument that makes next and there's three defects there st the words just don't support it they say because the  clause includes the word any the parties must necessarily have agreed that any aggregate whether it's stated in the schedule or not can apply but they read that nd clause in isolation and they ignore the fact that the reference to any applicable limit refers back to the st clause in the applicable law those two clubs have to work together there is no other way to read that they also say and this really is the l of their argument that the an aggregate limit is not a limit applicable to any one occurence and therefore doesn't have to be scheduled that's on page thirty seven dollars of the read and it's just wrong in most cases in many cases the aggregate limit will be the only applicable limit that could apply to determine coverage of your brother policy the aggregate limit will apply to all the small claims after the policy has paid the aggregate limit so if there's any will permit me to go to the late notice objection to rely on the dri brief that there couldn't be given the judges and you because we think incorrect assumption that everything hinged on whether it was reasonable to assume that they were aggregate limits in the underlying policy that's the way it did go to the jury it was the height of prejudice to take a finding of fact side drafted by counsel signed by two  saying there's no aggregate limit they offered the settlement and the judge and the stipulation signed by the judge to support their argument that there was an aggregate limit because the settlement said that the aggregate limit had been exceeded the stipulation said yes that's reasonable so some of your argument if i understand it is that yes it was offered for the truth of the fact you're terry ever to have been asked whether they found that the underlying policy had aggregate limits i think they were asked whether it was reasonable for you to conclude that the underlying policies had exit limits scheduled in the declarations to umbrella policy the term and where that policy attaches regardless of what the underlying policy i may be misunderstanding i thought you were complaining that even if it w to a jury the jury should have been asked the rag limits instead they were i thought your argument was that instead they were told simply to apply the follow the settlement principle and my mistaken they should we did it they should have been asked whether it was reasonable to find that there were aggregate limits in the umbrella policy attachment points on the assumption we don't think there was a jury question but the judge and utica thought it was a jury question and the we asked for an instruction that the jury determined separately whether the umbrella policy covered and that that is she was never separately preventing the have i think it was asked with respect to what was in the underlying policy but they all were proceeding on a false assumption that if that was reasonable to think that the underlying policy covered then it was also reasonable to see if to quote allocate that loss to the umbrella policy look let me ask you this assuming hard just assume hypothetically that the policies were not missing and the policies somehow surface and there were angered limits in each of the made pumps pumps used in in oil wells in factories refineries they could easily remember this is fifty years ago people didn't know about a specifies they could reasonably have been looking for coverage for a catastrophic explosion caused by one of their pumps and one of the facility and by the way many people it's completely false for them to assert that it was unheard of to have product liability coverage with no aggregate because in the us f and g case there were one billion four million dollars why would i want to be sure i'm clear about your argument if there were aggregate limits in the policies why didn't the umbrella policies complement if there were  have an individual that he covered up to nine hundred thousand dollars if there were several people injured in that accident every everybody's claim above three hundred thousand dollars coming from that one accident would go to that and that's that was a very common brother covered it covers everything that happened in that occurrence you just described in excess of one hundred thousand per person and three hundred thousand per accident in certain years they changed the term to protect current but what you described  occurrence is a catastrophic occurrence umbrella policies cover catastrophic loss and that those losses are very rare now is that and that's why coverage is so cheap even even by nine hundred and sixty dollars standards less than six thousand dollars there's every case that the problem wanted to start with their argument that the umbrella policy which is the basis for their reinsurance obligation has aggregate limit trumps the fall of the settlements clause which this court a new ticket to clearwater said when you're in the realm of what did you have this coverage to google provide what should you could have done under that umbrella they don't get to impose their interpretation on us but your position even if mr schwartz is correct following the settlement theory trumps absolutely trumps that they can't their theory can't be reconciled with this court's decision a year ago this court said you could be clear water if the insurer has a reasonable good faith basis for it settlement and there is a fall of the settlements obligation and there is it  not even be liable to the policyholder but the reinsurer would still be bound to the insurer here has every interest in a settlement that passes on the insurance obligation to its reinsurer that's quite different from the insurer deciding that well the person was injured we're going to settle with them we're going to settle for a one million dollars rather than five hundred thousand dollars that's not the california we're dealing with last policies the umbrella policy that they will iran which they say is integrated and i'd like to address that in a moment declaration which  limits of the underlying primary but the operative language of the umbrella doesn't require that the underlying primary aggregate be scheduled just doesn't it talks about the schedule applying to the limit that's why i want to talk about this integrated clause which they brought up in their reply brief the umbrella policy does have a clause at the end that says basically says this is the deal they call it an integration clause by the way some of these umbrella policies are missing to answer a question what's the how do you know what the aggregate limited you have is that you have to go to the primary policy that's what umbrella coverage is there is an integration clause it says and that's perplexing to me in an in an umbrella policy that th over something else that provides two kinds of coverage one that applies coverage that applies when underlying coverage is exhausted and two it applies coverage that applies if the underlying coverage didn't ever apply it's two kinds of coverage and that's why it's called an umbrella you must look at the underlying primary policy under the terms of the umbrella to determine how and when to apply the umbrella you must now wire only problem is they don't exist because your client mos is any secondary evidence that would supply the missing terms anything expert testimony standard terms custom and practice in tech policies contemporaneous summaries common sense we had all of that it was a few trial for them to say we had no reasonable basis to pay a google to under the umbrella policies there was over for finding evidence that they bought a totally would depend on the situation the particular would be tempted pen on the particular loss if the primaries truly had no aggregate limit for products losses and the parties agreed that wasn't a mistake then you wouldn't be exhausting that primary policy by adding a different small office but that wasn't the case here the summary is that existed from the sixty's said there were limits in the primaries  never claimed otherwise were supposed to according to this reinsurer were supposed to tell gould sorry there's no coverage under your ten million dollars umbrellas because of the way we read these declarations let's look at the facts here which is that because the policies were lost you settled this whole thing before you gave them any notice because you settled in two thousand and seven and you didn't give them any notice till after tea one thousand and eight when you found the power when you found the reinsurance p aggregate limit in the primaries which we have not only injury three hundred thousand dollars well how does that make any sense that the same amount that's the aggregate for a single person and becomes the aggregate triggering reinsurance and he usually the aggregate is a much larger amount not always not always your honor there is and i understand not always but we've got a missing policy and you're asking us to assume a kind of was really the maximum per person rather than an aggregate for all claims it's not unclear at all under the sommelier and my concern in this is the jury was never asked what once the aggregate pot policy they were only at only instructed to follow the settlement if it was reasonable that's a different question from ok what's what's the her bodily injury absolutely was a different question and it's the heart of our case in responding to their appeal question the jury can ask why should you have had to prove and the jury had to find what the last thirty years a precedent from this court by a follow the settlement standard where the question is whether we were really liable to glimpse the question for the jury is did we act reasonably and in good faith and he's a reinsurance is raising that question because it didn't get any notice and until after the settlement was all done certainly if you had had the policy in hand and hadn't given them notice until that day you would have been it would been like no so i'm i'm not quite sure how your last excuse is you're not letting them know anything about this for so long they had a late notice defense your honor the jury was properly failed what they were what the new law recognizes and please tell me if i've misunderstood this is that if they don't have adequate policies and practices for retaining a maintaining their policy then prejudice is presumed well not quite your honor what you're if that's not the instruction that was given well not quite there are two things to say about that there is dicta from this court's decision and unit guard the north river in the early ninety's that prejudice is required under new york law that's what the court of appeal said on the certified question this court in texas said if there is some kind of maintaining policies and giving notice of them does that trigger a presumption it does not trigger a presumption they have to show bad face they have to show something more than negligence that's what the dicta said we objected that instruction is not consistent with new ake know this was a big part of their case but but they head the ability if they prove certain things to avoid liability based on late notice regardless of whether our settlement was really learn what exactly was the jury asked from that issue the jury was asked whether we complied with the contract and whether they breached it and what about the notice what was the jury asked about notice that was i don't believe the verdict form one specifically to notice but in the instructions they were told that if there is a proof of prejudice from bands from late notice or if they prove a bad faith that they are relieved of their liability to the jury absolutely argue to the  it's reasonable and they can't argue otherwise you even suggested that in your argument because judges had signed off on i don't know how that's anything other than implying that the reason of bad faith that goes to fall of the settlements not bad faith and late notice in the original settlements is what they say they said that everything we did with gould in that court in california was fraudulent on them from how we mediated to how we were the settlement agreement to how we sought the dismissal order we wanted that record in and the judge agreed that record should come in we didn't stand up and closing all of sudden waiver on the dismissal order and say fine it was reasonable because the judges said we were responding to their claim that agreed there was coverage under the umbrella we didn't put the dismissal order in are you will our way because the judges said so we put the dismissal order in to rebut the claim that everything you did good did had a fraudulent reinsurance purpose and that's why the judge wanted and the whether the judge assigned the order or not there was a mountain of evidence that we acted reasonably you have to follow the settlement standard that so deferential for exactly this reason don't nd guess and an interesting case that they cited on there in the reply only that we like it's called trustees of the university of pennsylvania which dealt with a settlement issue between an in policy holder policy holder settled insurer claimed it was unreasonable it was evidence entered at a jury trial about an underlying settlement being brought to the judge as a team the popular and an injured claimant and a very interesting case but the gist of it was i'm harmless error and it is their burden to show this isn't harmless or was that when you're challenging whether someone had a reasonable basis to settle a claim that is a very very tall order that is a almost a lost cause of course we had a reasonable basis to pay bills under these umbrella policies that the program they bought why were they buying coverage with three hundred thousand dollars primary aggregates and then ten million dollars over it there are a product manufacture they make some pumps for crying out loud or at making pumps to blow up and cause ten millions of damage to make pumps that if they all go wrong are a little claims will eventually eat up and exhaust their primary coverage with a broad umbrella this was the xor to expert testimony at trial this was the summaries from the sixty's the policies were missing yes but we get such  robust deference under this court's decisions from settling to cuz if we didn't we would never settle we would litigate everything to judgment so we wouldn't get this kind of nd guessing and have to go through all of it just to counsel said we put those findings in here to make it easier to recover the reinsurance and they read that to the jury and his direct examination it couldn't be more prejudicial and the judge below  just because a document is the most hearsay presented because it's relevant and it's excluded because it's hearsay and because it's prejudicial and now we come back to the main point this is excess coverage yes it was an umbrella policy and there can be circumstances with umbrella policies where you have to see what other coverages were below that part of the game but this is the excess coverage not only have to look at the underlying coverage to determine the disclose its attachment point in advance defeats the entire commercial purpose of having a having umbrella coverage you have to be able to access coverage you have to be able to rely on this document  i was i thought i was asked a question as to whether there was extensive evidence that might have put someone on notice that there was an underlying the judge there was but that's irrelevant to whether or not you can consider any such evidence with that categorization of it being one sided he thought it was balanced only as to whether it was reasonable to think that the underlying policy had aggregates our question never went to the jury and it never should have gone to the jury because you can't have the excess insurance market work unless you can rely upon what's in the schedule and we showed you these after case where what's in the schedule prevails over the actual coverage that was written below adversary point to language in the umbrella policy that he says i think five hundred student correctly basically import