definitively that you can't use the reformation argument to get around the rule that you can use you can't use for all evidence to find some ice with an unambiguous look elsewhere that is me the pro evidence rule to general principles a reformation and what i just said i think gordon restatement is a general principle reformation in in and i think personal is a reformation is you can't use that says to avoid the general rule of looking too intense and you have to go have a clerical error in a prior agreement and improve that by clear and convincing evidence of that understanding a reformation that has to be a clear well clerical error and that we said something that we did not intend to say if that's what you mean by clerical error or lead to meet one of these cases have to do with leaving a name off that was intended or number of a policy or whatever to ask him and what the number was if that's what you mean by clerical error but it seems to me  misstatement everybody looked at it a hundred times and thought the word not was there and didn't see it and didn't but it really wasn't there i mean that's the kind of thing reformation is almost every day reformation not every day remedy but  and as the this court has said in american life and in wilcox is this getting to the clerical error issue you can't use reformation to take a term given a broader than usual meaning under the guise of reformation slogan american electric among the things we said here is there's no indication that one of the parties knew or should have known all this alleged there are a myriad a mutual mistake that needs to be corrected and it wasn't mutual in american there just like liberty here and assumed obligations that would be affected by the contract so there they were both arguing oh now we say it's a mistake a mutual mistake and the court said number was a non existent past i mean that was a clerical error but changing a term like here with where here it happened was you had to sophisticated parties in or into agreement with indemn ies and all the time in the only gas industry you have oil you have a dept provisions but they're different there's no one size fits all provision and here for whatever reason they left and it's not in other contracts that are in the record and that gives the contract a very different meaning so you're in initially they argued well subcontractors should have that broader meaning just like hav the american electorate tried to come to the court expand the meaning of that term saying that was our intent in the court said no it's unambiguous you can't do that so then they came back to the american electorate it's a malicious reform which could happen in every case now and in american electorate where the two parties to the agreement that now together said oh yeah we didn't mean that the chords and know you can't do that and you can't do it because you have a party here in america lecturing there is no evidence that that affiliated actually looked that specific contract it assume is men's all the time and as happened here you assume obligations are a contract in the court in america they said they handed invite any case where third party has assumed an obligation under contract and then subsequently reform is unambiguous terms changed in the court said i would be contrary to the basic norms of fairness notice so that's our first reason why is not the type of error that can be reformed and that's what we learn from american elections in wil even if they got past that here if they didn't meet the burden of proving clear and convincing evidence that there was an a student agreement that if you look and judge roll decision his ruling he says well i find their intent was it's all find their intent was to have them a talk about that in a minute but what he never found was there was an actual annecy in any state in agreement he says well the master service contract was the agreement that was a mistake according to this reformation process but what was where's the evidence of any negotiation where they talked about what th oh now tell me is that a similar or identical situation to what we're dealing with here you are that there's not there's nothing in the record that really describes that in toto i mean there was post formation of the agreement and all the cases were court has held an assyrian agreement there's at least somebody that has come forward and said what time we discussed this at the time we enough for the record to tell you the necessary facts of that yes but i don't think there's enough the record i mean the argument has been and in think that that was somebody else is another contractors employee and that was paid but you don't know the circumstances and sometimes things are paid for lots of the reasons it's just already mentioned you can have a business decision at the time which when the parties which says well maybe i better pay this and move on to keep some other business that doesn't mean that's the intent that was it went into this contract years ago and i think your other point was that it is it you can't even that's not even you had evidence of mutual misunderstanding in the in the cases like that this where they found a clerical error they said look we didn't those numbers are wrong here's our documents that show the right  be limited to evidence which occur prior to the agreement you have you have to have you can look at any post agreement evidence in support of a contention about in the master service and you can't leap to something that happened after that one incident and say we're here nobody objected because of lots of reasons why that could happen and we pointed out and what judge brown relied on to say all he said and we cited cases where it talks about if you want to indemnify somebody else's other contractor you need to say that and they do say it and there's this is circuit case in campbell we had alarm your call that we  it says if you want to cover that company's other indemnities all the other people you need to stay that's was at least it's not just in there and they just didn't do it and there's reasons not to do it that we kept you on reformation good bit you have something else to tell us they do well and that was my aim and also that they didn't have a clear and convincing evidence did want to talk about the defense issue because that's the don't have to do that because there's not a conflict and you can give us to both parts of it but if you look at the policy form you have the part about supplementary payments and endorsement three changes and provides that we're paying all the expenses of the categories all the expenses are being paid but then the insured you're splitting your splitting it was as he hears the formula in that amendment endorsement three is is in effect whether or not you have endorsement thirty four because the like which they seize upon pay all expenses we incur is in there and even when endorsement three ism is amending the policy it doesn't strike that it just as the formula and the agreement to pay part of it will always prevail in this argument and for the parole evidence at page thirty seven through thirty nine of our brief we cited all of the case law which specifically holds parole evidence is admissible in a reformation situation number two with respect to american electric and the wilcox case both completely distinguishable very simple english ball on the practical seas where the language was thought about is there to use my crab word i think there are very limited interpretations of reformation i think maybe incorrectly but nonetheless they are there so even distinguish the facts or he won't what about the holdings in the case what about the language about the unfair that this would be too old to allow this reformation is working backwards to allow this reformation interfere with somebody like me would be mutual goes against all of the regular understanding of iniquity do they look to whether their insurer knew about the contract language i don't think that's an american electorate in america electorate insurance existence of this contract when they issued a policy sokal and that's the city used the word fairness judge that's the word fairness reformation is an equitable remedy and that case the physics said it would be unfair to to put the hurt to an insurance only did not ask to look at the contract in answers to discovery that submitted in this case insurance company admitted they wouldn't charge incisional premium if the word contractor had been there they did not charge an additional premium for this it didn't affect anything that they did if that were contractor had been in that contract premia would have been the same everything would have the role they want to covers this is a technical way they're trying to get out of this as it doesn't mean that they can't rely on the contract none of that says you know what prior negotiations are in the record that show that this and i don't think that there are any that show that that there was some other intended contract could you  in some other newsletter what prior at what evidence is in the record that there was some other intended contract and that everybody meant to say not where they said didn't didn't say not or where the numbers are wrong or the policy reference just the wrong case and it's where is that evidence unrebutted evidence of sam broussard the man who signed the contract at page eleven twelve of our brief unrebutted testimony from him that they contemporaneous at the time that the thing is is there anything in this record at from the time period that the contract was being adopted other than the testimony of the lanka that's not testimony they gave at that time that's testimony they gave is there that would allow us to bring say our right to smith case there is so long as somebody testifies as to what their intent was at the time when they're testifying five years later you're going to go as you gunning case like that other tha otherwise or memories my have been faulty or you know seventy five in their perspective but all i'm worrying about right now is what is the law there's a scene we can use that information or not in and using this and and you told me what case you have to support  wilcox case in wilcox wild well the two people who contract did not agree to exactly what was happening ok with respect to the intent here both in the darko and oh yes agree that was the intent and then judge hit the nail in the head on the  why why is that evidence against at the time of the reformation anyway that we're just what kate says you can use that evidence course of dealing can certainly indicate intent judge and it's pay and you can have business reasons to pay is to start he said what what how is that any persuasive evidence at all because course of dealing can reflect intent and i would agree with you if somebody had submitted some evidence that said well they paid this because of business reasons absolutely i would agree that if liberty had come forth with evidence to rebut that course of dealing to reflect intent then sure but in this case liberty mutual chose to go with strategy and to simply argue parol yes hey oh yes if any of our employees get heard we will cover you and the people you bring out to this rick so they can get insurance they can predict things oh yes says the same thing to al darko hey anadarko any of our employees like m hurt we will cover you in the dark oh and anybody you bring out to the rig to get her in in this particular case judge they forgot the word contract and we have expert testimony in the record that these are rebutted on that point to expert says this is common in the industry unrebutted by and logic dictates why would oh yes agreed to indemnify a sub contractor and skip the main contractor why would they do that it's not illogical so i guess you could i great that you could but logic would dictate under the not knock for knock scheme you can look at circumstantial evidence if you wouldn't just skip the camembert the contractor for their intent is the typical case why they testimony expert testimony liberty didn't report any of that look at the entire picture equitably i understand it's hard to get reformation is hard and i know judge drell looked at this carefully wrote a carefully crafted decision but at the end of the day  equities could this be a fraud could could these guys have come in and tried to put the hurt to the insurance company and somehow concocted all of this and i understand that's why there's a concern about reformation i get that but no not in this particular case there's no evidence of it in this case they did it in past course of the only biggest part of that part why it could be a fraud or trick on the insurance company to get insurance the biggest part of that i think is the evidence that libby didn't care liberty didn't ask to look at the contract the broker testify that page twelve are brief that many of the insurance companies when he places insurance he takes that contract he gives it to the insurance company and why is that and so the insurance company can assess the risks to determine hate li us in this case is liberty mutual to the trial had to bring a witness to testify as to the intent of that particular insurance policy provision so clearly it's a big us clearly it ought to be construed against liberty replaces it so that replaces the supplementary payments it's not that it's for it's the full attorney's fees it's not the little for all of these endorsements prevented simultaneously in connection with the policy  in numerical order you get one first and then two then three because what we're talking about is the tension i guess between number three in number thirty four do you know how that how that occurred how it unfolded w so a man's replace i say conflict ambiguity with that sort of my argument interpret him to give them both meaning as we normally do in a contract watchin that will apply first and second before you get into thirty four i want you to play thirty four but you can't reconcile the judges what i'm saying you can't reconcile them if that's the case you can't reconcile them it's ambiguous and you have to construe it against liberty mutual pursuit of the lot because they drafted it it's their insurance policy and that's very minor changes it already had said well before you get pagination to the endorsement then we will pay all expenses we incurred and whatever else you only change i see has something to do with  incurred that was already in the policy before you get indorsement three was any discussion of that in the record i don't think there's any discussion of that other than the testimony of one liberty witness who tried to explain replace vs amend and i again go back to if you need a witness to explain the details of the contract it's got to be things ok thank you but if we're not persuaded by your argument in this regard can we render on the and in that case while when i was seeking to reform a contract with a contractor and that contractor against my client while well didn't agree with me i said the contract said x and that contractors wouldn't agree to it said no i didn't say actually wrong but all the stuff that we put in here means judge dredd was right there's nothing in the record to say he was wrong nothing challenging what he did nothing at all  the the core point on american electric the the norms masing norms of fairness and notice are what are important and it's not enough to say only has to worry about it's it's live it's cut it's subcontractors it's employees and dargo has agreed to pay the contract for its contractors so in that contract it's different anadarko accepted a broader obligation because often which is in the shoes of lawyers here they may be pushed back and said i don't want to pay for your contractors you're bigger than me and here that could happen here there's contract and there's plenty of other the cases we cited where they're endeavors the agreements without language so there's nothing here to show it was a mistake other than now after the fact they're saying oh we want it because in all their contracts they say contractor sub contractor and often it's different so i don't dispute that they were in dempsey's but that it was like this and not the whole team didn't go up and down the  tillery and ask he said well the evidence presented that but that's not the question that parole evidence you know used to show intent here they're using it to prove a mutual mistake and there has to be something must be documentary evidence from the time the the willcox case which was also decided on this is not the type of clerical error to form noted there was not adequate evidence of an unusual mistake because they were coming after the fact and i think what's missing here is any evidence that shows a negotiation or discussion or something before the agreement was signed in in the end but it shows mr bruce  when he got that the document came to him as it was and they signed it there was no prior discussion and so he signed a document that didn't include contractors and now he says well oh i wanted but he never later it struck out the second paragraph supplementary payments which dealt with the contraction a lot of buildings stuff that change one other part but it didn't touch the paragraph that were the