between coverage issues class action issues and kind of the how it harrington factual complexity of the underlying dispute that said we do think that district court judge in release texas brine from the case so some of texas brides insurers settle with the plaintiffs and got out of the case texas brine is still indicates what judge zany found in his in his opinion that overruled are exceptions is that that this really comes down to a coverage dispute he wrote that the congress dispute is essentially the crux of texas bronze objections to the settlement if we agree with that we just disagree with with judge zanies conclusions and so want to get to the coverage part but but st i think it is necessary to address what some of the pelleas have raise which was challenging  texas blind still must defend in this litigation and in the basic rule is that nonsense only parties have the right to challenge settlements if they suffer equal prejudice and that's kind of a broad concept that  circling writes a contribution or indemnity for critically interfering with the party's contractual right or ability to seek contribution or indemnity in here again we are challenging zanies decision that approved the settlement but he did make some points in his ruling over the another objections that we do agree with and particularly on this question of of prejudice and happened in august that a sinkhole emerged if you noticed in august of two thousand and twelve there were several different was suits that have been filed in state in federal court some of which have been before this court already in different contexts least a couple times that i'm aware of and in this particular case that's pending in federal court there was allegations by the landowners around the sinkhole that they suffered various forms of damage and there was that the parties have tried to distinguish it between damages that they call creasing cold they images and basically so the claims for precinct co payment says have been it was march st two thousand and eleven through march st two thousand and twelve and we believe that the evidence we presented at the at the fairness hearing showed that zurich owes coverage for quote unquote sin essentially this settlement says that if texas brine wants to settle the claims with plaintiffs for claims for sinkhole a to damages any settlement with with the plaintiffs must as a condition force texas bryan release and its other pretty one thousand and twelve dollars insurer ai g as part of any sound so essentially if we want to go ahead and settle with the plaintiffs for the remaining claims of sinkhole related damages we are unable to do so without releasing zurich any i g and what judge saini found was that this settlement and i'm just quoting from his his opinion this settlement would constrain indirectly any effort by indisputable that that this settlement interferes with our ability to get zero to contribute to any future settlement with plaintiffs if we want to settle with them and then in that way texas bryant has been prejudiced and we think does of legal prejudice and your argument that these damages for the going to face after this settlement really began before the sinkhole literally occurred that they began with some period of the formation it's uttered sucha other than the president you relied upon such as as best us and other things what evidence did you present at the fairness hearing or otherwise to show that your your actual that would prove that the damage of the deformation began before the sa theory should not have been applied are you saying it was wally implied tell me what your argument isn't messing with your honor i guess i would i would put it this way i'm not entirely sure if judge saini applied the manifestation seery in his ruling but i think he may have implicitly applied it i'm not entirely sure looking at his opinion if there was something where he directly said that but that is certainly the argument that a i and in this instance the policy language zero the reason why we think that the trigger is not when the sinkhole became noticeable is that if you look at the definition of property damage in the policy and this is damage which occurs during that that the definition of property damage includes damage which occurs during the policy period it was not prior to the policy period known to have occurred to begin each to be insured and includes zero wanted to put in the policy that coverage is triggered a pawn notice or awareness of the of the damage and that's what they could have put in their policy but they didn't and in fact their policy implicitly allows for coverage that is not known to have occurred during the policy and that continues going forward so we think that the depressed are really comes down to was if the subside we presented expert you know evidence from both our expert and critically the ai g expert who said that this subsidence that permission they said it started after june two thousand and eleven and before it's been characterized by a i g and zurich they talk about exposure in manifestation and that's not really what this is about because we're not saying that there was in the especially if context you know that there was some exposure that happened twenty years a and there is a manifestation twenty years later and how do you connect that what we're really talking about is a defined a period of time that's not separated by decades but just you know the june two thousand and eleven d to july it's two thousand and twelve period that that the expert testimony says we can't figure it out where it is it's we here but if you look at those especially this toxic court cases that's basically what they're saying is we don't know when the exposure when if somebody alleges that there was exposure we don't know if the exposure that or that allegedly occurred when for instance their period of employment or in the norfolk southern case during the operations of i think it was a wood clearing project or what you know it was the use of creosote they're not saying that there was proof of damage during each particular policy period all they're doing is is approximating you know trying to use a mode of analysis to say that the op or you know when the norfolk southern taste that the oblation also i think you're going to want to answer the this and then you can get to it again in your rebuttal but i noted that in your reply brief you don't even address the apple ease argument about why the settlement was not premature you argue  your nd point in this case that the settlement was premature but you don't have anything about that in your reply brief you're not a no you're not conceding their position move by did you have something about that in your library if we were looking at that i think it  was it was more in the way of an you know an alternative argument in saying that you know that they're real that we think that that this coverage issue is critical and in it has to be resolved before the before the court can approve this settlement because it has to be determined whether or not it's it it whether or not there is coverage before they can and twelve subsidence damage those are the ones that have been settled and then we had a big hole opened up in the ground that happened august two thousand and twelve those are the damages that have not been settled and what texas brine is trying to do is use the coverage for the pre sinkhole damages and try and use that coverage to pay for the post sinkhole damages and that doesn't create legal prejudice are someone with the with the pre tw insurance does not create legal prejudice because what texas brine is trying to do is something that they're not able to do by law just because they want to do it doesn't mean that they're able to do it and just because they're not able to do what they want to do doesn't argued and it abandoned the district court here properly exercised its discretion in denying texas prime's objections to the class settlement and correctly applied louisiana law in rejecting texas prime's coverage related arguments without ruling on whether texas brian has standing to object to the class of them and judge they needed consider the merits of texas bryant's objections what's important for the court to  see is that each of texas prime's codependent arguments presupposed the correctness of its other arguments for example texas pride standing to challenge a settlement rest on its alleged right to seek contribution from zurich under its two thousand and eleven policy that right to seek contribution is dependent on the existence of coverage and who desert policy and the alleged existence of coverages depended on the trigger theory employed at the fairness hearing judge zaini directly asked texas brian what the court needed to assess to evaluate the merits of the coverage argument the court asked do the pre policies in fact cover sinkhole related damages that is damages that occurred on or after august rd two thousand and twelve counsel for texas brian responded affirmatively that was the issue for the court to determine so with the benefit of more than six years familiarity with the i know line facts claims and defenses of the parties the district court rejected each of texas brian's objections to the settlement and its incorrect trigger of coverage theory quote the best avenue in connection with the pretty two thousand and twelve insurers as plaintiff stated the texas prime can establish any abuse of discretion in a the approval of the precinct called settlement where the district court expressly determine who sat on that was fair reasonable and adequate to the settlement class members confirmed that all relevant rule twenty three factors were satisfied found the cell but fully and finally released all covered and uncovered precinct all clients against texas prime texas private self misstates louisiana wa in arguing that the district court  misapplied the governing law in approving the class wide settlement of the precinct called claims texas primary sensually urges this court to ignore its eerie constraints by adopting a coverage trigger theory foreign to louisiana courts federal court sitting in diversity apply the substantive law in the form state and must what to decisions of the highest court of the state when there is no ruling by the state's highest court do to get the federal court to determine as best it can what the highest court of the state would decide that the land and transcona i don't pipeline corporation cases we thought an hour of our brief texas bri it reliant upon the policy language and that cases it arises out of the agricultural street landfill that is the long term it was you know one term environmental property in this case involve the catastrophic discrete occurrence that was the cause the plaintiff loss of use damages it's significant that no louisiana courts that apply the continuous trigger theory in a property damage case under louisiana law all the cases texas brian cites in its brief are from multiple other jurisdictions new york delaware illinois hawaii which apply the continuous sugar theory but the district court here was not free to do so under erie and certainly did not commit legal error in failing to apply a trigger theory that has not been adopted or applied by any louisiana court here is is policy triggered in this case and i would disagree mr chocolate's i think this is a very simple case this is a simple burden of proof case as recognized by judge zany as the party seeking coverage texas brine admits it has the burden of proof if it cannot meet its burden of proof it loses and it's quite that simple and so the starting point for any trigger analysis for any policy is the actual language of the policy and if you'll notice in some of the cases that are cited by texas brine the policy language is just different from what is in those are policy so you need to start with the language of the policy that is in front of you those are policy absolutely requires property damage during the policy so a lot of the cases involving asbestos and toxic tort long term links the cases they all find that there was property damage during the policy what that is impossible to prove is the scope and extent of that damage so for instance with a spouse this if you have a  leona case it's scientifically impossible to prove what fiber of its bestest caused the disease thirty years later that's impossible to prove it is not impossible to prove when the  so texas brian argues well you're asking us to prove the impossible that's simply not true we're asking you to prove that there was property damage during our policy which you have the burden of proving all of the cases involving have if experts they don't testify as to a defamation process look at what they testified to there are two data points a satellite passed over the area on june rd two thousand eleven there was no defamation satellite comes back on july nd two thousand and twelve now there's a defamation and with respect to prematurity the experts all admit there is no other evidence there's nothing we're working on there's nothing rick looking up there's known new technology we're testing it has been eight years and the experts admit they have no evidence to support that there was any property damage prior to july nd two thousand and twelve which is when that nd satellite came over mr shockley's was questioned extensively about that by judge zany mr chocolates admitted we have no evidence so at some point there's a terminations point when you have a trial that's a terminations point if you discover evidence later new technology comes down the pike there's a there's a point at which it's over and at this fairness hearing texas brine and it's experts admit it we have no other evidence there is no other  so this is no different your honour's than you know so you have a car science policy expires at midnight you go to bed your car's there you wake up the next morning your car is gone it is not impossible to prove when the car was stolen you may not be able to prove it that's a different story it's provable in this case the only evidence we have the only evidence there is is we know there was a sinkhole august rd two thousand and twelve and we have satellite data indicating that there was a surface defamation a few weeks before that on july nd there was no evidence of any property damage that occurred during zurich's two thousand levon policy which expired on march st two thousand bryant had evidence which it doesn't and that's not the case but i mean understand your argument if it had evidence scientific evidence said my the satellite imagery in july of two thousand and twelve that much of a depression or whatever was must have started d six months earlier and here's a science is that evidence relevant or does your understanding of manifestation theory mean that that is not about it very someone falling into a hole before july two thousand and twelve after policy expire but there was scientific evidence from experts saying if it was that much of an impression on that day in light of what it looked like a year earlier whatever whatever goes into a science that must have started to rain even the damage was starting to occur at some day within the policy period is that relevant evidence in your understanding what manifestation mean not in this case your honor because i think you have put it in the context of what the plaintiffs are claiming so here you have the aber plaintiffs are claiming that part of their property fell into the think hole so what's happening underground is completely irrelevant they're not seeking damages for anything happening underground they're seeking damages or part of their property falling into a sinkhole so i think the only thing relevant in that context is the context the plane is claimed in the concepts of this claim what is relevant is when there is evidence that their property began to fall into a sinkhole so here the earliest potential evidence we have of that is the july nd two thousand and twelve satellite photo and so this case in my mind your honour's is very similar to three cases that have already been to dress by the st circuit the cross checks case the ponchartrain case in the forty gas case in each of those cases pipeline plaintiffs had pipelines there were underground they went underground through what became the sinkhole on august rd two thousand and twelve those pipelines fell into the hole just like they bare plaintiffs are claiming their property fell into the hole and just as in  this case in that case texas brian had these experts speculate well you know these pipelines could have been damaged before august rd two thousand and twelve well you know those those those pipelines could started to do form before july for august rd two thousand and twelve and the st circuit in each of those cases found that there was simply no evidence of any property damage prior to  august rd two thousand and twelve that as brian is trying the same trick here in there having their experts in this case they admit us they don't have any evidence mr chalker he's asserting that there's evidence of a process read the evidence there is no evidence of a process what these experts have said what mr chocolate has admitted is we have two data points for the satellite data one day during our policy period there's no evidence of any defamation almost a year later a little over a year later we have a defamation and there's no evidence of when and if that defamation existed prior to july nd two thousand and twelve so we're not even really talking about strictly speaking your honour's a manifestation theory we're not arguing really the texas brine didn't discover it until july nd two thousand and twelve there is no evidence that it existed so this is not a situation where texas brian oh we want to wear of it but look here's some evidence that it existed there is not a shred of evidence that any surface defamation existed prior to july nd two thousand and twelve so the district court based its decision on what evidence is available the only evidence available to any party to this case is july nd two thousand and twelve is the earliest possible date so it is again i believe a simple burden of proof there is no evidence that would trigger this two thousand and eleven policy given that lack of evidence texas brine admits it has a burden of proof that it cannot meet its not an impossible burden of proof it's a burden proof so without i think zany he found texas brian had a burden of proof that the evidence all the evidence that is available dictates that there was no  glenn hit person a i g expert that this damage occurred before july nd two thousand and twelve if they can't say that well the only thing we know is that it happened as of july nd two thousand well that's not the evidence the expert testimony is that  happened before july nd two thousand and twelve now and i want to come back to the as fast as thing is i think it is important where they talk about the trigger is the alleged inhalation of exposure but that inhalation does not prove da use the years of operations as an approximation to determine what the trigger is and that's always saying here is where we're using the the time period when this defamation occurred as an approximation of when this daemons occurred in a in a with you know mr mercer made the point about if the car if your car stolen at some point when you go to bed and the policy started you know changed at midnight you went to bed at eight you woke up at eight who knows when the car was stolen their position is basically tough you didn't have a camera you could figure out where the car was still and you're out of luck our position is if you look at the cases where it's similarly if we didn't have a camera one thousand feet under the ground to determine exactly what was happening just like you didn't have a camera where the car was that in these situations where it's impossible to prove it courts have triggered coverage during the specific period of time you could have happened and that's our argument is that there is there should be coverage under those theories of law and that we are prejudiced in not being able to access these are policy to be used to settle their main thank you for all this you have lived with the case a whole lot longer than we have but we will that get you an answer as soon as we can so you can move on thank you thank you honest reprieve say be opportunity thank you that is all on this