atomic clock the this record area including the georgia law applies not california's notice prejudice rule because california's notice prejudice rule is not a construction of the english common law georgia's presumption the courts of other lee expounding the english common law applies only when the state was one of the original thirteen counts california was not so the presumption of identity does not apply in this case important one is civil code section twenty two two and that's the source of english common law in california not inheritance as in the thirteen colonies states just as that and what that statute says seems to me that at the end of the day what the district court said was right and that is it really doesn't like that there is prejudice oh no it's california law and not you get the same result under georg well i'm not sure if i understand the point regarding prejudice your honor there's a different result if california law applies an insurance wouldn't like that result but if we're serious about applying the law of the state in which the contract was made and that's what georgia law requires then we should look at the question whether california law is indeed the english common law and what georgia supreme court has said is that there is a difference when you're looking at thirteen colonies versus states that were not part of the thirteen colonies the very clearly in the case where it said georgia's choice of law rule has no application to the contract said we're going to make that thirteen colony presumption a fifty state presumption and i see that that approach has some intuitive appeal but it's not one that the georgia supreme court allows us with no five of  which holds open the issue whether states that are not part of the thirteen colonies have presumptively the same english common law in every situation as do states within the thirteen colonies that issue is open and in that footnote georgia i think that would be a prudent approach in light of footnote five in coom yes it does appear as though the georgia supreme court regards the issue as one that they didn't need to reach in that case but may have had something to say about it and we think that we could persuade the georgia supreme court that what it said is that it was appropriate because states like california have a different heritance and so they don't look at the rule of courts in quite the same way as the thirteen colonies they were and i can appreciate that it's difficult perhaps for a federal court to see that stinks because the st and nd rule of federal court judging is don't make law from the bench but that's not the law that governs in a state like california in the one thousand nine hundred and sixty three decision in campbell california created the public policy of the state and it didn't clear california law and that's very different from what courts neither jurisdictions may do to see that that is a possibility and that's one that this court in the georgia supreme court can recognize imagine if we we re looking at spain or another country and we would say then that the courts of those countries were necessarily it's not english common law whenever they speak and similarly as the georgia supreme court recognized in creating the thirteen holly rule courts in other states are not necessarily it's not english common law they do so to the extent of the statute provides for the statute in this case as i've indicated it creates room for the california supreme court now the california courts to declare california law in a different way a way that is different from the law of the state of georgia or the english common law before this case they have apartments all over into urgent around the country they own the bricks and mortar they don't manage the apartments they hire people like penchant of other companies to do that and they have never been sued before any bodily injury or workers or wrongful death claims arising from events at their apartments and they've had those events but have never before this case been sued that was their objective experience he's proven a hard venture on him as the apartments and believe that it had no liability for random criminal acts occurring on  so that really distills the issue to the want of of whether or not the excuse is reasonable under georgia law and did it at a minimum create a jury question which may summary judgment in approach i think st we have to address one issue and that is that there are two notice provisions in the mount holly alts to there is a notice provision in a section that's a title duties in the event of occurrence blame or suit a provision provides the insured must see to it that not only is contains the immediately report language regarding an event that may result in a claim against as also as we noted above this notice was reasonable because he's  the e mail as opposed to where it's because it was sent from the a wholesale group or who had no relationship whatsoever with the insured the insured was not them by or had any thank you your honor may please the court there's two reasons this case requires the application of georgia law the st is that the mount holly policy was initially delivered in ga ga's traditional insurance companies agent to be unconditionally delivered to the insured completes the contract as of the time of such delivery are to specialty received this contract this policy as you say via email and it's only an office and thing and in meskin or gave our specialty that same authority to secure the insurance for the purchasing group of which is perimeter was a part me and holly delivered the policy for unconditional delivery to archie specialty in atlanta and falls squarely within the existing case law in georgia on this point is premier argues without blushing that it never heard of r t specialty and had no relationship with it but the truth is the perimeter has no relationship to anything in this case it authorized the purchasing group to get its insurance and then had nothing else to do with getting the insurance in fact he's perimeters name is nowhere in the policy which is an issue that isn't really before this court but could come up on remained georgia law applies under the traditional lex loci contract isreal and we don't have to get to this presumption of identity rule as for the presumption of identity rule in the  coombe stated the rule clearly and the general rule is and that in the absence of a statute at least with respect to a state where the common law is in force a ga court will the common law as expanded by the courts of georgia black's law dictionary and all of the case law in georgia defines the common law as judicially made decisions as opposed to statutes and cases interpret ng statutes so acknowledging the rejection of legal isn't coon said there is one common law that can be properly discerned with wise judges and not multiple common laws of judges who make law in the various jurisdictions could sided with the provable this cour opinion in frank briscoe frank briscoe said it is clear that the application of another jurisdiction's laws is limited to statutes and decisions construing those statues and when no statute is involved georgia courts apply the common law is developed in georgia rather than for in case law and then frank briscoe cited mots mots is a georgia appellate court opinion which held that because there was a statute applying the common law in florida as there is in california the court would apply georgia common law the year before that was a case called trustees which has been argued by the appellants to lead to a different outcome but the truth is is that these cases are entirely consistent because the application of the common law are the same exceptions that apply everywhere the common law can't overcome the new u s constitution can't overcome the state constitution and it can't overcome statutes that change the common law that's it that's the same rule in georgia and you know georgia courts applied decisions at you know apply the law as the case comes before them and when judicially made decisions are made that becomes the common law of georgia this case is just a contractual courts mention that some states referred to the presumption of identity rule and says we don't really have to deal with that because we have a state that at least partially was part of georgia and so we can apply that rule without addressing it but what i would say is the court sided mots with approval the court sided briscoe with approval and those are pinions that apply the rule particularly mots on point with a state that is not one of the original thirteen colonies or its territories the presumption of identity rule was created in a time where foreign case law had to be pled or proven and in this case we're now in the modern era we can research the cases and look but mott said oh we have a it's been pled that there is a statute that florida plies the common law so we're going to buy georgia common law in trustees there was no proof that florida applied common law and it wasn't an original thirteen colonies state and what did the court do it apply georgia common law because the real rule in georgia is you always apply georgia common law unless there is a statute in every state except for louisiana apply has a statute docked in the common law when it became a state to the union so there's a very consistent way to interpret these opinions  would submit that this will in wide of mots there's no reason for this court to certify the question the most important factor this court has said in certifying a question is the existence of sufficient sources of state law to allow  principled rather than conjectural conclusion coun adopted or cited with approval frank briscoe it sided with approval mots and so this court has a principled non conjectural conclusion reason he's perimeter argues in its briefs that it is part of osgood properties an international apartment complex conglomerate inventor on which is a national in scope property management company that was operating its property allstate insurance company the walker had to delve into appellate case and protective insurance b johnson the supreme court case from eighty seven all hold that ignorance of the policy or its requirements in a failure to report is not excused unless it's caused by fraud or over reaching by the insurance company there's no evidence of that here what is happening is east perimeter is trying to isolate itself as a single it's a t company with what on the other side of the argument arguing that it's part of a huge conglomerate which is named as the insured in the policy that doesn't name these perimeter whether an occurrence gives rise to a claim is not the insurer it's a subjective belief but rests on t belief that it's an objective issue does that would a reasonable person looking at this believe that a claim would be possible georgia law has recognized rd party criminal act liability for apartments for three decades or more my entire career i've dealt with these cases and the t v commercials nowadays are advertising for these types of cases so the idea that venture on that all insureds says in the event of an occurrence that may result in a claim against the policy all insurers must immediately report the occurrence and the policy also contains a provision that says that all legal papers claims and notices must immediately big any involved insured must report those to the insurance company this isn't just a failure to report an occurrence situation the occurrence happened on december t of those matters the occurrence or the notice of claim were reported to the carriers and both of those conditions were violated the policy says that the conditions were condition precedent coverage and with being a condition precedent that means that the failure to comply with them results in no coverage so the failure to give the notice of the occurrence and the failure to give the notice of the letter from the  plaintiff in the underlying case who said they were writing about a claim that you needed to report this to your carrier and that you needed to preserve evidence that's been overlooked by the appellants there's no excuse for not doing that i see that i'm out of question about why of the georgia supreme court left that footnote hanging in kid i think it was just it is minimalism right i don't think the court wanted to step into something that they didn't need to in that case but the think it's important to point out that e p a primary excuse today is that they have never been sued before well there that if you look at the record evidence there is no past tying that to anything and they will say we've never been sued before and so we have no idea how to comply with our insurance policies right like now they simply say we've never been sued but that's not enough under georgia law and it would create a purse world where next to nothing then trying the property manager notify the owner of what happened the day it happened that's it nothing else there's no record evidence that they did anything else and the not the broker that was in atlanta but it is close to profit sharing relationship between it and the insurance company and so it could not have been an agent of the policyholders there's at least in the state issue of fact on that question artie specialty in turn deliver the policy to andy skinner in california so the contract was made in california the question that is whether the english common law is one that supplies the rule of decision in this case turning to motz in that case  what that the georgia supreme court said was that it was expressly pleaded that the common law in england was controlling as to the transaction because the parties in mots pleaded that the english law supply the rule of decision there was no dispute in that case about whether the english common law apply so mots is not like this case at all because then trond contends that the english common law does not apply the rule of decision that makes it quite different from us counsel for the transplant i can tell that california has a it's well we respectfully disagree your honor statute is different than inheritance this inheritance allows the california courts to declare their own law as the california supreme court has said this court's decision in briscoe is another case of the insurance companies brought up but in that case the court was looking at whether the law of new jersey was necessarily apply in english common law new jersey being one of the states that have the thirteen colonies it inherited its system from england and so the ga presumption could apply i guess it at bottom the insurance companies say if there's not a statute english common law always it's a simple i caught me but if it were so simple in the georgia supreme court would have said that in the coon decision it didn't say that at all in footnote five of the can decision it said we have a thirteen colony rule and we don't need to go further than that today and so to the extent that this court is in the position of not understanding why doors would have a thirteen calling rule and instead of a fifty state rule then what it should do is nothing about this until the lawsuits were filed which they promptly gave notice of even of georgia law applies you still have to look at the excuse the excuse here was reasonable the the fact is our case here is more like