they should develop that when you're out of the the undisputed material facts in this case we believe demonstrate that what was agreed to between these pardons was that those three fines that are reference there which in in reality your own two were just well one had ceased to operate the other two were really the same fund with a different name and and and they put all three funds into that exclusion what we believe and what the contemporaneous evidence from the underwriting submission shows is that our client had agreed with the insured the juror in this case that those funds would be exclude and the title of that exclusion is a private fund explodes it's not a professional services for private one exclusion it's a private funding split so we believe and in effect the court in its opinion said just that if you read the exclusion what it excludes is coverage for the three listed funds which are separately incorporated legal entity separate and apart from the insured parties in this case l and it's three officers and directors if there's deposition testimony going both ways as to what the what the meeting the lack of the meeting of the minds was at the at these various meetings the one side saying well of course we intended that as an entity it being must be resolved in favor of the insurance in the inch in the insurance that would be our client so if there's any ambiguity in that in the facts and in how the issue is resolved that ambiguity must be construed in favor any ambiguity goes in our favor the explosion doesn't apply we should have been granted some reject but isn't there a difference between thoughts of ambiguity in the language as written and the reasonable expectations of the parties as to what that language meant well that the reasonable expectations of the parties is a doctor and a pennsylvania law there is a doctrine called reasonable expectation of the insured that is to the contrary that our client's reasonable expectation was what they had asked for was complete coverage in this policy for all of their professional activities whether to a fund to  and that was what we communicated to federal during and under a one a single underwriting meeting we had that's what our broker confirmed with them and it's what the facts demonstrate that that was our reasonable expectation and the there is no contrary evidence to to that to that testimony of our clients from our perspective such that the doctrine that would be applied in this case would apply that our reasonable expectation should be upheld because there is no evidence in the binder itself that's contrary to that reasonable expectation in other words the the the referenced exclusion there that's a and i emphasize private fund exclusion does not conflict with our client's reasonable expectation that the only thing it had agreed to and had understood from its meetings with federal was that the spawns a separately and short end of these would be excluded but that our professional services that we perform for any client whether it's a fund er not would not be excluded and would be expressly so so that doc and we think supports our position in that regard and with respect to the truck court's decision on the one hand the truck wor said they agreed with our reading of the exclusion as it was referenced that it only excluded the coverage for the plans itself but then the court wrote an explosion it added in the phrase professionals as services which was nowhere referenced in any language of the binder it was nowhere referenced in the exclusion that was listed there and was not referenced in any writing that they gave to us the same thing goes for adding the related to like there was no reference in the exclusion that was referenced in the binder to quote unquote related to there was no reference in the binder that said that related to was a word that's a phrase that should be a and if you read the the cases that were cited by federal there's no case that supports that there's not a single case in pennsylvania law indeed i don't think there's a case anywhere in the united states that says when you have an exclusion that has the title private broad private funding seclusion that list three finds that that automatically means that you add into that exclusion the words related so we don't we think that the those the courts writing of an exclusion that's not supported by the binder itself and by the exclusion and or by any case law was contrary to the fundamental principles of pennsylvania law that the that the exclusion must be first of all construed against federal second of all must be construed in on the part of m d l that there would be coverage for anything related to you if you if you look at the actual underwriting submission the the written documentation that that underwriter after the underwriting made what it said and i'll quote it's on page eight ten twenty five of the record it says based on the meeting we had with the house last thursday that was april twenty eighth two thousand and five i think we can eliminate coverage for the mutual fund if it was discovered that they have coverage with both a i g and under a master program with sci due to the issues the fund is having it was recommended that they continue coverage with sci and exclude it under this policy so that if you read the contemporaneous written statements of that underwriter they're very consistent with our client's view that the only thing that was discussed was we exclude the mutual funds a separately of short and i agree henry what do you think that under that said i agree there's deposition testimony that the underwriter did say that and we believe there's a conflict on that so which was another reason that we believe the court should not have granted summary judgment the better on that issue but we don't think that issue matters because when you look at what the terms of the exclusion are and the ambiguity must be construed in our favor so even if some testimony somehow creates an ambiguity as between this whole transaction that ambiguity has to be resolved and that that's basically our view of it if if there are no other questions  in the context that exclusion that was listed on the find the broad private fund with the reference to the refund could only mean that it would negate coverage for professional services with respect to those three identified fun now the alternative wh we were constrained to refer to the terms of the binder because the policy was never issued the binder was conditional the insureds owed information that will never provide the right i'm a different matter well why we have to look to the terms of the conditional binder so as informed by the policy forms that a reference in order to give meaning to that term it doesn't mean you get to just ignore the exclusion it's undisputed that the parties agreed to an exclusion even let me try to explain it a little bit differently the only evidence we have of the agreement between the parties as of the date is the terms of the conditional by itself the description of that exclusion is what we have to use as informed by the to an issue that judgment bell raised about what the deposition testimony was there was a meeting between federals underwriters and m deal representatives on april twenty eighth two thousand and five both the federales underwriters testified unequivocal that they the description again your honor i we only have the conditional binder because the policy never issued because of any deals failure to provide information that will be penalize in essence federal for the lack of issuance of the policy simply because m t l never my point is that because of the state of underwriting process at the time the binder issued in the time the claim rose and the fact that m deal had not satisfied all of contingencies in the finder the evidence that we have  parties which was not only in the quote for insurance federal provided on may fifth two thousand and five but also in the binder issued effective on may nineteenth two thousand and five expressly brethren's that exclusion the only sense that that exclusion makes in the context of an investment advisor form that affords a bridge for professional services and best buy's or is an exclusion that precludes coverage for vestment advisory services respect for those e which is basically an administrator for mutual funds and at that point the federal underwriter indicated well willing to extend coverage but we don't feel comfortable with the risk presented by the mutual funds the morning star rating for the one fund still in existence ordinarily small the federal willingness to go forward is predicated on the notion that it would not extend investment advisor there's an alternative basis on which to affirm the district court's judgment and that's the warranty exclusion contained in the application there was a question in the application whether any insured had knowledge of facts or circumstances like your price claim and if if such knowledge existed go to the ohio bureau and change the leverage guidelines or seek a change of leveraging guidelines for the fun which by that point starting money mr lay undisputed goes to the ohio and asks them to reach would change they refuse they say we are not going to change the terms of the private placement memorandum which limited leverage in two hundred fifty percent and by this time mr lee had exceeded that guideline numerous occasions the showdown comes on october twenty seventh two thousand  federal was dated i believe it was march thirteenth two thousand and five it was well in advance moreover within just a couple of days of that meeting a law a letter from a law firm representing the bureau came into m t l and asked for any evidence whatsoever that there had been an agreement on the part of the euro to exceed the leveraging guidelines that repaying contain the private placement memorandum accountants were hired by the bureau at the end of the year to investigate their investment but that might give rise to claim the issues that n t l raises on that topic all go to the merits they claim well we really didn't think we were doing anything wrong we had some flexibility but the raw facts in the face of challenges rules numerous sources over what they had done the sheer magnitude of the loss and the fact that the board of directors of the activation fund itself had discussed potential legal liability arising out of the surf council strongly in favor of in the criminal action in this and take notice of them if they heard the blows and once we have the documentation documented verdict as well as the jury instructions and like we think that that's material to the warranty solution question for this court to determine its its board meetings that mr lay was firmly of the view that the private placement memorandum that applied to the spine gave him discretion to do the types of leveraging that he did his testimony is also unequivocal that he kept the ohio bureau and its personnel informed at every stage of the case and a very significant point is that as of october twenty eighth two thousand and four when this fund clo continued to invest one hundred sixty four million dollars with m t l and in fact not only continued in october but continued all the way up through after this partner was issued to invest that hundred sixty four million dollars with them i don't know why we don't issue of fact for the truck or to the side because there are a lot of disputed issues on that point as to why they kept it there our view of it our understanding of it was they kept it with us because we were their trusted advisor and the was of the view that his he was doing what the bureau wanted him to do which is hedge against drops in the long bond account which would mean the a t f one would go up and vice versa so when he his testimony and the other testimony the m representatives as they were absolutely shocked when the department gave them the notice that they were going to withdraw these funds and then filed suit a few days later up to that point in time they had a very close working relationship with the with the with the bureau well i need to be very careful in the use of the word vixen as i'm sure the sport knows there's no conviction until sentences and in this case what we have is a t the judge as we understand it we we were not involved with that case but as we understand it the judge has invited mr lay's counsel to submit a motion to set aside the verdict and has given him time because he there are facts as to what m t l subjectively believed or felt or knew as to whether the ohio bureau would bring a claim as the time his partner was issued in march of two thousand and five he cited all evidence of of view and understanding was always there was really no legal basis for the department to assert a claim and in fact the department's course of conduct with them made it clear that that they didn't want to assert entitled to coverage if they can rescind the policy in the binder on the basis of this evidence their title to do that but we under the terms of the policy we believe work well but if there's an exclusion i mean if this warrants if you're not totally cover