good morning tininess dan mullin i represent admiral insurance company and i'd like to reserve five minutes for rebuttal thing this case is a question of whether or not minor modifications to a commercial novo review and also the fact that the trial court was required to consider all the evidence and all the inference is favorable to admiral insurance before it ruled it's our position insurer knew was a substantial probability the loss will occur objective test subjective test and the supreme court approved an instruction  zoom in for what and they didn't know at that time because the washington supreme court had not invalidated those participant agreements that were involved in the nuclear projects so there was no way they could know and the jury found their way hired by both lex put in charge of marketing to make these ads and he puts the ass together and he's concerned and he goes to the c e o of both lex and he says i think they may be too similar and i have the deposition testimony of mr do another thing after this they hope full of flex would just go away after this right after this at the end of december ninety seven they applied for admiral insurance admirals insurance includ application requesting them to identify any claims or any circumstances that will lead to a claim they had a couple on the air but did not mention the sole flex demand letter at all and then continuing on with these commercial commercial and after they were sued they get together and decide to make some minor modifications and these modifications i think it's what the case about i think there are a factual question in order to determine whether or not a commercial is the same or similar it requires weighing it or reviewing it for what our position is if you actually look at those commercials and you take it in context of what we're talking about no reasonable mind come to a different result and i think these are essentially the same commercial and he states it was his name is mr larson he's the one who wrote the demand letter initially soul of life did not view the one thousand nine hundred eight version of the commercials as new or different violations but simply a continuing s right this is the part that i want to emphasize it is important to keep in mind that the commercials aired after august one thousand nine hundred eighty eight were visually identical and still have the same feeling so lo ninety seven advertising materials this is reflected in the factual flecks did not make any changes in its claims against both places when i filed its first and second amended complaint that had nothing to do with the changes referred to  the district court i think here in reviewing this assuming that so little flecks had actually made additional claims related to the one nine hundred ninety eight modifications there is nothing to support th the only evidence in this record is sole flexes attorney affidavit which says the ninety eight are simply a continuation we didn't add anything we look at it as a continuing violation for the continuing l which by and to the court helps address that issue they specifically deal with and i get a call exclusion but didn't have the name the word same or similar in it and decided the case if there was the question was whether they see they changed it was an argument that the defamation against wrangler changed later during the policy period and i quote the essence of the court's opinion is when you look at it defamation just like trade dress it's not the specific replication of exactly the same words it is looking at the just the sting of the defamation well trade justice the same way the material that we are covering is misappropriation of advertising ideas misappropriation of advertising ideas can cover trade dress and trade dress is a look and feel so when you go through the looking feel aspects of the material it was published it would be covered under admiral's policy absent the exclusion you find that it's essentially the same it's the same look and feel and i want to dovetail that back to the known last thing it's critical when they do this commercial they make one or two word changes and we can see that in the text when you view the commercials potter is still standing there with his shirt off everything that solo flights complained of we're still on those commercials the main thing and their settlement documents for example their settlement document with both legs referenced a trade and feel allegation that's what they were settling that's what they paid eight million dollars for and they knew when they released the commercially changes taking the sure dollars they didn't change any of the visuals in fact potter himself in to change  potter was deposed we showed him the videos during a break in the deposition and this is his test will there be anyone else's direct focus that would have more knowledge about what's on these commercials then you in your opinion i don't think so let's look at exhibit sixty two again that's one of the commercials i'll ask the question again having reviewed those over the break the difference between the ninety seven and ninety eight version of that commercial were there any visual changes in the commercials none that i could have just heard with my human eyes that if you put them in the edit the i bet you'll find and do you think that a customer a potential customer watching those two commercials with detect any visual changes i can speculate we also submitted to the district court expert testimony on this issue and again the it none of us still a question if that proves your to decide whether they're similar and it could be but i don't think it is in this case plan because when you take when you take a look at the commercials the question is whether or not a reasonable mind could find that they are they are new or different and i don't think when you look in context that you that you can find that the so i'm not saying that that wasn't  till later i don't i don't believe that the allegations are different in that respect and what it says is we imitated and yes it's voted broadly but but also says that we're take this out of an amp and ambiguity our point is not only does it not clearly say that similarity is good enough but it actually becomes a pretty unworkable standard to go to the jury and say are these symbols similar in what  problems one of which we identified in our hypothetical which is you could lose coverage across the board in the situation where you have similar as if you policy periods the first period it's not alleged to be infringing in the second it is if you to apply t infringement context if you interpret it that way would be a traveler true facts here you know because we have different expressions of the same  a couple of quick points like to point out that the evidence in the record is not silent on whether the commercials continue again a declaration of mr larson the attorney for solar flares both lights did not cease using the contention and driving force of full flights this claim was that the fact that both flex misappropriated still flex the look and feel and also like to point out that we believe flex made a calculated business decision in the hopes that solar flex wouldn't suit them they calculated wrong that's their calculation time oil which is which has been adopted proven adopted by our washington supreme court in the number of cases states time oil might not have known as the certainty that it would be found liable for the continuation of the contamination nevertheless before obtaining additional insurance which would cover that damage public policy concerns and equitable principles dictate that time oil should have revealed the existence of substance of the substantial probability that it would be required to pay the response costs relating to the contamination in time while they failed to advise the carrier when they took the policy out that they had a claim this is no different both flex knew that it was worth the risk of being sued and fail to tell begum republication would render it meaningless because defamation doesn't always repeat itself exactly and trade dress is exactly the same trade dress isn't going to repeat itself and you know exact replicati at the cases that we've cited on prior publication you'll see that most almost all of them are identical to admiral so are some that have additional language as well but i don't think that was a change ok thank