obtain reversal in this appeal b n c does not need to prove or establish that it has the only reasonable construction of b g exception or the policy coverage provisions in this case most certainly has a reasonable construction of the policy here that provides for coverage one that is consistent with the grammatical language of the fi exception in the principles of policy construction that control  favor favor the provision of coverage in these circumstances now exactly the same analysis applies to the second related issue in this appeal which is that the record on the class action settlements and whether or not those settlements have to be construed to establish that the one some settlements were paid as a discordant of unlawful we obtain fees and on this record that is very much a factual dispute one that should not have been resolved against p and c in a summary motion like this one and at the very least  issue how our class members recovery out of the class member payments were by a formula that didn't need your on a reef refer to the overdraft fees there's no question about that so far the class member i'm looking  upset i'm getting some of my fees back if you're a class member you're looking at a d m a tree cover and that's exactly what it was it was harm that was paid to the class members those payments were made per the formula and what the court should not do and what the district court unfortunately did is confuse the method of payment with the reason that the settlement we're undertaking was was the settlement calculated at about forty six percent of the total over charges it was as a figure for estimating the gross recovery that would have been available after a trial of the class actions and that's what the evaluation calculation divined by the expert of an alternative method of calculating how the overdrafts should have been paid it was not an effort to say this is the number of fees rece buddy paid by anybody for that and that t n c in fact was dischord ching piece in paying ninety million dollars on the one hand or twelve million dollars on the other and that's the answering that those payments were not the return of fees then there is a factual dispute that requires freemantle over the construction of the settlements on the current side your honor if the court favors are reasonable construction of the policy no hint of any kind is required as a matter of war both the attorney's fees and the settlement payments should be covered and if the court agrees with us on that which we believe that it should there's no need to get into this issue over the construction of the settlement agreements at all so i want to be clear that there's only a need for even if the court goes against us on the coverage issue number one number two if the court were to construe the settlement as as possibly involving ers as as possibly involving the discordant fees then a remit would be required but then reporters agree to submit this on the papers and for the district your honor that certainly is an argument that's been injected but what we agreed to your honor was to submit the construction of the policy language on the papers whole issue about meter of the fees was injected into the case after we follow our motion based on the construction and that became an issue because you did a lot of sense to me i mean it doesn't make a lot of sense to me that you would say the construction was an issue when the whole question is were these payments that were made covered by the policy so the nature of the payments is always at issue your honor if it if it comes down to that i will stick by what i said that that is on his record notwithstanding our agreement that the construction issue should be submitted as a matter of law the way that the district court decided this case that is a factual dispute on this record based on what was in front of the court she couldn't find against us on that issue the record didn't compel it as i said you know her city will look at the settlement the district and the ministry judge stop with the policy construction issue that we had put in front of it and said under no circumstances does the fee exception cover the damages pain in this case because the d m inches in the f coming out of a common find this different the fund under eight under a understanding of the facts could be viewed as one that was created to reimburse for these overdraft fees a big fun that's what the settlement agreement says in both of the cases a portion of that collection of money was going to be given to claim to attorneys why does the fact that c paid the fees you can see from the settlement documents and the improvements they were always separately year more as a payment for attorney's fees that falls expressly within that coverage provision was based on a factorial analysis based on the work done by counsel and the issue of the fees was carved out separately for payment that was always contemplated from the beginning so there are two problems with their coming fund analysis may be needed three the first is as a district court concluded it has no factual support in the record the attorney's fees were earmarks separately they were paid separate way and the amounts of nineteen million and twelve million dollars that's correct but the agreed upon a million swore to settle the risk of the litigation and to pay the attorney's fees that was that was specified in the agreements that agreements don't say anywhere but they bet back to this question about the common fund your honor the second way to give it is that because there is an indemnity provision for attorney season this policy that's not qualified reading the settlement payment issue as an overlay to exclude coverage for that redress the policy it's not proper is a manner of construction and the united health insurance case that we've cited illustrates that specifically that the third problem of course with that analysis is that the cases that access relies on to arrive at the sort you meant are cases that involve exclusion all those policies do not cover attorneys fees and there is expressed exclusions in the policies that provide that the risk and watched it's against there is not covered our policy expressly covers attorneys speace that's the first leg of distinction and second if there is no exclusionary language here in this policy that would allow you to uncover if you will  to the coverage provided for so we'll go to one this provision you're on or is the rule construction of a coverage provision in favor of coverage not an exclusion that shows there was no coverage in the first instance and therefore he shouldn't have coverage at all you know better to our construction of the policy issue for a minute in the lines with as i said principles of construction the language in the if i could i'd i'd like to start with judge was this question about the common fund because i don't think everything that i heard presented was quite right i think a strike that in that council correct or not relying on exclusion in that regard will be right on the policies coverage ground the policy provides that coverage is where the insured is legally obligated to pay an amount that it was in a word here but it was not an award that was made against my client it was it was the award that was made out of the common fund as judge once noted that common fun for the reasons that are discussed in the opinion chief was made up and ask its insurers to pay that money at that point and then months later months even after this actually to geisha was speil with respect to the n t l the judge there awarded fees out of that uncovered fund and i just don't understand the reasoning that converts an amount that was not covered at the time it was paid to an amount that sudden how becomes covered and i think without the respect th district court failed to recognize the inherent contradiction in its original opinion what is the practical consequence of the of the district court's decision in terms of the amount that access w addition to the other amounts that are covered in this case focuses on the damages just part of the definition of loss there's a separate portion of the policy claim expenses so there are other amounts that have served to erode a portion of the u weezer or the deal right well for the reasons for the cases that we pointed were associated damages are not covered there are certainly a number of cases that suggest that the fees themselves cannot be covered as well  the point i was trying to make before your honor is that in for instance this particular payment if the damages that were paid in connection with this case were found the country public policy for instance but a free award aside in that situation you certainly can see an argument that the legal fees should not be paid because the incentive that's created would be associated damages those are cases that we've seen in a number of different situations of the base amount is not paid them nothing should be a legal obligation to pay and there was not one here also i didn't and so a case that talks about a lump sum that was being paid i don't think it was appreciating a distinction the jesuits raised that it was a common fund and the common funds a if they had been set free with that when might have been covered i don't know that there was an exclusion otherwise in the policy that were applied to those fees assuming of course that the district court ultimately made that award as against p and rejected the common fund i think the common fund is a distinction that occurs there if the district court had not proceeded under common fund analysis had it been a different sort of analysis of percentage of the work or most store that makes a more complicated issue so there's a damage clause in your contract and it talks about attorney's fees being recoverable if we were to adopt your view that because it's a common find that clause doesn't apply we were if we were would dock your view that it shouldn't apply because clearly the end of my claim was uncovered we're in the public policy language so i think that's the basis for not awarding fees and map point unless you were to take some of the more esoteric approaches that are present in the cases that are dealing with public policy and the other cases so that as we say no legal obligation sorry i wanted i want to try again you know in connection with resolving this case in the district court myself i'm a sorghum we talk we settle these of legal issues i think this can be decided it's for cross motions i'm pleading with a stipulated record and p said they asked the court to resolve as a matter of law whether the settlement payments were damages they teamed up the issue we all agreed on what the relevant documents were and i submit that the district court's review of the understated record lisa the obvious conclusion that the ne that's what was asked for in the complaint that's how the class was defined that's how the settlement operated and that's how peon see when it was explaining the settlement to class members told them it was going to sophisticated financial institution and we've seen in the various case laws that that's been cited the fidelity case the banksias case that my opponent cite the ticketmaster case that cited in the record but well there are often provisions about disputes over fees in policy such as this so the common understanding would be the exception was applied was intended to apply to a situation where you have a dispute about peace and only just focus there is a dispute about fees it is not a dispute about good or bad fees or fees that should have been paid or should not have been paid by putting this in the coverage  in the first answer how do you respond to the magistrate judge's observation that the interpret in fees as has been done here by the district court would mean that they would have no coverage because no still their situations and i also note that the magistrate judge there got a little fixated on the fee concept when trying to interpret that provision it's not just seen it's commissions or charges and when you think about the personal profit exclusion creates a conflict and therefore there should be coverage all that really in the first instance never put created this paid or paid to the insurer really means damages approach and i submit it's just not a natural reading in a policy like this rather you know pain seems course to cobble together that approach based on some of the things that the magistrate judge did sort of picking and choosing but you can't square that with the actual language again for instance it access would interpret the exclusion paid or payable well consider the case where you have no money recount you swipe the card to get the overdraft charges now you're now opinion c is turning over thirty six dollars were to adopt your view are we reading out the ability to get coverage under the damages policy damages caused by q if that's what happened in the united health case right the district court said you can still get coverage even if the underlying claim isn't covered because the plain language of policy allows it isn't that the case here i don't think it is your honor in that the you still have you still have to get through the notion that there was a legal obligation to pay for damages in the first instance whether or not they satisfy the definition of damages is a different question there but but that is the first hurdle that p and c trips over the second one of course is the fact that that money was exception from coverage that ought to apply to that on that issue of course what's happening with access is construction of this fear is it's moving off of what is chromatically there it's ignoring the redundancies that it's construction creates and it's adding language to that exception that's not in there now if access had wanted everything out of that exception that it's talking about here and should've written the exception like the ones of the present in the ace capital case were that ticketmaster case or the first community bank shares case which had very specific language which would have excluded the fees this kick does not end after that there is no compulsion to broaden an exception in access is favor this isn't a case about sophisticated insureds this is a case about an ambiguous policy provision and where that happens and it's a result of bad drafting the third circuit opinions in my ear medical protective are clear that construction it's ambiguous and it's in favor of the insured this court should not be looking for ways to deny coverage here and should be looking for ways to find it second as to the settlements themselves i want to reinforce this was not a what would happen on a rematch well what we've done to submit it under stipulated records but so find a district judge i'm looking at it and i'm saying i'm going to make a decision in this case and that's the end of the case but now you're saying but the stipulated record it allowed the judge to do that but the stipulated record is missing the evidence that we now need because of the way the judge decided the case on a motion for judgment on the pleadings were the presumptions from the record should have been in favor of us what evidence whatever paid repayable to an insurer and now you're saying but these were the settlement wasn't race or charges if i can just answer there are we one minute or one thirty seconds sure the issue that we submitted to the district court as and if it comes down to that argument and the way that they construe it now the presumption should be in our favor and the one thing that's clear is judgment on the pleadings then should not be granted if you move beyond our argument that coverage is present here is a matter of law and you reject coverage the way that the district court did now you have rejected the presumptions for motions for judgment on the pleadings that should have gone in our favor and the entire record should have been considered there should have been the evidence that i talked about and it should have been further analyzed whether that record compelled the conclusion that those settlements were the discouragement of fees instead of months on payments for the risk of a very complex piece of wood a geisha i thank you very much