has done an excellent job of turning a very simple duty to defend casey into an analytic nightmare that through the just a court off track you tell me how much money has  are approximately four million of that four million and that would be actually it would be a little bit more than that four point five million and of that two million approximately has been line under the policy and then in addition i some also hold the access layer directly above that which is a twenty two million dollars policy as the district court made any findings about coverage as of today no your honor as of the day you took the appeal denial of an injunction or certainly an order that has the effect of denying an injunction position that if there was exhaustion as i saw claims that that would be completely irrelevant for two reasons first of all because well for several reasons first of all because there's also a duty to defend under the earlier policy but secondly because there is an access layer that i saw hold of twenty two million that it's directly above that two million dollar policy i'm not really following why  claimed an ongoing inversed hundred nation based on the grounding of the tracks through and around the property that two men according to the allegations and i'll give you the size and you need to remember that ninety one to ninety four hundred ninety five but according to the allegations in the complaint as i said there was there was blocking during the construction that prevented access and lots of used to the park during a policy period dating back to policies are available in the e r and we go back and we start trying to read the things that try to understand what's we don't have a claim forms we don't have a correspondence we don't have the letters and that's why we're asking ok well that that helps me on and i appreciate that i think that's probably what's missing then is the sense that the court doesn't have the information about the underlying lawsuits and what the allegations are of the specific claims and how the match with the  they're there they're honking they're making noise they're smoking they're blocking access to the park and that's what the trial court found in the first trial was the basis for the inverse condemnation claim and i don't see and that that blocking allegedly occurred as the sites i've given you indicate during the policy period both during the ninety one and ninety four policy period and during the one thousand nine hundred seventy two two thousand and two policy period it's an ongoing allegation of gives rise to a liability under the policy and where the district court went astray is that it said i don't think that the city can be liable in nuisance for routing traffic well there's no way to know that bec harm to rental value and they're assessing the damage is there measuring the damages as an easement measure temper stamp per year for every year messing with the beginning of construction and going all the what the city refers to is the reference in the plaintiff's complaint that the verdict refers to multiple occurrences that's a true statement because the verdict refers to two different instances of inverse combination one is the announcer the twin ports airport the second i a truck traffic diversion those would be two different occurrences it's clear isabelle that the announcement of the truck of the twin ports airport is not there's nothing covered about that because it doesn't cause any property damage and causing bodily injury it's just an announcement so although the jury awarded money for that particular invasion there's nothing about it that's covered so it's true that the complaints there's two different occurrences just like it refers to there's also a breach of contract for instance and so the complaint probably is a telltale sign about the fact that what the underlined belafonte case is about is not anything that they can bring within the policies coverage there are snippets if you will lines taken out of context  because here's what happened the the ninety one ninety four policy we contend did not have a duty to defend provision at all judge miller disagree he said that policy has a duty to defend provisions based on that the that he says there's a duty to the ory of negligence and there is no claim brought on the theory of negligence for that kind of recovery and the exception exclusion is very specific brought on the theory of negligence and you can look through this complaint there is no cause of action brought on the believe we've done the best we can within the paid limits that we have to present the case to court like the last case who was here they asked for twenty extra pages of work in san francisco you know if you have a problem with everything or you have some charts or exhibits i have seen the presented at oral argument and will take the charts and he said to see you want to present so i think i will from a practice for i gave you you can you're trying to get a message to us we didn't try the case we're not participating in the settlement or the administration of the case we're trying our darndest exactly understand precisely the facts and then to apply the law to those facts so that's what we're here for  record and read that particular one and very likely every time you look at one of these excerpts ask the several questions that you have to ask to make that fit within the policy just because it talks about congestion that doesn't mean the city is liable for congestion there has to be one of them some kind of tr obviously a very important case to the city and it's regrettable that we're addressing it so late in the in the briefing or in the argument when we're all a little tired but i'll do my best first of all the point that the city can't be liable for n own interest in the underlying case but i will because i have to to get coverage i'm being forced to do it at the instance of my own my own defense my own client's own suppose that ally in this litigation krenz an eighth street it's against that the people on the street were treated just like the people on i five were treated any differently than all the other residents around where you get inverse when you get potential liability is when the city acts and reasonably toward been you have to understand what it's like to litigate against rockdale a point that it's a moving target this case has been very different from the time the complaint was filed all the way through the current situation where  t this point over fifty five million in damages arise out of this that the court has found judge to feel it founded by coal affirmed it that there was an impairment of access we think it's wrong absolutely but when title to a defense to try to fight that liability but still the five million dollars in damages to border this is part based upon the fact that those trucks were routed around the park and went around the park and through the park and allegedly damage plants property preventing him from doing business the damage and this is back to judge beezer occurrence question and it's also back to the fundamental issue we don't know how many occurrences there will be because the underlying facts aren't trying to shield themselves from that is liability by doing just as much as they have to to protect themselves on the defense but by paying in fits and starts they concede basically that they have a defense obligation the reason i say it's five it's kind of a hard charge to read but if you look at it you'll see look at it carefully you'll see that under penalty of perjury she says that they paid defense costs up through february two thousand and two and they stopped paying they over two million and defense costs outstanding that have been on reimbursed for several years so they're paying in fits and starts they're paying partially they're saying they don't have a defense but they're defending and all of that the loss of access resulting in first hundred and of course there is an absolute inverse condemnation exclusion in one of the policies the other policy has an exception for negligence there are all kinds of allegations and we've cited an event in our not helpful to the court in the way that it should have been and we're more than happy to submit and i know the last thing you want is more briefings that are more than happy to submit some very short supplemental briefings addressing the exact issue of the timing of the