discovery rule applies so the other side proves that you see you know a week late but then you come then you have to come back with the discovery rule if you don't if you just sit silently and argue about whether it was a week later not then wrongdoing happened so you argue that but you never say me about the discovery will now be on appeal you stipulate yes it occurred on that date that's two years and one day and one week or however many years and one week since but he act they defended with the releases and waivers from the contract and you had a defense to the defense of but they were reckless and therefore that doesn't apply that's similar to m here commit the negligence but then there's a statue of limitations but there's a defense to stash limitations of the discovery rule and so that's why i'm asking it that way and so they've moved for summary judgment on these release waivers you which is that an enforceable and equally effects equally effects the retribution claim and i think it's it would be illogical to say that if the grazing in the district court concentrated entirely on the better case for you than the lp away then i think that's the question but if you're just saying that both of them you wind up because recklessness is an exception to this section i it is  two thousand and four applies to just i did a specific statute twenty five twenty twenty five twenty years the redivision statute twenty five forty eight yes says that's the specific statute did you cite that in the district court correct you did no no we didn't twenty five forty i do that's the question then how can you bring that up now but first of all our position is that recklessness sweeps both ways we win the whole case the whole case i got that but but if we're just going to focus on so you don't want to just focus on retribution you just want to do the the layout i articulated which is you have this claim their response is section nine your respon that strictly on the basis of twenty eight hundred points fifty to be there are four there are four theories of liability by which a product can be deemed to be unreasonably dangerous the first is  by raising an affirmative defense what was it affirmative defense the affirmative defense where the release and waiver provisions of article nine of the p c i contract then the ball bounce psycho obviously you believe those two cases they don't support the proposition and the proposition itself is wrong because two thousand and four applies in the context of the end of the affirmative defense if it's not required in respect negligence that issue is not part of the pleading of an l t l a client whether into what it's done for example the first theory of liability applies that the product was defective because of inadequate faulty composition or construction that's not a question of the simple a gross negligence the same for the other three theories a liability in fact if you look at twenty eight hundred point fifty two l the twenty three fifty so the point the point is that you look at recklessness and not as as having to be pleaded by the plaintiff in the complaint you look at recklessness only in opposition to the affirmative defense raised by this in a in its answer and once you do that correctly then you balanced how the issue arises and you make necessary the jury determination of whether it has to be tested by the fact finder in this case the jury and if the jury looks at the we consider that the movement is not evidence it's like the overwhelming evidence of recklessness then actually primarily under texas law but they did address that but in terms of the red efficient specific argument in the twenty five forty eight that has been unequivocal and waived in this case it was their obligation if they had that argument when we moved on or claims they had to present that argument to the district court they did not ok why does a question want to three eliseus not work it doesn't work the writer because of the plain language of said article two liability under the lp away if there is no liability for recklessness in article two thousand and four has no application i would get you have a situation where first before a defendant has to assert in a proper defense and you're sitting in the they go ok yes but we have the fact that you were reckless which on does those sections why isn't it that that the order sort of like negligence to actual limitations discovery maybe a trial all that's locked together but you know i've drafted a lot of jury charges as a trial judge it would be the one two three that may be an order in an ordinary case your honor but in this case they fail because they don't have the two thousand and four doesn't apply doesn't apply because they have no claim for recklessness or intentional conduct they have a claim for it was negligence so use is important your honor they asserted in their complaint a claim for gross negligence the district court dismissed that claim saying it was not a valid claim you cannot bring that claim under louisiana law the claim is going and they never appealed that claim so oracle two thousand and four simply has no application regardless of what step in the process you asserted it doesn't apply and they have certainly no case that i'm aware of in which article two thousand and four was applied to explaining that was not what it says any causes and all that in advance excludes or limits the liability of one party for intentional or gross fault the liability ok so again we're walking through this where they've been found liable on question one let's just assume that argument obviously when question one and this matter and i think you lose one question when the jury answers yes you then have to come up with something you've come up with something that excludes the liability of that which is this article not and now they say that's excluding liability and you guys committed gross fault of undisputed fact that these releases govern they are not arguing on appeal that it's releases do not know i understand that but the fact the question to you might not go to the jury doesn't mean there's not a question to ok it's sort of like statue of limitations that it was more than two years ago mind i go to the jury but that doesn't mean we don't have the discovery rule exception as to the jury so you do question one two three and then you say oh what you're are we should win with women for a directed verdict on question to you go yeah you're right but then you still have question three maybe it's only conditioned on answering question one yes but still that that's still the framework even though a question can eventually be excluded because as a matter of law there's no disputed facts so on let's start with what they've the statute doesn't come into play is that you comes into play only where a clause is applied to exclude or limit liability for intentional or gross fault they don't have a claim for that they used to have one it's gone they could have brought one and by the way i'd just like to emphasis this as they could have brought one and they strategically didn't case law that they cited and there are numerous cases they've cited there's an exception that allows you to bring a claim for a bad th gave to technique which was their counterparty those aboard these were assigned to petrobras they asserted those more entries in their original complaint in this case they then dropped them they dropped them strategically in order to avoid arbitration in the case so what they're left with is only the claims that don't depend on recklessness or intentional thought article two thousand and one does not apply picher process is one of the largest and most sophisticated companies in the world and he negotiated for and agreed to these reciprocal what it referred to in the industry and not happen in our cousins were doesn't have an exception for unless you're really smart and this exception doesn't apply they're just saying we don't want people agreeing in advance to give up i mean let's say that we have faction and i'm not i know you would disagree with this if this did make it to a jury let's say the facts show that they said hey we know this thing's going to burst open or it's going to fall apart or whatever but let's just do this manere factoring is recklessly as we can we'll save a ton of money go out there and do that your argument is oh well and that's how louisiana says louisiana says no we're not going to let you in advance give up on that  and so it seems funny to me that the m p l a which actually is more plaintiff friendly is now being used against a plaintiff they can show worse than the l p l like again assuming argue and all their facts are as i say which i circumstances too it was a personal injury this would not be the same argument for personal injury that provision of article two thousand and four does not depend on the level of culpability it's a personal injury different case or a bad three three two contract which liability is important that wording in the statute is important here and when they say of the brief recklessness is irrelevant to a manufacturer's liability they use that word under the l p l that what that means is they are not asserting liability based on recklessness they could have and i'll different case different case yes they might have a claim but in this case your argument is assuming argumenta these guys went out intentionally knowingly and recklessly ran around welding broken parts under the this article two thousand and four which we've cited which holds that these kinds of are supercool usual knock for knock provisions that direct each party to look to insurance are not covered by article two thousand and four and those that's another reason you why this is not the normal case and this is a case in which they understood exactly what the what the what they were doing and what they were doing was what folks in the industry do and that is these projects are very large the risk is very large and they are saying we're going to manage that risk by saying don't have insurance and so it the question is how would properly considering the statute because i've had the experience strangely enough that when we decide case number one case number two will cite that case and so it does have an impact granted we can't tell the easy answer what to do but in the meantime people will cite us to louisiana state courts and frankly if we file a published opinion on this in our court it will be binding unless until something changes so it that did rely on the text of two thousand and four to say it's not a belief of one party of liability to the other party it's a mutual release and it's not an exclusion because there isn't everyone understood that insurance was going to cover all the lawsuits asserted for bad faith breach of contract they deliberately didn't that's another distinction in this case obviously there's no personal injury that's another distinction and we're dealing with here is ultimately a party that negotiated for and agreed to indemnity knowing that it would obtain all of its recovery through insurance it did in fact obtain hundred forty seven point five million dollars as a result of this the provisions that is now seeking to invalidate  design exactly so that contractors small companies like mike try to bid on projects like this where the potential liability is quite large but the parties here again petra bronson technique agreed amongst themselves as a matter of freedom of contract that they were entitled to do that yes we understand there's in this project we are going to be managed that risk by each of us petra runs on its side technique when its side procuring is unsure as to all contractual provisions the two thousand and four applies to no i don't it if there was some sort of other defense like an equal bargaining power i was forced into this you held a gun to my head to sign it we wouldn't get to two thousand and four we would just deal with the exception i mean deal with the contractual waiver on it's on face so to get to you thank you for you have to get past those kinds of you know i don't mean to the head situations i'm not sure i think that somebody litigating a case like this would probably raise two thousand the but i'm just saying that where it where it's not you don't need two thousand and four if you're a legislature in a civil law kind of state if you just are worried about cases of unequal bargaining power guns to head and that kind of thing here they didn't make an exception for smart people with good lawyers or big companies or whatever they just said this applies so again we're having to construe the statute as written i understand that but i i might turn to the to the choice of law issue just because before you do do you want to request yes absolutely alternative to affirm and which i know is your request what is your current position on sort of going verifying these issues to well i think the courts and i don't have that much on the courts on bart decision and grand isle which says that there is a different rule for contractual disputes even those that touch on oxalic and that's a different rule from the tort claims of the court in his previous opinion did hold that louisiana law governs the underlying tort claims but the grand our analysis clearly points to texas law on the contract dispute that we have here and the argument that the district court the other side is making right now is that oh no brandow doesn't apply because this is the same case because it's not a it's not brought up as a contract case it's brought as a tort case with a contract defense that really makes no sense your honor and it makes no sense for the following reason we could have brought a standalone if we'd done it before they filed we could have brought a standalone declaratory judgment action on this contract with provisions saying we aren't liable to them and under their analysis then there would be a different choice of law for the contract if we brought it as a standalone case it would be if they were sitting on a contract that they said under the contract you were supposed to give us a product that worked and you didn't and therefore we're suing you on the contract then you'd have a contract case with a we have cited cases where the court has applied and should apply different choices of lot of different parts of the dispute in this case this is a contract for a dispute the parties chose texas law to the extent the maritime law didn't apply to it but why not only to the to the defense change the defense to liability whether framed as a declaratory judgment or framed as you are the defendant change the nature of the case here change the law and it gets to pick their case for better or for worse so cases for example torches interference with contract cases where the tortious interference law is different from the law underlying the contract that's being tortuous interfered with same here you have the underlying tort claim that's why louisiana law does apply to their underlying they have plaintiffs because you can't say for tortious interference against the party to the contract so you would have different parties there and we have the person that breached and you would have the person who tortuously interfere my only point there is to say that different laws can apply to different parts of the case depending on whether or not the contract is this so what grand isle says is contractual disputes and what what i'm saying is that cannot be the case because this is only one contract and if the dispute arises as a defense to their claim court needs to construe the contract if the dispute were to arise in a standalone declared torrie judgment same the same dispute they would say under brandow because we're suing on the contract that a different choice of law would apply that can't be right don't agree with but we're still asking that because yes we have the discretion to certify the question that doesn't mean we're not interested in your thoughts if you don't have any thoughts that's fine i don't have a definitive  louisiana law being certified i do want texas law however obviously it is up to the court in his discretion always and we do not deny the court does have the discretion to do that and we only point in bringing up texas law as we do think texas law applies and then the easier way yes the court was correct to apply with you know law you have at the end of the day if you go through the grand isle analysis and if you were to conclude argument though that texas law applied any change any difference no why not because it's a false conflict zachary case on this subject to what liability in the face of contractual waivers is no different from oracle one thousand and four in texas law in the louisiana law as to the enforceability of a contract which is contrary to public policy is no different in zachery the court cited article one section one ninety five one of the restatement of contracts virtually identical to the article of two thousand and four so what's the point of getting to texas law there is no point the false conflict should stop the analysis in the under the louisiana law at two thousand and four and in fact i think it's the law of the case because when this case was first before this court and when the court concluded that louisiana and a law should apply the court acknowledged that the first of the three t l p factors where did the controversy arise the court concluded correctly that in rows on the continental shelf in a course that's correct and the district court addressed this issue of can you employ it into where the controversy arose a defense in the formative defense and the district court said correctly no you can't do that you have to look at the plaintiff's claim the underlying tort claim and in fact there has been the case cited where the law that w and the first point that was raised the question was well recklessness was and pleaded in the complaint well of that is precisely the point there was no need for petrol price to plead any degree of idea the idea that we say recklessness didn't have to be pleaded is because negligence does not have to be pleaded in the l t a only claim and that's the fundamental point that read that exposes the fundamental error let me say you know just