my name is richard richard because on counsel to us f and g companies who are the election apologists one this is surely a housekeeping question but i'd just as a technicality at page three just wanted can we agree that as to what it should read just for the record if you go to the fourth line down it says resulting from abroad or it should be effigies insured gives construction entered into a contract with the postal service for asbestos removal and fire for proving work in a building in your once and independent of the contract which we've just talked about i think it dollars and drug company in the west and in fact i think this case turns on this court's decision an insurance company of the west where the developer follows not necessarily the holding in and i wonder you know i'm wondering mr mccance you don't put more weight on that language than it can bear because you know the the point here in this case insurance company west  was there was this discussion because in blue fox the supreme court had made statements that cast doubt on the bowler's reliance on three your earlier supreme court cases so the court  insurance company the west is seeking to explain the basis for equitable subrogation and why a surety can come in and take advantage of jurisdiction in the court of federal claims and i just see that discussion there as really saying ok you know here's an example of why it can come in as a surety i don't think it can be read as going so far as to allow a liability insurer to come in as a surety does particularly when you look at how in blue fox the the court drew a distinction saying none of the cases relied upon by responded vaal the question of sovereign immunity and none were a sub contractor could sue that's blue funks and you could make the argument that a sub contractor is not that much different distinction between the waiver of sovereign immunity in the federal tort claims act and what's in the tucker act where it says that you know the tucker act is a strong they are sovereign immunity for vision in the federal tort claims act so i'm sorry for being long winded but i just seems to me that you place a lot of undue weight on that statement in an insurance company what's now all possible let you claims on behalf of their insurance and or subrogated to the rights of that insured under a government contract the tucker act like the federal tort claims act provides jurisdiction with respect to clients and doesn't specify who the claimant has to be and that was a key point that the court recognized in the decision an insurance company in the west in that case the court dealt with relied on a string of supreme court decisions and perry state and inks and and perlman all of which dealt specifically with surety and the rationale of bellboy it was very tied into their status supreme court decisions that had been relied upon and elbow i did not in fact address questions of equitable subrogation and sovereign immunity to the contrary in insurance company of the west dischord state after blue fox we can no longer rely on those three cases to find a waiver of sovereign immunity and so the court was forced to look for a different rationale and where it looked was the aetna decision from the supreme court in which tort when it comes to a waiver of sovereign immunity the fact that the government has weight sovereign immunity with respect to a contractor a two way street with respect to the obligations and liabilities as between the contractor or the security of the and surety in the government it seems to me there's quite a distinction  there between the claim under the federal tort claims act on a claim under the tougher act well there's a difference between a tort claim and a contract claim i think we would all agree with that but as the court held an insurance company at last the caused by the negligence of government employees and those parties as equitable subrogated were allowed to sue the government under the federal tort claims act none of the insurers said about the similarities in the language between the tort claims act and the time correct but the fact remains they are they are different statutes and as a as i mentioned i mean just recently justice kagan in that cone quote case whatever it is just came out this year in april really made the point that the that there's a much more certain definitive strong sovereign immunity consideration at work in the tucker act than there is in the federal tort claims act now as i said she said you know the government in the federal to claims act is treated like a commoner perenna assisting or sure how it's treated in the tucker and i just wonder if i just don't think this is enough in insurance company the west to get over the proposition that you know that the that it's difficult to see out of the tucker act the liability insurance coming in i think that's exactly the opposite of the way the insurance company  everything you go if you've got the record correct those the but i just wonder if that really makes a difference well i think it does because the insurance company last decision expressed an octave lock stock and barrel the rationale in that in the rationale in that not addressed not strategic but insurance companies that paid claims for their insurance just like us up and cheated in this case it's exactly the same situation and  insurance company of the west relies on aetna then by definition the subrogated that are entitled to talk or actress action under insurance company in the west have to be a broader class than just immunity questions that was a different regime but it's been replaced by insurance company of the west and i think there's no way to read that decision in light of the supreme court's decision and that other than to say that there is a broader expansion of the waiver of sovereign immunity under both statutes under the federal court claims act and under the talk around act the the insurance company the westport found no reason to give the word claim a different meaning in the than it had in the federal tort claims act and the court expressly rejected the government's argument an insurance company of the west that at that was distinguishable or that the language of the federal which was somehow unique in this respect and i think as your honor pointed out earlier the key passage to an insurance company in the west is the one you alluded to it page thirteen seventy three of the decision at the reflects a broader and more generally applicable legal principle waiver ceasar immunity applicable to the original claimant or to be construed as extending to those who receive assignments makes with respect to insurance company the west your honor it is true that the next chase by the supreme court explained insurance company the west and what it did is it looked to the aetna decision by the supreme court and that in cases about that case involved only the federal tort claims act a state by for insurers liability insurers who had paid claims for individuals who suffered injuries because of the negligence of government employees yet the case did not discuss the tech or acted not mention the tucker act the this court and insurance company the west adopted some of their rationale and men and said that express assignments and implied assignments along could be used for jur envisioned by an unknown person who is injured by a government employee in other words the government has no idea who may sue it under the tort claims act because it's based on injury defines a contract claim meaning a claim based on contract with the united states and other words a claimant must have a contract with the united states now as we said there are three exceptions to that equitable subrogation but even that exception there must be a contractual obligation between the claimant and the government and other work that can't be anybody doing if it were anybody suing without any assume for the moment that gives it in fact paid the of the clay ok could do exist and have under the contract come in and said there's a breach of contract because you didn't perform as you were required to do government under the addendum now i realize you apparently i wasn't aware of this dispute then the but that's not before us and this in other words gives could it have come in and said there's in the den of the contract pursuant to which you are obligated to reimburse me for liability claims for a specialist removal you haven't done it i paid x dollars i'm suing there you would say you might contracting officer and that here fidelity though is not even a surety so for then what he doesn't have the obligation did not have any obligation towards the government and contract our vice versa and it's because cover performance of the contract undefiled by the prime then the surety if it actually takes every performance rather than finances performance it enters into a contract a takeover agreement with the government and giving money to the contractor to perform the yes and insurance company in the west your honor insurance company in the west financed completion of the contract that allowed it to become an equitable subrogate and it was respect to the primes obligation towards the government i e by financing to a completion contract by another contractor or actually performing the contract for the government does a surety become an equitable separate so it's not simply because the surety has the title surety that it can become an equitable separte there must first be a default by the prime contractor and its performance and secondly the surety must step into the shoes of the prime a liability which in the future well i believe it's something that's pervasive here on are that they already do obtain such coverage some contracts require the coverage and not change the nothing really would change and crimes have most often have gotten insurance policies from you know for general liability insurance and if if the insurer pays an insurance claim to here or the insurer could sue the insured for that matter if it felt that the insurance breached the contract they could either not pay and they could have litigation between themselves or it could maybe pay with a conditional payment or something but it's really between the insurer and the prime contractor as to what transpires between them and of course that's a contract so that would be dealt with in the appropriate legal and venue for that for these reasons  me ask answer your question judge lan if that decision stands to the extent insurance is available for this kind of project it will be more expensive and those costs eventually with passed along to the government but the law won't change excuse me ron below will not have changed we like it well because we read insurance company in the west which is now been out there for a number of years as affording an opportunity for companies and us f and g s position to bring an action under the so i guess is your position that it's never been the case that says you would not be and that's absolutely correct your honor we think insurance company in the west says we can just a couple of quick  time the government continues to rely on what they call limited exceptions to the privity requirements that were in existence prior to insurance company at the last for the reasons i discussed earlier i think insurance company of the west necessarily court below asserted that us f and g had not stepped completely into the shoes of the contractor i think that assertion is contrary to longstanding black letter law which recognizes that equitable subrogate is do step into the shoes of another person w shoes of another that's exactly what's happening here when it paid to climb us s n g did step into the shoes of it's insured and third in this case us f and g as an equitable and that's why we're we're here us f and g claims no more than gibbs was entitle to we're not speaking to expand the scope of the liability it would simply seeking to enforce the right under the contract as a so we would ask that the decision blow be reversed and the case remanded for proceedings on the merits th