affected the adjoining mccormick property and the adjoining women hauled away property and had affected the public street council chris brown the action is brought under the homeowners policy and specifically the liability portions of that policy which provides that if a claim or suit is brought for damages them to remove that has under that ordinance the obligation of the owner in that situation is to do so immediately upon receipt that's the language of the order it's a strict liability there's no defense there are some things that could have been talked about in administrative proceedings such as allocation according to the the then health feet long straight between the neighbor and status but basically there was difference so how does that work they have a history class and it does the property owner have an absolute duty to take the remedial action when they get the notice yes there are some remedy again shore up our property but then what do they do then to recover that if the city was wrong well the order steals the some of those questions explicitly and others laugh occasionally one of the provisions that was involved is the understand your position you're saying the notice from the city creates the legal liability yes unless or until that were changed by some ordinance that's correct and to the extent that you can't recover back from your kids if they in the california law there seems to be a somewhat more broader approach to duty to defend as oregon law pretty strict seems to limit the court to looking to just the that doesn't mean you don't have a dictionary doesn't mean you don't use knowledge might mean translator might even remember your college physics about the law gravity or high school physics the case may be just your own property so that it seems to me that there's a problem with on the duty to defend part of your case putting aside the end indemnification part of what they repaired the idea that they get a letter why it's you don't have to have a suit or underlying complaint or claim negative in all the fifteen or twenty exclusions such as nuclear accident war and things like that  got to do and they mean we're in this in the street and the question was asked earlier and i didn't get the answer where did the work take place seventy five percent of the remediation costs were for work inside the boundary of the and i i guess i can just start here i don't believe that case supports what what its things are good for what the case does is talk about the challenges to jury instructions that were given in a case involving invest condemnation in which the jury was instructed that the loss of lateral support caused by water flowing over property and eroding part of the property constituted damage that could be considered in terms of inverse condemnation the court went through and read reviewed several portions of the jury instruction cannot that's the typically which it's listed in the court's opinion that it is part of the instruction given but that's particularly which was not challenged that has nothing to do with the issue here as to whether the loss of lateral support constitutes property damage to other property which is to be the issue that we have to deal with in terms of whether there is property damage to third party property in this situation without a view i'm sorry i'm really i wish you suited for cover damages providing a defense does not mean a spring affirmative claims the cases on which plants reliance support of their argument that it should include there are situations where there are two factors that are different one is that the insurance company refused to defend the insurers hired their own defense and that particular defense attorney determined that that the best defense was an authentic and therefore under his strategy he because he believed or she any liability the city might have for damage to mccormick's property they are seeking recovery for damage to their own property it's not the same thing they are not interconnected in the way that the cases talk about that as a counter claim against mccormick fact you are dealing with two different properties in different liabilities that the defense to the form its claim was we don't owe you money for the damage to your property because we didn't do anything the damage to your property and they in fact were found not liable for that the liability  whatever it is it is a separate issue under oregon law you look at in terms of the duty to defend it's the allegations in the claim against the insurer just compared to the language of the policy when it comes to the duty to indemnify the question is whether the insur legally liable for damages that are covered by the policy and the reason the standard becomes different is it may turn out that by the end of the case you actually have a the insurance held liable for conduct that is covered by the policy so that the court has to take that second look at it in this situation what the district court found was that first there what there is the potential for legal liability because in fact some of the work that was done was done to shore up to provide a lot of support for the properties but that doesn't solve the issue there's a question of fact remains the kinds the fact that you read repair your own property and benefits  the jury were found that they did it because these letters impose the obligation because of actual harm or part of a loss of use or whatever to the road they were legally liable because they got later on some court comes along exonerates them well there's two parts to the liability issue here the first is whether they're legally liable and that liability has to for damages covered by the policy for damages to something for require to repair their own property and yes that provides a benefit to other property in the same way that if you had a tree on your property that was tipped over and was going to fall on a neighbor's property if you didn't fix it the fact that you cut that tree down so it doesn't  and damage their house doesn't mean that they have now that you have now paid to remedy damage to their property i think let's take the hypothetical out real facts on the ground maybe i'm misunderstanding but my understanding was that th didn't i mean it seems to me that you're splitting hairs obviously there was damage if there's damage and if my party slides completely away and the next door neighbor's property is just completely undamaged as of this as of this moment but it's puts a finger on a critical point here and that is that in a sense you can argue that the damage is potential if there's a destabilized property but if you're the property o their own property and it was that property that had to be repaired to avoid the risk to the other properties and because in the meanwhile suffering loss of yours and a problem that you have here is that we have to distinguish between the first part of coverage and a policy and a liability coverage the first part of coverage does not cover landslides where there is no structure on the property and you can't just disregard the limits on the first part of coverage and use the risk to surrounding properties to come into the third party coverage that's at issue here the duty to defend because whatever happens in terms of the ultimate liability doesn't affect the obligation of the insurance company to fan the question is the four corners issue that we talked about before in terms of the underlying indemnity issue i also believe that what happen whether denominated a claim for loss of lateral support or otherwise the plaintiff's claim for the cost of repairing and stabilizing their property remains the claim for damage to their pro for damage to their property well it was in that case the damage that they were suing for was the loss of support for that property so the question is whether it was a lateral support of the property supported is property damage to that competition specialist versus competition especially in