the a sub contractor researcher we all know that under section five of the worker's compensation act he's prohibited from directly suing his employer who was also a subcontractor on the project charts and we can we know kind of ok what so it's not until eight years later though that's not fair i would like it to be if you're not sure what is what is two thousand and two and two thousand and six i don't agree i think to put respectfully i think the problem is what occurred between two thousand and two thousand and two nots two thousand through two thousand and six was being laid against you for this accident that did not occur with all right and we were entitled to treat them differently we were entitle to tell bill that we don't think you violated your obligation of problem notice of occurrence that the field workers accident under fields policy so they notified bill i just don't understand why you think that therefore they needed to  there was a notice that that they sent to their own insurance company so they knew when june of two thousand and five and that's at record zero one six eight  i said two thousand and five two thousand so they knew in june five two thousand two thousand two thousand if i could go on to the second substantive i'm sorry i took so long you didn't mean to do that but the corners where whether or not there was any basis for the trial judge to conclude there was a jury on behalf of american country to defend this claim having nothing to do with the late notice they have put simply because the underlying causation here and i would suspect that that might very well implicate the moue the standard with regard to duty to defend but it doesn't say that it just doesn't say that and there are other points i'm content respectfully to rely on your brief with regard to the issue of the riches including the so called targeted tenure question that waiver think if you have no other questions talking about which was the late notice issue but the point that i would raise is that with respect to the  time frame between two thousand and two thousand and two which is by their own admission the only relevant time period and the fact that they're conceding that they knew full well about this claim in two thousand and two is very important for other issues which i will turn to if i have time to do so you have to know that mr within the was injured and you have to know from my perspective with respect to ac i see that somehow that related to all  concrete company the former was there yes we got a lot of from freemont saying this guy was injured and where the workers comp carrier feels worker's comp carrier and you may be liable for this but that letter didn't say anything about how the accident occurred or in any way tying it to all right and as a consequence because he a c i c policy says that were only an additional insured with respect to injuries that arise out of the rights work at that time we did not have any reason to put a c i c on notice of that claim we put zurich own c notice because they cover us treasury thing there are limitations as to when we qualify as an insured or an additional insured under the zurich policy but there are with a c i c and so we wouldn't have had any duty at that point to put them on notice the document the council mentioned based on the note that she was handed that was never pointed out to the trial court of the based on the facts that were known if they had done that then then that's where this whole conversation between our construction manager and mr written all comes ed our construction that happened in two thousand and two that i miss is sort of the sequence of that mr rhythm is injured he apparently submits a worker's comp claim to his employer thiel feel notifies freemont freemont writes us a probably a standard ladder may be may get lots of those kinds of notices i don't know we have no you know evidence on the record for that but it's a put the burden on the general contractor to fully investigate those claims of those target at that time  i'm not sure there's any requirement under the law or under industry practice that that should happen but i mean you're right i guess if we had if we had fully investigated the the worker's comp claim at the time we got the letter from fremont i still think that the results of that investigation would look injured to our guy and i and i by held all rights guy who also saw him and didn't think that he was that badly hurt so i don't think that anybody was really on notice that this guy had a serious injury related were being issued by their agent not already chipped and so we don't know at least i don't know whether our broker actually knew about any certificates of insurance a preventive issue and you know i again speaking hypothetically i would think that that's true but i do not know that i do not have specific facts to that effect in this case to know whether that was was the case or not but what i do think is significant about all of the arguments that they've made in trying to restrict the late notice to the two thousand two thousand and two period this baby needed that they got notice not only of mr with most claim but of our involvement in it because if if they were denying that what they got into it in march of two thousand and two put them on notice of our involvement their late notice argument should have been we did not know about your involvement in this in total your new leaders sentosa rather putting us on notice in two thousand and six they did not make that argument before the trial court and they're not making that argument before you they are conceding that they got notice in two thousand and two all of this claimed end of our here well i know that's what what they think but there are those there are cases that talk about what happens when an insurance company has actual notice of a complaint and that's still cincinnati analysis that we raised before the trial court that question of law for the court we both thought that our motions for summary judgment should have been granted were you know that the court should have resolve these issues on the summary judgment questions but she found at least with respect to late notice of me to the extent that you buy into their argument that somehow the letter from fremont gives us some sort of notice that should have made us put them on notice at that time even though i think there was nothing in that letter to indicate that there was a connection between this mystery with the most injury and all rights involvement than you would get into a discussion about whether there's a potential for prejudice or not just  whether the facts presented to the trial court indicated that we had knowledge that mr rich symbols injury arose in such a way that all right was involved and we should have put american country insurance company on notice sometime between two thousand and two thousand and two the facts do not support that because there was nothing that we knew argument that we should investigated this or whatever then you would get into a discussion of whether it was reasonable to wait until the lawsuit was actually filed or whether there was any prejudice suffered by american country any time between two thousand and two thousand and two but i i don't think that we have to go where they are because based on the facts presented by this case we had no knowledge that we needed to put american country on notice between two thousand and two thousand and two and then two thousand and two american country got actual notice of the flying those cars are concerned your main issue is your cross t of a claim involving one of its shorts but that's not so you are basically talking about oh no this is very you know we're back to that again right like we're going round and round about well if you are actually say oh no this was a given and as far as you're concerned there is no there there is just this there's no case because you're from egypt we should have been granted there was actual notice all this other right i mean i don't agree with their three issues i wrote it length responding to their three issues in my brief but i don't think that they're correct on the law which is really what this case is about because we're not arguing about he in her role she did she actually denied my summary judgment motion i believe on a on a just on a legal decision because what she found i think she essentially agreed with me that the facts laid out the cincinnati type case but she said at the very end and we we quoted in our brief that i think the stop there is a severe sanction and i don't think it's warranted in this particular situation so she's not she didn't disagree with what the facts were she decided that this fit in this factual context that under the cincinnati decision to stop all should not be should not be additional requirement to be placed on notice again the or zero growth or any other additional ones for must also it is not it doesn't say that it doesn't say that and also but again i think it was unnecessary in this case because our argument all along has banned that when they got the notice from all right they also knew that it implies that the lawsuit implicated us and they knew that we were one of those that we were additional insurance under their policy direct tender for the first time yes so this also wasn't someone with that in two thousand and six this i'm not i'm not aware of a case that specifically deals with that question but as i as i read that line of cases there would be nothing that would prohibit that from happening and i could certainly see a situation where  insured is very happy to be defended by not its own company but like the sub contractors company for a long period of time and then when they get on the eve of trial and realize that the limits of that policy are not going to be enough to satisfy a possible judgment that they suddenly decide to reactivate one or more other policies that they would have access to i mean would you really only need one insurance company to defend you  what you would have to be concerned about in a john byrne situation is what limits do you have available when you finally go to trial and get hit for a huge judgment and so i could definitely says see a situation i'm not aware of a case but i could definitely see a situation where you could go for a long period of time having targeted one particular insurance company and letting them defend you and then suddenly bringing other insurers in and then like you did it as you say as you get to try out recently third unstressed company has had nothing to when theoretically they could have ben paying one hundred percent of our defense costs and a hundred percent of all rights to fence across from day one and we've never really asked for that relief in this case we we never took the position that we targeted we made a targeted tender to them back in two thousand and two that we targeted tender down in two thousand and six or even targeted did a targeted tender to them when they lost the rhythm a suit that was dismissed was refile we just want them to pay their fair share of the defense costs and if we get to that womb it says so this is this is wrong we did it we never there is no evidence that a targeted tender was ever made in this case so we don't want them to pay one hundred percent to their waiver position that that they assume that certain targeted tenders were made and therefore they're not on the hook and we responded to that by saying that no target attenders were made there's no evidence of that they were made and i guess to the extent that if you're asking what this case is about we want them to pay their fair share of the defense costs that we've incurred in this case the defense costs going forward because the underlying case is still going on and if the facts open that we determined at trial would indicate that they have a duty to indemnify us and we get a judgment and against us we want them to pay their fair share of that