this is a case of first impression in california despite repeated searches i found no case in california which construes the language of the legal action against us clause in the child masterpiece policy that is at issue in this lawsuit for all the reasons we stated in our opening brief in our reply brief you know our motion for partial summary judgment iraq positions to the policy in question the legal action against us clause in the context of the policy of as a whole to find that it did not operate to obligate my client to file a claim with federal insurance within quote one year after the loss occurs and it did not render my client's lawsuit filed on december tenth two thousand and fifteen on time i think i can go with you on part of that but i'm having difficulty understanding your position on some of it let me guess what we have show you what my problems are look like toilet overflowed while the contractors were fixing making the house nicer  buttons instead of letting the homeowners know that all that beautiful hardwood flooring was room and have a contractor said no no no it'll straighten out the warp will go away when it dries out so i can see a basis for not reporting a loss then that they've been told by an expert that there's no loss six months later the flooring is obviously r have but let's say they still have and i think that's around june or july two thousand and thirteen you know the floors just not getting any better and i don't see why they didn't have to report a loss and fill out a proof of loss by september by june or july two thousand and fourteen and they didn't and they didn't sue until september two thousand and fourteen which is more than a year after they know the loss and that's where i'm having trouble on interpret ing the clause it seems to me pretty clear that under the california interpretation of the clause and tolling that they can file a proof of loss a month before the year runs out and they're ok because the insurance company has to act on the proof of loss one way or another and they're years told while the insurance company's deciding what to do and then if the insurance company says no they've still got a month to file tell me what's wrong with my reading of the facts or the law they're yes you're on the assumption that the law in california that arises from insurance co section two zero seven one and the standard fire insurance policy language which is not present in my client's policy and is not binding upon then under the terms of this policy to file a claim or commence a lawsuit within twelve months after the inception of the loss every case that a pelleas have asserted and every case decided in california zakk quote of the standard fire insurance policy language but chubb which is the parent company of federal insurance did not draft this policy using the language from insurance code section twenty seven twenty seven the one if it had honestly we wouldn't be here it didn't and therefore the meaning of this policy language the legal action against us cause is what we say it is or it's less that meaningful distinction in the provision used here and in the provisions that are consistent with california charts code section twenty seventy one there is a comma and twenty two additional words which follow the phrase after the loss occurs which states quote but not until proof of loss has been submitted and the amount of the loss has been determined and it also says but not until thirty days after both of those conditions and requirements have been satisfied so we're not the first person the first parties who have asserted that that's what the way which means that there are that this is a no action clause which imposes suit preconditions on the commencement of legal action against the ensure that case or if your position that the one year doesn't start until after your client gives notice of the loss our position is that under this language as written by federal the period to sue does not commence until after the legal action against us cause conditions preceding to suit have been satisfied or waived by the insurance company so what if you waited five years before giving notice of loss of the company then you can still do because the twelve months to sue than commence until you actually decide to get around to giving notice but i'm glad you asked that question your honor i'm sure you'll be glad to go ahead all right this policy has two provisions one is a claim notification provision which requires that the insured must give notice of the claim quote without unnecessary the letter that's all  separately there's the legal action against us clause which obligates them to bring a lawsuit right after the insurer has fully investigated the quite now but that's the promise as you agreed to bring any action against us within one year after a loss of cars but after you've given notice but not until the conditions proceed to suit have been complied with now if they had not included those words again we would be in the same scenario as the old sorry go home for the she said if they had not included those words in the policy we would be in the same scenario twenty seven he won you must bring a lawsuit within twelve months after the inception of the last period but we have a situation here where in preparing for oral argument i have taken a good look another good look at the a denim of authorities which is attached to our opening brief and on page twenty three of that the denim of authorities there is a sub division of the california surance regulations which makes federals interpretation of the legal action against us cause unlawful and forcible specifically their position is that you have to bring notice of the claim to the insurance company within a specified period of time because they're arguing that the legal action against us cause not the clay notification process is what binds us here but if you read sub her graph d of california's years regulation section two six nine five point four which again appears at page twenty three of our denim of authorities it says quote except where it time limit is specified in the policy no insurer shall require a first party claimant under a policy to give notification of a claim or proof of claim within a specified period of time under your determined by the insurance companies determination that it has suffered substantial prejudice by reason of the laid claim notice because california law says that late notice of a coin is an issue where the insurance company bears the burden of proof that it has suffered actually substantial prejudice by reason of the delayed notice of quite so you can wait five years to let the insurance company know that you've suffered a loss and unless the insurance compan argument you make is correct you construe contra profer anthem and the ambiguity argument you made is textually supportable you can read the clause with the textural approach and say it means the later of two things i have proof of loss and the year which is basically how you are reading it legal action against us must be within a year of the loss or the filing of the proof of loss however the california contra pro for interim doctrine applies to ambiguity according to this california supreme court case continental insurance if the clause is not only capable of two or more constructions as i leased personally at home my colleagues concede that you're correct but also it says both of which are reasonable and i can't see that it's reasonable it seems to me the only way anything's reasonable hears if you used the prudential approach because otherwise you wouldn't have to sue the insurance company so you felt like it there'd be no limit at all you could just delay filing a proof of loss and them that's not reasonable the whole point of this is that they get notice of the loss early earth early enough so they can investigate while things are going on and also so that they can control whatever reserves need to be set aside and dispose of matters  promptly enough so that they don't have a huge contingent unknown and litigation risk if i may your honor we didn't draft this policy respectfully disagree because prevention and the tolling doctrine arises because the language in that case and the language in every other california case has a absolute one year period of time in which to commence the action but you're only getting read out the phrase that you agree to bring any action against us within one year after last because it reads it out completely out it all your own i just read that the first part which you just mentioned and the not until together it's that it's federal that is reading the but not until thirty days after language out of the policy and acting as if the policy is like a prevention well in my insurance section twenty seventy one provision when it is not they wrote a provision which has suit pre conditions they prevailed in this way be case by arguing that the plaintiff in that case filed a premature lawsuit before she filed a pro of claim a sworn proof of loss and they said that it's a no action clause barring you from suing us until all the soup preconditions are satisfied judicial stoppel as i said in my brief bars them from taking that position in this case collateral the meaning of that statute which they convinced the district court in florida and the eleventh circuit that is a no actually cause a suit preconditions and under those circumstances after this but it is in the following regard they argued as a matter of another before i had a skin is there a specific case you can cite yes this way the case asserts by by federal that it is a quote no action clause with sue pre conditions the bar premature filing of lawsuits if that's what it meant in face wavy that's what it has to mean here so if the lawsuit can't be filed before those preconditions are satisfied then the statute can run of limitations clause but now go back and check on that it did if you read the decision of the eleventh circuit the two things are one is the condition precedent you know focal point is for the post provisions and separately not waiting thirty days you know until after doing that to file suit so both of soup recondition element and those are those are two different things the proof yes was the purpose of that from the insurance company's point of view is you don't sue us so we get a chance to act on the claim and the one year or in swabian was five years legal action against us clause does a different thing make sure that the claims get resolved within a period of time so that they don't just build up and hang over us at the very same language as two but not until thirty days after the super conditions are complied with are in both cases and federal argued those cases to the eleventh circuit and the eleventh circuit agreed and decision that it was both aspects it was noncompliance with the but not until thirty days after provision and in that respect judge respectfully got it wrong both aspects of the legal action against us because where the good morning your honour's man please the court plaintiffs insurance policy required them to bring any lawsuit against federal within one year after a loss occurs it is undisputed the plaintiff filed this lawsuit three years after their loss occurred and in fact that they did nothing at all to pursue insurance coverage for nearly two years after i started they filed that a couple of months after the year a lapse from when they actually knew they had a loss because the contractor strong along so i think i don't need have i agree that under the latest possible date this loss could have occurred is in june or july twenty third teen as your honor's question it's just a contractor told them and contractor knows more about these things and they do  not know your floor will be fine just has to have time to dry out so i don't want to under california law and we have always taken the position that this loss occurred in november by the latest and twelve tractor because that's why whatever they were aware of the sewage back up in november two thousand and twelve they were aware that had damaged their home and under california law the question is when are they or should they be aware of appreciable damage to their property so the they are not to spend money because it's hard to sewer back up it's not the neighborhood sewer or the public sewer had backed up really it's that something went wrong with the downstairs toilet i think the specific specifics on that were disputed it's just not relevant in the end your honor be to know whether there's any third party issue indemnity or anything like that right the question is whether they're aware of appreciable damage but were guard less of when exactly the loss occurred it's undisputed that it occurred at the absolute latest in july twenty third teen and as your honor suggested they still notified federal more than a year after the september of fourteen was when they gave july of thirteen and september of fourteen is more than a year that's correct your honor this lawsuit was filed after the time period expired and if you go back and ask is there anything they did within that first year in order to be deserving of tolling the answer is no because as the question suggests they took no action at all now to address their argument their argument that the one you period actually runs from the date the amount of loss is determined they get some of the questions suggested violates pose the text and the purpose of this provision so as i said at the outset the language is clear that the one year period runs from when the loss occurs the language that they rely on describes the trigger for that one year period but another precondition to filing suit says you have to bring suit within one year after the loss but not until thirty days after the proof of losses submit in the amount of loss is determined and what that final language that provision is there to do your honors is to ensure that the insurer has a reasonable amount of time thirty days to evaluate the claim and decide whether to pay it the policy is still clear that the time the one year period in which for that and the other precondition suit to occur runs from the date the loss occurs and as the questioning also suggests their position not only ignores that policy language it would negate the purpose of this i'm not sure about ignoring the policy language you have the but not until clause suggests that yeah reading this literally i have to sue within a year but i can't sue until a proof of loss is filed and if i'm able to file a proof of loss because of the difficulty of ascertaining the loss i might be filing it two years after the original event that caused the loss but i'm still timely and i couldn't i wouldn't even allow to sue until two years in a month and after i found the proof of loss so it is true your honor really i think that's just how one of the  text really legitimate interpretations of the clause would go it's not so the problem with that reading your honor is it gives absolutely no meaning to the words you agree to bring a suit with it against us within one year after a loss occurs they are reading it as if it says you must file suit within one year after the losses to turn over what it would still have meaning and the meeting would be if the proof of loss was filed say in a month to withdrew the loss which is not uncommon it often happens and and month three or four the insurance companies said no had the new file suit within a year in most cases would probably be covered by the one year absolutely your honor that is how this this language is supposed to function they are supposed to report the claim without unnecessary delay and in any event within one year and once that happens they get the benefit of tolling for any time it takes for the insurer to investigate to reach a decision and whenever they submit a claim within that one year limitations period and start the claims handling process there will be no problem for the insured you have the one year is going to operate on most cases because at the last will be plain the proof of loss will be filed in the insurance company will deny reasonably promptly if it's going to deny so the only limitation that will operate is the one year that's correct your honor and i'm not sure if you're disagreeing what i what i'm trying to figure out is what you mean when you say the clause would have no meaning if you interpreted it purely according to what the text says in other cases it would have meaning but they are in on these facts when they filed suit three years after the loss occurred the question is what event triggers the one year period so in this case at least your honor i agree in other cases the every provision could have effect but when they do not contact the insurer until after the limitations period has expired to suggest that the one year period actually runs from when the loss is determined would read the words within one year after a loss occurs out of the policy and in any  t your honor as a district court explained their reading even if you don't believe that it's unreasonable as a textual matter is entirely unreasonable as a reading of the policy or terms what happened this is a case a professor takes a sabbatical in europe and their rents his house to a new assistant professor and that there's a loss while he's in europe he don't even know about it the renter than tell him about it and he gets back after the years justification for not knowing when the loss occurred then that will be to the benefit of the insured again in this case they knew that this event happened in late two thousand and twelve they did nothing to pursue insurance coverage for nearly two years after that so i thin at least on these facts there is no ambiguity and the reading under which the policy runs from the date of the loss is the only reasonable reading your opposing counsel realize on this wabi this is in from the eleventh circuit in two thousand  you agree that it's persuasive fair or not no is what he's getting at here is that it led to the inconsistent positions by federal correct your honor and it is absolutely not inconsistent because wade has absolutely nothing to do with the one year suit limitations period the insured they are actually filed suit within one year after the loss occurred the problem there was that she had not filed approval lost before doing so and so the court agreed with federal that she had run afoul of the first sentence of this legal action paragraph which is the no action clause there's no inconsistency in any way in fact the two provisions are distinct and complimentary the no action clause says they have to complete all preconditions before filing suit and the limitations period imposes a time limit in which they have to do so and in that respect this is like virtually every property insurance policy i want to one of the themes underlying their argument i think is that as a policy a public policy matter there's something improper about this contractual limitations period running before they've complied with all the preconditions to suit but that is how this and virtually every property insurance policy operates including the twenty seventy one provision that the california supreme court address and we don't contend that the text of our provision is exactly identical to that but in this respect it is the same as that court explained that policy similarly requires the insured to quote satisfy all conditions precedent and institute suit within the same twelve month period and that's just to say the one year period can start running on the date of the loss before they have the contractual right to sue that is clear under of california law that statements made after the limitations period has expired cannot as a matter of law give rise to a waiver or stoppel and i just want to point out that they do not even dispute that principle in their reply br to the status of mr gasol that's correct and that in their reply brief they their only response to this clear bright line rule of california law is just to say that it does not apply because the limitations period has not expired so after imposes conditions on the can mention meant of legal action by the insured if it's a no action caused the suit preconditions then any suit brought before the supremes conditions are complied with breach is the policy and like federal argued in suede be filing a premature action before filing a proof of claim or a proof of loss breached the thirty day no action provision of the policy and specifically in there that page at the excerpts of record at five eighty six there is  swayed federals argument in suede which articulated both aspects as being at issue one the condition of the policy requiring a proof of loss and separately the no action provision saying you can't sue us until you wait thirty days after filing for proof of us so since both of those provisions were at issue and advocated by federal in that case then traditional stop and collateral stop on the legal issue of moves policy language applies thank you very much counsel