party claiming to be insured the second the middle of those two was the only one that was actually an issue for determining the duty to defend in the first and third ones there were allegations that insured was acting as a property manager and that magazine partners inc is the named insured under the travelers policy mr butcher is not mr bush's coverage would exist only if you were acting as an officer or director of legacy partners inc in the conduct for which he was being sued in one complaint does not allege and he was not acting in their in their capacity anyway the allegations of the complaint are that he was acting on his own for his own interest and it's very clearly alleged in the complaint that he was acting to harm mr pog suggests that he was acting in the capacity as an officer of director under texas law you don't look at that under texas law you look at the allegations in the complaint and that's it and the allegations in the complaint are simply that you made disparaging statements about informally for for his own benefit for trying to usurp some of the rights of the corporations and that's where i think justin went wrong she purported to apply texas for women in fact she looked at this newspaper article some pages missing from x in the record on appeal and the court said we therefore conclude there was a duty to defend we need to get those pages and find out whether the same allegations are there and obviously in the absence of those allegations that means there is no duty to  western alliance case where if you're missing pages of the underlying pleading the court couldn't conclude there was a duty to defend there was an allegation of neck and plaintiff the insured installed a water heater negligently certainly if you were allowed infer that he was acting short capacity you might be able to in for infer that installing a water heater he was acting as a property manager particularly where it was alleged in the other complaints but because the pages were missing the court refused to not allege that it was in the conduct of a particular business that was the named insured in the courts and since it didn't allegedly found and so if we're going to apply texas law we have to apply the texas corners rule and under the corners rule you do not get that does not mean that he was acting on behalf of legacy partners inc his company over here when he was engaging and in double dealing and and misappropriation weatherly with his other businesses over here there's no basis for such an inference  you can go outside the complaint to find such basis for and such an inference but that is prohibited under texas law you simply look at the allegations in the pleadings and since such an allegation there is no du defend now in this case i think even if you do go outside to complain and bring in that extrinsic evidence then you're left with a situation where you have one business partner defaming the other business partner  let me just give it a very brief overview of all that's before you because mr holton spent a lot of time talking about one issue which i think is the very weakest issue that travelers can range from because  weak i think their entire position called hard well is his position essentially is that under the texas rule he corners rule you construe these allegations very narrowly now court to read the case if you look at page eight thirty that's where they discuss the future of care and they do not look at outside facts at all the rest of the opinion which deals with the duty to indemnify there is no duty to investigate in texas intentional or negligent then you might draw the inference that there's a possibility that it was negligent and therefore covered in a situation where the capacity is required the texas courts have said in the two cases we've cited which they haven't even attempted to distinguish judge in texas it's in the westport insurance corporation case two sixty seven second at page six twenty one and this was april of this year analyzing all various cases on the corners rule in the court concluded that there were a few very narrow exceptions when you could look at outside evidence otherwise just basically on the pleadings and it's not in this case is not one of those narrow exceptions now as for the voluntary payments consent if it wants to be reimbursed for that settlement payment i don't see a distinction in this between this case and that one except possibly that here since the time was even shorter it was even less acceptable for the insurer to somehow do something right away you don't have the information you need to contact the insurance company and so you simply don't have the realistic opportunity to do that this is not that case they tendered it and in fact they have the information needed to tender mr cox i believe it was from lincoln i don't know it was from mr polk but a letter to mr cox which was attorney two days before the polk complaint was filed which had all the information that was needed to tender claims travelers and in fact there's evidence of another to travelers that was made a couple of days before the actual tender in this case and that's and are they said there are settlement negotiations ongoing so you need to contact us right away the tender in this case didn't say anything about settlement and when they are two weeks later prevented somehow from doing that and there was nothing preventing them here on the attorney's fees california law should apply to those attorneys fees even though it were still on the appeal you haven't addressed the cross appeal right well awarded that being the case this court does not engage in a california court would not engage in a wing of interest between california and texas law on the issue of fees it's a procedural issue which turns fees are simply california  us to decide to do just hand only in very limited circumstances yes although there are pages and pages of discussion before the court reaches that conclusion where the court goes into an analysis of many many texas cases to come to that conclusion thank you thank ok there's a suggestion that if travers had more information it would have been something different but they're asserting even through today that there's no coverage that night that they needed more information about the