pair of issues they arise out of the handling the interpretation of the insurance agreements entered into by my client and aggressive insurance company in this case arises and somewhat unique situation because this is arisen in the context of a motion to dismiss there is no discovery nothing of any consequence that has taken place other than on the pleading itself what we have is a situation in which ws and it's a nationwide deal is the only apologiser i like to reserve five minutes when we bottle much of time and i'll try to help you out as well thank you very much your honor what it was sued in tennessee federal court equal credit opportunity act that occurred in the first another not your time there are certain there are certain similarities to have to be certain similarities what we have is we have a market rate what we have in the first case is we have that a class action brought by african americans talking about discrimination as to them it is a disparate economic effect in the second action we have is the thomson case we have one black woman michelle thompson who is filing the case along with t hispanics michelle thompson is not a proper class representative and can't be because she was never subject to a markup right so what we have in the first case is a group class action a group of plaintiffs suing who are african americans the second one w automobile loans everything you do arises out of financing and all has to do with mark operates in one way or another in other words that is the business w f s is in and complaints where it went out of their way to describe that there was never any discrimination by debbie fs w f buys belongs in what they do is they they have if i were to apply t we are absolutely nothing but fear because you are going to be thanks to a jury this is one of the kinds of cases that congress has been dealing with the class actions and extortion i correct that is correct your honor and we don't have that the same act i'm not saying it's right or wrong that you do it but why isn't that the same act we don't mark up the retail aspect of it that markup is done by independent auto dealers we do not get one dime of that money that every dime of that money goes to the dealer but the city market is done regardless of who doesn't one of the persons white black or subjective markup which is the retail rate that is the one that the purchaser or the fine the person being financed takes ws as has absolutely no control over what the independent dealer i mean in my words that's way right when in the end but doesn't it all arise out of the saying structure of how this thing flows through from financing to the dealer to the that all sort of an integrated transaction and starts in the same phrase which is your whole sterile rate correct it starts on the wholesale right yes but then that's essential rahner then that means that every activity that we do every transaction that we conduct every business deal that we enter into is then entire related entirely related because that's all we do we don't do anything else let's go back to what the insurance company insured what kind of claims ensuring what the lines of the it is ensuring essentially errors and omissions by our people and what the critical language in th end that's the first issue i think it's worth focusing on the critical language that they ensure is they clain made for a wrongful act that is made during the policy period the claim that was first made in the first control improper economic despair impacts on african americans in other words it is a class action no question about it in the second case and the second situation conduct being conducted against hispanic americans intentional discrimination against them based on the idea that we that the auto dealers not the b f s but the auto dealers are intentionally discriminating against them hundreds of your kind or your clients kind of differing views as between these two cases we don't know because we never got there there's no discovery it to least in terms of particular case here what we're talking about here is the effort and that was what the argument that progressive made in this case is progressive has a very tightly drafted policy that policy talks about integrating but it's an integrated on a very very narrow basis the zero zero policy says we can take interrelated claims so far as they are made in this policy period or ri before this policy period based on the that particular provision it seems very clear that temporarily the time element that's involved here it doesn't take that is the zero zero policy would not cannot linguistically incorporate a claim that was made in the next policy period it just can't happen well the claim has been made in the second policy period right and it can take into account things that happened in a prior policy period right no no because in the zero zero policy it says we only covered in the death a mission of related claims is that which was made in this policy period or the policy period before that in that sense progressive policy is very different than every other policy of which i'm aware of in the insurance industry every other policy in the insurance industry talks about claims that are made in prior policy period during this policy period and after this policy so you could have this incorporation or this importation progressive didn't do that well it's the same wrongful act so let me give you let's say that to get one of two different wrongful acts i'm making the assumption based on what your honor has raised in our hypothetical that the claim that arises out of that wrongful act is made in the two different policy piers and i correct on that on ok it's like it is here that's what i make any if we are in that category where we have d n a taken in two different policy periods those claims are made in two different policy theories based on the extent law in california and this is a case that arises in california those two claims have to be treated as two different claims and they were is under two different policy periods that is the homestead case are you saying that they could not provide what they appear to provided that mcgowan's question a moment ago your honor the california court of appeals has said in the state of california if you have two claims that are made in two policy periods and in that case it's exactly the reverse of what we have here the first claim was made in that case in the state court the second case was a made in the federal court in the following year the court of appeal in the homestead case a very clearly these are two separate claims made that were made into a policy period and we don't even reach the question of the interrelated aspect they specifically said we don't need to deal with that issue so then the question becomes and the homestead have two policies or you have to do two different policies by the same carrier or policies issued by separate carriers it makes no difference because when a carrier underwrites a risk the carrier ask except a premium for accepting a bundle of risks that consists of claims baby during a particular policy year in the case of the homestead case we have homestead accepting the bundle of risk for one year under one if you take a look at those prints were talking in the hundreds of thousands of dollars as what that cost to buy this insurance what was ws best buy was buying coverage for certain risks and all they are in the business of doing committed by one or more of the insured persons in this particular case just any let's take the situation where we talk about the african americans in the leak case i will accept that for purposes of this discussion and for purposes of the court's question all of those african american borrowers who are complaining about being discriminated against in the leak case that constitutes in a related case in a related claims single claim everything fits together in other words i can't tell you how many thousands i've you know i've discussed that question with the law that litigating lawyers who handle that we're talking about many many thousands of claims that were being made and that policy were made and there is no there is no example that at that could take place in the context of the language progressive use here to import a claim from the second policy period into the first because  language for two reasons one is that under the homestead case we have to have the claim made in the policy period that in other words the court of california courts have indicated we do not transfer from the second period into the first that's the first issue that and we do that without regard to whether it's going to relate let's make the assumption that california will take the position that is taken by some courts outside of this country and you might wind up looking at it as being in a related so if we have african americans and a second policy period those might be amalgamated into those cases have progressive chosen the right language could have been moved up in the first policy period again in certain states but the bottom line of what you're saying is that their language has no effect that language in what i'm saying is that language has and cannot legally have any aspect in this case because under the any case in this case or any case in california if one is going to follow if i'm making the working assumption which i have to in this court is that this court follows your reverses tomkins if this case if the california courts have ruled on this that is the x thing outlaw of california when they deal with the issue of what constitutes the claims made policy then this court isn't the same position of having to say one doesn't import from the second period in the first without even considering the question of in a related claims two minutes if you want to think that i will say that thank you very much your  and at that point i will sit down thank you be applicable however each such single claim shall be deemed to be first made on the date the earliest of such claims was first made regardless of whether such date is before or during the policy period made one in the first policy period one in the second policy period i would be don't see how there can be a substantial argument as to whether they are not related but i'm happy to engage in a discussion of course the policy provides that is sued in two related claims that the claims will be made at the time of the earliest such claim and this instance that's the first policy and they got the benefits of that policy the policy benefits were paid for some reason an influx of all you have these parties same parties to these two one year contracts which in this agreement which makes perfect sense which is that progressive is not agreeing to stack limits in effect for related claims and because you have the same parties to the same to the two contracts issue here the case is entirely distinguishable from homestead where you had the second carrier in effect trying to push a loss back on the first carrier it was in a situation where the first carrier was on the risk at the time the second claim was made and was had provided that it would in that second policy period create that claim is majoring in first that in fact they remain very much the same the only real difference is that the amended complaint in thomson and it's the legal language necessary to make out an undergrad claim that there wasn't that the same conduct did not just have a disparate impact but that it also gave rock was also intentional discrimination the underlying question was what was the the alleged wrongful conduct in that and the policy works on the basis of watched alleged to correct that the alleged wrongful conduct in both suits is that there was this national credit pricing policy and that this policy was alleged to allow  the automobile dealers to apply subjective risk factors or of subjective factors to determine a supplemental interest rate to be added on to an end objective legal term and interest rate it was the exact same distinction but there are others and the others are that the language in the homestead policy the first of the two policies addressed by the court in homestead did not even seem to contemplate that claims might be moved outside the year in which they were made it seem to be contemplating more just an aggregating of related claims that were made within a single policy that didn't have this language about whether such earlier claim was made before or during the policy period likewise the second policy in homestead issued by stiffer insurer did not have any of this related claim language at all it was relying entirely on the language in the first policy second claim is in the first instance made in the second policy period that's in the lawsuit filed no doubt about it you look at the policy in effect at that time and it has this related claim language and it says that this guesser thompson would be covered up to the extent of the remaining moments in one exactly right and in fact that is what happened here because they were they were settled together and the you're one that would allow the later may thompson claim to be treated under policy or one that is simply not true policy or two says that that claim the thompson claim is going to be deemed made in year one these are the same council for the fs made he suggested a couple of times that if progressed as construction of this policy was a district court excepted here were to be accepted by this court that in effect there is no coverage potentially available under the second policy because this these suits arise out of the core of the fs is automobile financing business so it is simply not so i mean these are broad errors and omissions policies ultimately the point the council makes it seems to me would be judged by are the two suits sufficiently related i mean if progressive were to try to apply the related claim language to something that's really has no i would submit that the this court is this this case is really governed primarily by the bases case which in which the california supreme court adopted a broad reading of related claims type language bases makes it very clear as many other cases decided by the california supreme court that insurance policies are to be applied according to their plan and i think it was terms  identical claims made language are virtually identical claims made in language between the progressive policies and the policies that were considered in the homestead case furthermore the interrelated claims argument the inner l a related claims clause that is also set forth in the same footnote and as the court will undoubtedly note that in that situation that particular clause dealt with claims made before during and after the policy period and the california court of appeal so we don't care whether it's before during or after claims made means what it says claims made during the policy period to your honor's question this is to judge the judge fletcher in terms of the premium issue one hundred forty four percent increase in the second policy period everybody understood that a claim had been made in the second policy period attached to the complaint are letters indicating that progressive understood that both of these claims would individually exhaust respectively the zero and zero one policies there is no evidence dealing with the premium cost or the increase in premium because after all this was a motion to dismiss we never got to discovery on this issue third issue that i like to focus on for a second which is and some degree related to what i started off with is the went case deals with a clau just like we saw in the homestead case and that is in other words dealing with before during and after in this case all we deal with is under the zero zero policy is before and during the zero zero policy ye language can be malleable but before and during does not mean after and so therefore the thomson case the second case cannot be important in the first policy period finally in terms of what happened in the  mr laws makes great light of the fact that the language in the in the in the case in the second case that is the thomson case is fairly similar in the complaint so claims were related in both cases the district the superior court concluded that the two claims were sufficiently unrelated that the thomson case should go forth despite the leak case and furthermore the court refused to abate discover issue a protective order in the thomson case because the claims were sufficiently unrelated to allow that second case to go forward so in other words the superior court typically carriers are bound what happened by what happens in the underlying cases in