two principle reasons first the court's principle holding that crowley did not timely report or timely give notice of a claim the capital c against an insured person under the national union policy is contrary to the established facts as recognized by the district court itself that notice of a climb capital c was provided by crowley in april two thousand and eight and that notice of a climb was so either notice establishes that a notice of claim was provided by crowley before the expiration of the runoff period and the district court's opinion that there was no timely notice of a climb with respect to the d o j and i trust investigation here crowley in two thousand and eight gave notice of a claim not the notice of circumstances so in two thousand and eight crowley presented what it intended understood and asserted to be a notice that a claim had been made against insured at that time and office depot the insured provided what it characterized as a notice of circumstances so it acknowledged that there had no been no claim against an insured at that point in time so an office depot the insured then retroactive tried to convert preclear aim defense costs into covered defense costs by asserting the relation back doctrine but here crowley's position all along has been that there in fact was a climb asserted against mr farmer was a claim in two thousand and eight i mean let's recognize the issue for the difficulty that if it is a difficult issue yes because the affidavit existed it was known and it was presented as a climate asserted by crowley as establ that a claim had been made against mr farmer but they couldn't prove it at that time did everything you could find out the contract and they said oh don't speculate to the pound don't speculate the wrong correct correct and you know i think that i mean a key issue here is the difference between whether we could have proven its entitlement to coverage in two thousand and eight without the affidavit but that's very different from whether it had provided notice of a climb let me ask you this on stand  notice of a claim but was as the insurance company said and the district court found a notice of circumstances then with respect to the february two thousand and thirteen claim you are right squarely within the facts of office depot correct if there was no claim until two thousand and thirteen then you probably cannot recover the defense costs prior to the time t brief the argument that notice was given in two thousand and eight oh now you make that all you must like you don't try to tie to two thousand and thirteen well correct we don't we don't probably has never relied on a notice of circumstances and relation back argument or treated like to know right now you are you not waiving reliance on relation back section seven c we're not waiving reliance on that what we said is that under these unusual circumstances  to the set national union chose to treat this as a notice of circumstances and repeatedly said in correspondence if you have additional evidence at any point in time to support your claim we will accept that that under these unique facts upon relation back section seven see now we're relying on the notice it was given in two thousand and eight as establishing that notice of a claim was given at that time and because notice was given and the district court a national union itself acknowledged at that time contemporaneously the crowley had submitted these materials as a notice of a klein and that's in docket thirty six dash six and the national union's acknowledgment letter and so probably did exactly what it was supposed to do under a claims made and reported policy when it was aware of something that it understood and believed to be a climb it gave notice to national union the gulf insurance and jennings cases that are cited by national union don't require anything more they require that the insured give the insurance company a prize the insurance company of the client and it probably had not provided notice and april of two thousand and eight the time that it was aware of the investigation aware of the search warrant and aware that the search warrant had been obtained by virtue of an f b i special agent affidavit that was submitted to the court and kept under seal undoubtedly national union would have asserted that a later notice given after the policy period would have been untimely so probably did what it was supposed to do and as this court's decision and h r acquisition demonstrates there doesn't need to be service of the affidavit or the claim document on the insured in order for there to be a climb and there doesn't have to be received by the insured of that document at that time in order for it to be a klein the policy language doesn't require that  claim existed in two thousand and eight because there was a rioting in the form of the affidavit that identified mr farmer as someone against whom a criminal proceeding may be brought the unfortunate unusual facts here are that that document was under seal for a very long time and unavailable to crowley but when crowley was able to obtain the document that proves that what crowley said in two thousand and eight and has said all along is correct that in two thousand and eight april two thousand and eight a claim in fact had been made against mr farmer and the h r acquisition case makes very clear that policy drafters know how to include a requirement of service or notice in order for something to qualify as a client and there is no contrary authority from national union here and that sense this case is not different from say a key tam pleading where the insured may become aware that a key tam complaint has been filed l b a kept under seal it can provide notice to the insurer that the complaint has been filed and the insurer may dispute whether the insured based on that notice has established that a covered claim has been asserted or that what has been what's been notified is covered by the policy but there's a difference between disputing coverage which often happens and often isn't resolved for years until after the notice is given that's very different from saying that the know this was not given and made to you who have trouble with  the danity of the person and you can have what you would like laid a notice that is right you can have that and of the  the what the language you need in order to get coverage is language that would be to the effect that you could have a notice of circumstances and then you could later have actual proof of a claim you could have a notice of circumstances which didn't quite notify the company of a claim and then later you could in effect prove that that situation was in fact a claim that's what you need and that you find that in the language the only relation back depends on thousand and eight does not depend on when crowley was able to obtain the affidavit the affidavit the contents of the affidavit either rise to the level of being a climb and that they assert that mr farmer is a person against whom criminal proceedings may be commenced they either did that or they didn't do that and they either did that in two thousand and eight or they didn't do that in two thousand and eight full of claims might say you have to have both the claim and the republic to the company and you can or a pull to the company after the discovery period only to say i haven't see relation back but here we have both because the affidavit once unsealed establishes that in fact there was a claim made in two thousand and eight it was sealed so we didn't have access to it but the claim in fact was made the contents of the affidavit in two thousand and eight establish that mr farmer identified him as a person against whom a criminal proceeding might be brought so we have step number one step number two is was there notice of that claim given to national union in two thousand and eight the question isn't whether we proved in two thousand and eight that what we were giving notice of qualified as a climb or satisfy the coverage requirements were entitled us to coverage the question is did we give notice to be apprised national union of the existence of this document of the existence of the investigation at that and affect us a in notice of circumstances can write been in to claim it's not a notice of circumstances because again at the time that crowley said this is we're giving you notice of what we understand and believed to be a climb i actually litigated in the situation for all the reasons that the district court said race judicata didn't apply which have nothing to do with whether we did or did not give notice of the climb in two thousand and eight the claim dot the critical document affidavit was not available so it was not presented to the arbitration panel they didn't consider it they didn't make any ruling on it nationally union itself argued and this is similar to the plumbing case there is evidence in the record about th affidavit but this panel should not consider it and making a decision as to whether there is coverage because it's unavailable and as a district work correctly held what we have here are two separate breaches bates based on separate conduct occurring at different times the first in the arbitration was a consideration of whether national union had breached by not paying defense cost based on materials that were then available which did not include the affidavit the second breach the second separate causes what's before was before the district court which is once the affidavit was obtained and presented to national union did national union breach by not accepting coverage and providing for the defense costs at that point in time kate thank you  interest so we won't hold that against your time you'll have minutes in reply thank you and if you don't need an extra few minutes we'll treat you the same way mr duffy correct and it should be affirmed so we understand you're not saying that crowley should have done anything they didn't do of than agree with your position when you rejected their claim right i mean they did everything they could do the question is whether under the policy language that entitle them to recover when not relying on a claim that they did something wrong here or for did i but the our our our failed to do something they could have done well though they could have tried to get a copy of the affidavit trani didn't try that we don't know what would have happened so but we're not relying on that as the basis of how do you try to get an affidavit in a federal criminal investigation well mr farmer got a copy of the affidavit in two thousand and thirteen and he could have asked the judge if you could show his insurance company it would have been a discretionary i don't think pharma at pharma didn't have a copy of that the david in two thousand and thirteen all sophisticated parties if they had wanted this kind of thing to be covered they could have purchased coverage that's right i mean this is a contract between large businesses and it says what it covers and it covers what it covers and it doesn't cover what it what it doesn't things have to have happened there has to be a claim made against an insured within the discovery period and that claim against an insured has to be reported to the insurance company within the discovery period and that didn't happen here we have a six year discovery period november first of two thousand and thirteen is a hard outside date for reporting claims for the first time and there was last there is an exception and that is if you can qualify under relation back if you have relation back that's right a relation back applies to claims that are first made after the date of the notice and they're claiming that the claim he was made before the date of the notice so on its face relation back wouldn't apply to this situation and if a claim is to things they submitted the search warrant they submitted a grand jury subpoena now we know that those are not by themselves claims and crowley is not even arguing that they are the only additional notice or information provided in two thousand and eight was a statement that the affidavit is under seal and therefore its contents are unavailable and nobody knows what it says that even without res true to conduct is not the report of a claim against an individual because they didn't tell us in two thousand and eight to any individual have been identified in writing by the government as a person who might be charged they did tell us that because they didn't know it they had no idea what the affidavit said they had no idea if at that time whether it was a claim or not and if you don't know whether it's a claim you can't say that you've reported a claim you have to be able to identify the claim before you can report it and they didn't do that in addition other than the merits of the fact that there was no reported two thousand and eight we've already litigated this question we had an arbitration in two thousand and twelve and the panel ruled in two thousand and thirteen that as of that point durbin no report of a claim to national union and therefore national union did not have to pay the fees incurred starting in two thousand and eight running up through the date of the award in two thousand and thirteen the just a court probably found that the arbitration awarded race judicata on that issue it's exactly the same issue that we have here the issue in this case according to mr she grew is whether or not in two thousand and eight a claim was reported to national union that was the exact issue that was submitted arbitration and we have a decision from the panel which says no that is in the exception res judicata you have a new evidence as walk the affidavit in fact contained in your position as onder standard that doesn't matter because the question is well we knew in two thousand and eight it contained that's now that's right the question is what was reported to national union in two thousand and eight and whatever they found out in two thousand and fifteen it's interesting but it doesn't change what was reported to national union in two thousand and eight and two thousand and eight they did not report that mr farmer or anybody else had been identified in writing they didn't know that until two thousand and fifteen the fact that they found out about it seven years later doesn't change what they reported in two thousand and eight it doesn't expand what they reported and it's there for it doesn't change the result of the arbitration which was a house of two thousand and eight claims have been reported to nationally union it's exactly the same cause of action because what they have to prove is is the same thing the question was has the claim been reported yes or no as of the day to the hearing in two thousand thirteen they said no that i think is this far as we have to go to establish that judge harkness decision is correct here if no claim is reported in two thousand and eight and there's no coverage for the fees were incurred starting in two thousand and eight i bet you're gonna go for the archer yeah i am because there are two things that have to be proven one is that a claim was reported but also that a claim was made and i think i need to say some things it but they're saying the claim was made because mr farmer on april sixteenth the search warrant wasn't executed until the next until the next day so on the sixteenth they didn't have any idea that there was an affidavit you really can't plausibly say that a claim was made against someone if he has no idea because under a claims made a report a policy the date when a claim is deemed to be made is what governs when it has to be reported and if we were to say that a claim can be made against an insurer even though he has no idea you would be putting on the insured an obligation to report things that he knows nothing about that may be what crowley wants you to do in this case but it would be a terrible decision for insurance in general if this court were to say that insure it's have a duty and obligation to report things they don't know anything about in if they don't do what they lose all coverage under the policy florida law says you have to construe the policy in order to produce a practical reasonable workable result and that's what we're trying to do here we're not trying to read language into the policy they're trying to read language out of the policy because two things have to happen you have to meet the definition of a clean and you also have to show that the claim is actually been made against a person and by focusing only on the on the definition they're ignoring the requirement that the claim has to be actually made against the person and if we look at the definition of claim on the part one which is a written demand for relief that also has no receipt requirement built into the definition but want to ask their own custom and practice expert at his deposition how do insurers handle that he said oh well every insurance company knows that a claim isn't made under part one  well i think that's right but that's exactly the argument that we're making about par three that it makes no sense to construe this policy as saying that a claim is made when somebody has no idea this question  this is the closest that i could come to figuring out a way that there should be coverage and i don't think your opponent get it but i'd like to know what your  poet to the insurance company within the discovery period in february well i think a little after they both had but in two thousand and thirteen before the discovery period expired and then which was reported to the company showing that he was a person might be charged under office depot coverage is only forward looking and not backward looking there was no prior claim reported because all they said is that we don't know if there's a claim or not the f we assume that that's the case it still wasn't reported to national union the still has to be a report and it was real posted that same claim was reported in two thousand and thirteen within the discover made the claim that we were no i don't think it is the same claim the investigation becomes a claim when someone has identified and he was identified for the first time when he got the notice the coverage then is only forward looking there qualify the relation back for two reasons he hadn't that's right and it doesn't qualify and i just have a minute but i want to briefly jump to the statute of limitations because this related to this issue we have a five year statute in florida runs from the date of the breach there's no discovery period or runs from the date of the breach regardless of when the preachers discover it so it doesn't matter whether you know it or not at the time your response on the statute of limitations they say well the breach that we're talking about happened in two thousand and fifteen but the only way you can say that the breach of contract happened in two thousand and fifteen is to concede that the claim was ripped first reported to national union in two thousand and fifteen because under this policy the reporting of the claim is the event that triggers coverage and creates the obligation to pay so in effect by arguing that in fact that's exactly what they say in their opening brief below on the summary judgment issue they say the statute of limitations for breach of contract could not have begun to run before the triggering event for coverage was presented to national union in a deny coverage all of which took place in two thousand and fifteen  think they are saying that in order to avoid statute of limitations they've essentially surrendered on the merits because they've had to admit that the claim was first reported to national union in two thousand and fifteen it's outside the discovery period and exactly for the reasons th they don't actually get to pick the correct and the they lose either way but that what they don't get to pick that they pick because it was first reported in two thousand and fifteen even if they work right then they would lose just lose for a different reason i have a question about something you say in your brief on page sixty seven national union ultimately paid approximately two point six five million in defense cost incurred by mr farmer from there were eighteen thousand and thirteen through the conclusion of his trial that's not consistent with the number i understood where we're just i think there are two different numbers there was an indication of a two point five million those are the fees that were incurred from two thousand and eight through two thousand thirteen those are the fees that we're talking about here and then the fees in two thousand and thirteen through the end of the case are the ones that we paid so there's two different buckets of fees this pre two thousand and thirteen opposed two thousand and thirteen fees xcept in national unions position an argument here would mean that anytime an insured gives notice of a claim of a complaint of something that believes is covered under an insurance policy the insurer can manufacture a late notice argument by simply disputing that what was noticed in fact qualifies as a claim as something that's covered under the policy and that's exactly what's happened here national union has taken a substantive issue over whether the affidavit was a claim and turned it into a late reporting or late notice issue and that's simply not the case when crowley gave notice to national union in two thousand and eight it gave notice of the investigation the search warrant which referenced the affidavit all as what it understood believed and asserted was a notice of a claim as defined in the policy crowley repeatedly asserted in its notice correspondence with national union over the course of several years following that what in fact happened was a claim against an insured person that there was a writing that identified mr farmer as a person against whom a proceeding may become asked crowley simply could not obtain that writing to prove its case to national union because through no fault of its own the document was under seal national union itself acknowledged that this was submitted to it as a notice of claim capital c in two thousand and eight that the arbitration panel stated repeatedly in its decision that crowley gave notice of claim to national union in two thousand and eight the arbitration panel did not decide the crowley had not timely reported or timely given notice of a claim under the policy the arbitration panel decided only which is exactly what the district court correctly ruled that there was not evidence submitted to national union up to the time of the national up to the time of the arbitration to prove that a claim in fact had been made in two thousand and eight we want to talk about what the reasonable interpretation of the insurance policy is here and how policy should not be interpreted to reach an absurd result how absurd is it that crowley in two thousand and eight says we have federal agents searching our premises there's a d o j investigation accusing us of criminal antitrust violations when there is an affidavit sworn by an f b i agent that serves the basis for probable cause to search our premises we have advised our ensure that there are subpoenas there are grand jury investigations other people that have involved in this alleged conspiracy have been indicted and they're being investigated and the insured investigated in two thousand a crowley's notice specifically identified mr farmer as among officers of crowley that were had been identified in writing as persons against him a criminal proceeding may become assets in the initial notice  knowledge that and and you can have a late notice but you can have a late notice that relates back with respect to coverage only if you can qualify  seven see the notice wasn't late the notice was given right after the search warrant was served and right after the search warrant identify the affidavit crowley gave notice to national union of the affidavit the affidavit is identified on the face of the search warrant so the document that is the claim document that identifies mr farmer as a person against whom criminal proceedings may be brought which they certainly work notice of that document was expressly specifically in writing given the national union in two thousand and eight the national union i understand correctly so legitimately so according to the arbitration panel we don't dispute the panel's ruling we don't say that it should be reversed the panel decided that what national union was given the materials that were available to what the panel said that the material submitted to national union did not establish the existence of a climb that means you don't have a claim as a matter of res judicata you've got to show  insured is sued on the last day of the policy period is notified that there's a complaint filed against it but if it doesn't give notice of if it doesn't actually provide the complaint document that a stablish is that there was a cl until two days after the policy expired then there's no coverage the differences between that's exactly right and if you want more you bargain for more and get more in the policy but this policy in other parts of the definition of claim said it's only a claim when it's served or when it's received that's not language that is contained in this portion of the definition of client and that's what the h r acquisition case says and in fact a companion policy of the national union sold to crowley at the very same time this policy was  sad there are a claim exists a claim is deemed to be made when it is received by served upon the insured that definition that language is not in this policy and when we want to talk about rewriting the policy national union is rewriting the policy to say it's only a climb if it served upon the insured or if it's received by the insured but this court in h r acquisition said you don't need to have that