how long is versus infinity insurance but only that portion of the coverage that the endorsement that's for the owners and that's that's just challenging a portion of the rest of the premium that they pay they pay a the gal found k s killing case and the basket case those cases address situations just like ours where just just to make sure i'm understanding this point could this florida agency regulate this particular product including shutting it down another which if you went to them and said this isn't right what they're doing we would they have authority i'm not saying whether they would but they have the authority to say infinity you can't market the same or i understand the regulators do is they look at their rights and they determine whether it's excessive inadequate or discriminatory what they look at whether it's excessive they would be entitled wouldn't they just say well part of this just for for something that's really no coverage at all and that success however should be charging that portion they'd be able to do that when they however when they did that your honor they did that does not cover or does not allow the eight their agency to determine coverage what he wishes that fundamental question in our case whether the product provides insurance coverage whether it is insurance in the st place that's for the courts to determine and for instance that the fatalities which is the latest pronouncement from this court that i mean just just to make sure i'm getting i'm afraid i'm missing something here just like this whole dispute started today you learned about the product or the maybe the products in front of the agency you could have the agency going forward say you know no you can't charge for this there's no it's excessive because there's nothing there is no risk that could happen today am i right or now no your honor because that on that the framework framework of the statute and we address that again in the get increased number seven believe that does not the way they review this th they review their rates actually rates and not they do not conduct a coverage determination of the product to say why can't they why couldn't someone say the rate should be zero for this policy they could make the argument that the hear about before and after the grace amendment yes you know that these product was baksho product and the language of the product was approved prior to the grace amendment in two thousand and five and everything that has been submitted grace amendment i can understand why that help i can understand why that helps you mean you're saying you can after the grace amendment go from go go back the agency and say we'd like to amend the rate that's three saying that's what infinity has done and they go back and have a debate about whether the amendment should be ciro that the rate should go down to zero can't that happen i again i'm not so sure that that's the way it works because what there is reviewing their rate for the successive excessiveness or when there is discriminatory or not but they're not going to review the product to determine whether it is insurance or not and that's the fundamental question of the case so that needs to be  this product on there takes a promise and obligation that how how do working your view if someone went back with this exact product you went to the agency and he said listen they're not there's no risk here this is wrong the rate should be zero and they say well we've read that district court decision and we actually think there's a little bit of a risk so we're going to force you to drop the ray way down but they're still going to be some cost ok so you don't win entirely but you get do get the rate dropped you  if the law was that way in fact it happened but the law is not that way because what the law provides for is for and insured insurance company to submit experience information from the history of planes made on their specific scenarios and that's the way the agency says ok this is excessive are not but let me ask you this if you're on so let's say that you had this claim for vicarious liability that you say is barred by the graves amendment right that the coverage though that provide that that that is the subject of this part of the premium it seems to me at on the part of the insurance i did it to defend against that claim and the answer to that question is known because for there to be a duty to defend there would st need to be a duty to him  the motion to dismiss process and in making those determinations determined that we were not seeking to challenge that rate as excessive are not there we're just going to  challenge the actual product the nature of the product if the product provides no insurance at all it doesn't matter what the rate is because we're not saying that you can charge more or less rights and you can not charge anything  and that again goes back to the fundamental question of whether a d c s insurance or not are other issues that are just tell me with this i'm sorry to stick with filed rate thing but let's say their product this exact product was only offered for women but not for men could the agency shut that  down i'm not sure i understand the question so they infinity offers this exact product the very product you're challenging but they say it's only available for women not from so making the point it's discriminatory ok can the agency say you can't sell that product in florida and then that ruling would have to be respected by the courts is that right or wrong what the agency would do is that if the product was that the rate is different for women and men it would it would say yes you're discriminating against women and they therefore and they could shut the product down you're not allowed to sell that product in florida because yes because a separate issue is not a co that the insured could go to the oil aren't contests the rates there and said that the what they were rick seeking there was a return of that part of the premium or  the part that was allegedly based on kickbacks and that it clearly contemplated application of the felt rate doctrine very similar circumstances here thirteen times in the complaint they complain about the increased premiums every one of the four counts in the complaint is based on the increased premiums the undisputed testimony in the record and our representative testified  r and that there's no way to extrapolate the rates that are specifically for the endorsement from the rates that are for why not it i mean it would seem to me if you've got some  policies with the endorsement and some without you could look at them and tell what the price difference was because they're based on different risk pools your honor the risk pool for example for somebody who would choose a one thousand and twenty policy dollars without the less or liabilities indorsement which means that they're probably owning their cars versus leasing their cars and there's a increased risk for that not just for because of the less or involved but because the insured itself is go at a different level of risk than the insured without the the less or without a lease essentially with the agency have the authority to say this part of the premium this is for this is this is of those kinds of issues and the statute allows insurance to contest rates at at hearings and have hearings and those are appealable to the district court of appeal in florida so there's a whole kind of administrative review risk and they have done that before they've said this product it's excessive the rates excessive because the product adds nothing there's zero risk there and that before i don't see i'm not sure i can say neat there's anything the record  d their their authority goes just to rate they they can't say you can't sell this kind of policy yeah i think they can say you can't sell this kind of policy sure ok and as to the merits it because they i think try to backtrack from it in the reply brief but they definitely argue this and they say graves for close less or liability secondary to the liability of a lessee i e vicarious and that is the only type of liability that infinity purports to bind itself to and then a fire under the terms of the lesser liability endorsement accordingly since trigger since the triggering event that could force infinity to indemnify a less or is for grace forecloses liability for vicarious liability for a less or and therefore the policy covers nothing this is faulty for several reasons which we've outlined in our brief the st is that it covers more than vicarious liability and it covers direct liability direct no negligence of the less or and that's something that the greys amendment did not foreclose and so even after the graves amendment less or are liable for their own negligence and courts have found them or at least stated that they can be found liable for negligent entrustment of a vehicle to alessi and also for negligent maintenance secondly any record of how often these policies pay out for less or negligence no your honor but there is the record we did file an exhibit that said d e seventy seven defend they concede that the policy covers vicarious liability and to determine the do you defend this court and other courts have said you look at two things you look at the complaint the allegations in the complaint now whether they're true or not and you look at the policy and if the complaint brings the facts within the scope of coverage under the policy then there's a duty to defend and so by their own admission that it covers vicarious liability we have a duty to defend it and in fact even after the graves amendment that's basically in the coverage that less words want because the majority of the time when they're sued or they're included in a lawsuit it's for the vicarious liability for something that the lessee did and we show  not a defense to coverage so that has still had and in fact theoretically if a court says no the grave amendment doesn't apply you're going to be vicariously liable in a jury finds you vicariously liable then the insurance company must from your perspective i think the easiest ground is on the merits of the st and the fact that there's a duty to defend it's very very simple analysis in that case it can't be jurisdictional because that's a doctrine that really arises as a matter of florida law it doesn't and because this is a federal court federal law would really determine what our jurisdiction is right yes your honor is more of a prudential documented deferential doctrine to the administrative agencies of the state or the federal government right but we do assert a a threshold jurisdictional issue which is the standing issue which is that until a uninsured has been denied coverage under has filed a claim and has been denied coverage for that claim then there's no case for controversy to resolve the one that goes in and the the problem i have with that is they're seeking damages right and they're saying we paid more than we should that that seems to be clearly to establish standing i mean in other words it's fraud from their perspective and the money is gone it's not in their pockets and they got nothing in return why can't you immediately correct i'm not as though what their theory of the case that is their theory of the case it seems to me you can immediately correct that well your honor to tell you the truth i'm not going to harp on too much on saying ok because i mean that seems just to alleg injury that would be fairly traceable to your client and it's regrettable through an award of damages yes you know and to tell you the truth i think the the important point in this appeal is that the public knows that there is coverage on these and that that less or less or they're still in danger of being sued for vicarious liability and therefore they're going to need the coverage of the policies and we've never denied if we do that we're not stepping on the toes of the agency no your honor and i think you are if there's no other questions then i'll rest on my brief as to the other points and ask you to affirm the district presupposes that it is it says identify the portion of the premium the question the premise of that question is premised on the notion that it's a single premium because when they charge you this is in a pod some of it as a portion of a single premium right because they charge clients us any insurance client gets a single premium that you know i have to pay separate checks right for to get i don't see how that answer whatever the answer is can possibly help you when the premise of the question is that it's a single bring and what about this walt let me get to the answer because they're saying ok blame this policy in doctor in that they're making is that this would be that we would be challenging that reasonable is a reasonable ness of a rate because a court would have to determine what portion of these premiums are are for these one product and it cannot be done but dame fagged in fact can do it by looking at those rate tables by separating those customers that do not get the product from those that do get it so this is