the court's ruling improperly limited yeah because ability to amend its complaint when the court ruled on the first motion to dismi gave very distinct rulings that it could get dismissed one of the causes of action and gave can't go very limited ability to amend t the covered party notify the insurer immediately of the damage he didn't just pay for and know that by the insurance company and there was coverage in that case and so the issue was if they didn't remediate quickly if they force this to trial and didn't like that as i'm sure is the case here with wire damage if you don't clear up quickly you can get worse it can get more extensive and so if you didn't do that either did you your client we did notify the insurance company at the time of the each incident and then we follow it up with a more detailed notification of damages later but the insurance companies insurance company was notified at the time of each of the answer that this was a project that was under construction it needed to get completed if you don't complete you believe the wall or case of the california supreme court stated fairly clearly the court the california supreme court had the up to need to reconsider the issue when this precise point was raised what about a voluntary settlement paid by an insured and the court said no it has to be money ordered to be paid by a court for there to be a duty to indemnify frankly that ends the inquiry the case should be over that's the same determination that was so if they wanted to preserve the discussions going on i don't believe we were even aware that there were so many discussions occurring we were aware of the water incidents that had occurred we had sent an investigator out to investigate the water incidents we had issued correspondence saying we're investigating a claim no i think with regard to his duty to settle claims first and foremost he would have to establish an actual entitlement to contractual benefits which has not been done but what  there were three different incidents over different periods of time so each of them had their own investigation process so that's difficult to answer i mean this is what this you know you saw the guy down it take to investigate well it would be one thing to investigate whether or not water leaked in a building that i would agree is fairly simple about whether in fact your insured is liable for the water leak in the building would be a more detailed because in this case perhaps it was in fact i nanny that was liable and not your insured and because that water damage occurred as a result of their negligence and so then you wouldn't be on the hook at all think lexington was afforded the opportunity to actually get to that point they purr and their brief they say if they were permitted to amend the complaint they would say among other things that can go advise lexing necessary requirement for there to be actual coverage for the loss established before you could have that claim would be my response well why don't you just flat out rejected the begin whether that's true because liability issues were undetermined the there was a procedural point which goes to what you're saying right now which i'd like to raise the original complaint did not include any reference to this breach of the duty to settle in the opposition to the motion to dismiss the first complaint they raised this point they were provided the opportunity to amend their complaint that's the first of many complaints they did not include any of these allegations in the first of many when we moved to dismiss again the first time there's been an with prejudice is with prejudice all right or am i going to file another raise it again in the subsequent complaint but they say they did file another complaint i know but i first meet they were foreclosed from saying whatever they wanted to say in their second and maybe they weren't but they can certainly going to have suggesting on this appeal they could raise the dismissal of the first complaint with prejudice and other words that first complaint and what about why shouldn't why shouldn't we give them the opportunity to if you try mike to be clear on why they should be given the opportunity to repleat is it because it would be futile or because they should've but they should've replied it in this in the first amended complaint we are where i think a reasonable lawyer could have thought it was precluded by the dismissal with prejudice i would knock yourself out when i'm going to participate let's say that is what they're now claiming in this possible alternately there is no liability and it's even possible that ultimately there was no coverage and yet there would be a duty to sit down and try to settle because at that point it hasn't been established that there is no liability and no no coverage right so i realize that's a hypothetical world but ok if you know this record should have allowed them to do it then it's not our protocol also so let's say we're in that one now understood we would look at it this way we would say one there's no duty defend clearly is there a duty to indemnify you know under california law you are then at the discretion of the insurance carrier as to whether they want to agree and consent to the settlement if you're basically asking that insurance company still in flux and apply and says look i need to get past this thing you need to come here and participate in settlement discussions why there's a shortage of company have a duty of the point when it's has  to participate in the settlements and try to resolve it or make a determination that look know when i'm going to do it because there's no coverage i think it goes back to the wall or case from a california supreme court which client no coverage no liability you know what don't they have a duty to solve this and they do need to communicate and cooperate with each other i think that that's fair but finding a duty to settle under a bad  theory i don't think they can get there oh i should address shade foods they mention safe foods and asserted that it supported their positions are response to that is shade foods is a fairly modern decision has never been cited for the proposition they're citing it for in state foods not only was insured found liable the carrier agreed to the settlement neither of those things happened in this case it's a she also cited in page five of the five or so ok thank you the help that i'm sure had liability to a policy holder who settled a claim arising from an auto accident without waiting for the claimant to file suit this was yeah i think in your last question you got the point that we had to move on we had to get their project completed and we were getting anything out of the insurance company we had notified them they were and basta gating and that's pretty much the last we heard from th come and help us settle this case why why isn't in there were communications that our client had again there were three separate incidents that were happening a fairly short time it was you  with prejudice letters nothing we can do on that and the cork ruling said that we could amend the one remaining the duty to define the cause of action which wasn't where we needed to go with we needed to bring a new cause of action and we were given leave to do  case ever went to trial who was what and dynamic obviously took the position that it was not their fault that it was that's probably why they have this clause in their insurance company i mean this construction policy