other insurance endorsement that's at issue before the court california public policy is set forth by the california supreme court in the dark vs commercial union case is is basically that an insurer that except a premium over a risk must share in the liability of a koan sure and cannot with language between the company and the and the co insured escape that liability so california's that mean you can't have an excess policy you can have an access policy if you write and access policy and charge and premium for an access policy but when two primary policies are involved in covering the same person then one of the primary insurers with language in their policy cannot in effect when when there's a co insurance situation escape it's liability because the other insurance is present how do you explain hartford weren't they both primary insurance they were but  one thing in the world there's always exceptions to the general rule or else attorneys wouldn't have you know much to do so why isn't this case in the exception carved out by hartford because hartford and the other cases that upheld the other insurance provisions found that a small sliver of the insureds liability was written into the other insurance clause to only render  the other insurance or that insurance excess in those particular situations and in hartford there was a one landlord and one tenant bargain for the landlord having no liability at all when the accident or event and happened in the tenants work area or tenancy space so the insurance company carved out a small portion of that landlord's total liability having to do with that particular tenet and the carve out here was definitely broader but do we have any case that tells us that a carve out can only be so broadly what case can we look at to figure out whether even though this is broader it's so much broader that it takes us out of hartford well that's why i cited the those cases from the district courts that have confronted this for instance in the in the case that's in the briefs where they said that they would be excess only if there was a vent occurring on a water boat or a water craft they carved out that  and the other one was a small portion as well it seems like we have a bit of a no man's land here that is so we have cases that have small carve outs and then we have places where there's no carve out you can't enforce the two but here we're somewhere in the middle and i wonder if are there any cases that were in your brief that you can point us to the help us figure out this the middle that were in with this case no because i don't believe or i would submit that we're not in the middle that we're all on the other side well if you were the california supreme this cow and we how do i how are you or the california supreme court which is our bible of these cases yes how would you write an opinion that  be clear and conspicuous that a small portion is being written out of that so what would small be defined as what that's the problem what is small or it let's just say let's take this case as an example if sierra pacific management company its primary book of business was that it owned its own rental properties and managed its own real properties and it also had a small book a business a ten percent or something of that nature where it managed rental properties for other owners and the insurance company came in and said we will cover you as a primary policy for the a t p you're eighty or ninety percent of your business but we don't want to we want to be excess in that ten percent situation where you're covered by the owner's insurance then they could write it where it says as they attempted to here and say well in those situations where you're managing for third parties  were excess to that so i said i'm not understanding what the standard is well i guess the standard is understand you can write write another case that you think would be stronger but i i mean is it ten percent is a fifty percent is it anything less than a hundred percent i'm not sure how are supposed to figure out the lie i guess that would you know if there was a clear cut rules a lot less for judges to do in that situation but it but there isn't a high school to meet you would be if you do a car now that says we're limiting you to these situations and that's what we seem to have here that's the problem well the part of the problem is that it doesn't there is no carve out here because sierra pacific only manages properties that other people own so this is a disconnect that i don't understand in the way that this case has been brief because i thought everyone agreed that they have some like administrative offices where they're covered in terms of any accident that happens in these administrative offices that really aren't about property management and it seems like you've been kind of denying that but i don't understand why because there's a difference and i think the briefs are misleading in that way you know they attain talks about  for instance premises liability versus the general negligence premises liability refers to when it owner occupier is liable by virtue of the fact that it owns or occupies the land and as a non delegate will duty now in this case so if they that's that's not true either i don't think they have four hundred birth three hundred properties they manage and that is the home offices and they only charge double the premium for all of that then you then your company did for one property so why doesn't that show us that the  accidents that occur on this property that's not in this case so your cover all the oh i'm sorry go ahead well i'm having a little difficulty who has because of my lack of knowledge  because it's an escape clause under the california supreme court's analysis in the dark case because this refers is real  estate it's business and whether when in which sarah pacific is acting as real estate manager is the entire their entire business so they are in effect claiming themselves as excess over other policies on the entire business that sierra pacific engages in and there but what about those home offices i don't understand you keep insisting that it is the entire business but this insurance covers more than that it covers someone falling in the administrative office yes it does but but that's they're not in the business of maintaining their own offices well but they hand sharon's just like anyone else does so they have insurance for that and that is part of this policy is it not and then the policies will in effect when you buy a policy that only covers your office space it will say we only cover your office space it doesn't say that we cover all of your liability in which in which you're acting as a real estate manager that's the distinction you're saying there's some rule of law that says this has to be two policies instead of one i mean is that what you're contending that it's improper to put the home office coverage in the same policy as the real estate management it's not improper what i'm saying is that they bargained to purchase insurance from attain to cover all of their liabilities as a property manager and to cover their liability in their home office so why wasn't it much more expensive given the hundreds of properties well it was much more i mean it was the one property approximately double but it is that why even at three hundred times as much i don't understand how that all the increase they increase the premium every time that every year when syrup or civic said we're managing three hundred properties this year and the next year they manage four hundred properties for instance the premium went up i mean how why didn't why didn't your the bullies buy insurance from them if it cost one hundred the for a fraction of the amount to insure a property and i don't understand how that could be how you can get a double premium for hundreds of property is if the coverage is the same as what they got from your company i would submit this here pacific as the purchaser of the insured here believe that it was purchasing in the main policy that covered their liability in managing all of their properties and they didn't give a whit about you know attain putting language into their endorsement which would in effect cheat the another carrier that provided coverage to their and co insured by virtue of language in their policies so the insured is not the one that gets cheated when these excess indorsements  other primary insurance at the time it was written i don't believe so because it was that how are you cheated how is california capital cheated when it didn't even know if they had other insurance because because in california we have an equitable contribution rule which went to the general rule is went to primary carriers cover the same risk they they pay a pro rata share but if you didn't even know then you couldn't have put it into the amount you were charging you didn't even know whether they had a policy or not so i don't see how that leads you to be cheated and and you just said the client the people insured are being cheated either so no one's cheated i am a little confused i think anyone is cheated here california capital gets cheated out of their own or having another carrier share in the risk now i think i would submit to you that the reason that california capital's policy includes language that ensures that the owner's manager is for those situations in which the manager is goes bear and has no insurance but when they do have insurance then california's public policy regarding equitable contribution then trumps all of this just get this point in rope likely california campus policy says if there is other insurance covering the same loss we will pay only the amount of coverage or loss in excess of the amount due from that other insurance it had competing clauses so if if both carriers were strictly construing these as the court did for tain in this case then there'd be a standoff between the carriers new defend no you defend no you defend and that then only hurts the insured starter for a chain specialty insurance company i want to talk first about this notion that attain is somehow i'm sorry let me just act should you only have ten minutes on your clock or what's happening with and i have seven minutes your honor you've given them eight minutes well i guess seven and a half ok ok so ok so you can go to seven or eight this notion of cheating there is no cheating california capital issued a standard so foreign policy under which see europe pacific national company isn't insured by definition they intended to cover them that's not what they are wearing and vishal ensured the intent was always to cover them they never pacific to have its own insurance they never asked if they had proof of insurance if they truly wanted to be accessed as a chain wanted to be they could have added a similar provision in their policy they chose not to do so the attain carcassi only makes sierra pacific management company access in those situations where it's liability arises out of it's property management services and when a chain wrote policy they specifically required sierra pacific to provide copies of contract showing that it was named as an additional insured under these other policies and what they bargained for with that was not a risk they were accepting that that was the risk that was accept not as broad as california capital portrays it so for example they they would like you to believe that it wipes out any liability arising out of sierra pacific liability when it might be on the property that it man but that's not the case the specific liability that is limited is when their suit for liability arising out of their management services so for example of my property manager is on the lease property he gets out of his car to do something liability doesn't arise out of this property management services it's general negligence so we pay for the bodily injury to her leg we pay for the property damage to the face and correct we we provide lots of other insurance for example if on the premises that they own out of which they run their offices they enter into a contract to remodel and they request to be covered as an ai under the general contractors policy and something happens in another  we're primary in those instances so there are a lot of risks that a chain covers just not this one narrow risk and you're correct the premium cut the comparison of premium is a red herring because if you look at the documents presented in the motion for summary judgment if you look at the underwriters testimony what the premium was charged for did not include the property management services p and then i've misunderstood something i thought that the comparison of premium helped your position was it does your honor but what are you saying i'm saying that there their argument that you have to look at the premium to gauge what a chain was covering is  red herring because not your honor you are correct how did tain intended to cover the liability arising out of their property management using c c i c's figure their policy would have cost one point two million dollars so illogical because the math listener be a lot more than correct correct what do you think the california supreme court's rule should be i think the california courts rule should be exactly what was stated in the hartford decision where you have a narrow exception as if you hear that excludes one particular wrist where the parties knowledge that the risk was going to be excluded both the insurance company and the property owner and the property manager parties and c c i clear says he clearly intended to cover the property manager as an as an insured under the policy they're insured by definition they accepted the risk they could have take steps to narrow simply reflects the risks knowingly accepted by c c i see the risks knowingly accepted by the lease when they entered into these are agreements therefore i believe we fall squarely within hartford so if we disagree with you that this should be called narrow because of how much of the business operations this covers with the california supreme court rule need to change from what dart and other cases following it said because they talk about narrow so what do we do if we think your case is not narrow it's a carve out but it's not narrow would you have there do you think the california supreme court would have a rule that just any carve out that specific enough whether it's bro the california court would say that we they would expect they would respect the provisions written into the policies based on what the expectations of the parties were and based on what the evidence before them supported this case court stated that it was not anti stocking provisions and only through judicial intervention to the f m c court convert that language into n c stacking language if you look at your honour's look occurred over six year period c c s you had policies in force for the six years period they all the limits do not have the limit stock there is no interest acting language and therefore the a chain language the attain polic a notice of appeal from the judgment granted to the lee's however it seems like much of the fight has been between some of their opening brief specifically said they were not appealing the part of the judgment about the nothing that would happen in this appeal would affect the lee is so why did you file a brief and why are you here today i invited a dismissal i have a notice of appeal your honor that identifies a judgment in my client's police and i invite have you ever heard of a case where the opening brief says we are not contesting this part and our court reached out and anyway it reversed that part i have not heard one way or the other i did a dress the waiver issue in our brief and out of an abundance of caution  that i did your honor i did and you're saying that on appeal even though they put in their briefs that they were not contesting your party they denied that to you yes i asked to be released and have an acknowledgment i would waive costs in exchange for dismissal of the appeal as to the leads and absent not having that i have to come to this court and defend the issue so that my clients are not then later confronted with the reimbursement claim of nine hundred thousand dollars so yes i do believe and i address the waiver issue and in my brief but if for some reason it wasn't waived i do need to address the anti stacking issue and i think frankly the reasonable expectations of the leases policyholders fit squarely with the continental case the last page of continental says and a startling i think i still don't really understand why you're going to the merits they have said they're not trying to get anything from your clients no one is disputing that they wrote your answering brief in the reply brief they didn't contest any of this it seems to me that you're wasting your client's money on our time arguing about any of this i'm very confused why you think you need to do this although i guess this issue of whether they wouldn't release is also baffling to me your honor i understand the court's concern and my concern represent elisa's the notice of appeal at thirty two fourteen and thirty two fifteen of the record applies to the judgment granted to lee's and absent of dismissal of the appeal to that extent so so the lease judgment received i feel and felt compelled to address the issue if the court is telling me that the issue is moot and no longer involves a lease i'm happy to accept that on that i will submit thank you thank you thank you or are just to clarify on that point we offered to put in writing that there they should be part of this appeal but we didn't want any of anything we sign to act as a  issue on the stacking as it pertained to attain so but mr not didn't want to accept that he wanted just a full dismissal and we just didn't want to confront the argument from attaining that well you've accepted the district court's holding on the stacking issue and therefore you can't argue it any longer it's quite unfortunate because it led to the right a whole brief end up hearing here today that for no reason i it's i don't fortunately we were of were very upfront with them that under the court under was we submit that the way are to attain as are you in this case the general rule that the california public california's public policy is being swallowed up by the except by an exception and it's getting swallowed up and nowhere in any brief that's been filed before you has anyone ever identified what the particular risk they meant to carve out was when he's dealing with severe pacific because sarah pacific men just liberties that's what they do for a accepting a premium for x but usually you say apology but you can't put it as a provision in a regular correct your honor if you write a primary policy under the supreme court's formulation dark if you write a primary policy you cannot use your other insurance provision to render yourself access just for this serendipity that other insurance exists for the insured if you accept the premium the supreme court says you have to share pro rata and it's just an equitable it's just an equity equitable formulation that the supreme court devised and that's what we are asking for to be enforced here and that's been hard for language that the district court reliant on as given to it by attain uses the lip sees to strike out all of the language between the and i stacking provision and  the aggregate limit language all the way down here if you look at the the provision that says that the limits of this policy apply separately to each consecutive annual period it