million dollar sub limit of liability for flood applies only to property damage or also to what the policy refers to as time element which is also known as business interruption gross earnings gross profit  hold interest things like like that we submit that the flood limit clearly unambiguously applies to both types of damages for several different reasons i think the policy makes clear in the declaration section which is at the front of the policy and applies to all you know it's sort of the preface and it sets the limits for the entire policy and it makes clear there in the limits of liability section that the initial overall limit of two hundred million dollars applies to all loss or damage or arising out of one occurrence regardless of the coverages involved and then the policy proceeds to list a variety of language that refers to the overall in applying to or losses in damage regardless of coverage also applies to the sub limits that follow unless otherwise specified in  the policy or in the particular supplement so that's the that's the first basis i think the court could resolve this case in our favor on that basis alone but we have more significant i mean you're arising at a flood correct well you know i just offer up the problem i have it here which is in section b section b covers that describes the flood coverage right rick and it's on in big us that flood coverage only extends to direct physical  damage i guess my coupe one would expect that the flood supplement applies to losses that are covered by the flood coverage is that fair yes  now at the time element losses if there were not a separate time element provision here the time element losses would not be covered under section b certainly because they are not direct physical loss or damage yes right so you have an altogether different section of the policy section c time element loss under which that provides coverage for the losses at issue in this appeal and yet you are seeking to invoke a sub limit per section that does not apply in order to limit the higher seventy five million cap on the provision that does apply and so that that's the problem i have with your argument that it's seems to be citing a supplement that is in apas it to the coverage that is at issue if i may your honor so the the property damage section section b describes the perils that are covered right because it's the perils that cause the physical damage to the property in this case we're talking about a flood and it's and it's there that flood is defined earth movement is defined in things like that and it's pretty straightforward it is but then when you go to section c it specifically says that the policy ensures time element only worth the time element loss directly irrelevant to the coverage provided by this section at least for purposes of this case well the i don't think it's irrelevant at the it's the the policy defines flood in one place and it's not necessary i think to repeat it the definition or what i mean that the definition of flawed is too much water right right so so there's no reason to then repeat it but actions see what was what what language i mean section b is just talking about direct physical loss or damage from you know as a shorthand too much water why would there how would the repetition of that do any good for  your argument when it is not flawed it's the flood section is not what's providing the coverage here that's the problem repeating that language in subsection c would not not make the flood section provide coverage because the flood section is crystal clear and it's a limitation to direct physical loss or damage which is just an op together different kind of loss in the loss we have in this appeal yes wrong but to go back to section a which sets the limits of liability for the language there makes it clear that those limits apply to all loss or damage regardless of the coverages and so i think that makes it clear that it's it means that the supplements apply both to property damage coverage and to time element coverage because it says repeatedly again not just in that prefatory statement but then at the at the end of the supplements there are a succession of five different provisions all of which make i think crystal clear that the parties contemplated that the sub limits would apply to all coverages rigged regardless of the the n y u case that you guys just submitted yes it seems to me the language in those policies is pretty similar i submit they're very similar yes however there is one piece of language and i'm curious whether it's in your policy it says that time element coverage is subject to the applicable limit of viability that applies to the insured physical loss or damage do you have a provision like that that i believe that that's present in the leader and why you policy but not in the one in the two thousand and six policy and that's why and why you made the allegation insurer was trying to fraudulently induce them into agreeing to a policy that had now or coverage when they're in the court decided no they actually provide the same coverage even though that language was missing from the two thousand and six policy in the two thousand six policy was more like ours it basically said the supplements apply to all loss or damage regardless of coverage which is what we have here but we actually have a more so the presence of that way in which wouldn't is not consequential is or you're saying  i'm element is limited or not by the by the void supplement right if there is no it is not a specific read it would have been more clear if that kind of way which had been in there yes i think it would that would have been clear but i think it's clear even without it and  may just refer to the the additional provisions that we have which i think make our case much stronger than the n y u case or all of the cases that we cite and i think it's important to note that the vast majority of cases that have similar language have come out in favor of the insurer but we got these at every you know i mean every contract is different we have britain we don't do this in gross you know i go to an insurance cases i'm not saying you're doing this but people all the time will this type but we have bell and five separate pairs of suspenders because the first provision says that the company shall not be alive before more than the sudden limit specified in any occurrence regardless of the number of coverages involved the applicable for all loss or damage resulting from apparel regardless of any other sub i'm involved the first one says when the limit of liability or supplement is shown as applying in the aggregate during any policy  the company's maximum limit of liability will not exceed such limit during any policy year regardless of the number of locations and coverages involved or just there's this repetition of language that makes it i think clear that the supplements are meant to apply not just to property damage but also to time element unless there are more specific limitations to particular types of time element or particular types of property damage loss and that's not the case with the high hazard zone flood limit it is just stated that there's a thirty million dollar limit for floods for high hazard zones and you will aggregate and i think the fact that there are a couple of supplements that that have mention to combine supplements or that call out property damage and time element combined such as for service or up interruption says that this overall cap applies to loss or damage a rising out of one occurrence regardless of the coverage involved  what you need to do is have is to make the flood supplement apply to time element losses  they could have been a lot clearer i mean you look at flood i mean if if we were sort of looking at the structure of this this policy the high hazard zones for flooding which is exactly the phrasing right of the thirty million dollars supplement that's subsection two in the flood coverage that's where that comes from high hazard zones for flaw it's defined there and then again this this flood section itself only applies to direct physical loss or damage so i mean this there's a strong inference in this section that this sub one it only applies to those kinds of damages not everything but it but i think if you took that that position to its logical extreme then you would even have coverage for time element loss and so if the hundred you have it in section c but it's contingent you don't it's contingent on physical loss of the occurring of the type of a type of type wizards courses offered apples so if the if the coverage is contingent i think it logically makes sense that the sublimity that applies to the property damage also extends to the contingent saying you have this flood flood coverage which has the flood supplement the time element applies only to time element losses resulting from the flaw and then the limitation provision and section is any losses arising out of a flood exactly and that sort of identical relationship they both have kessler said every policy is different i think with this policy you know this was a negotiated a broker negotiated part of this case so i have no doubt that there are other policies with different language but i think the policy this policy language is quite clear so i would reserve four minutes you'll have it  please support mr bass although i'd like to respond just briefly to a couple of points that mr madison made in response to questions from the court and points that he independently made and i need to say first off i think though that our principal argument would be based on judge edmonds opinion she i wish we could have shown the same economy of words that she showed by using fifteen pages to render a plain meaning interpretation of the policy and then follow on to show why and at best it would be unclear or ambiguous but turning to the to the argument we've heard today first of all judge no bandying you asked a question about th you policy and a specific provision in a policy in the second opinion and did it exist here and the point is no it doesn't but it's a fine example of what could have been written in fact what we see in many of these policies where there's a very clear statement that if you have a limit it applies to property damage and time that's easy to write mr veta said well this policy has belt and suspenders it has five belt and suspenders now i'm not criticizing the argument the argument has been very capably developed on the part of the insurance company but i think it's fundamentally heretical to the notion of how policies were contracts are to be interpreted because if  yes that would that the interest would put up to twenty or so the my point is there are many many ways and we said some of these in the briefs and if you go through the policies many policies have very clear single sentence statement but it's not a comparative exercise here it's just is this clear enough yeah could it have been better yes i take it from i mean how could they be more clear than saying all all coverages you know regardless of the number of locations or coverages involved in the occurrence i mean doesn't that set the background rule which is the supplement is going to apply to anything resulting from of your and time element has to result from the flood or else you don't get coverage for it right your point is a great one but it applies to the blanket limit of two hundred million not the flood and not the flood limit the sections the policy are separate and so section before property damage where curse is totally separate from section c and this came out in the initial argument totally separate coverage there need to be words in her view that bridge the gap from b to c and there are no words how about how about a i mean if you're saying the the language in limits of liability section limits liability referring to all loss or death all loss or damage  so what i'm saying is if you look at that lead in paragraph i'm right or limited liability that's exactly what i'm talking about that is a two hundred million blanket me and i would say below that it tells you that  defined is subject to a flood limit but doesn't say time home and doesn't say property damage oh i totally get that but are you saying the time element is subject to no limit not even the two hundred  blanket is certainly subject to the blanket limit you can't get more out of a policy than the extended ok but at that point that limit is here in section it is so i don't understand so the other limits in section eight don't apply t occurrence does that language apply to each of the the limits and supplements under in this section the ones that paul yes in so far as if added not you can never get above that total blanket well i mean is it fair though to read the thirty million for flood for high hazard loans to read that as meaning  the company should be liable under this policy your shall not be liable for more than thirty million of all loss or damage arising out of one occurrence if it's a flawed in a high hazard no i don't think that's fair or all of the why not well flood is limited by the policy only to property damage to wouldn't that would not be accurate because you could have many other i mean that's that's the nub of this case that's what it is and  think mr kratos is saying that this limitation provision has a has a relationship to an occurrence and you can't get more then the ball limit whether it's two hundred or thirty million you can't get more than that limit for any any damage or loss arising out of one occurrence here the occurrence is the flood that that's just sort of a causal relationship that's described there not a coverage relationship and the same causal relationship it turns out is what triggers time element coverage in section c the time element coverage those losses are covered only if they result from a physical loss of a type  insured by the policy so that coverage only applies if it's caused by in this case a flawed and he's saying that same causal relationship damages caused by an occurrence is what puts the cap on as well as provides the coverage that doesn't seem crazy to me well your honor and i don't think the word say that it all it's certainly saying if you've got flood where you get the other supplements and this would this descends into perhaps eve is the michigan law on how contracts are interpreted because we urge you when it's high right now i get that but i mean so this this preamble language the limits of liability that we've been talking about your view is that it only applies to the overall two hundred million dollar cap nothing else  the prejudgment post judge of interest i think it's an opportunity for the court is i don't want to presuppose an outcome and choose to spend your time whatever you want here ok all right well my point is i'll make a brief it would be a wonderful ok well because there needs to be a word a turn in the policy that allows one to jump from property damage to time home the it's easy to  well that's true but if has to be resulting from direct physical loss or damages of the type insured by this policy meaning physical damage from a flood which is of the type insured right that so why wouldn't it just what does that just make sense that if you're in the business if the time element comes from the flood you have to link it to the flood in order to get coverage but you wouldn't be subject to the exact same limit that would apply to a two things first of all this policy does have some provisions if you look at page five that show that they are combined supplements meaning time element and property damage combined and that appears  it does so it's a very would be very easy to do that so that's your time at this service interruption property damage and time element combined correct and there are some other places as it is that i mean what's that getting at in your service interruption service interruption would be if you have power to the facilities that that interrupted so this would be only time time element damage is only resulting from a service interruption correct there is another one on page six protection in preservation of property time element in property damage combined with leaders that cut the contingent time element as up the same as time element  special type coverage is if your supplier or customer is saying that ok we want that want to be subject to a five million dollars or so right because the title of it of course is subject to combined there were i mean the point would be that they've said where their combined minutes and time alone can be much more much more significant than property damage let's take the case of a software company in a small small repurpose warehouse that has not much property damage but they're making a lot of very expensive products element it can be on its own very expensive thing it should be limited specifically what it what i'm saying what i'm trying to say is to say that there's a contingent time element limit of five million dollars in five shows that if general time were going to be limited then it would have been said specifically and there's good reason not to and the judge  what the parties want to agree to some folks might be real worried about time element and i'll pay more for just a really wide open time element maybe eliminate flaws other ones may not care about floods or time element or care a lot about floods i mean there isn't some you know metaphysical reality that these things are conforming to you know i agree and so in the end what it what it comes down to really is howell michigan how under michigan law contract on to be applied and this is for sure a limitation or an exclusion i mean the investor complaint says this claim is limited or excluded by the flood limits and as judge edmonds pointed out a limitation exclusion policy has got to be clearly expressed and if in doubt then the policyholder wins same thing with ambiguity we've got judge edmund saying plain reading on just reading the words here the plain reading is time element is not limited and if if you entertain the opposing reading then you've got two conflicting plea readings at a minimum when there is no reason to think and the judge judgments did a fine job contract said  losses arising out of law are limited thirty million and then the time elements of time element damages arising out of flood are covered the thirty mil would apply to the time element right tricky question only because you'd really have to see how the words were drafted just the words i just said hypothetically  it would have to you have to see knew of only because i think a feel like it would have to say something like we see all the time time is subject to the same limit that applies to property damage on that absolutely are a few points i'd like to make mr really conceded that the blanket limit of two hundred million dollars applies to time element even though time element is never mentioned in that overall limo i mean obviously the overall policy cap is going to apply to the policy but it applies to each occurrence regardless of the coverages and i mean you could come up with an interpretation of those while one occurrence is the property damage in another currency is the other damage but everybody agrees that that's not the case know what you need to do is get this paragraph under limits of liability which says i mean all that says is companies out live on his policy for more than its proportion two hundred million for all loss or damage arising out of one occurrence regardless of the number of coverages all right you need to get that somehow to apply to thirty million for flawed or high hazard on the next page notwithstanding that this paragraph just sitting there by itself says we're not liable for more than two hundred mil all stop right and i think the way you get there are two ways six ways in total but two sets of ways one is that language i think it's clear from the structure that that language about the overall limit applying to each occurrence regardless of the coverages and to all loss or damage that i think when you look at this all together that language extends down to the sub limits because it says that that limit applies unless more specifically limited below where in the first paragraph under limits of liability where it says that the two hundred million dollars applies for all loss or damage arising out of one occurrence regardless of the number of coverages and unless more specifically limited thirty mil is a lot is below and then i think the other additional five ways are those those those  down through pages five eight six and seven from two hundred mill jackley ever it is yes so that's that's my belt and then my suspenders follow the subjects were to says repeatedly that the supplements above apply to are many ways this could have been made clear i think the sixth circuit in the earlier version of this case the judge merits and on the panel addressed that argument when it said we cannot really rewrite an otherwise valid contract simply because after the warriors can think of better ways to structure similar deals the fact that the federal mogul now believes a different policy would be superior to the policy for which it originally contracted does not demonstrate that the contract of policy as construed by insurer is unreasonable and i think that same principle applies here i think one other point like to make is that i think judge kept that you said if there's a tie the federal mogul wins i think that's based on  least what they what does exist on the record who drafted michigan law talks about ensure insured and in the event of ambiguity the insured wins i guess construed against the insurer with all due respect i think that is the language that refers to you know tie going to the insured is a sloppy way of referring to the the doctrine of contra proffer in which applies to contract law generally which stands for the proposition that if there's ambiguity it's construed against the drafter of the contract usually you know if it's if it's your i call mourners posse you or me or me you know we're not negotiating with state