they please the court my name is david gross i represent the appellant alaska interstate construction or a i see for short if i could i'd like to reserve two minutes for republic the critical issue before this court today is whether the term policy and national the claim was made on january tenth two thousand and thirteen and we know that because if we if we try to define what is meant by the claim the term claim made you have to sort of define the word claim and the policy is very clear that the term claim means a demand for money or a demand for damages so if you look at that term and you combine that with the term made the moment that there is a effort to seek damages or there's a rendition of a demand for damages that is going to be the moment that the claim is made and can we count on that representation is binding your client yes your honor there's no question this case that she has conceded the fact that on january tenth two thousand thirteen a claim is made because that's the day the sellers picked up the phone call the i c and said we think you did something wrong we want to bunch of money even even if one could construe other provisions of the insurance contract in a way that  that you had to combine both receipt of the code information about the climate and future income you had received it with the definition of claim you still agree that january tenth two thousand and thirteen that the cases in quotes the perspective you would basically do away with claims made policies it was so mush them up that they would just disappear because every insurance company would know that on any given circumstance that it would be held to what would normally be require an occurrence policy for coverage what makes sense in this case why should we convert what at least on its face seems to be a straight claims made policy into an occurrence policy and i disagree that we would convert this into a claims made policy were simply following the rules that were set forth in the policy itself the policy itself says that the claim must be made and reported during the same at the first one as extended went through many of your work may thirty first or something like that normally that would be the end of it you're making an argument that it doesn't make any sense for that to be the end of it what is  argument that these two policies were merged frankly that's what your argument is that they were merged but i think the best argument is to simply look at the common sense of what would happen if you don't combine these two policy periods together a briefer vice a number of different examples one being that if an insured if a claim is made against insured on the last day of the initial policy period and then that claim is reported on the first day of the renewal policy period especially a delay of two days the insurance company could come forward and say you're out of luck and happens in california all the time especially with lawyers i might point out or but almost all the do with lawyers is have claims made policies they found they got stung so badly with the current policy is there's enough to do it anymore it's all claims made the sad story that you talk about happens all the time but that's why claims made policies are so much less expensive than the current policies if you want to pay for a one great but you can't have current policy when you pay for a claims made policy again but when whether it's a claims made policy or occurrence based policy that the fundamental principle that we have to follow here is what is the reasonable expectations of the short and it's not the reasonable expectations of a lawyer or a claim is your insurer didn't get a claim coming through the door on the last day you know insured got a got notice of something and that's another issue i don't want to prejudge but well in advance of the date that mattered and well in advance of filling out the questionnaire for the date for the second policy period second policy the date that mattered so i understand there are circumstances where court sometimes of twisted around but that's not this case this case there's no question but that the episode if it counts as a claim they haven't said was known to your client well before the dates that counted but i think it's important for us to take a step back and appreciate the fact that no misrepresentation claim is made in this case crime and forrester and the district court sort of wanted to punish you i see because of this perceived delay or this perceived misrepresentation of the application but if you look at the complaint and the answer and all the three feet think the court got to that it did not but it you could read between the lines in the effort that they're talking just records talking about i see gambling and taking a chance that the claim would not automatically be discovered and that's not really what happened here and even if it was forrester was obligated to bring a misrepresentation claim and not certainly not because they got the judgment they wanted from the district court without bringing a misrepresentation claim through but i think ultimately the judge relied partly on this notion that somehow there was a misrepresentation in coming to  conclusion and it sidestepped both the definition of what a policy period is and also the thirty thousand sidestep all the policy couldn't be more explicit in defining the policy period i'm staring at the page now policy period this is the second policy from five one thirteen to five one fourteen twelve zero one pm standard time i mean it's very precise is what the policy period is and when that phrase is used throughout the policy it's always in quotes right but when  defined and the allegation is that your client had notice of this situation that should have resulted in reporting to the carrier and didn't report to the carrier before this time period that's what it seems to be about but if you have an initial policy period this followed by a renewal policy period and i'm looking at the second one the second one doesn't say we reach back to cover the first period it's very precise it's that one year period not the one year plus the prime you were insured by us before but if you're reasonably assured looking at that policy provision you're never going to think that there's a trap door of coverage between what it appeared to be two seamless policies one after another a reasonable assurance that i think if you renew that policy you're going to have a continuation of that coverage why is that reasonable if you have two identical e situated insurance paying the same premium and one has the since their first policy with the company and the other one it's expectation of reasonable sure it is going to think that that creates a seamless coverage why that's i guess that's my question why is it reasonable when you know that your neighbor who's doing this for the first time has the exact policy word for word except the address of the  you know insured and they don't get to reach back and you do i guess i don't understand why that's reasonable i know why you want to be subtle but i don't understand why that would be reasonable and again i would refer to the we're all saying you're basically is you're suggesting that because you have one following another another another that it converts it into an occurrence of a policy or an occurrence policy rather that's not what that's not sure as companies do they under if they do it at all and it's going to be a whole lot more expensive because you can then reach back to whatever period of time and you're covered if this court is inclined to look at the two policy periods separately the analysis is still not over and the district court did not  it did not touch on the extended reporting periods the policy provides that if the policy ends there is a ninety day extended reporting period especially a ninety day grace period if if there's a cancellation or a nonrenewable right and that's not what you have your company renewable term cancellation is what has to be defined in that context and you're going to get if you put yourself in a reasonable expectation of the insured you're going to think if that policy is coming to an end and it totally new policy is starting that policy is effectively but but what i see what i would suggest to you is that if you adopt that principle if you drop the whole the of crime in forster which you would be doing is essentially giving more coverage to someone that was either cancelled or non renewed and less coverage to someone actually the redo the policy that's what agreed to that's what they underwrote they agreed that if you cancel a policy or you don't read new it it will give you ninety extra days to make the claim they underwrite for that it's clear they understand what you're recommending if i understand it correctly but you haven't a current policy as long as your renewed one year two years are in my colleague mentioned fifteen years later you can see what i was covered this whole time i want you to cover it but i'm specifically talking about the two exclusions that the district court court relied on was that a i c was aware of wrongful conduct before the inception of the period well if you combine the two policy piece together and you look back to december one even if you don't if you if you take my call you just kept on talking about the red for while but what the policy period is you knew by your statement on january tenth two thousand and thirteen a claim it been made right correct ok that was within the policy period which ended i think may thirty first two thousand and thirteen of the claims made policy no question it's really straightforward what's the what's the what's the issue about that but i mean if you're looking at what when i see new of the wrongful conduct the result in the claim they did not know anything about that on december one well ultimately we love those we did reassure the current policy which is what you're arguing for me ultimately we did report the claim on june nineteenth two thousand and thirteen and for me i see standpoint when the claim was made on january tenth two thousand and thirteen it insured and if i see believe that the claim is a result of that no lawsuit would result that's a i c's perspective that's the reasonable insurance perspective of what it was obligated to do or not do and i went to district court which talked about terms of the gamble well true but again if we're talking about the gamble we're talking about two things one we're talking about this alleged misrepresentation that happened in the application the district court appeared to be critical of a i c for not reporting this in its application which again is not relevant to this  that you were gaming the insurance company but and that you know it to the extent that we want to talk about factual issues that would be a factual issue because a i see did not it wasn't like sitting around plotting thinking that how we're going to disguise this from the insurance company it simply resolve the matter by dismissing the collections lawsuit and went on the business and got back to work the idea that it thought that a lawsuit was going to be filed is a factual issue that alternate jury would have to resolve i see that i'm down to two minutes so i will point out that councils i think it's the court has has referred to a situation where a claim is received the day before a policy and in his report the next day four ways and i'll go through those and return if i can to expand first of all while the court is of course within its discretion to ignore an incorrect conception of law it's there are also in the record thirteen and the claim was received by a i see more importantly based on this factual concession regardless of the deem or clause identified by the court the alternative ground for summary judgment must be upheld because before the policy period i'm sorry i'm nervous because before that the the alternative ground us on the basis of the policy requirement that before the policy period no because you have conceded and counsel has graciously conceded today described as bound by the fact that the claim was made january tenth two thousand and thirteen you're saying that even though there's a provision of the policy  different because they refused to decline to report this which basically as a condition precedent to the new policies coverage basically you can do most interest would exclude if you have known claim from the past or because they didn't report it you're saying that that's an alternative ground for upholding the january tenth being made and reported if you will equivalent correct because the policy has the policies and sharing agreement includes six separate requirements that are conditions press that the court has identified a clause following the sixth one of the claims made and reported i am talking about identified and i'll tell you i think that that deals with timing problems it is maybe not the very best example of such a team or class that i have ever seen but the for the few d n r classes following deal with other timing part problems so the policy period i think that the d m response that the court is identified is actually written for the situation where a wrongful act or a situation has been reported to the insurance company before a claim was actually made the court deems that claim that which could be read to be had been made when it was reported or the subsequent period when the claim was actually made in either policy period the d m or class says no we're going to attribute that to the policy period when the wrong were reported to us if you look at the next to demur clauses following the third language the court is identified they also deal with timing problems they deal with several claims arising from out of rising out of this a collection of wrongful the district court agreed with your analysis in this case i will it benefit to me in things on the record and again thinking about the but planned to file counter claims related to the use of the uncertified scales and for alleged over charges based on quantity discrepancy and then she goes on to say this is the first time i learned the seller's was contemplating a claim against  now whether or not ms angle's is qualified to make the legal determination of whether a claim has occurred under the policy she admits that she had that her counsel voice reached out by the e c sellers that fisi sellers i will also time the position i say is that well ok we'll stop trying to collect the last invoice or whatever was whatever balance was remaining the whole thing's going to go away at that point and nothing happens for a while why is that unreasonable entered for insurance cases and the reasonable expectation of the ensure her it's a reasonable expectation of the insured death of the insurers losing a lot of sleep over how policies are rated by insurance companies i would i would disagree i think that those insurer ads in industries that have high risks that are hard to insure they are insured on a claims made basis pretty much exclusively should be worried about that because so by the bottom line you're saying that the fact that the court cited your forty nine and what they knew at that point is fish and if you will provide a factual determination by the district court that you could rely upon to close the gap here her act of the facts admitted compel the determination that a claim existed the policy has independent requirements once a claim exists even if the d m or clause is construed and i'm not saying that this is how it should be construed but even if the inner class is construed to change the requirement that a claim must be reported when it is made i will also say just as it's kind of a supplement to that argument that the same provision on which the district court granted summary judgment and which this court is asking about specifically incorporates a condition from the policies common condition forms and that condition is the duties in the event of a claim or suit that and i tell you where that is  that condition does not use the language claim made even if the deem or clause is construed to change the definition of seems to me that this incorporated provision requires that the insured report report claims received as soon as practicable and that policy provision also says and during the policy period now the pacific employer's case cited in our brief construes this language as soon as practicable means prompt it means reasonable it means when feasible but when coupled with the during the policy period language it means at all times during the policy period the team or clause if it changes the meaning of claims made this not change that second incorporated provision the summary judgment must state stand on that ground as well as an alternative yes  the court also granted just as a reminder summary judgment as to the first five causes of action in the p c seller's complaint on the basis that no professional services were alleged all five of those causes of action dealt with over billing or fraudulent dilling however you want to call it the case is uniformly say that billing is a function of being in the marketplace it is not a professional service the policy defines professional services as functions by you for others with respect to the per your professional practice found would still persist under the district court's decision because you didn't exclude all of the claims that's true one claim remaining we shouldn't consider the sixth action at all in connection with any professional services iow we have an appeal that one so no ok so just a kind of put it put a point on that one thank you very briefly i would like to again have the court a careful attention to the four cases that is she said it's pretty funny because i do think the base they resonate every sound proposition and that is that you must combine these these policy periods together because otherwise you're current law it's not clear under alaska law which is the governing rule that's true there is no alaska supreme court decision on that particular issue there is alaska supreme court decision on notice prejudice rules and i'm really worried a little bit about that earlier today about we've known and we were brothers first chappell's very clear that those type of clauses are disfavored and that in a in a current space policy you must show actual prejudice in order to allow for a denial based on a delay so as a sort of  overarching principle this court should consider the fact that this notice to lay provision should be looked on with his favor but also like to point out that the duty to report provision that was discussed a little bit here today that does create a factual issue because the factual issue would be was it reasonable for a i c to think that they would not have an obligation to report because the claim would have been gone that no lawsuit would've been filed if an insured believes that no lawsuit will result particular particular occurrence there is a question of fact as to whether in fact they have to report that particular event to the insurance can we don't have to get to them at all do we if we conclude that the claim was not made within the policy argument that this is a long as under in the you know policy if the reason that your client didn't think it would be pursued is the billing problem had been resolved by your client deciding not to pursue the bill then it calls into question whether it's a professional services problem at all well with regard to that the district court was correct to determine that the sixth cause of action which dealt with the certification or calibration of the belt scale was officially connected to professional services to warrant the existence of coverage i would also throw in that the first five costs of action likely also should be considered professional services because obviously i don't have much time to go into detail but yeah you have to have reached the end but please finish the answer the basic response is that it all dealt with reducing the overall moisture professional services i had to do with how much you were billing the underlying conduct is what you have to look at the other not saying that you were wrong in running the soil over the belt multiple times because the moisture content was too high they were saying you were wrong in charging them for the same cubic yard whatever it was each time or in the same song over the belt well i disagree in the sense that at the trial court level in that particular case that was a hotly contested issue as to whether it was appropriate or needed  to take the remediate soil blended back in with the contaminated soil in order to reduce the moisture content that was hotly contested issue at the trial court level in that case so that would that would be an indication that that was a professional service thank you counsel thank