good morning me please the court i'm jeffrey erlich for the appellate this is an insurance coverage case but it's not a typical one because the parties do not have a disagreement about what the policy covers or what the poli both parties agree that this insurance policy does not cover the defective plumbing system that was installed in the hotel both parties do agree that the policy do cover damage to other work to the to the hotel itself that resulted from the defective plumbing system most cases get more complicated to get rid of this one gets simpler there's one disagreement of substance in this case in scores argument is that there is no coverage here because the underlying judgement did not award mr bailey a cent in damages for this cover damage as reads the underlying judgement all of the award of one point six million dollars was for the replacement of the plumbing system itself and that's not covered now they make this argument in reference to looking at the underlying judgement it's a trial exhibit in the underlying action three thirty four which is in the supplemental excerpts of record volume two page three forty two and that exhibit exhibit three thirty four was relied on by the superior court judge in his statement a decision when he were to damage a stuff from reading  that this case was going to turn on a disagreement about what the exclusions covered and i was going to argue that this policy is in comprehensible and does not satisfy the requirements of california law and might even be illusory in the reeds at the very beginning we will pay those firms that the insurance becomes legally obligated to pay these in the circular it would appear so everybody agrees i think so we can get rid of th that this this judgement has to be affirmed not for the reason the application of exclusion j six the judge and she made but because there's simply no cover damage that's their argument that's their entire argument and the whole case therefore hinges on whether you can look at exhibits three thirty four and as a matter of law determine that there are no cover damages now they made that argument below and judge each she rejected it saying of floor was damaged by the leaks the idea of this estimate is that you're going to have to take out all the walls and all of the plumbing vacuum whether they've been damaged or not right  clearly i guess i should just state i think that's right i think i agree but on the other hand in your favor there is a specific finding by the good superior court judge to whom i feel very kindly  case and they rely on exhibit three thirty four and they say if you look at exhibit three thirty four that shows as a matter of law plaintiffs cannot prove their case judge each he rejected that and i submit he did so correctly by water and what was not damaged but has to be ripped out anyway that's a tribal issue a fact at trial that's what judge usually found the reason this is important well actually before i get to that i want to tell you what i believe in sports reasoning is because i don't think contingency for unforeseeable items so we struck it that's not part of the judgment in support of says that by striking that thirty five percent contingency that necessarily means that there's nothing for damages in exhibit three thirty four i do not believe that is logical that's like saying you can recover for replacement materials but not for overhead supervision yes i don't believe exhibit three thirty four gets them where they need to go and therefore now we get finally to one more area of agreement between the parties and i will concede this is implicit in dream and both parties agree that judge each he did not correctly apply exclusion j six when he granted summary judgment the reason we claim it is because he did not apply the exception to the exclusion which is in this completed products operations hazard he just didn't mention it the property damage is excluded as to that particular part of any property that must be restored repaired or replaced because your work was incorrectly performed on the plumbing contractor didn't do anything with the dry wall the plumbing contrary you didn't do anything with the floors you're right or the reason i'm hesitating is that's that an advantage is a view of the that i haven't advance the only way the exception of the exclusion would apply is if there was cover damage and there's no cover damage because exhibit three thirty four means there's no covered image that's their argument ok there is no argument by support the judge and she correctly applied the exception of the exclusion they do not defend their position and they say this very clearly they say that i'm just summarizing this there are two page argument but if you read it what you'll find is the say that exclusion j six applies in the plan because the plumbing system had to be replaced because tas work was incorrectly performed then they say that we have to show vailima show that the products completed operation as a reply and explain what it means they say this plus has the effect of providing coverage for property damage following completion of the insurers work or operations and it only covers property damage other than to the yes and i think that goes to the broader argument if this is one of the most difficult insurance policies i've ever tried to construe that's why i prefer problem no because the exclusion has to be carried by the insurance company n theory and therefore that the insurance company was no i don't believe so what if he did and it may or i may have read his opinion wrong is that is the standard of proof on summary judgment whether the evidence is conclusive a construction project can be framed as a negligence claim because then under the grant of coverage and damages for which the insured you can legally yes whether it's exclusion j six which i think really is you know kind of the key determinative exclusion for purposes of this court's decision before we go there do you agree with opposing counsel  a minimum awards damages for repair replacement of the plumbing system now with that being said i think the burnet that point shift to the plaintiffs to produce evidence there at the judgment does contain an award of cover damages and i think that the plaintiff has failed in its burden of proof and i wouldn't that be some way why wouldn't that preclude summary judgment if there is still a material question of fact regarding which damages in the judgment essentially admitted that there was a possibility that the judgment could change could contain an award for cover damages but that there wasn't sufficient proof  judgment is appropriate for their own folks cover and non coverage items of damage and a judgment if you looked at page thirteen eleven of the golden eagle refinery case  many but then it becomes bailey's burden to prove by evidence by offering the underlying trial transcript in the case or evidence submitted in the trial of the underlying case to show that the judgment does in fact contain an award of cover gammage is and etc assuming that's even included in the judgment so first you look at the it's you know the first part of the exclusion basics which says this which excludes property damage to that particular part of any property that must be restored repaired or replaced because your work was incorrectly performed on it the district court in its order said th j six excludes coverage for damage to any part of the property crime to see xcept arguably the plumbing work itself that occurred because work was incorrectly performed no no no versus golden hills builders and it's a health carolina at least three forty eight south carolina five fifty nine to two thousand and two cases in which the court held that incorrectly  except that where the terms and an insurance policy have been judicially construed there is no ambiguity as a matter of law pardon not in california except that the broker west court which is a california opinion six and in particular the exception to the exclusion for the products completed operation has that exception has the effect of providing coverage to completed work or operations that have been put to their intended use by any person other than the contractor or well i believe in there's several exceptions within the policy on the property can refer specifically to the insurer's work product and certain exceptions in the policy do apply to that work product and there's no question that that's the case here and then other portions of the exceptions and in particular i would say exclusion basics the language of if fusion journeys to x does apply to language isn't limited to just the the some contractors work but any property damage and become awkward well that that's the limitation on this parole case and that's why i say in california evidence that the award of damages is key to the figure in there and that estimate is entitled you know it is intended to repair and replace the plumbing system and i think that at that point the fur  proof in the trial that any particular amount or portion of the damages shown in three three four were caused by water damage to floors and send into a jury what could the jury do with three three four to say well here it is there's a fifteen hundred square feet of floor to replace because of damage through leaks there's sixty four hundred fact every inference in your favor to make any apportionment between third property damage by water and third property third party partly removed in order to put back of the plumbing i want to ask that to wait while the other part of the evidence is that the finding of the trial court specifically that the leaks caused damage i think that creates an inference that's the judge found that the leaks cause damage that the court was awarding in the sort of in a general verdict sort of way damages that encompass the repair of the damage there's no and nothing to believe that the judge would specifically find that there were damage to the floor the dry wall he then awarded damages under three thirty four which was to cover everything that everything that's a scary i don't believe i think that the jury could find that there was some portion that was covered and i don't think on summary judgment it was incumbent on us to show what the apportionment would be and the second thing that i think i don't which i don't think is necessary to decide this case it's clearly a dispute that will be blue in brewing below is i believe that the cost under the argument i would make under geddes and smith is that the plumbing system in the part of exhibit three thirty four that's for the mechanical replacement of the plumbing that's clearly the plumbing system that's not covered and everything else is we've got a cased talks about that they were radiant heating installed tubes and it's the met floor and the radiant they failed and they were defective and the policy didn't cover the cost of the defective tubes but it did cover the cost of tearing up the concrete to replace the tubes that is an open question here is that for new law did they hold the matter of law that under this the policy definition of property  and that's my main argument that's why we for the purposes of the summary judgment i think that's all you need to find and i want to just close by saying i invite the court to read pages seventeen eighteen and nineteen of the read br because when you do you will find that in score explanation of how j six works was just as i said that they stake that the completed operations has or would apply here as long as there is covered property damage and the reason it doesn't apply here is because in their view there is none as a matter of law that's the only argument they make and with that i think that this case has to be