may i just wanted to kind of identifying the three issues that i think that this court has to address wrestle with wrangling decide where it gets to the exclusive remedy defense first and foremost we believe that the lower court in not knowing the plain language of this court's previous ruling and i fully embrace that there are hopeful reasons that this court commented on the exclusive remedy defensive why it wasn't allowed to pursue that there was this church i mean look you're raising an excellent point and i love it the point is that world out of this room by what we said in the first decision whether you know like it or lump it as they say in ireland the world down by that right and so and i'm going to get to this said way to my next  language but the doctrine by implication sure does just didn't the language in the paragraphs that you refer to one zero five zero one zero six at the very least imply and that's what happened and there's no dispute about that after really and after this court's opinion she provided an explanation i can agree or disagree and i frankly don't think that that has any bearing on at least the issues i'm raising i mean the issues that i'm raising are number one and  was raised even at the late stage after our high of one decision in the alternative is there anything that would have precluded i t w from raising it in that very same so i think we digress if it's one thing you take away is in order to get to the exclusive revealed fence there's three issues you have to decide first one to get our group is really apply this to do the traffic or uses discretion applying for his mandate which are the four factors in looking at the issue of whether there's a contribution to the work comp premiums and i think the defense is worried about that issue in this case because in reading their brief again last night i see where they're trying to suggest well actually there was and there was that if you look at page  formula and the packaging labels it didn't pay for labor in this arrangement western plastics place for labor and the work comp premiums which is all consistent with what i propose mr benson i ask of going through all the different types of expenses so i'll sit down and thank you for all the maritime th asserted in the alternative because at a later stage they would have attempted better opportunity to respond to pursue discovery as they did by the way they were the question would get that were filed and we s affirmative this new affirmative defense and that it doesn't put them in a position of being prejudiced not a whole nother all if they were there who have requested the opportunity to disclose additional experts there's never been a suggestion the time back to your question when i walked through the whole room to argue the first motion for summary judgment i was surprised for the first time that the other three defendants including the player simpler and south and it would be speculation on my part to understand why they did what they were doing for your joint venture i might know but i don't but there must have been some infirmity in the back exclusive remedy for vision defense to them otherwise why would you go implication applies here can you give me an example of a situation where it would apply if it doesn't apply here i mean maybe we don't have the specific language that you're fired going forward but again looking at plastics and for some reason they never filed they went through walls litigation they went through all forty depositions and there was a count playing filing i believe the payments stopped for some reason for whatever reason  confident that they're going to want on this joint venture issue a trial that's what he just said that's the issue that they pursue this defense on their roll the dice more if i was standing up here just at this so let them have that day and who are let them prove that there was not a joint venture there and that's all i'm asking is for about this relief i am i always try to be candid entry and if i don't know something i'm not going to make it up to tell you the you know the answer i will have to go back and work many times in my health court briefs i do we ask at the end or whatever truly believed that this was not if they truly believe that this course previous really didn't bar the inclusive new provision but they waited another fourteen months before they filed that motion for leave to file a permanent defenses there's nothing there who are different i just don't want the court to be mistaken there's nothing stuff going on there's nothing that you know he wanted to have a motion bifurcate now the settlement is now i wrote down here celtic background just as i wrote down here  mark it was more heat when he's saying the reason why he didn't pursue the exclusive remedy provision was because western plastics had pursued it and why were they still and occasionally they were the because i pursued a dual capacity doctrine theory of liability because i felt i had a good faith basis because they constructed the machine that's why i think that is the case and even assuming that that wasn't the case even if i did if i the first opinion whether we like it or not justice write those aspects where the ruling was that we have to go by and i just want to be fair you have to find that it wasn't present prejudicial after years and years of litigation raising for the first time from nine to sixteen that that's not prejudicial and you have this rather coarse crude you have to do it you have to conclude that there were not previous opportunities to  could and they lost they came back down they waited fourteen months and they were is this thing and when they raised this thing and they filed a motion for summary judgment justice and there was nothing there was nothing attached to it i've never seen that there was no affidavit no deposition