this appeal involves ask the question about an insurance policy that provides coverage for losses caused by intense coast a wind storm we know it has either hurricane sandy or superstorm sandy which hit in two thousand and twelve  and this is undisputed that this is the classic example of a concurrent wind water barrel the court below found unambiguous leave that the flood exclusion coverage the flood exclusion and this policy is half the story there's an endorsement that ends a windstorm and definition to the policy not just to the thing the entire endorsement is three fourteen to three to one and there are three parts to that endorsement the first two parts deal with changing the the doctor bills for property and business interruption by increasing them the third part and this is the big distinguishing part that makes this case different from the katrina cases in the fifth circuit cases is unlike those cases a definition is added not just for the endorsement what's called what we call in our insurance world an a c c clause and anti concurrent causation clause which says if wind is involved and there's no dispute the court below said this was all started by wind doesn't matter what anything else is involved is wind and regardless of any other cause and we would argue that whether it was a cause it's covered uncovered so that is what makes us different from th what's your what's helped me understand that position that there's a there's a definition section in the policy right now and i think i forget the two other words with w but it now is going to go in between those two words because see winston was already in the main part of the policy so definitions is a section in the policy in the main part of the policy not the endorsement for the whole policy it's any definition to the entire policy it's not just doing it for purposes of this the right it's under spewed that there's a definition section in the main part of the policy and now this word windstorm has been given this definition with this magic language this e c c language that makes it if when is involved it's there's no dispute wind is involved said we're just like the fifth circuit this clause is just like the fifth circuit cases and to that point we're not like the fist circuit that if you go through exhibit b in our brief we take you through it it's very clear there that the a c c clause in those that the two ball provisions is tied just to the deductible it's not that it doesn't go into the entire policy into a situation where you've got the peril already there to begin with so that is one that's the biggest distinguishing thing i can point out the other thing is your honor if you look at and i have it right here if you look at back a couple pages in the endorsement j a three one nine rating or the new how to defined things just provisions what's the short j a zero three one nine two pages back from three to one there is language there is says as used in this indorsement the terms quote specific insurance unquote and bla insurance also quoted have the following meanings if they wanted windstorm to just apply to this indorsement they should done it here but they added a third part and they said no we're going to we're going to here's that the new definition for the entire policy we would argue we argue below creates a conflict with the flood exclusion which also has an a c c clause so this trumps floodings i i wanted to use that word trump by yes but that is a good word  supersedes is probably better but it does it does trump it does supersede and it creates a conflict that you can't reconcile  then basically we would argue the contra profer interim should be that then the policy holder should win but the very least we should go back and take discovery to find out if we have to get into the intent of what this court with this clause was about in the first instance we would argue that this creates a conflict is is just blatant ambiguity here and we are the runner in baseball tigers the router that has us where the policy i think i have three minutes of rebuttal of take it up then the court like almost all property insurance policies great northerns policy includes an unambiguous flood exclusion great northern exclusion is actually more specific than most it excludes damages caused by a flood quote whether driven by wind or not both judges below correctly recognize that the flood damage claim by madalyn is subject to that unambiguous flood exclusion their effort to escape the exclusion rodders would turn the policy completely on  head the policy was plainly written to exclude all flood damage even if caused by wind and while it does cover other damage caused by wind it shifts to the ensure it some of the risk of wind damage that's what the deductible change does madelaine however reads it as actually expanding coverage for wind damage but overriding the flood exclusion and literally all other exclusion the policy so long as wind is a contributing factor to the loss that's exactly backwards let  definition and it applies in the definition section applies to all policies so if it does it applies the definition of three twenty one over the entire policy it's added to the definition section which applies to the whole policy but that doesn't mean anything because all that means is that you're expanding that you're defining now expanding or defining the word windstorm wherever the word wind storm appears that's it it doesn't appear in the ensuring agreement it's not in the coverage it appears in two places only one is occurrence where the only thing that windstorm is doing in occurrence is to say if there are two weather events two wind storms we count them as one that they're related that's all it does  has no relevance here whatsoever so defining windstorm for purposes of the ensuing loss provision or the occurrence provision tells you literally nothing about the existing coverage coverage in this case your honour's comes from the all risk it's an all risks policy that is a cover peril the only reason to covered peril of this is everything though is that it's not excluded it's not excluded there's nope covering insurance agreement says windstorm is covered that's not what it says it's covered because it's not excluded that's when all risks policy is so the cut the ensuring agreement where you look for if you want to know what's covered you look in the ensuring agreement when storm doesn't appear it's not covered for that reason because the word windstorm is there then you find a definition of windstorm somewhere else it's covered because it's not excluded that's how it all risks policy works everything in the world is covered unless the policy excludes it what is the policy exclude flood damage even if caused by wind that coverage provision it's called a deductible provision and they point to a provision that policy that says while titles are supposed to limit the coverage titles are just used for convenience or reference well here's what the policy drafters when they're coming up the convenient description of what this thing is they called a deductible provision there's not one word in that provision your honour's that says we're creating windstorm coverage that overrides the flood exclusion that's perfectly on that at least on the back part on the list of the frost and snow of course they didn't say flood because was already excluded even when written by would it wind there's no frost exclusion there's no snow exclusion so you would need to put flood in the definition of wind storm flood is excluded categorically whether  n by wind or not that's what it says it doesn't erase that it doesn't affect it frosts no those kinds of things are important to include so that an insurer doesn't come in and argue you know this isn't a wind storm that since this was snow whatever it's excluding in answering that question snow is not part of a windstorm you wouldn't say flood it's already excluded but then look at what the provision actually rely on is doing all the work the anti concurrency clause deductible it only makes sense one way what that provision says is that evident what that saying is the deductible is still increased if wind is involved even if something else is involved it would otherwise be covered lightning damage whatever it might be that's why it says even if it would otherwise be covered they read it actually h counsel this morning literally rewrite it in his description of it they read it to say even if such other cars or that would otherwise be excluded that's the only way there really would make sense if in fact i'm supposed to be doing the work of creating coverage the doesn't otherwise exist their reading says when you look at windstorm it says even if no other cars or event like flood would otherwise be excluded that's not what it says it says would otherwise be covered which makes perfect sense if all the work that that's doing is explaining how the deductible works in the presence of other causes it literally makes no sense literally makes no sense if it's a coverage creating provision because you'd be saying it creates coverage for wind even if there's another covered  wind another covered cause it's just redundant and meaningless but again it makes perfect sense if it does exactly what the fistric explain in the penthouse case and i think also in top her and katrina that it's simply th disagree only slightly maybe it's a kind of sematic difference and with the much more closely all of the provisions are the same it's used in this policy for whatever reason it's written to say when storm you know it turns the definitions section puts the definition in the definition section it's just the definition section your honor it's not a coverage section it's not a provision that says and when storm is defined for purpose of coverage of the issues action but not for a windstorm that's the key because it's an all risk policy you know it's covered if there's a windstorm already because it's not excluded so when storms are covered lightly is covered everything is covered unless there's an exclusion you don't need to understand what wind storm means to understand whether or not there's coverage it's covered unless it's excluded the windstorm definition applies to the whole policy but only applies where it matters i e where the word windstorm peers and is doing some kind of work the most relevant provision is in the deductible provision which after all as the definition and that definition only makes sense with respect to deductible provision it the definition applies to the use of the word in the occurrence provision the use of the word in the last provision the concurrency clause within the definition in those sections doesn't matter  doesn't do any work the definition still applies it tells you what is a windstorm for purpose of not suing lawsuits when it's wind driven rain sure it applies but the concurrency clause in those provisions isn't doing any work to create new coverage because our coverage provisions the coverage provision is the appears on one sixty six and one ninety five and that's a classic all risks provision it just says everything that's not excluded when storm is excluded wind isn't excluded therefore when discovered and we agree that it's covered and in fact we paid seven million dollars for wind damage what was left was damage that all agree is soley flood damage is that covered you look at the policy the policy tells you it's not covered because flood damage excluded whether driven by wind or not that's the beginning of the answer the question and the end of the answer thank you the first time and we did in our brief to a paid as in line what is it that you're asking for or what is it you think an appropriate so if you look at page forty nine again we think in the first instance that the ambiguity should be construed in our favor as the the tie go into the runner concept but it pays forty nine of our brief we set out what we were looking for which was interpretive material about this indorsement if because he said for whatever reason we're starting to get into questions now of intent as what they in his protocol for the sandy cases we did not get into drafting history or interpretive materials we just turned over so whatever we each side felt was relevant every was limited by absolutely correct  we we did within the confines of the protocol and what we would the things we did ask what we didn't get that we would take up if we went back on the items on page forty nine which are you know interpret materials about this indorsement if they keep want to get into the intent of the objective what this means and i'm getting at all chemically is i'm curious as to what you want from us what is the creed that you want from a court of ip we believe that as i said that's part of it and that the policy language is ambiguous because you have this definition being added and not like the fifth circuit where it was all if you look at the fifth circuit language in exhibit b everything starts with this deductible provision shop law and then you have the a c c cla our principle argument because there wasn't any issues it's just a governance but there is can so that sort of talks about doing both things that you can either in the tie goes to the water or there should be at a minimum there should be discovery but i think in the first instance we should when ty goes in the  i just want to leave if i could just leave the court with one point the fifth circuit recognize i think our situation penthouse my adversary cited penthouse this quote there could be the rare possibility that explicit words of coverage in a deductible interpreted in the context of a policy is a whole may establish coverage or an ambiguity there of that's us and by the way its coverage in that just is not the bill it's for us it's a definition that applies to the entire