the generalities and the summaries go straight to discuss seen a couple of what i would call fundamental errors at the trial level that make it virtually impossible for this court to affirm the judgment the first fundamental error i would like to discuss is a fundamental instructional error this is errors so simple and so obvious and so brief that i'm afraid it might have been lost in all of the paper that gets submitted to the court of appeals we're talking about instructional error that the court wasn't wrong but all but then there was you know at the time certainly the court was not wrong but then since we've had some other legal clarification or if you want to say a change in the law whatever you want to say i think you both can argue a little bit differently but the part the part that the court said wasn't wrong but was it enough actually what the court wrong well that's that's what i was about to discuss and this is the part that i think got lost in all of the briefing so remind us what the instruction list before you think that's where i'm going and this was discussed in the parlance opening brief by the instruction that you're challenging what did it actually say it's said that the policy states collapse does not include settling cracking bulging shrinking or expansion c quote and what was wrong with that the pa youth and the policy didn't think it does say that all three policies say that and that is critical language because it puts limits on the concept of substantial impairment of structural integrity st paul propose an instruction informing the jury of this language the court refused to give it st paul accepted and the failure to give that language is presumed harmful here's why it actually was harmful it's specially given the nature of this particular structure wood frame building all of these levels of damage cracking bulging expansion that sort of thing are signs of structural distress you don't have to be an engineer to walk up to a wall and see that it's got cracks it's bulging that you've got a structural problem there's something wrong with this wall however saying that the court had to give that as a legal definition of collapse i'm saying that the court had to inform the jury of what the code the policies had to say about that term and the limitations that the policies put on the use of that term i thought the court with a policy being instructing the jury on the law and the witness this instructed the jury on what the facts were well the insurance policies i believe this was  agreed prior to trial between the parties the insurance policies were not submitted to the jury as as exhibits for the obvious reasons that their gigantic complex legal documents and we don't you all grate on that right well jury had that no that's not no no it was submitted in the form of an instruction the jury what that happens with this case is the jury is asked to make findings of fact the court applies the law to the policies to the coverage well if the jury wasn't supposed to make this determination why would they need an instruction that sas this if because they did make the determination of when collapse occurred and to do that they had to know what collapse was and they had to know what collapse was not which under the policies is not letting things various ranks to me if you're asking to the jury to determine what a policy provision means that the jury isn't given the policy language that seems pretty it's pretty strange w policy preventions to me are green means that the parties happening it's not that it doesn't have the force an effect of law well look the legal the question is yes that's certainly one of the key question but see i haven't thought your argument was different then the jury was told that it was substantial impairment of structural integrity taggerty right and then after and given nothing else and then after one they out and then after queen hand that it queen and didn't go to it didn't require quite complete collapse but it said something if the you they would could consider whether the it's the it has to do that the asked a question about if one being or one member or whatever was enough if that is said well the structural integrity you know has to do with although this case happened after but structural and taggerty goes to the a building billeted be upright would there be error then were there still of an error i would not have proposed a instruction that simply said what you just said i would have included a more complete definition but i'm asking you if that if the court had said that would you be able to say that it was error it seems to me if the court that's what i thought we were you know that's where i see fifty tension not rejecting you instruction ok well let's talk about queen and parked in full we leave that counsel is it your position that if your if you offer a contractual definition in that contract the definition is contrary to law the court still must and you define collapse in your contract a different way would it be error for the district court to decline to give your instruction and give the instruction that's provided in the law i think the answer is is that because  the entire case is revolves around the contract the law is the interpretation of the contract interpretation that disregarded contract language would be erroneous even if that definition is inconsistent with the statutory definition well or the definition as asked determined by the highest court in the stay absolutely ok i mean insurance companies can go back and revise their policies and define what the term collapse means but this is where i'm actually going to go to queen and park now let's read queen and park substantial parrott of structural integrity means substantial impairment of the structural integrity of a building or part of a building render such building or part of a building unfit for its function or unsafe and under the clear language of the insurance policy here must be more than mere settling cracking shrinkage bulging or expansion so the language i'm talking about is the law under queen anne park and it was the law at the time the court refused to give the instruction because it was the language under the it was part of the clear language of the insurance policy that the inch that the jury needed to have so they could be guided in their determination of whether or not there was a collapse there is really cause tension here between the court's definition of collapse and what the policy had to say about it the court's definition incorporates the policy language either expert that testif i don't think you'll see answers name implies there's no isn't the answer is no i think what you'll hear from houston is that their expert said it it was quote dangerous close quote under  a a particular engineering code or definition and they'll say well dangerous means unfit the problem with that idea is that well let me tell you let me put it this way the problem with substantial impairment of structural integrity standing alone just that word is you can take the word substantial what does that mean nobody knows you can take that concept because it's so morpheus and run with it to the point where you're talking about damage it really has nothing to do with the concept of threatening the actual falling down threatening no it doesn't have the full down but even threatening the actual  think would be helpful for this case to be reminded for the district court to take another look at it under the queen and the city i think i think that's absolutely required to do  at three minutes then yes i want to talk about another what i think is a fundamental error where you have three minutes left that's not over adolescent  good morning your honour's my name is devon third i understand i represent houston general insurance company the appellee in this case and you're correct that the primary issue in this case is this definition of collapse and particularly how queen anne affects the definition of collapse and as we know here that the jury asked a question and they seem to be you know i don't know what we make of that i mean i'm not because we can't really go into we don't know where that comes from but we do know that they were struggling with it and then had it been you know i mean would you do you concede that we're able to consider since the law on appeal now it will to consider well since queen anne came after you know that this happened is appellant in a position to claim that that's the law that should have been given at the time no i don't think so and that's for a couple of reasons number one of the time the case decided substantial structural impairment was the law i know but this case has come down before that was final so there seems to be some support for the fact that if new law comes down before it's final they're able to argue it here right and here's the more important point is that we have already determined we've had a jury determination of the queen and definition of collapse in our case already our jury instruction explained that collapse means substantial impairment of structural integrity or s s i now in order to find that in our case our jury had to look at each of the various experts testimonies and if you take a look at houston question what was their question what was the jury question what does a sign mean now but they asked a question about if it was one member or one being or so what was the question the question th essentially a single structural member in a building if that is in a state of s s i can constitute s s i well but if you think that queeny and said that it that whether it is substantial it wrapped in the it's the ability for the building to keep standing up that if they if the court had instructed that at that time how do we know they would have come to the same verdict if they're talking about a single member here's how i think we know that we know that because houston is expert explained that we only get substantial structural impairment we only get s we do an analysis under the building code and we take a look at the building code and we look at specifically the definition of dangerous under the building code if a building or a part of a building is quote dangerous as that term is defined under the building code then that's when he's done sexpert said yes i have s s i in this building or the part of the they would have come back with that question if they understood that to me what you're saying that they're a building that's a hold as a whole was in a dangerous state well that's not what the policy or queen anne says the policies themselves say there's collapse if a building or any part we cover collapse of a building or any part of a building so the definition or excuse me the the universe of collapse within the policy is very broad actually we did object and it's not what mr garrett was referring to that's not a definition of collapse what it says is what collapse is not an collapse is not settling shrinking expansion etc but you objected to that being offered by the court as part of the instructions yes we did and here's the reason well he's one of the reasons and that's because in our case there was no evidence of settling shrinking or expansion and yes case no fame policy has no gas and if this case had never been tried before and were tried tomorrow in district court down the street wouldn't the instruction that your opponent offered have to be given i think that would be not not the settling shrinking or expansion question as this and washington supreme court says collapse mean substantial impairment of structural integrity which means impairment of the structural integrity of a building or part of a building that render such building or part of a building unfit for its function or unsafe under the clear language of the insurance policy here must be more than settling cracking shrinking bulging or expansion that instruction would have to be given if this policy were contested in a trial in district court in the western district of washington tomorrow correct i don't know th question with a yes or no no ok why wouldn't this instruction have to be given because the latter part of it is taken directly from the policy language it's not an interpretation of law it is the policy itself and the language of the policy itself is what what that policy means is a question of fact and in this case the parties agreed to omit that fact from the from the fact finders information and even if we had given that instruction it wouldn't have made a difference because houston's evidence of collapse was not settling shrinking or expansion houston's evidence of collapse was is said that that the jury had to have followed your expert but if the jury had been given a more complete and struction or given what queenie am requires now then they might have looked at another expert differently i don't think they would because the difference between the two experts in this case was on the one hand houston's expert said s s i the way i'm calculating it from an engineering standpoint s s i is when a building or part of the building becomes dangerous is that term is defined in the building code on the other hand st paul's experts were saying no it's not dangerous here's all the reasons we think it's not as a matter of fact dangerous  st paul's experts say that the building had been rendered unfit for its function no sir or own say no st paul's did not he stands did and doesn't queen decision yes it requires kwinana requires a factual it of washington law right now as we speak yes a factual finding that the building is either unfit or unsafe and here we have the unsafe why shouldn't this case be remanded for new new proceedings based on the clarification of washington because even though they've the queen in court has clarified washington law it's not actually any different than what the jury was instructed and what they made their decision on in this case because queen anne says that substantial structural impairment the jury was instructed in that and queen anne says it also means that the building has to be either unfit or unsafe and in this case the jury was centrally given two competing expert opinions on the issue on st paul side the expert says this bird building is perfectly safe how can you say it's substantially structurally impaired on houston side you have an expert saying this building is dangerous and i know that because i calculated dangerous is that term is defined in the building code and between that competing expert testimony the jury went with houston on the three travellers policies so there are a few more issues that st paul raised in its briefing that i think can be handled fairly quickly issue number one and two both had to do with the way in which essentially the timing of when houston's contribution cause of action arose the first issue is an issue reviewed de novo and that issue is whether the trial court correctly applied the law by holding that houston's contribution claim was valid and enforceable at the time houston made the settlement now same policy saying that because the  lake west the underlying insured lawsuit was later dismissed somehow that destroys houston's contribution right several days after the contribution claim was filed but that's not washington law washington answers the second question which is st st paul's arguing that because the jury in our case ultimately found no coverage under the houston policy that houston was somehow a volunteer and should never have paid in the first place well again washington laws very clear than and sure who settles under the threat of civil litigation is not a volunteer and the fact that the jury later determined there was no actual coverage under the houston policies that again is handled by mutual venum klov us of this is we're not to look at anything that happened after the settlement we're just going to look at the parties rights and responsibilities at the time of settlement and we're going to make our contribution to terminations based on that information council you previously said that the parties agreed not to submit those factual issues was there a written sipping lation to them to be honest i don't recall at the moment it may have been in the motions and eliminate but i'd be happy to find that for you and that was also something that st paul's attorney just address next st paul argues that it was somehow denied a right to a jury trial in this equitable proceeding and st paul's argument is based on a misunderstanding of the liability that the reasonableness hearing and the reasonableness process and yvel up st paul has explained that look the reason we have a reasonable mishearing is because we want the responsible insured where the insured is the defendant to settle with the injured party even if the insured as insurer isn't going to pay that injured party so that you can go after the insurer later that's only part of the point of a reasonable mis hearing the primary point of a reasonable this hearing is to apportion liability or excuse me to establish it presumption of joint liability where two parties are jointly and severally liable for the same loss so as two parties defendants in the underlying litigation two parties jointly and severally liable to lake west for its cost to repair covered collapse that is the trial court correctly interpreted that reasonable this process there are sort of a lot of things that happened here that were a little bit weird because you got stuck with a default right you know it was a nother i but then it turns out then it was set aside but then that got reversed and the new settled right because it actually houston was the responsible right right so tokyo is the former parent right and schuster but so that happened and then and then on the other hand you know after you settled saint paul could have thrown in a little bit too but they chose not to and went to trial but then at trial it actually turned out that houston wasn't responsible right alternately that that's what the jury found yes but houston was responsible because it settled under the threat of well right but that but this has a lot of little procedural twists and turns between these two companies yes yes it does and it makes the case very has nothing to do with you know i mean which has nothing to do with the people that actually suffered the loss right and that's one of the reasons that washington favors these contribution claims is so that insurers like houston which i'm not going to decided on sympathy but it makes both of you less sympathetic than the people whose building was actually falling down probably don't make people like insurance companies anymore i don't know that they ever right my time is up thank you thanks well we're here rebuttal i'd like to address the collapse question of you know i think counsel made a misstatement during her or argument houston's experts us a question about the single member and the jury being confused about that houston's expert never talk i the inability of individual members into the structural integrity of the building let me give you a physical example of what i mean very typical wood frame construction process procedure would be to have and this is discussed in st paul's expert testimony would be to have three studs or pillars in the wall next to each other three two by sixes for example any one of those two by sixes standing by itself would be enough to handle all of the loads that the code requires that wal however you use what's called a triple stud for a variety of reasons that have nothing to do with the structural integrity it's to give the surface area to hang dry wall and go around corners and get windows in and things that have nothing to do with structural issues under houston's analysis every single one although any one of those three was enough every single one of those three had to pass the structural integrity code doesn't ask the question of whether that member is part of the structural integrity of the particular system it happens to be an so it could be a member that is called fracture critical in which case you take out that member the thing falls down it could be a member that really has no structural significance because all the other members knew it all but let me ask you this did any of the evidence tend to show that t decay caused affected the building stability to remain upright to any of the evidence i would say no that was never discussed it never discussed that and that's my point is the entire analysis was based on this idea that you could take individual members without turning them into the integrity of the building the ability to stand up right and call that a