like we will allow each side i've minutes of uninterrupted time i see there for lawyers i'm sorry if this is coming as a surprise you  e because of the the gaps in communication here so if you want to do that let me know and with that we'll call st mr jones thank you your honor and i don't need five minutes uninterrupted but i have about a minute of introductory remarks may it please the court i'm stanton jones from arnold and porter and i represent b p today i will address the insurance issues with respect to navigators counsel mr hicks will address the indemnification issues with respect to o'brien's and n r c runners as part of a deal where b p paid billions of dollars for thousands of workers to go do dangerous work o'briens agreed to purchase c g l insurance for itself and to name b p as an additional insured on quote all policies under this arrangement b p could rely on o'brien's judgment about how much c g i all insurance was appropriate and o'brien's and its insurers in turn would shoulder the risk of claims later brought by o'brien's workers against b p and sure enough o'briens purchased hundreds of millions of dollars in c g l insurance but the district court agreed with million dollars but then in section twelve dollars your honor and this is the critical text of the contract it specifies that o'briens is obligated to name b p as an additional insured on all policies and the words all policies it is its expansive language the texas supreme court has said that the word all all means all that the word couldn't be any clearer it is an all encompassing word and all policies clearly refers back everyone agrees that it refers back to the types of insurance that are listed in section twelve point zero one excluding worker's comp so that includes c geo insurance and section twelve point zero two the reference to all policies it contains no words of limitation no qualification there's no mention there of any minimum required coverage language coverage limit mr and kills here your argument is based on the contract with john looking at right now but you have to overcome it seems to me the holding of the texas supreme court in in re deepwater horizon i think and the iron sure case and both of those say you look at a policy and  yes and there's actually no dispute about that your honor everyone agrees that the insurance policy defines the assured to include both o'briens as the named insured plus anyone else that o'brien's whom bryant was obligated to name as an additional insured under a written contract and that is the o'briens contract the policy does not limit to the coverage to the  limited by the contract but that is correct certainly our position is that the the relevant obligation the relevant requirement under the contract was to name i am for a forest oil i agree supports our position as does the must grove case which is the st in this sort of line of decisions from this court in must grove it was a similar situation in terms of the insurance policy referencing the contract but the contract did not contain all policies requirement there was similar language said all insurance coverage is in a separate contractor's manual but that manual said that the contract would prevail over the manual in the event of a conflict and that's what this court relied on that decision the musgrave decision which again the st in the this line strongly suggests that if all policies language is in the contract as it is here it means what it says and it requires that the party isn't dish will insured on an all policies not only the  policies necessary to add up to the minimum required coverage that is the meaning of the plaintext all policies it's also supported by the meaning of the word minimum which is just that it's a minimum it's not a maximum amount that was required for o'brien's to buy and what do you say about iron ore in sure your honor the contract did not have the the all important all policies language there was no language in the iron shore contract anything like that and an iron shore it everyone agreed in iron shore that the company basic was only required to purchase exactly five million dollars in coverage for the other party endeavor that was undisputed the only question and i am sure the only dispute was whether the insurance policy incorporated that five million dollars limitation from the contract and that's simply not a issue here so i am sure really adds nothing all of the cases musgrove iron shore forest from this court they either support b p s position or they simply don't speak to the issue here there is one other case that we cited that is directly on point that's the apac se case from the georgia court of appeals case involved both insurance policy language and contract language that almost word for word identical to everything here and the georg court of appeals in a thorough unanimous opinion agree adopted b p s exact interpretation of that language the structure of the o'brien's contract reinforces this reading of all policies required insurance coverage and in context that's clearly referring to the minimum coverage that was required of o'brien's to purchase part itself that language required insurance coverage is right next to the words all policies in the contract and the fact that the parties use different language means that those that all policies has a different meaning it doesn't just mean require insurance coverage and that makes sense in the commercial context if you just think about this from the perspective of economic reality in a context where b p was hiring o'briens to send thousands of workers to go do dangerous cleanup work it makes no sense that p would require o'briens to purchase insurance for o'brien's and b p but then allow o'briens to buy hundreds of millions in insurance for itself but only two million and seven number one number two isn't it true that this language of paragraphs eleven and twelve is basically identical to the language that was in the master's service contract back in policies in twelve dollars to mean only the required minimum coverage only the required insurance coverage but eleven dollars shows that when the parties wanted to refer only to the required insurance coverage they knew how to do that because eleven dollars uses the exact words required insurance coverage to refer to the two million dollars minimum that o'briens was obligated to buy for itself twelve two uses different words it uses the words all policies and that word is expansive and different than simply required insurance coverage in terms of your nd question the two contracts it is  it is true that sections twelve one and twelve two were in the original contract and were not changed in two thousand and ten when the contract was amended after the spill but that supports our reading because our reading makes sense in that context it's true that in two thousand and ten o'briens was taking on a much larger and more dangerous scope of work but there was no reason for the parties to amend the contract because b p had essentially already hitched it ok thank you your honor even under the district courts a rooney is view that o'brien's was only obligated to add b p on two million dollars of c g l coverage this star and cops policies don't satisfy that obligation because the cops policy is not c g l coverage at all c g i is a very well understood type of insurance coverage it's like a pio with a slice cut out the pai is losses from bodily injury and property  slice that's always cut out of c g l policies is professional liability and pollution coverage the star policy is an ac g l policy it's the pile with the slice cut out the cops policy is a policy it's the slice that gets cut out of a c g l policy the cops policy provides coverage for pollution and professional liability that's not coverage so o'brian navigators has basically said you can have one whole high which is the star policy the high with the slice cut out and then the cops policy which is the missing slice and they've said that they're giving us two pods but in fact it's only one side so in either event  navigators policy is necessary to achieve the minimum required coverage whatever that is in our position are if you your honor and the georgia court of appeals decision is directly on point it's undisputed that a number of opt out be three plaintiffs if not provide until very recently the employer information necessary for b p to tender those claims to o'brien's district court agreed  this lack of information would prevent the tendering of claims but it then identified a suppose a cure the so called databases at o'brien's does not even mention on appeal the fact that o'brien's does not even out a couple responses judge clement st i don't think that they could have because it's not just an issue of did they work for o'brien's directly there were some contractors and sub sub contractors and it wasn't even i don't even know if it was necessarily possible for o'brien's to be able to track the average but i also think the more important point is that that's not sit simply not what  ication contract required i think is i think this is now o'brien's new argument since they're running away from the district court's reasoning on the databases which is that well it doesn't matter because as long as they or the company shell promptly give to the other party notice in writing of any claim made or proceedings commenced for which b p seeks indemnification under this contract and i think if you look at the phrases to the other party and under this contract i whatsoever i mean really these are just sort of a form letter jointers and so there is nothing that b p could have used in any shape or form in two thousand and twelve to at any idea of to whom these opt out be three claims should go and the idea that they should have to notify all eighty or so of its contractors and then maybe their subcontractors and sub sub contractors means some of these sub some countries you know literally a guy with a boat is simply not something that's required by the contract and it's not really consistent with the timing elements under texas law of what is crohn's notice and so i think really surely o'briens kind of identified their employee as if they had a less i don't know if that's true i mean there were hundreds of o'brien's employees but i don't i simply don't think that that was b p s obligation finally had employer information all of those individuals those opt out the three plaintiffs those are the individuals who back in two thousand and twelve which is what the district court was focusing on they didn't provide any employer information we did not know any of that we know now that there's four hundred and twenty five but we didn't know that in two thousand and twelve is or twenty five the ultimate number is going to grow well there are other contractors you know where there are i mean i believe there's you know something in the i think or around eight hundred to nine hundred down the three claims that are still out there and of course some of those there are eighty other contractors now as for foreign as tenderin if i had more time i mean that was my nd point i was hoping to make three points at the outset and i we sort of got off into the opt out the three claims but you know absolutely i agree that that the below claims there's also been no breach of the indemnification contract and even if there had been there was no material breach certainly not as to each of those claims and i'm you know i would you happy to talk about that if i had more time and maybe on rebuttal i'll get a chance to but that was that was my nd point that i wanted to make in the very last point was simply simply just the fact that that's because b p it may not have been entitled to judgment on the pleadings that it could obtain and demonstrate cation for all of the disputed claims does not necessarily mean the o'briens and n r c are entitle to judgment on the pleadings that they need not indemnified b p for any of the claims and that's what the district court held so at a minimum we think that there needs to be a baiter in re determine which claims trigger the indemnification obligation and which do  and if there's no further questions i'll save my time for above all right ok thank you accommodation off her for no interruptions for five minutes but i would prefer to address any questions that the court may have as soon as the court has them e p is arguing that is somehow entitled to additional assured status and courage for one hundred and seventy five dollars times the amount that o'brien was required to provide in the applicable contract fantastical it's impossible and it is the most unlikely scenario that's how the district court in the our insurer case which governs this matter disquiet the interpret the exact same interpretations that b p is offering for the contract in the insurance policy even escape this this court of the  circuit affirmed that district court's opinion in its i'm sure opinion and under the rules of contract insurance policy interpretation held that the same interpretations that b p is now offering were simply not reasonable or to use in other words applicable interpretation law absurd and remember b p has the burden of proof to show that it is an additional issue where on the navigator policies my are my argument is going to concentrate primarily on the iron ore decision and a brief history of the cases that led up to that decision some of which judge jones already brought up with  not apply at all in any discussion that provision in must prove was dicta the additional assured provision in must prove it did apply had the exact same factual scenario that we have in our case a one million dollars prime and minimum primary required in excess policy that only attached it at about one million dollars and a contract that required only the one million dollars minimum and in that situation this court held that there was no additional issue or coverage on the excess policy that's exactly what we have here two million dollars will wireman primary policies coverage no attachment on the navigator's policy now the other or the other provision that didn't apply is different it had even if we want to look at that but we don't have to but we can it hand wording that is not in the o'briens contract this was a decision which sure status on all insurance carried whether not required by the contract into the full amount of such coverage not the minimum those awards that b p wishes were in the o'briens contract but they're not in there and so that additional issue or provision that didn't apply in must prove also doesn't apply here operator an additional inch assured or whatever the contract says and the other ones or as named by the parties and the other one so the obligation is limited by what correctly held that the additional issue would cover it was not limited by the contract minimum the other policy the excess pilot years says is it not no your honor mark my policy matches the excess policy st one is the is the name in short one that says obligated as my written contract and the other is the supplemental additional issue or provision which does include mine which that limits corage as required by written contract but was in i think this is this is crucial because we know when this discussion by going straight to in re deepwater horizon with as you only look at whether the words obligated obliged to required are used in the contract so if you look at the governing later texas supreme court decision of in my deepwater horizon it doesn't it  for the law which which clearly states from the texas supreme who're if the additional issue or scope in the policy is limited to as obligated as oblige her wired and those contract  brought by the one plus the four or a five total was still the contractually limited amount which the court held that the obligated words in the insurance policy read in as a limit to the additional  coverage regardless of what the limit of the policy actually was where do you hold your policy language in your brief do you recall i can add don't recall off the top of my head but i can certainly some of it is on page fourteen in our summary of the argument you know then again and let me start with mr hicks began with the b three opt outs and let me please start if i may with your question judge jones about the numbers here because i think mr hicks misspoke or i misheard him i understood him to be saying that for the fo submitted that consistent with ruhleben what judge barbie i knew about the short form jointers and the information it's long been available to everyone what b p did away is that for a dozen a last trade of short form jointers for that doesn't they were missing the employer from age that's the extent of b p s submission to the district court and let me just emphasize all of your honors that we're talking about more than one thousand six hundred and eighty three opt out claims all of which were filed before the end of two thousand and twelve all of them filed there's no question as a rule all the information was there in the short form joiners certainly was available to be and b p didn't seek indemnification as to any of now of course judge clement's of course if o'brien's had been asked by b p are these your employees we could have answered that question of course if b p had provided notice to all the potential indemnity it would have had an argument that that they were filed consistent with the court stepped up and but there's no contention by b p that they did anything that they are well part of you know this whole thing is managed from on high by the district court from day one and i do not see how i have them i do not see how they can say we didn't know who these employees were and you can say well we know exactly who they were that that at least is a back question with my mind i do not understand judge jones perhaps it for a closed case you might concern yourself with that but this is not going to have any how do we have any basis for knowing the  four hundred claims or whatever in order to say you are entitled to a judgment on the pleadings judge jones to your point i'm not here contending that judge darby a would know definitively whether every single one of those claims had all the information on it you know i think we can accept the problem is the size of the problem about granting a twelve say it shouldn't be from b p s perspective judge jones because b p specifically argued against us that there should be no discovery instead there should just be pleadings and i judge jones i understand your point that but you know litigants can do that and say maybe i would on the pleadings but if not we move on to discover i would urge you respectfully we'd be peace incredibly stands that from what the we know from the only thing that is in this record we have a conflict of fact as to whether all of these pay all of the employer information in these b three opt outs was known or knowable to be to be that of orion's or its contractors because the indemnity runs to the sub big couldn't ask the plaintiffs counsel hey we're missing some information from the short form jointers can you better equip us than that would be indebted to us none of that you know who are the plaintiffs counsel here it was class counsel and there's a there's a steering committee of them i don't have their and i think it's the same class council that a response of will for all of the property damage claims and everything else i think that there are blind to distinction between the class council but i honestly can't and the people talk about the opt out ones but there is a steering committee judge asked for a seat of the table and investigate scuse me you couldn't investigate because the judge wasn't allowing any discovery he had this he had the short form statement then he had the longer form statement that he had now i will allow you to do  claims that were not against o'briens and b p had not indicated we would have status as an indemnify or and the but here's the other point even without discovery we could have checked our to our databases and asked for employees who were on the short form jointers where were you when were you there or what records do we have around that we could have done our own independent investigation instead we had no notice whatsoever even as to any one claim that that indicated we should be defending the b b b three opt out claims until two thousand and ninety  velocities said i'm sorry then for the below claims let me tell you judge jones why it was that mr hicks didn't go there st of all the b three as to the below claims there's just no question that there was a watershed settlement that governs them it gives rise to them by terms and has important concessions from b p including the fact the plaintiffs don't have to prove their exposure to certain contaminants they dared not subject the normal statute of limitations to normal affirmative defenses including claims plating and watches and all that was agreed to by b unilaterally again without any notification to us on the steering committee or otherwise and what is the what is the terms of eleven point zero four say on this neither party shall affect settlement or compromise of any claim or proceeding without having says no claim no settlement or compromise as to any claim or proceeding and that's unqualified language and we certainly had a proceeding and settle early in your view and claim is singular it yes in the class actually context of course is so important in terms of judge who is managing basically zillions of claims in what he believes to be a very organized fashion when that that management deeply impacts the way in which sorry can you hear me now yes great sorry about that ok a few points on the insurance issue starting with what you did not hear from mr malone you heard almost no discussion of the the actual text the language in the o'briens contract and the navigators insurance policies that are at issue in vis appeal navigator's entire argument here rests on a bunch of cases that involved really substantially materially different language and i'll just discuss a try to try to hit the main points from each of them iron sure case the contract there did not have anything like the all policies provision here it also didn't require  minimum amount of coverage for the additional insured it required an exact amount of coverage everyone agreed with what the contract there required in terms of additional insured coverage so that the the fight that we're having here was an agreed point in iron short bus crew that case strongly supports b p it suggests that if the contract itself includes all policies language like the o'briens contract here then that means all policies not limited to the minimum required coverage limits the forest oil case the forest oil case like iron shore didn't have any all policies language so it it just doesn't have a contract provision even remotely resembling the one that we're fighting about in this appeal in addition as judge jones has questions indicated the access policy at issue in forest foyle included limiting language that does not appear in the navigator's policies here and i want to be very clear the definition of assured which goes to both o'briens and the additional insured  is on page sixty million nine hundred and ninety six thousand and ninety nine of the record it's definition one b i believe mr moggs referring to a different provision a special condition somewhere else in the insurance policy that is not the definition of assured it relates to further additional insurance that's not at issue here in the in re in re deepwater case a judge jones's questions suggested that at correctly that the question there was whether the insurance policies incorporated limits on coverage that were explicitly stated that the contract that's not the dispute here your honour's the tax the actual language of the insurance policies and the contract here overwhelmingly favors b but at a bare minimum our reading of the contract and the policies is at least reasonable especially when the only decision that's on  adopts our exact reading under this court's controlling precedent precedent in our resources if our reading is at least reasonable p p per veils in this appeal unless there are any questions of turn it rejoinders is is simply repeated by the at least dozen examples that we provide where the employer information simply is not there and to p clear those are examples they are not the entire universe and just by themselves they are advised a district court that a case of the biggest sided up or get a pardon in your favor well we do think it can't because our one of our other arguments is that the district courts own process i'm not completing the the getting the planes into shape until the end of p t o sixty eight meant that as a matter of law none of these claims were in any shape to be tendered until two thousand and nineteen but if you don't accept that and you simply look at the employer information that defeats judgment on the pleadings for o'briens because at least the doesn't end in reality many more claims lack that information until the end of p t o sixty eight and it is a factual question just as judge jones you're factual question as appropriate for discovery and then my last point that i want to make two points is of course they had notice about the settlement they were on the defendant's steering committee they knew about the settlement they knew about the below claims they knew about  preservation of its indemnity right but they never objected as many other parties did the last point as to prejudice and materiality it is a claim by claim analysis and this idea that subject to creates a condition precedent as we point out the texas supreme court has the settlement did any of them object concerning indemnity indemnification duties your honor i don't know the answer to that standing here today i know that the settlement was heavily litigated for several months and it was was by no means done in a smoke filled room and certainly people on the defendants steering committee knew you know everything and anything about that settlements there are no further questions