try to help you by reminding you but please keep your eye on the clock yourself as well holder so today i'm here just to emphasize some of the points that we've articulated in our opening in reply proves initially we've argued that the civil penalties were improperly imposed as this court has seen under the sun beverley act you cannot impose civil penalties on the basis of an implied warranty what did the district court say regarding that in the district court found that to be waived well the court actually addressed that issue and what the court said is this the jury's failure to find a breach when expressed warranty under song beverly did not preclude a civil penalty because the jury found a breach of the express warranty under and i'm looking at a song beverly subsection a says any buyer of consumer that i have no idea why it is consumer goods but you guys all seem to think it is damaged by a failure to comply with any obligation under this chapter or under an express or implied warranty so do you agree that subsection a covers express or implied warranties that are not an obligation under the chapter chapter those i think would be song song beverly warranties are under an express or implied warranty so does subsection they give a right to recover for violation of non song beverl express warranties what the song beverly act imposes creates an obligation for is written warranties that are set forth yeah that was my question mike i understand your honor but but so it does it comply was willful and the only other place i find a failure to comply is back in a so why doesn't every failure to comply except those six excepted under see give rise to a there in lies the difference if you look at the express warranties that are available under song government and you and you juxtapose it with a warranties that are available under the commercial code there are different and i think i know i agree and i agree that in this case think judge her at this point is that if aig covers express warranties under the u c c and it even goes beyond that it covers service contracts why wouldn't see cover the same thing it would cover potentially express warranties under different provisions including once and that's what and so that it seems to me legislative history aside and everything else if you just read this statute m always hate to use the word plain language but the language of the statute says you have courses of action for certain failures to comply and among them are breaches of express warranties both under this statute and outside the statute and then we have later a penalty that says if you've established that failure to comply you get a penalty except for implied warranties so why why isn't your case just sort of squarely covered by this statute i don't think it does for two separate reasons first of all the punitive damages are not available under the commercial code and the before the statute was passed i mean we all agree that the commercial code just doesn't provide for a period of damages right questions whether this statute provides for punitive damages for violations of the commercial code it's a subsequent statute the song beverly act both incorporates and supplements the remedies that are available under the commercial code certainly but the commercial code does not incorporate the provisions of the song beverly and so but but what's that that ends up being a circular argument i'm still not quite clear if i understand your answer to my colleague's question if you're conceding that eight potentially covers express warranties under the u c c or other than song beverly then why doesn't see apply what i've tried to explain and i'd like to get to that again is under the commercial code you have a warranty violation if there's an express warranty or alternatively if there is some sort of statement or promise that can be extracted from any realm in addition to the express warrant for those and i was there with my brothers and here the jury found that there was no express violation of the warranty provided by alexander no the jury found as i understand it maybe i'm maybe maybe maybe going to lighten me i thought the jury found there was no violation of a song beverly warranty but there was a violation of the express warranty of an expressway pretty sure there was a the jury did find that there was a violation of the express warranty into the commercial code right but that violation could have been based on an an oral statement could have been based on materials other than the warranty that was actually provided it could have but but certainly there was substantial evidence in front of us too for commercial code no but then if you take this back then to the instructions themselves you see that that there is a potential overlap but the jury's findings actually excluded the the possibility a finding under the warranty that was actually provided i don't have to tell me how they do that well what findings do we have other then we'll know song beverly well they like their c c the jury was instructed as follows for under instruction number fourteen plaintiffs this is the the question is as stated in the instructions plaintiff's claim that they were harmed by defendant's breach of  warranty that the j b to the yacht was built to a b s standards so we're talking about an express warranty one that was provided by alexander marine by contrast if you look at instruction over seventeen which is the warranty under the commercial code you look and see that it covers were plaintiffs claimed they were harmed by defendant alexander marines words or actions that the j b t was built to a b s standards and so words or actions are available under commercial code which the jury apparently found to be so but they found that liability wasn't properly imposed and the  me understand your argument here because i it's not the way i understood it before so your argument is that subsection eight doesn't cover you see c warranties to the extent that they're not in right express warranties to the extent they're not in writing yes that's correct and what and what do you base that that was my understanding of the staircase that you'd like us to look at for that proposition i would be glad to provide that if given the opportunity if it's because only pretend i haven't seen case that really stands for that proposition let me get this straight you're saying that he doesn't cover implied warranty what we're saying is that under the sun beverly act you cannot get civil penalties were not written or lease for not an express were no but now we all agree as to that so let me give you an example because i think it is a different or it's a new argument to me from what was in the briefs let's assume i orally warrant to you something understood what's and and i violate that warranty and i my obligation is to fix it if my and you're saying that's not covered by song that's not covered by  i don't believe it is your where in the language you says an implied or expressed warranty so why can't express warranty be or if we agree with you that that instruction was given an error can you briefly explain why that impacts liability not just damages yes your honor there are two reasons that we've set forth first the fact that there were was a collision damage of three hundred fifty thousand dollars this validated alexander marine's contention that the j v team but my question to you was so what did the jury hear all of the evidence that you would presented that other than the number itself other than the dollar amount didn't you make all of these arguments or at least you weren't precluded from making all of these arguments so why do you get another trial on liability i think what it did show is that that the insurance company when they made that three hundred fifty thousand dollars payment it validated that indeed the damages were caused by the collision right i mean i that's that's a separate issue from the watch and i've got another question for in this topic which judge one's asking a very simple question you got to patrol the jury there was insurance you got to tell the jury that they could receive everything that the dollar amount or number so if you're right don't we just reduce the damage award by three hundred thousand dollars no your honor i believe that you do actually have to remand it for a new trial because there was tremendous divergence in the evidence even from the plaintiff themselves according to the plain that's not the key in crete though you know the jury gets to make these determinations they get to weigh the conflicting evidence in the side who to believe in this belief the question really is what if the court had made an error and we were to remain on it for a new trial what would you present that's thousand dollars paid by an insurance company what if it absolutely validated our contents not to question judge white asked the question she asked is if there were a new trial if i put it differently if the judge had ruled the way you thought he should have ruled on the case below you only would have gotten to tell the jury about the number right we would have gotten to tell the jury that any insurance company had paid three hundred fifty thousand so the answer my questions yes yes just the number just the numbers that you got to tell the jury that the insurance company had paid and paid a claim on debts you got to tell them if they had insurance or you didn't get to tell them was the number correct we were not allowed to mention the surance at all not directed not to i thought the fines were directed not to talk about the number but not about the fact that there was insurance on the on that i may be wrong about that and you want to save some time for a vote also thank you you might want to look at that again as to the the i was jury instructed on that issue the deter was instructed to disregard any avenue gary was says that you should only award harm that resulted from the defendant's breach of its warranty right and not other three hundred thousand dollars in damage separable from the structural defects on which you base your warranty claim and no i would say that there is in fact the the the the damage if there impeccably well would you have still had the damages from the welcome then it seems to me that they are entitle to an offset for the for the money that you receive from the insurance company or think well then you then you get into the question of whether or not i thought you were going to argue that they're separate damages but if you think that they're the same why why isn't the fact that you already got three hundred thousand dollars for this damage based on the  cannot get the benefit of are paying a dividend or are paying premiums over the years and so this was a benefit that my client paid for and should receive the benefit of and that and also the question of whether or not there from a strike and they didn't see any evidence of well that's mike that's why i have i thought your argument for your briefs was that no there were two separate sets of injury here one was an injury from the strike for which we we got compensation from  but that wasn't the injury we're suing these guys for we were suing them because they were structural defects and those defects cost one point five million to repair whether or not we had had a collision that's not your argument well that would be true th the amount of repairs would have been the same irrespective of whether there was a collision in other words ok so if that's true and whether or not there's a collateral source rule doesn't matter because the damages that you're seeking in this case are different than the correct or that there was only one so you turn back now you've learned around but perhaps about it there was only one loss and that was a defective home and that whole had to be replaced whether there was any minor collision damage or not there the question became shouldn't matter if you got insurance to repair something that wasn't a defect of course by the defendant right correct so are you saying now that the collateral source instruction was given in  but it didn't matter no i believe the collateral source rules correctly applied that evidence of insurance would just to prejudice the jury in its determination of as to the extent of the damage what the collateral source are only applies when presentation because as i understand it the insurance policy specifically exclude it manufacturing defects right and then the warranty covers the structural defect but specifically excluded collision damage then we have to get into the decision making of the insurance adjuster who decided to pay out of this claim rather than getting dragged into an analysis of what damages what and they made  of the jury correct well and the reason that the instruction was given i take it was because the jury was told that there was insurance right there insurance came up and he would they were instructed we were all instructed not that that damage was caused by structural defects and you've got an expert to prove it they're saying that the damage was not caused by structural defects there's damage so obviously that had to be collision so in light of the dueling theories and evidence that was presented we have to still answer the question of whether it was the same harm or two separate harm and that's where the error in the collateral source during struction comes in well expert opinion on the question their expert opinion on the question of damage strictly went to the thickness of the hole he did not ever inspect the vessel so he could not pine as to what percentage of what it whether there was a separate harm to what it was part of your struck was part of your warranty claim that the hole was not sufficiently thick correct absolutely so then then it seems to me the your recovery from the insurance company did go to your warrant we believe that the damage would have been there irrespective of whether what the evidence showed would you have had if the hall were thick enough but auger everything else were not up to store warranty would you have had one point five million dollars in collision all it did was give rods and it pointed out the eggshell nature of the yachts home ok so now we get back to the collateral source question so we have a contract case it was a case in which you suffered damages and what you're now saying the damages you suffer all rose from the breach of contract and somebody else has already given you three hundred thousand dollars for that breach of contract why don't we subtract it because this is not a contract action so much as a statutory action and also that the statutory violation to the extent want to call it a contract violation was  tort in that it was willful as found by the g a o you agree if this were a pure contract action we wouldn't apply the collateral source rule i believe that's correct and you think this is not a contract action because it's really a tort action tort or contractual terms and again the willful violations of those if we find that the collateral source instruction was given a roni asli what do we do well i would agree that the the amount can be simply deducted the three hundred fifty thousand dollars would simply be deducted the greedy trying this case over that issue would not be practical and in fact my client is now eighty two years old and has memory issues so would not be able to be able to testify as witness in this case so it would be a prejudicial to us to have that returned and you know only goes to the amount of damages doesn't correct because i'm looking the my time is short but i don't have that much to say at this point what i do know is this the plan is moved in the mini obviously to exclude the insurance policy and any payment proceeds at trial subsequently the court then observed that neither party had brought this up but i'm wondering now quoting from the court i'm wondering if this court should add an instruction that the jury should not consider whether any of the parties have insurance but i'm looking at  one three seven seven twelve zero five and it's you seem to have been put in evidence there seem to be some evidence in front of the jury that there was insurance it was e mails and others that may have been in some of the e mails but the jury was expressly directed not to pay attention to whether there was an insurance and that was if the courts so if they were directed at a retrial in your view to pay attention to it well what could they pay attention to other than the amount of pain it's not a matter to pay attention to it but what it does do is it shows that alexander marines theory of the case is th boat hit debris we we understood from the record that it may have been a whale that at least made it interesting i feel better for it wasn't that's it but what you're saying is there's a tremendous sympathy variation in testimony he was thrown from the from his bed he was jostled up but to come out on top of it my question is you get to put in all that evidence you get to put in your expert they put in their expert what difference does it make to the jury's assessment of liability damages insurance company paid a certain amount if they hadn't paid anything would you be able to get that it i if they hadn't paid anything i don't know that we that that would have come up that is an issue out there but no you're saying i'm entitle to get insurance and so my question is if the insurance adjuster it said tough luck we won't pay and and the plaintiff in this case said well that's life i'll go on to on my warranty claim would you be able to tell the jury that the insurance adjuster apply but it least i'd like to finish the point i'm trying to make and that is payment of three hundred fifty thousand dollars is a rather substantial amount the plaintiffs themselves don't even know whether there was a substantial you know collision or not according to the captain of the boat nothing happened there is nothing to see let's move along nothing got written into his log a jury could have actually believed that and then decided therefore all of the damage that ensued was as a result of the warranty breach by contrast the jury could have easily believed dave parker he said there was a substantial jolt that was the operative reason why they actually took the boat in for for repair not merely just maintenance i believe parker's words were he this was the main event ok so if we now know that parker should be believed but not the boat captain who is at the helm then we also can start to infer from that additional information the jury could infer from that additional information including that if there was a substantial hit that the substantial hit on the boat caused the lamination or what johnny chewed the