to the district court to enter judgment in her favor the district court in its interpretation of the definition of under insured born to be a couple and it did so by including property damage coverage  bodily injury liability insurance when it was performing the u i i am comparison by you i am comparison i mean that comparison between the tortfeasor is liability insurance policy and the tort victims under insured motor vehicle avoid absurd erotica results and to ascertain legislative intent so the statutory definition of uninsured motor vehicle in north dakota sets forth essential the minimum coverage limit that an insurance company can offer not like to limit of bodily injury insurance does not include property damage coverage and this specific question was asked by the prevention quirked in the state of new york's highest court directly asked this question for purposes of the comparison should the  the a melt available for bodily injury insurance less that's a payable for property damage how is it that reading out the at the time in effect at the time of the accident i don't think that it is your honor because when we look at cases right around the country that also has this at the time of the accident language whether in statute or whether an insurance policy in the court say that the at the time of the accident language is unclear or not specifically pointed out th language about at the time of the accident according to the tenth circuit court of appeals is a big us what does it mean other than in effect at the time of the acts and so at the time of the accident yet one million dollars there was one million dollars what's another interpretation of in effect at the time of the accident that would affect at the time of the accident it's just simply referring to the insurance policy at issue it's not making or i should say it's no modifying the t limit and when we look at the insurance policy in this case the insurance policy itself doesn't even use the term limit that comparison is a some first limit so we're not even talking about the a political limit when we're construing the insurance policy in this context and i think if you look at that georgia court of appeals case i believe it's pronounced with scott that is really the only case that that keys on this were a those policy limits at the time of the impact of the vehicle the law school court went on to say you know that's all theoretical we're not going to base coverage on that and i understand berkeley has distinguished this case on the basis that there is no provision within the the statutory definition to account for payments made tother individuals but even without that provision the georgia court of appeals concluded that those property damage payments are not part of the in that is the same case here this court can also conclude that property damage payments are not part of the a pukka bill and a bodily injury liability insurance even a really absence of a provision that states otherwise do you agree though that she could have gotten one million dollars for bodily injury in the absence of the eight property damage claim absolutely but again i i would distinguish that fact that that is it responsibility of berkeley to indemnify they're insured for up to that one million dollars threshold it doesn't change the fact wait a minute you're asking us to assume it was a split level policy when it was one or the other or both so and there was a million dollars available for bodily injury coverage at the time of the accident i would perspective and you say this is terribly i'm just because this this limits this makes your client worse off than someone who was injured by someone with no policy correct with ok now let me take that let me let me make sure as i understand your position it is that your client had coming to her in this situation one million nine hundred and sixty thousand dollars worth of well yes we agree with that yeah yeah that's so she so she's worse off than if she had been hit by someone who had no i'm saying quite a lot of you know according to the berkeley is interpretation of the policy she is worse off because in the absence we know this what do you mean in what or what i don't understand that she's getting a million nine hundred sixty thousand dollars yes according to authorities she's getting a million she's getting nine hundred sixty thousand she's getting well right correct and your view is that he was entitled to a million nine hundred sixty correct but i'm sure berkeley's interpretation of the policy should be a circuit affirmed the district court's order that would have meant had this third fees or had no liability insurance whatsoever not this case correct all right  instruments i want to point out that north dakota law specifically requires that every mortar vehicle liability insurance policy has twenty five thousand for the property damage coverage between hats that is the case here as a matter of law this berkeley policy provided at least twenty five thousand dollars worth of property damage coverage on the balance that would necessarily mean that only nine hundred seventy five thousand dollars was available for any sort of bought a bottle of injury know i asked the question do we do we really think that the legislature intended to provide these provisions to allow for an offset for bodily injury claims but at the same time intended that the tortfeasor property damage insurance would be included in the a put a limit of bodily injury by the insurance i think the answer to that is no because again property damage coverage is not part a bodily injury liability insurance so let's have a question so i statutory argument that property damage is not part of bodily injury insurance on what what section of the statute applies it one if that one doesn't i said i read your brief is arguing both statute and policy right and then i of the insurance liability is not the full limit of the bodily insurance liability policy correct it is the only amount that's available for bodily injury claims or in the case of north dakota where there is a statutory mandate that every insurance policy have twenty five thousand dollars worth of property damage coverage again that would necessarily mean that only nine hundred seventy thousand of this poesy was essentially available for any type of bodily injury claim and that nine hundred seventy five thousand dollars on that point i thought you would agree that the full million was available if there's no property damage claim yes in no north dakota requires twenty five property damage in the distinction i would make with that is that being that this is an insurance policy who would have an obligation under that policy to indemnify it's insured up to that million dollar limits however that doesn't discount for the factor race the fact that north dakota law doesn't mandate require every insurance policy to have this twenty five thousand dollars worth of property damage coverage i see i have about three minutes left i'd like to reserve that for about oh thank you counsel your owners have essentially drilled down to the issue here and that is first of all under north dakota law in the policy there are two ways you can be common under insured vehicle one is based on  conceded that part b doesn't apply that the thirty thousand dollars that was paid for property damage does not reduce the dollar limit under some part b because this property damage it only refers injury and that's consistent with case law so they're focused on some part anyway and said and as you know on a pointed out effectively asked this court to write out of the at the time of the and say well if after the accident there were payments made for damage that would reduce the limit somehow that that affects some pretty they're two completely separate provisions to ignore what the limit was at the time of the accident as the at the time of the accident language and not under any any state's statutory interpretation law is wrong the district court got that right you can't write that out of  there what about the fact that it's a single limit liability policy i think your honor a judge looking at outback correct he is essentially asking you to say that it's a split when the policy it's not a split limit policy we're not asking the court to add a separate property damage limit to a bodily injury limit and say hey look at that then compared to the you know i am supposing council conceded that million dollars would have been could have been available for bodily injury damages it's no different here than your for example there had been an accident before where the odum accident where a dollar policy limit for bodily injury demand was made to burkley would have been able to win obligated most likely to injury shirt well first of all of the party here would have at the time of the accident had a million dollars available well i'm glad you brought up sally because i think there is something that needs to be a couple things that need to be noted the the policy in that case was issued the court since that the legislator in new york issued regulations that essentially adopted the same the language that we have here in north dakota had those regulations been before and it's opinion could have been different it doesn't have to address that because they weren't before that court but i think it's a fair assumption just like all of the cases and the opposing counsel relies on for this notion that you have to look at it or that could have been made after the accident none of those cases have the two part provision that north dakota has and now that new york has so i would suggest that seventy first of all is  injury that you still have to take out a theoretical twenty five thousand dollars for a potential property damage claim that may never surface that may never come to fruition but it's not a single case that they cite that suggests that we do  dollars in in liability or in a under insured motors car if you compare that tiny distinction in the limits and it forecloses our right to under insured motorist coverage even purchased it so or not for this court to decide it's the legislature that's what the legislature has an effect and i don't think even would dispute that there are going to be cases like that and so this concept of fairness so i think you know it if it if there is some issue with that that's something that needs to be addressed with the legislature again i think it's important to sort of counsel having conceded that part b doesn't claim and withdrew its claim for forty thousand dollars it would that might be bad faith because i guess in their opinion they found that by that three thousand dollar payment being made they had successfully depleted the if there are no other questions i think your honor thank you i just like to point out to the court how that's distinguishable california follows a much different jurisprudence the north dakota does with respect to under insured most laws they still if they still follow a narrow gap theory of coverage whereas north dakota  follows the excess coverage as the intern claim that there was able to make a claim against the entire policy towards obviously that's not the case here second issue on addresses with regard to pows and helps those comments on fairness were not up here arguing the unfairness or that this isn't fair were simply arguing that the district court failed to adopt interpretation that script there is no way that the north dakota legislature intended to allow an offset for payments to other individuals who are injured in twit for bodily injury claim but then to add that i would like to assume they did know about some limit policies but you know when we brought the legislative history that is attached in the appendix again it only talks about these sorts of bodily injury claims again i can imagine the north dakota legislature intended a situation where payments to other bodily injury claims would be offset but at the same time allowing these property damage claims to be included with those bodily injury limits so for the reason set for today i would respectfully