disclaimed coverage in that the letter of july th two thousand and thirteen clearly lays out the facts of the case it's indisputable that this involves an automobile accident  is based on in large measure the complaint the pleadings and the only allegations in the complaint are in the role in the alternatives they plead the same allegations as to the gerber litigation right all you say is the clean may qualify as an uncovered loss and you do you may say that to factual scenarios but another neither one of those was born out so just before we get to whether it whether the lady at the factual scenarios limits the scope of the letter why does it need in a disclaimer in the st place as opposed to reservation of rights when you don't actually say we  adequate it and at page twelve of the disclaimer for instance philadelphia explicitly states it is strongly recommended that you have your agent report this claim to them as soon as possible as this claim may qualify as an auto lost which is not covered under your commercial general liability policy with philadelphia but why why did you do that why why say it may qualify as an auto loss i mean if you are insured receiving that letter you would say oh it may qualify as or lost that's worrisome when what it qualifies as an oil loss oh if these two factual predicates that that are identified in letter are met isn't that the way we would read this a courtesy philadelphia would often say listen you may have coverage for this loss elsewhere and one of the policies was identified we say repeatedly this is not and what immobile policy it doesn't drafted there was not and frankly has never been any quote allegation about loan or vehicle that's why philadelphia as opposed to some other cases that address we cite the exclusion in its so it's not a matter of us but like in other cases where people have misquoted or even omitted language we won one side of the question which is the construction of the endorsements so i understand that you're arguing that when it says with respect to the transportation of students it means you think it means when a student is injured do you  not see that it's possible also to to read that phrase as applying to incidents where the underlying activity is the transportation of students and somebody who not a student gets injured is that not a possible reading of it i don't believe that's a fair reading the because they because of the use of the word transport taishan if they wanted to use transporting  that you want to follow up to show the difference between transportation and transport and yeah i just a so i mean so so from my perspective it seems like you could read with respect the transportation of students to mean what you suggest which is that it's when a student is injured but you could also read it to mean that when the underlying activity is the transportation of students in the wrong student gets injured that the exclusion would still apply i don't see how changing the word transportation to transporting carve out a special category of claimant because we we don't disagree that there is there is a lot of quote overlap and we say the there could be scenarios where either one of these exclusions might apply when it involves an injury to a student it's indisputable that the the the indorsement exclusion applies in this comments raised an argument just now i would say if it is the carrier's position that the reservation or rights with a disclaimer for auto claims why provide they know on the date they write the letter because it says it in there and the allegations are on refuted abbas struck the carvers the bus is an auto so if there is any doubt in the policy or rather for the carrier if there is no doubt in the policy that autos are not covered why provide it to fit their conduct undercuts their their argument from inception because it is a reservation right and not a disclaimer they  was saying expressed worry commercial policy is not in on a policy it says the philadelphia did not enter the bus and it said you should do contact your although i'm sure why wouldn't it be obvious to extent it found that you all owned the the auto in which case the excluding would apply so that's contradictory and two they fail to include the indorsement which emphasizes that with respect to the transportation of students there could be coverage or other these only other scenarios are excluded and that's what we had here and if they referenced that as well it would be clear that to the insured that there is your reversing that you're saying the difference would be if they stating that it's their opinion that the that they my client should contact their auto carrier which many provide separate coverage does not mean that the auto exclusion under their policy applies especially where as here case i mean you have a moon all you nuts case the issue with that is twofold one i would argue that it can big us because the st paragraph which deliberately removed the term loan from the identical provision the auto exclusion creates an ambiguity that would be interpreted in my client's favor and two as the lower court noted repeatedly and the carrier and mid in their argument just now they cannot assert that defen because they waived it because they didn't cite to that exclusion so even if it does apply even if a score find that that nd part of those apply the care is waived from from asserting that argument you cannot i guess then i guess again i get the waiver argument i'm just asking about the school your honor that issue was never really briefed in any of the papers so i cannot argue more about that but i know that counsel for the government did present more of an argument on that issue so i'll leave it to them to argue it's a very good very good segue  could make one more point very briefly very briefly with respect to the transportation of students if the carrier wanted it to be applied only to the students they could have written it with routes with respect to the the claim or god why why isn't why isn't the way she read the letter the following they say this letter your commercial policy is not an auto policy we don't cover auto incidents and you should contact your auto insurer because if the allegations of this complaint are shewn you know we're not going to cover the claims and so what about your opposing counsel point that the factual scenarios are there just to respond to the allegations of the complaint but don't control the scope of the order was so well the wording that your honor just suggested doesn't appear anywhere in the letter they never say in the letter if the allegations that the complaints are true there is no coverage negligent in connection with management and control of the bought and certainly core client activity in operating the buck to the extent that plaintiffs counsel is trying to say that there was some narrowness of the complaint that they weren't responding to i don't  out by the document certainly not within their letter turning down the fine my to the issue of the endorsements the endorsement is important for two reasons number one to whatever extent it replaces the auto exclusion here  well let me just the two questions about the indorsement so st of all where this is with respect to the transportation of students why would it make sense to have a replacement exclusion whenever you're transporting students wouldn't it make sense that you would just have a different exclusion when a student is injured wife why would it make sense for us to read that provision as applying based on the activity as opposed to the cleaners a certain ethnic versus i would and i hope this isn't fighting the hypothetical too much but what i would say is it's the insurers obligation to express whatever it is they're trying to accomplish in clear and unambiguous language so i don't know that we even need to consider their intent because whatever it was they didn't do it and that relates to these claims but also the endorsement doesn't just involve language that replaces the auto exclusions the very top of the indorsement and it to twelve in the it's replacing a number of terms in the policy if that ends with respect to the operation of any college or school by you or by car or on your behalf the following provisions apply and so really what they're doing is they're trying to use the word loans when it wanted to if we compare paragraph one of the endorsement to the parallel term in the auto exclusion the auto exclusion using the word loan whereas the parallel st paragraph of the endorsement  why would you read the last part that says if the underlying conduct involves a loon or why would that the why would that be limited but even if clause well there's only two ways to harmonize the provision winding is to launder the word loan from the nd paragraph back into the st even though it was clearly a deliberate decision not to use the word loans in the st because under the reading that your honor is proposing we're basically moving the word loan back even though it's not there the nd is to adopt an awkward but at least consistent reading of the term even to have one or the other of indorsement was intended to in effect plug a gap where students on a bus were injured and this is where i think it high i can highlight it that it makes sense if a bus company that we that the she bought hires runs a pedestrian over the u c blocks not liable the bus company is we're not liable for the conduct of an independent contractor but there is a gap in the in the basic auto exclusion  says replaced only with respect to the transportation of students otherwise exclusion g is in force there is there's no other there's no other way to reconcile the two and i agree with the  earlier questioning that the reality is in many many many sad situation r e o s there functionally identical there is overlap but there is a gap and the gap is intended to be