the courts wouldn't apply waiver to stop all under the circumstances that were presented in this case and the limited time i have to be i thought i would probably focus a little bit more that sort of the nd step and then i think the rd step is the connection that the district court made between the matador case and the underlying texas law and determining that number aska which doesn't have a  pollution claim sort of like what we've got here we have this sort of this buyback embarrassment there's a thirty day reporting period for the claims the claim comes in on the th day it is too late there really isn't any justification whatsoever given for why it was eight days too late the claimants in that case made two arguments number one the st argument is the eight days doesn't matter because there's no the current policy to deny an occurrence claim based on a late reporter you've got to be able to show some prejudice based on the late report that is not the case but the claims made policy so that claim in that case like i think i think if i remember correctly the insurer had accepted some deductable payments over the course of the claims process but ultimately denied the claim now but i don't want to cut you off if premium and that's important to the sign case it did it was signed there was a question of whether or not there was covered whether the product damaged or in transit even have coverage because the policy underlying policy didn't include that kind of transit coverage the claimant into design was claiming coverage by a stock up especially because the insurance the insured didn't identify the lack of insurance for transit based folk which reasonable would lead an insurer to believe coverage was present ok well let's talk about that rule as applied to your complaint here yeah one question i had was about what the policy really report the incident as a claim under the policy here's my question about the policy is there a difference between reporting a claim and reporting a pollution incident  well i believe that the way i put it is the medium upon learning of the incident although no demanded been made and i think i even included there and even though we didn't understand that the incident yet constituted a claim upon contacting him so by phone we asked if we should be reporting the incident as a claim i think the fact that we're reporting an incident i don't know if it matters whether or not we're asking whether or not the incident is a claim or even a claim i think the point being we're told will i think what i'm trying to allege there i think what is alleged is that we're calling there we're calling to find out what here's what that we don't think it's a claim yet do we have to report this for coverage and we're giving the response no you can't do anything until a claim is actually made on you and at that time you anyway we'd be looking at a situation where we could possibly amend those d polluting to so to meet that requirement so i just say thirty seconds for sure thank you your honor appreciate your time today thank you for your argument claim against tops in box exposure to a mode your gas which is a pollutant and therefore the exclusion applies this is undisputed tops in mechanical concedes the exclusion parsed coverage  the sole issue before this court is whether tops can meet its burden of establishing compliance with these reporting requirements specifically the indoor spent work buyers that the incident be reported in writing within forty dollars days the requirement that notice be provided in writing is repeated throughout the indorse and the reason why written notice is required is clear it's to avoid this situation we reporting the incident as a claim and reporting a pollution incident i do see a distinction and that is a good point that your honor may there is a distinction but we're fired with don't need to be required to report it in writing but if you look at the endorsement what it says is for any incident that's properly reported a claim arising prove that incident will be cover unless the claim happens three years after the policy ends so the purpose is be type a long tell pollution exposure for the insurer so an incident that's properly reported within the policy a claim that arises out of it d even after the policy will be covered so long as it's within that three  insurer makes a claim with with can set up is that our absolutely and the reason is you know when a pollution incident happens you have to investigate and see what's going on right then and there if you look at these facts proper written notice was not provided until a year and a half after the incident at that point there couldn't have been any investigation everything was done far as what happened and everything was cleaned up and the claimant was injured you agree with agree there's a distinction between a current policies and claims made policies that and this was directly addressed by the nebraska supreme court in the countrywide vs cost decision in occurrence policies a notice provision is secondary to the event that triggers coverage in a claims made policy it is the notice itself that triggers cup which is the absence of a policy you know policy if notice can be waived because again coverage is trigger and then it's been stripped away in our situation until a claim this properly d reported until it was properly reported no coverage has been triggered at all so involved the buyback structure or even a claims made policy and those are two completely there are apple and oranges your honor in this type of policy as the matador decision did it recognize that the  that is that and that it's a business entity right and if we're going to list the fact is the the the policy speaks for itself i think we need to step back as it read the policy and see exactly what it says the pla a louisiana federal district court that granted a motion to dismiss with prejudice similar backed out or another circuit case judgment on the pleadings for the insurer because again same situation the but it would also waste additional a litigant resources especially now especially resources that are scarse the district for properly dismiss this action allowing the lawsuit to stand would require rewriting the contract and altering the risk to parties bargain